111-NLR-NLR-V-71-S.-M.-DON-HENRY-Appellant-and-THE-QUEEN-Respondent.pdf
Don Henry v. The Queen
569
[Court of Criminal, Appeal]
1967 Present : T. S. Fernando, J. (President), Silva, J., andSiva Snpramaniam, J.S. M. DON HENRY, Appellant, and THE QUEEN, RespondentC. C. A. Appeal No. 40 of 1967, with Application No. 648. C. 118—M. C. Oampaha, 95379J A.
Summing-up—Burden of proof—Misdirection—Court of Criminal Appeal Ordinance,
proviso to e. 5 (I).
In a prosecution for attempt to murder, one of the witnesses for the defencegave evidence that it was he, and not the accused, who stabbed the injuredperson. The trial Judge, at the final stage of his summing-up, said: “ Wherethe accused brings in matters before this Court, he need only show that hisevidence is probable; he need not prove any matter beyond, reasonabledoubt”
Held, that there was misdirection. A higher burden was placed on theaccused than he was obliged in law to carry. The accused was entitled to beacquitted even if he succeeded, in raising in the way he attempted, only areasonable doubt in the mind of the jury as to whether he was the man whostabbed the injured person.
Held further, that the proviso to section 5 (1) of the Court of Criminal AppealOrdinance, assuming that it is applicable in a case of misdirection on thequestion of burden of proof, ^cs»not applicable in the present case.
■660
T. S. FERNANDO, J.—Don Henry v. The Queen
.A.PPEAL against a conviction at a trial before the Supreme Court.
O.E. Chitty, Q.C., with S. Kanakaratnam, Miss M. Barr-Kumara-Jndaringhe and Miss A. P. Abeyratne, for the accused-appellant.
V. 8. A. Pullenayegum, Crown Counsel, for the Crown.
Cur. ode. vult.
June 16, 1967. T. S. Fernando, J.—
The appellant who stood his trial on a charge of attempt to murder aman named Peter was convicted after a 6 to 1 verdict of the jury of thelesser offence of attempt to commit culpable homicide not amounting tomurder. He was sentenced to undergo a term of 18 months’ rigorousimprisonment.
The ground urged against the maintenance of the conviction was thatthe trial judge misdirected the jury in respect of the burden of proof thatlay on the defence. To appreciate the circumstances in which thealleged misdirection arises it is necessary to state very briefly the natureof the cases for the prosecution and for the defence respectively.
According to the prosecution, when the injured man Peter saw hisbrother Emmanuel being subjected to an assault by the appellant, hisbrother Michael and another man of the name of Albert, he (Peter) wentup armed with an iron rod to the assistance of his brother and was thenstabbed on the back of his shoulder by the appellant.
Michael referred to in the above paragraph, the brother of the appellant,was called as a witness for the defence, and he stated that, when he wassleeping in his house, Peter, Emmanuel and a man named Cyril came intothe house and the last-named of them, Cyril began, using offensivelanguage. He (Michael) then came out of the house armed with a knife.Cyril directed a pistol at him, and Peter came towards him with armsupraised and he then stabbed Peter. The defence therefore was that theappellant had nothing to do with the offence and further that theinjury received by Peter was one inflicted by Michael and not by theappellant.
At an early stage of his charge to the jury, the learned trial judgestated:—
“ The prosecution must prove its case beyond reasonable doubt.
There is no burden on the defence to lead any evidence at all. They
can of course do so, if they choose to do so, as in this case, and on such
matters that the defence has put forward, if you find them more
T. S. FERNANDO, J.—Don Henry v. The Queen
661
probable than not, that that evidence is correct, that the thingshappened as the defence witnesses said, then yon’ will immediatelyacquit the accused because if you think that the defence version ismore probable than not, then it clearly shows that there is a gravedoubt in your minds in regard to the prosecution case. So if you thinkit more probable than not that Peter received the stab injury in theway deposed to by Michael and supported by Selestina, then you willacquit the accused.”
In the above passage, the learned judge was directing the jury as if theappellant had himself pleaded the defence of private defence. Theappellant, of course, had done no such thing. He had led the evidence ofhis brother Michael who took upon himself responsibility for the infliction'of the injury and was hoping that Michael’s evidence and other evidenceto a like effect would either be believed by the jury or that such evidencewould create in the mind of the jury a reasonable doubt as to the_truth_of the version deposed to on behalf of the prosecution. This passage wasdoubtless a misdirection on the part of the learned judge in regard to the. burden of proof or extent thereof that lay on the defence.
