R. P. D. JAYASENA, Appellant, and THE QUEEN, Respondent

068-NLR-NLR-V-72-R.-P.-D.-JAYASENA-Appellant-and-THE-QUEEN-Respondent.pdf


Jayasena v. The Queen . • –*13
Sy* '*Ct,
[Privy Council]
1969 Present: Lord Hodson, Lord Devlin, Viscount Dilhori*^Lord Donovan and Lord PearsonR. P. D. JAYASENA, Appellant, and THE QUEEN,'l^p^'dent.;
Privy Council Appeal No. 27 of 1968
C. A. 25 of I960S. 0.17(65—M. C. Kahnunai, 21610
Charge of murder—Admission of intention to kill—Reliance by accused upon privatedefence entirely-—Burden of proof then—Evidence Ordinance, 88. 3, 105, 106—Meaning to be given to the words " burden of proving ” in s. 105—Penal Code,ss. 73, 89 el scg., 93, 293, 294.
Where an accused who is charged with murder admits at the trial that thedeceased died of wounds deliberately inflicted by him with intention to killand his defence entirely is that he was acting in self-defence, section 105, readwith section 3, of the Evidence Ordinance imposes upon the accused the burdenof proof on the issue of private defence. In such a case it cannot be contendedon behalf of the accused that ho has not got to provide any sort of proof thatho was acting in private defence. It is not sufficient for the accused to raise adoubt as to whether he is entitled to the benefit of the right of private defence,the use of which is permitted not only as a general exception by section 93 ofthe Penal Code but also os a special exception in section 294 of that Code.
In the law of Ceylon, where the mode of proof is clearly spelt out, it isimpossible to supposo that there can be more than one kind of burden of proofor that the burden imposed by section 105 of the Evidence Ordinance can beanything less than proof in accordance with section 3 of that Ordinance. Evenof there is any ambiguity in the language of sect ions 3 and 105 of the EvidenceOrdinance, the decision in Woolmington v. D. P. P. (1935 A. C. 4G2) is not ofassistance in resolving it.
R. v. Chandrasckera (44 N. I*. R. 97) approved.
(The position however is different when the accused denies intention to killand says that he did not intend to kill or cause serious bodily injury but thatanyway he was acting in self-defence. In such a case it is not only proper,but may be necessary, for the judge to remind the jury that the burden ofestablishing intention beyond a reasonable doubt rests always on theprosecution.)
AlPPEAL, with special leave, from a judgment of the Court of CriminalAppeal.
T. O. Kcllock, Q.G., with Ian Baillieu and 2J. J. Hamavi Hanijfa, forthe accused-appellant.
E. F. N. Graiiaen, Q.C., with M. P. Solomon, for the respondent.
Cur. adv. vult.
lxxd—14
1*3 9535—2.255 (12/691
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. « LORD DEVLIN—Jayasena v. The Queen
July 29, 1969.[Delivered by Lord Devlin]—
This is an appeal from a judgment given by the Court- of CriminalAppeal of Ceylon. The accused, who was the appellant in that Courtand is now the appellant before tho Board, was on 3rd March 1966convicted of murder. At tho trial tho accused admitted that the deceaseddied of wounds deliberately inflicted by him, his defence being that howas acting in self-defence. The sole question in the appeal is whether atthe trial tho jury was rightly directed on the burden of proof on the issueof self-defcnco,. or private defence as it is more precisely called in thoPenal Code.
The Penal Codo defines murder in ss. 293 and 294. Since no questionarises in this case about the quality of the intention, it is sufficient to saythat it is murder if the act by which tho death is caused is done with thointention of causing death or bodily injury of a sort that- is likely to causedeath. The right of private defence is given in the Code by s. S9 andfollowing sections whicii .form part of Chapter IV headed “ GeneralExceptions ”. Its use as a defence to a charge of murder is permittednot only as a general excejition by s. 93 but also as a special exception ins. 294 itself.
