025-NLR-NLR-V-57-REGINA-v.-E.-W.-BATCHO.pdf
[In' the Court or Criminal Attkah]
1955Present : Pulle, J. (President), K. D. de Silva, J.,
and Sansoni, J.
K KG IN A r. K. W. BATCHOAl’PKAL 21 OF 1955, WITH Ai-it.tcation 328. C. 31—M. C. Colombo,
Confession—Bight of Croon to cross-examine accused oh it—-Evidence Ordinance,s. 25.
Penal Code—Section 20J—Proviso 1 to Exception 1—Bitrde-n of proof—EvidenceOrdinance, ss. 103, 10-5.
(I) It is contrary to tho provisions of section 25 of the Evidence Ordinanceto cross-examine an accused person on wliat are, in effect, the contents of aconfessional statement made by him to tho Police.
In a prosecution for murder the accused gave evidence and sought to bringhis case within Exception 1 to section 204 of tho Penal Codo which providesthat culpablo homicide is not murder if tho offender whilst deprived of thopower of self-control by grave and sudden provocation causes tho death of thoperson who gavo tho provocation. His story was that tho deceased insultedand liumilinted him to such an extent that ho completely lost his self-controland did not know what ho did thereafter. He stated tliat after killing thodeceased ho went to tho Police Station and gavo himself up. In cross-examina-tion ho answered in tho afTirmativo a cjuestion whether ho hail stated to a singlepolice o/licor tliat he was insulted by the deceased. Purther, after the clo^o
of tho defence, the prosecuting Counsel moved to coll in rebuttal the policeofficer to whom the accused alleged he had made the statement, and tho trialJudge disallowed the application. ,
Reid, that the question put to tho accused in cross-examination coupled withthe application mode by the prosecuting Counsel, in the presence of tho Jury,to lead evidenco in rebuttal amounted to a contravention of section 25 cf theEvidence Ordinance.
(2) Exception 1 to section 294 of the Penal Code is subject to the proviso :
“ That the provocation is not sought or voluntarily provoked as on excusefor killing or doing harm to any person. ”'
Held, that the proviso itself is part of tho Exception and the extent of theburden on the Crown on the proviso is tho same as and no higher than thatresting on an accused person who claims the benefit of the Exception to whichsection 105 of the Evidence Ordinance applies.
Held further, that where the evidence led for the defence requires a directionto the jury that the burden is on tho Crown to bring itself within tho proviso,,the failure so to direct amounts to a misdirection.
A…
XTk.PPEAL, with application for leave to appeal, against a convictionin a trial before t-he Supromo Court.
. Colvin R. de Silva, with Daya Vitkanage and G. F. Setlmka valer, forthe accused appellant..
Anandct Pereira, Crown Counsel, for tho Attorney-General.
Cur. adv. vull.
May 31, 1955. Pllle, J.—
Tho appellant was convicted on the charge that he did on tho 6thOctober, 1954, commit murder by causing the death of ono MarleneLudowyke and was sentenced to death. There can be no doubt, indeed,it is admitted by the appellant, that on the evening of the Gth October,ho inflicted with a pointed knife as many as nine stab wounds on thedeceased which cumulatively were necessarily fatal. The evidencecalled for the prosecution left no room for doubt that unless tho appellantcould prove the existence of mitigatory circumstances the jury had noalternative but to convict him of murder.
The appellant gave evidence and sought to bring his case withinException 1 to section 294 of the Penal Codo which provides that culpablehomicide is not murder if tho offender whilst deprived of tho power ofself-control by grave and sudden provocation causes tho death of theperson who gave tho provocation. Stated shortly, the appellant’sstory was that tho deceased insulted and humiliated him to such an oxtentthat he completely lost his self-control and did not know what ho didthereafter.._
The first point taken on behalf of the appellant is that the learnedCommissioner permitted the Crown, contrary to. the provisions of2
. section 25 of the Evidence Ordinance, to cross-examine the appellant on■what ■were, in effect, the contents of a confessional statement made by himto the Police. In the course of his evidence in cross-examination the-appellant, after he had repeated what he had stated in the course of hisexamination in chief, namely, that after killing the deceased he went tothe Police Station and gave himself up, was questioned as follows :
“ Q : Did you tell a single Police Officer that the deceased had insultedyou in this way ?'
“ A : Yes, to Mr. Nathan. I told him that this girl had insulted mevery badly at the well and also that she spat at me at the well.
“ Q : I am giving you a chance of thinking it over because Mr. Nathancan be called as a witness ?x‘ A : I told him. ”
The cross-examination proceeded and at the end of the re-examinationthe appellant’s counsel closed the defence. Whereupon, in the -presenceof the jury, the prosecuting counsel moved to call Mr. Nathan to giveevidence in rebuttal. These proceedings are recorded as follows :
“ Crown Counsel : I move under section 237 to call Inspector Nathanin rebuttal. That is a matter which I specifically cross-examinedthe witness on. It arose, I submit, in circumstances which entitleme to lead evidence in rebuttal.
