071-NLR-NLR-V-74-M.-H.-M.-LAFEER-Appellant-and-THE-QUEEN-Respondent.pdf
246
Lafeer v. The. Queen
[Court ok Criminal Appeal]
Present: H. N. G. Fernando, C.J. (President), Weeramantry, J.
and de Kretser, J.
M.H. M. LAPEER, Appellant, and THE QUEEN, RespondentC. C. A. 72 of 196S, with Application 106S. G. 159/6S—M. C. Colombo, 47V72/A
Trial before Supreme Court—Summing-up—Matters concerning standard of proof—
Misdirection—Non-direction.
Where, at a trial boforo the Supremo Court, the Judge directed tho jurythat tho burden was on tlic prosecution to prove its coso to tho “satisfaction ”of tho jury—
Held, that tho direction should bo regarded as inadequate.
Held further, that, in regard to tho proof of mitigating circumstancesdisclosod in tho case, it "was tho duty of the Judge to havo explained totho jury tho standard of proof based on baianco of probabilities.
.ApPEAL against a conviction at a trial beforo tho Supreme Court.
Colvin R. de Silva, with M. Ij. de Silva and I. S. de Silva, for the accused-appellant.
N.Titlawella, .Crown Counsel, for tho Crown.
Cur. adv. vult.
1 {I960) 52 D. L. It., Vol. 2, p. SOS.
H. N. G. FERNANDO. O.J.—La/cer v. The Queen247
December 12, 1968. H. H. G. Fernando, C.J.—
The appellant in this case was charged with the attempted murderof one Grero, and was convictod of the offence of causing grievoushurt.
The only matters which call for consideration in appeal are thedirections of the learned trial Judge regarding the standard of proofrequired of the prosecution. Tlio directions were :
“it has always been said, rightly, that in every criminal
case the onus is on the prosecution to prove the case convincinglyto the satisfaction of the jury.”
"It is not incumbent on the accused to give evidence; but youwill naturally ask the question : ‘.it is suggested that there wasprovocation, but tho accused has not told us what this was from hisora lips.’ That would not obviate tho necessity for 3-ou to considerwhether in the prosecution case itself there was provocation, becauseas I said, there is no obligation on the part of tho accused to giveovidence because the law says the accused is presumod to be innocent,and, therefore, the duty is cast on the prosecution to provo its caseto your satisfaction.”
We note firstly that the burden lying on the prosecution was in thesedirections described as the onus “ to provo tho case convincingly to thesatisfaction of the jury ” and “ to prove its case to 3-our satisfaction ”.
Directions couched in similar language were favoured by Lord Goddard,
J., in the case of Summers1, but the same eminent Judge subsequentlyacknowledged in Hepioorlh v. Fcarnley2 that “one would be on safeground if one said ha a criminal case to a jmy : ‘ 3-011 must be satisfiedbeyond reasonable doubt*. ”
This Court has never approved as adequate a direction that tho burdenis to “satisf3r” the ju^ that an accused person is guilt3', and rarely orever have trial Judges in this county been content with such a direction. .Tho reason why such a direction must bo regarded as inadequate is wellstated in Gau?U3. It was there jaointed out that “satisfied” can meanone of two things :—
“ satisfied because we think tho probabilities are that the accusedis guilty ”,
or
“satisfied in the sense of having no doubt at allor of being
quite sure that the accused is guilty ”.
The former is the proper explanation of the standard of proof 13dngupon an accused person when the onus of proving facts which mightset up a defence in law lies on him. Because the latter is a differentand higher standard of proof, it is essential that the Judge should direct -the jury that the second is the true meaning of “ satisfy ” when theonus is on tho prosecution.
l36C.A.n.l4.■■-• • * (1955) 2 Q. B. 600. '
* 1964, Cr. Law Review 781. –
• Gunau'ardene v. Jayawardtne
218
We noto also that the second direction quoted ■ above from thesumming-up in the instant case contains no reference to tho standardapplicable for tho proof of facts which might establish that theaccused had acted under grave and sudden provocation. If, as thelearned Judge himself appears to havo thought, it was open to tho juryto find that tho prosecution evidence did disclose tho existence of suchfacts, then it was his duty to explain tho standard (of tho balance ofprobabilities) which is applicable in relation to the proof of mitigatingcircumstances.
There was thus both misdirection and non-direction on mattersconcerning the standard of proof. Nevertheless, wo are of opinionhaving regard to the cogent and uncontradictod evidence that a jurypioperly directed could not have reasonably returned a more favourableverdict. Wo therefore affirm the conviction and sontenco and dismisstho appeal.
Appeal dismissed■