The burden of proof is settled by the Evidence Ordinanco s. 105, whichreads as follows :
" When a person is accused of any offence, the burden of provingtho existence of circumstances bringing the case within any of thogeneral exceptions in the Penal Code, or within any special exceptionor proviso contained in any other part of the same Code, or in anylaw defining the offence, is upon him. and the Court shall presume theabsence of such, circumstances. ”
Tho argument turns upon tho construction of s. 105 and the meaning fobe given to “ burden of proving
Mr. Kellock for the appellant submits that thcro are two kinds ofburden. One, which bo calls the legal burden, is the burden of establishingthe case ; the other, called the evidcnlial.burdcu, is the burden of adducingsome evidence in support of Die case. Mr. Kellock submits that thoburden imposed by s. 105 is.in the second category. If it were in thefirst category, the direction given to the jury by the trial judge in hissumming-up cannot be criticised by tho.appellant, to whom it might besaid to bo unduly favourable. If it is in the second category, it is at least-doubtful whether the direction would bo adequate. Rather thanscrutinise the summing-up to see whether the direction will pass musterin either category, their Lordships will determine whether the appellant’sargument on s. 105 is correct.
To understand the argument, it is necessary first to understand theposition in English law. Before 1935 it was widoly believed that inEnglish law killing was presumed to be murder unless the contrary
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appeared from circumstances of alleviation, excuse or justification; andaccordingly that if an accused contended that a killing was accidental orprovoked or done in self-defence, the burden of proof on any of theseissues rested upon him. There was, as Sankey L. 0. said in Woolminglonv. D.P.P.1 “ apparent authority ” for this view, the foundation for itbeing the statement of the law in Foster’s Crown Law written in 1762.In Woolminglon v. DP.P. where the accused was charged with murderand gave evidence that the killing was accidental, the trial judgedirected the jury in accordance with this view of the law. The House ofLords declared this view to be erroneous. The House laid it clown that,save in the case of insanity or of a statutory defenco, there was noburden laid on the prisoner to prove his innocence and that it wassufficient- for him to raise a doubt as to his guilt. To prove murderthe prosecution must prove that the killing was intentional andunprovoked. This docs not mean, as tlio'HduseTnade clear in subsequentcases, that a jury must always be told that before it can convict, it mustconsider and reject provocation and self-defence and all other mattersthat might be raised as an answer to a charge of murder. Some evidencein support of such an answer must be adduced before the jury is directedto consider it; but the only burden laid upon the accused in this respectis to collect from the evidence enough material to make it possible for areasonable jury to acquit.
Against this background the appellant’s argument caD be appreciatedand in particular the distinction drawn between what are said to be thetwo categories of proof,—the establishing of a case, and the adducing ofevidence. The argument is not of course that Woolminglon v. D.P.P. isdirectly applicable ; it is a decision on the common law and the Board isrequired to interpret and apply the code. The argument is that the codeshould be interpreted in the light of Woolminglon v. D.P.P. In his speechSankey L. C. dealt in two ways with Sir Michael Foster’s statement of thelaw. While at 4S2 he made it quite clear that he was prepared, ifnecessarj’-, to reject it, he had earlier at 4S0 indicated that it could bereconciled with the principle which the House was laying down. If thestatement in Foster can be reconciled with the doctrine, then, asMr. Kellock argues, so can s. 105. The way of reconciliation is byconstruing “ burden of proving ” as referring to the burden of adducingevidence, the so-called evidential burden of proof. In this way the“ golden thread ”, as the Lord Chancellor described it in a famous passage,can be preserved for the law of Ceylon.
This is an argument which has prevailed in several jurisdictions wherethere is an Evidence Ordinance containing a provision in the same termsas s. 105. It was adopted in the High Court of Rangoon in t he Emperorv. U. Damapala2, by a majority in the High Court of Allahabad in
1 0935) A. C. 462 at 473.
l(I937) 14 A. I. Jt. 83.
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Emperor v. Parbhoo1 and in Malaysia in Looi )Vooi Saik v. PublicProsecutor 2. It has however been decisively rejected by the Court ofCriminal Appeal of Ceylon sitting as a court of seven with one dissentient,in 12. v. Ghandrasekera3. In the present case the Court dismissedthe appeal without giving reasons, doubtless following the previousdecision. This appeal is therefore in effect an appeal against R. v.Chandrasekera which Mr. Kellock invites the Board to disapprove.
Their Lordships do not understand what is meant by the phrase“ evidential burden of proof”. They understand of course that in trialby jury a party may be required to adduce some evidence in support ofhis ease, whether on the general issue or on a particular issue, before thatissue is left to the jury. How much evidence has to be adduced dependsupon the nature of the requirement. It may be such evidence as, ifbelieved and if left uncontradicted and unexplained, could be accepted bythe jury as proof. Or it may be, as in English law when on a charge ofmurder the issue of provocation arises, enough evidence to suggest areasonable possibility. It is doubtless permissible to describe therequirement as a burden and it may be convenient to call it an evidentialburden. But it is confusing to call it a burden of proof. Further, it ismisleading to call it a burden of proof, whether described as legal orevidential or by any other adjective, when it can be discharged by theproduction of evidence that falls short of proof. The essence of theappellant’s caso is that he has not got to provide any sort of proof thathe was acting in private defence. So it is a misnomer to call whatever itis that he has to provide a burden of proof,—a misnomer which servesto give plausibility but nothing more to Sir. Kcllock’s construction ofs. 105.