Learned Counsel for the Crown contended before us that the effect ofthe above-quoted passage was erased by what the trial judge told thejury at a later stage of his charge. He pointed to the following words
"IT you consider that the defence is probable, that it is more probablethan not that Mr. Peter received the injury in the manner spokento by the defence, you will acquit the accused. If you do not considerthat evidence probable, you are not prepared to consider that it ismore probable or that it is likely, nevertheless that is not the end of thematter. . You must consider whether the prosecution has proved itscase beyond reasonable doubt and in regard to the question as to theperson who stabbed, you must consider whether on the prosecutionevidence, in the light of such facts as have been adduced by the defence,it has been proved beyond reasonable doubt that it was this accusedwho stabbed Peter.”
While the last of the sentences in the passage I have reproduced,immediately above contains an unexceptionable direction in regard to thenature of the burden, if any, on the defence in this case, can it be saidthat the jury would have understood clearly enough that all the appellanthad to do in this case was to create a reasonable doubt as to the truth-fulness of the version of the facts contended for by the prosecution andspoken to by the witnesses called for the prosecution ? We are unable toanswer this question in the affirmative, and there is ground for observingthat Crown Counsel who prosecuted at the trial also felt somewhat uneasyin regard to the directions given because we And that no sooner the trial-judge concluded his charge and called upon the jury to retire and considerwhat verdict they should return^- Crown Counsel referred to two matters,42-PP (506137(98/08)
662
T. S. FERNANDO, J.—Don Henry v. The Queen
one of them being the matter of the burden on the defence. To usehis own words, “ will Your Lordship be pleased to refer to two matters :
and (ii) that there is no burden on the accused to prove
anything.’' Thereafter, the learned judge, after referring to matter (i),directed the jury thus in regard to matter (ii):—
“ There is no burden on him (the accused) to prove his innocence.It is open to an accused person to fold his arms and challenge theprosecution to prove the case against him beyond reasonable doubt.If he does so, the prosecution must prove its case beyond reasonabledoubt. Whether he does that or whether he gives evidence, still theburden is on the prosecution to prove its case beyond reasonabledoubt; where the accused brings in matters before this Court, he need onlyshow that his evidence is probable ; Tie need not prove any matter beyondreasonable doubt”
The words underlined by me above were almost the last words addressedto the jury by the learned judge. The matter brought before the Courtby the accused was that it was Michael who stabbed. In directing thejury that the accused must show that Michael’s evidence and/or otherevidence on the point was probable, we are of opinion that the trialjudge was asking the jury to place a higher burden on the appellant thanhe was obliged in law to carry. The appellant was entitled to be acquittedeven if he succeeded in raising in the way he attempted only a reasonabledoubt in the mind of the jury as to'whether he was the man who stabbedPeter. Indeed, the direction of which complaint has been made was notrelevant unless the appellant had raised the issue that he himself acted inthe exercise of private defence.
Crown Counsel urged before us that, even if the ground relied on by theappellant is decided in his favour, this is a case where the Court mightwell apply the proviso to section 5 (1) of the Court of Criminal AppealOrdinance. It is unusual to apply the proviso where the ground upheldis one of misdirection on the question of burden of proof. He referred usto two fairly recent cases, Slinger 1; and Sparrow and Friend a, in whichthe English Court of Criminal Appeal applied the proviso where the trialjudge had omitted to tell the jury that the burden of proof was on theprosecution. But that is not quite the situation we are faced with here.The question here is not mere non-direction, but one of mis-direction. Inthe latter of the two cases cited, the Court refused to interfere because itwas (in the Court’s view) “ quite plain that the jury can have been underno misapprehension as to the proper approach to the problem beforethem ”. In the case we have here it is reasonable to presume that thejury must at least have been as uncertain as Crown Counsel who invitedthe judge to make a further direction. The direction given in pursuanceof that invitation, as I have already pointed out, contained a repetitionof the earlier misdirection. In these circumstances it is quite unnecessary
1 (1061) 46 Cr. A. R. 241.
s (1062) 46 Cr. A. R. 28S.
SIBIMANE, J.—Hamid v. Commissioner of Inland Revenue
663
to say here whether every case of misdirection in respect of the burden ofproof precludes an application of the proviso. It is sufficient to say thatin our opinion we are unable to say that, granting a misdirection, theprosecution has satisfied us that no substantial miscarriage of justice hasactually occurred.
For these reasons we have quashed the conviction and sentence.
Conviction quashed.