“ Court: That is with regard to what ?
“ Crown Cottnsel: The accused’s statement that he told theInspector that the deceased girl had insulted him and spat at himwhen near the well. ”
At this stage, on the suggestion of counsel for the appellant, the juryretired and the argument was continued at the end of winch it was ruledthat the prosecution was not entitlod to call the Inspector to contradictthe appellant.
It is manifest, when one has regard to the state of t-ho evidence atthe point of time when tho appellant was asked whether ho stated to asingle police officer that ho was insulted by the deceased, tho jury musthavo received the impression that tho Crown was seeking to prove thatthe appellant, in the course of a narrative in which he admitted to thoPolice that ho killed the deceased, did not stato the circumstances ofmitigation on which he relied at the trial to avoid a verdict of murder.It is true that the prosecution did not in terms prove tho confession aswas dono in Hex v. Seyadu 1 but that is not essential in order to giveeffect to the prohibition cont ained in sect ion 25 of tho Evidence Ordinance.In jReg. v. Obiyas Appuhamy 2 ovideh.ee was led to the effect that theprisoner volunteered a statement to a police officer, who, thereupon,immediately handcuffed him and took him to the scene of tho offence.
{1952) 54 N. L. R. 32.
Tiio Court of Criminal Appeal held that ovidence was inadmissible ontho ground that, if it had been accepted, it would have led to the inferencethat tho prisoner had made a confession to a police officer.
In the present case, although tho Police Officer to whom the appellantjuado a statement was not allowed to be called, j'et from what was saidby the prosecuting counsel during the cross-examination—“ I am givingyou a chance of thinking it over because Mr. Nathan can be called asa witness ”—and at the time he moved to lead the evidence of Mr. Nathanin rebuttal, the jury may well have come to the conclusion, especiallyin the absence of a caution by tho trial judge, that the appellant’s storyin mitigation of the crime committed by him ought not to bo believed.Viewed in this light the present case is hardly distinguishable fromKing v. Kalu Banda . The observations of Eascelles, C. J., at p. 426are particularly apposite :
“ For so far as the probative effect of the evidence is concerned, there!is little difference between a police officer giving the particulars of astatement which is inconsistent with tho defenco and his stating ingeneral terms that tho accused, in his statement to him, did not mentionthe defence which ho afterwards set up. The evidence in either casetells heavily against the accused. In many eases it will turn tho scaleagainst him. ”
In our opinion the apjnellant succeeds on the submission that thequestions put to him in cross-examination to which oxcoption has boontaken coupled with what was said by Counsel when ho moved, in thepresence of tho jury, to lead evidence in rebuttal, amounted to a contra-vention of section 25 of the Evidence Ordinance.
The second point taken on behalf of the appellant arises out of analleged non-direction as to the party on whom lies tho burden of provingthe matters contained in the first proviso to Exception 1 and the extentof that burden. Section 294 states that Exception 1 is subject to theproviso,
“ That the provocation is not sought or voluntarily provoked as anexcuse for killing or doing harm to any person. ”
There were broadly speaking three major facts on which tho prosecutionwas able to rely in order to prove that when tho appellant wont to thehouse of the deceased he had already formed the intention of killing herand putting an end to his own life.
The appellant had cause to resent the conduct of the deceased intransferring her affections to one Ivor Martinez after encouraging theappellant to believe that she would marry him. Secondly, on tho dayin question, ho paid a visit to tho house of tho deceased armed with a,dangerous lethal weapon which was actually used in killing her, andthirdly, in the letter P2 ho had sot down his alleged grio vances against•the doceased and virtually pronounced a sentence of death against her.
The position taken up by the appellant was that at the time hewerittbthe house of the deceased he did not have the slightest intention ofkilling her and that the letter ivas meant merely to frighten her. ’ 'Admit-tedly tho appellant was in the house for a considerable time,’ from
30 p.m. till about 4 p.m., when tho stabbing’occurred.He returned
a pair of ear studs belonging to tho witness Miss M. C. Klyn, then "livingin the same house as the deceased. Tho pair of oar studs had by mistake’been left behind by Miss Klyn. on a visit to the house of the appellantthe previous evening. The appellant stated in evidence that the deceasedthrew a cup of tea at him arid that later when ho attempted to speakto her in tho corridor of the houso she burnt him with an iron which she1was carrying. On neither occasion did he do anything in retaliation.Tho letter P2 was delivered to the deceased after she had finished washingher face’ at the well preparatory to attending a service at Church.’According to the appellant when she had read tho letter half way she’turned to run away with it and ho asked her to return it lest if it fellinto the hands of the Police he would have to go to jail. There was inthe evidence called for the prosecution support for the statement of theappellant that ho was burnt in the arm and that after he delivered theletter P2 to the deceased he requested her to return it for fear that hemight fall into trouble.