S. 3 of the Evidence Ordinance deals with proof in the followingterms:
“ A fact is said to bo proved when, after considering the mattersbefore it, the court either believes it to exist or considers its existenceso probable that a prudent man ought, under the circumstances ofthe particular case, to act upon the supposition that it exists. ”
Their Lordships do not think that proof means anything different inEnglish law. But at any rate in the law of Ce3rlon, where the mode ofproof is clearly spelt out-, it is impossible to suppose that there can be morethan one kind of burden of proof or that the burden imposed by s. 105can be anything less than proof in accordance with s. 3. Their Lordshipswill notelaboratefurther since the incongruities of any such suppositionalfully exposed in the judgments of the majority in B. v. Ghandrasekeraparticularly the judgment of Soertsz, J.
1 {1941) A. I. R. 402.* {1962) 28 M. L. J. 887.
3 {1942) 44 N. L. R. 97.
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Even if there were any ambiguity in the language of ss. 3 and 105 of theEvidence Ordinance, their Lordshij^s would not be aided in resolving itby tlxe decision in Woolminqton v. D.P.P. In saying this their Lordshipsarc not questioning the place which this authority now holds in the law ofEngland. But it is not necessary to read more than the speech of theLord Chancellor himself to sec that by far the greater strength of previousauthority supported the view which the House rejected. Nevertheless, forsome considerable time before 1035 many English judges had in practicebeen applying the law with less strictness towards the defence than itsterms warranted. This is illustrated by the judgment of the Court ofCriminal Appeal in the very case as it appears from the speech of theLord Chancellor at 170. The Court said that while there was ampleauthority for the trial judge’s statement of the law, “ it may be that itwould have been better ” jf he_had told the jury that if they entertainedany reasonable doubt about the accused’s explanation t-hey should acquit;and in fact they dismissed the appeal, not as being unfounded in law, butby resorting to the proviso to section 4 (1) of Criminal Appeal Act 1907.Thus the decision of the House of Lords is an example of a change in thecontent of the law resulting from a change in the manner of applying it.The common law is shaped as much by the way in which it is practised asby judicial dicta. The common law is malleable to an extent that a code• is not. Foster’s statement of the law is not in their Lordships’ opinionreconcilable with the law as laid down by the House of Lords. But therecan bo no doubt that it was adopted in the codification of the lawintroduced into Cc}’lon. It was at that time set out in all the Englishtextbooks (from which it has now been dropped), including Stephens’Digest of the Criminal Law ; and Sir James Stephens, as is well known,was the begetter of the Evidence Ordinance. The code embodied the oldcriminal law and cannot be construed in the light of a decision that haschanged the law.
In support of his argument Mr. Kcllock pointed to s. 73 of the PenalCode which includes accident among the General Exceptions. Hesubmitted that the effect upon this of s. 105 would be, unless it is giventhe modified reading for which he contends, to put the burden on thedefence of negativing intention. Their Lordships consider that thelanguage of ss. 3 and 105 in combination is so compelling that theywould not be deterred from interpreting it in the way in which they haveeven if in its application to s. 73 it had the consequences which Mr. Kcllockforesees. Having said this and since no case under s. 73 is before them,they do not propose to decide where the burden of proof lies whenaccidental killing is in question. Such a question would raise differentconsiderations from those material in the present case. Proof ofintentional killing does not negative the answer of private defence ; onthe contrary, it is only after intentional killing is proved that private
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defence need be put forward. But proof of intentional -killing does,negative accident. In E. v. Chandraskera, Soertsz, J. at 125 dealt withthe point as follows :
“ The position is however different in cases in which, by involvingthe fact in issue in sufficient doubt the accused ipso judo involves insuch doubt an element of theofFencc that theprosecutionhadto prove.That, for instance, would have been the position under our law in theWoohninglon case, if on the charge of murder, on all the mattersbefore them, the Jury wero in sufficient doubt as to whether the deathof the deceased girl was tho result of an accident or not, for, in thatstate of doubt, the Jury arc necessarily as much in doubt whether theintentionto cause death or to cause an injury sufficient in the ordinarycause [sic] of nature to cause death, existed or not. In such a case,the proper view seems to me to be that the accused succeeds inavoiding the charge of murder, not because he has established hisdefence, but because, by involving the essential element of intentionin doubt, he has produced the result that the jjrosec.ution has notestablished a necessary part of its case.”
