014-SLLR-SLLR-1978-79-V2-Perera-v.-Republic-of-Sri-Lanka.pdf
84
Sri Lanka Law Reports
(1978-79) 2 S.L.R.
Perera
v.
Republic of Sri Lanka
COURT OF APPEAL.
COL1N-THOME, J., RODRICO, J. AND TAMBIAH, J.
S.C. 89/78.
DECEMBER 12, 1978.
Charge of murder—Plea of insanity taken by defence—Evidence insupport of such plea—Burden of proof on accused.
HeldWhere in a charge of murder the plea of insanity is set up the burdenis on the accused to prove it to the satisfaction of the jury on a preponder-ance or balance at evidence in support of the plea. This burden thedefence had discharged and the verdict of the jury in finding theaccused! guilty of murder, was therefore unreasonable and could not besupported by the evidence.
Cases referred to
R. v. Podola, (1959) 2 V/.L.R. 718.
The King v. Don Nikulas Buiya, (1942) 43 N.L.R. 385.
APPEAL from the High Court, Kandy.
H. R. Herat, for the accused-appellant.
D. S. Wijesinghe, Deputy Solicitor-General, tor the State.
Cur. adv. vu’t.
January 23, 1979.COLIN-THOME, J.
The accused-appellant was indicted in the High Court of Kandyfor having committed the murder of U. Don Loku Appuhamyon 23.5.1975.
The trial commenced in the High Court on 20.12.1976, but inview of the evidence of the psychiatrist that the accused-appellant was of unsound mind the learned trial Judge orderedthe accused-appellant to be kept in safe custody in a mentalhospital pending an order by the Minister of Justice.
Subsequently, on 3.8.1977 in view of the evidence of Dr. M. A.
S.Rajakaruna, M.B.B.S. (Cey.), M.R.C. Psych. (Lend) and
P.M. (England), that the accused-appellant was new aware ofthe nature of the charge against him and able to assist counselin presenting his defence and that he was fit to plead and standhis trial the case proceeded to trial. The trial was cone] uded thenext day on 4.8.1977. The jury by an unanimous verdict foundthe accused-appellant guilty of murder and he was sentenced todeath.
CA
Perera v. Republic of Sri Lanka
(Colin-Thome, J.)
85
The case for the prosecution was that on 23.5.1975 at about7 a.m., the deceased who was the elder brother of the father ofthe accused-appellant was standing near his house talkingto one Kiribanda when suddenly the accused-appellantappeared on the scene with a gun and shot the deceased twice.There was no motive alleged for this senseless act nor did anykind of altercation precede the shooting of the deceased. Thedefence did not contest the facts but was content to pleadinsanity at the time of the commission of the act.
Dr. Rajakaruna stated at the trial that he kept the accused-appellant under observation from 20.12.1976 at the AngodaMental Hospital. After sometime he observed that the accused-appellant was suffering hallucinations of hearing. His moodwas very inappropriate, and he attempted to commit suicide inthe ward. This observation indicated that he was sufferingfrom a mental disorder and required treatment and since thenhe received active treatment in the ward. The history of theaccused-appellant was that he had been mentally ill from 1973and this mental illness has gone on for a long time off and onas he had not taken treatment regularly. Considering hishistory it was very probable that he could have been mentallyill at the time he committed the alleged offence. It was veryprobable that at the time the offence was committed the accused-appellant was by reason of unsoundness of mind incapable ofknowing the nature of his act or that what he was doing waseither wrong or contrary to law.
Don Stephen Perera, the father of the accused-appellant,stated that his son was mentally ill and had been admitted on anumber of occasions to the Psychiatrical Unit of the KandyHospital. He had also set fire to their house.
Loku Banda Heekanda, Sub-Post Master, Munwatte and N.Pediris, a cultivator, stated that the accused-appellant had areputation for being insane in the village.
In spite of the evidence that the accused-appellant had beenseveral times to hospital for psychiatric treatment, had attemptedsuicide and had set fire to his house which indicated that he hada long history of mental illness and was in all probability insaneat the time of the commission of the alleged act, the jury notonly found him guilty of murder but also stated that he was notinsane.
86
Sri Lanka Law Reports
(1978-79) 2 S.L.R.
In Rex v. Podola (1), it was held that if the contention thatthe accused was insane was put forward by the defendant, andcontested by the prosecution, there was a burden upon the de-fence to satisfy the Jury of the accused’s insanity, which burdenwas discharged if the jury was satisfied on the balance of pro-babilities that the insanity was made out.
The law is the same in Sri Lanka. In The King v. Don Nikulas
Buiya (2), Howard, C.J. held, having in mind both section 77of the Penal Code read with section 105 of the EvidenceOrdinance, that where in a charge of murder a plea of insanityis set up, insanity must be clearly proved to the satisfaction ofthe jury. The burden is discharged by an accused person whotenders a preponderance or balance of evidence in support ofsuch a plea.
In our view on the material available at the trial this burdenon a balance of probabilities had been discharged by the defence.We, therefore, hold that the verdict of the jury was unreasonableand cannot be supported with regard to the evidence.
Acting under section 350 (7) of the Administration of JusticeLaw, No. 44 of 1973, as it appears to us that although the accused-appellant was guilty of the act charged against him, he was atthe time the act was done incapable by reason of unsoundness ofmind of knowing the nature of the act or that it was wrong orcontrary to law, we, therefore, quash the sentence passed at thetrial and order that the accused-appellant be kept in safe cus-tody at the Mental Hospital, Angoda, and that a copy of thisjudgment be forwarded for the orders of the Minister of Justice.RODRIGO, J.—I agree.
TAMBIAH, J.—I agree.
Sentence quashed.
G. Ponnambalam (Jnr.),Attorney-at-Law.