In the earlier portions of the summing up the trial Judge explainedto the jury the extent of the burden resting on an accused person whoseeks to avail himself of Exception 1. He did not then refer to the firstproviso to the Exception. Having reviewed tho evidence in considerabledetail he again referred to the Exception but this time he added that itwas subject to the proviso which he then read out and continued hischarge as follows :.
" Even if the deceased used those words and they amounted to graveand sudden provocation, and even if the accused was deprived of thepower of self-control, still if you find that that provocation had been,sought by tho accused or voluntarily provoked as an excuse for killingor doing harm to any person, then tho accused cannot have tho benefitof this Exceptiori, that is, his offence cannot be reduced from murderto culpable homicide not amounting to murder.
“ There, again, you will have to consider his letter. Consider thatparagraph which I read to you earlier, ‘ Tho nioro I see you the moreyou appear in my eyes an object of contempt-. ’ The accused says hedid not mean all this, but he gave the letter to this girl, and if tho girlread this and if sho used those words, the question is if there was anyprovocation whether that provocation was sought by tho accused orvoluntarily provoked by the accused. By voluntarily is meant this :
‘ A porson is said to eauso an effect voluntarily when he causes it bymeans whereby he intended to causo it, by means which at tho timo ofemploying those means ho know or had reason to believe to bo likelyto cause it. ’-_,
“ The accused has written this letter and given it to this girl to readit, but he told you he did not intend all this. Are you go.mg to behove
all this ? Again, if this was going to bring about-some'sort of reactionon the girl can you say that the accused did hot know that that sortof reaction would be- likely to result or not, or can you say he had noreason to believe that that would result ? ”
It was contended on behalf of the appellant that it was the duty of thetrial Judge to have directed the jury that the burden was oh the Crownto prove the facts necessary for the application of the proviso and thatthat burden could only be discharged by proof of those facts beyondall reasonable doubt. learned Counsel on both sides have told us thatthey have not been able to find any discussion of this topic in any textbook or decided case. We have, therefore, in the absence of any guidance,to apply the ordinary rule enunciated in section 103 of the Evidence' -Ordinance that the burden of proof as to any particular fact lies on thatperson who wishes the court to believe in its existence. (We hold that•once an accused person has adduced evidence which, if believed, wouldentitle him to ask for a verdict of culpable homicide not amounting tomurder under Exception 1 (road without the provisos), ho can be deprivedof that verdict only upon proof, the burden being on the Crown, of positiveaverments which would justify the application of the proviso. Thereis no burden on an accused person to prove the absence of circumstancesthat would x-ender the proviso inapplicable. We are fortified in thisview by a consideration of the second and third provisos. We are unabloto accept the submission that the Crown has to prove beyond, reasonable■doubt the facts necessary for the application of the proviso, becauseproof of that high standard is only required of the ingredients whichconstitute prinia facie the offence of murder. The proviso itself is partof the Exception and the ex-tent of the burden on the Crown on the provisois the same as and no higher than that resting on an accused person whoclaims the benefit of the Exception to which section 105 of the EvidenceOrdinance applies.
In our opinion the evidence, especially that of the appellant, requireda direction to the jury that the burden was on the Crown to bring itselfwithin the first proviso. The failure so to direct amounted to a mis–dircction….
The result of the improper questioning of the appollant in regard towhat he is alleged not to have told tho Police and the non-direction towhich wo have just adverted would compel us to set aside the convictionand sentence, unless we act under the proviso to section 5 (1) of theCourt of Criminal Appeal Ordinance, Xo. 23 of 1938, and dismiss theappeal. The Crown argues that this is a proper case for applying theproviso and dismissing the appeal and the appellant asks us to alter theconviction to one of culpable homicide not amounting to murder. Wo•are unable to accede to either roquest. Upon a consideration of theentirety of the admissible evidence we caivnot say in the words of ViscountSimon in Stirland v. Director of Public Prosecutions 1 that “a reasonablejury, after being properly directed would, on the evidence properlyadmissible, -without doubt convict. ” On the other hand the fact thatthe appellant went to the house of the deceased specially armed with a
(7944) A. C. 315.
knife after putting down in writing that his intention was to.to kin th'odecoased and that- Miss Klyn, who must be regarded as a disinterestedwitness, was unable to speak to any abuse or insult or other provocativeact on the part of the deceased immediately preceding the attack on herand also the number and severity of the injuries inflicted are sufficientgrounds for directing a now trial.■’
Accordingly we set aside the conviction and sentence and direct a newtrial..'
Sent back for a new trial.