As at present advised, their Lordships agree with this dictum.
The attention of the Board lias been drawn to cases in which the direc-tion to the ju^ has been that, while the burden of proof of a particulardefence is upon the accused, tho general burden of jiroving guilt beyond areasonable doubt remains always on the prosecution. Such a directionmight appear at first- sight to lend support to Mr. Kellock’s contentionthat some lighter burden than tho ordinary burden of proof is in thesecases placed upon the accused. If that is the effect of it, if would intheir Lordships’ opinion be wrong. But it must, be remembered that thoevidence on which the accused relics, when an issue of provocation orprivate defence is raised, may go to challenge the prosecution’s case aswell as to establishing his own. Tho present case, as Mr. Gratiaen hassaid, is a clear case of confession and avoidance ; the defence admittedthe intention to kill and relied entirely upon private defence. It- ishowever much more frequent for an accused to deny the intention. Hewill say that he did not intend to kill or cause serious bodily injury butthat anyway ho was acting in self-defence. Likewise provocation .andaccident often feature together in an accused’s story. In such a- case itis not only proper, but may be necessary, for the judge to remind the- jurythat the burden of establishing intention beyond a reasonable doubt restsalways on the prosecution. The point has recently been before theSupreme Court of India in relation to the defence of insanity. In DafujU-bhai v. Slate of Gujarat1 Subba Kao J. at 3G5 pointed out that evidencethat fell short of jwoof of insanity might yet raise a reasonable doubtabout the existence of the requisite intention. In Bhikari r. Stale ofUttar Pradesh – Mudholkar J. said at IDS :
“ If upon the evidence adduced in the ease whether by the prose-cution or by the accused a reasonable doubt is created in the mindof the court as regards one or more of tho ingredients of the offence•> {1964) 7 S. G. It. 3G1.2 (196-5) 3 6'. C. It. 101.
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including mens rca of the accused he would be entitled to be acquitted.This is very different from saying that the prosecution must alsoestablish the sanity of the accused at the time of commission of theoffence despite what has boon expressly provided for in s. 105 of theEvidence Act. ”
Their Lordships respectfully agree with this observation.
Finally, Mr. ICellock points to s. 10G of tho Evidence Ordinance whichsays :
“ When any fact is especially within the knowledge of any personthe burden of proving that fact is upon him/’
He relies upon two decisions of the Board, Attygalle v. R.x and Seneviratne—v. R.2 in which this section was considered and was. not applied _sp as toshift tho burden from the prosecution.
The principle involved in this section derives from the English law ofevidence, where it has however been sparingly used. The |)rosecution isusually able to establish that an accused person has special knowledge ofthe circumstances of the crime with which he is charged. Under somesystems of law this is considered to be sufficient for the accused to be~called upon at the outset of a trial to say what he knows. Such aprocedure would be quite inconsistent with the accused’s right to silencewhich prevails in the English S3rstem as adopted in Ceylon.
Their Lordships are concerned with s. 106 only to see whether it givesany support to Mr. Kellock’s argument on s. 105. He submits that theright solution lies in treating s. 106 as imposing only an evidential burdenof proof; and that if s. 106 has to bo treated in that way, why not alsos. 105 ? This submission gets no help from the two authorities cited. Inthese cases the Board said simply and without elaboration that tho sectiondoes not cast upon an accused the burden of proving that no crime hasbeen committed. Their Lordships in no way dissent from this conclusion.
It may well be that the general principle that the burden of proof is on thoprosecution justifies confining to a limited category facts “ cspeciaIIjTwithin tho knowledge ” ofan accused ; but their Lordships do not considerthat it can alter the burden of proof either in s. 106 or s. 105.
For these reasons, and generally for the reasons given in the majorityjudgments in R. v. Chandrasekera, their Lordslup3 have humbly advisedHer Majesty to dismiss this appeal.
Appeal dismissed.
1 (1936) A. G. at 338. 2 A. E. ft. 116 ; 37 N. Lt. R. 337.
* (1936) 3 A. E. R. 36 ; 38 N. L. R. 208.