087-NLR-NLR-V-43-THE-KING-v.-DON-NIKULAS-BUIYA.pdf
385
HOWARD CJ.—The King v. Don Nikulas Buiya.
[Court of Criminal Appeal.]
1942Present: Howard C.J., de Kretser and Cannon JJ.
7
THE KING v. DON NIKULAS BUIYA.
10—M. C. Tangalla, 14,522.
Insanity—Proof to satisfaction of Jury—Degree of proof—Balance of proba-bility as in civil case.
Where in a charge of murder a plea of insanity is set up, insanitymust be clearly proved to the satisfaction of the Jury.
The burden is discharged by an accused person who tenders a pre-ponderance or balance of evidence in support of such a plea.
A
PPEAL from a conviction by a Judge and Jury before the 1stSouthern Circuit.
O.L. de Kretser (Jnr.), for accused, applicant.
E. H. T. Gunasekera, C.C., for the Crown.
Cur. adv. vult.
July 20, 1942. Howard C.J.—
The accused in this case begs leave to appeal from his conviction on acharge of murder on-'the grounds that the learned Judge’s failure todirect the Jury (a) on the extent of the burden placed on the defencein establishing a plea of insanity, (b) on the weight to be attached to theexpert evidence in the case, amounts to misdirections. With regard to (a),scrutiny of the learned Judge’s charge to the Jury indicates that on page 1thereof he stated as follows : —
Assuming you are satisfied and you must be as I have hadoccasion to tell you so often, beyond all reasonable doubt, that theaccused was responsible for the death .of the deceased, the question ofhis intention, of which you must also be satisfied beyond all reasonabledoubt, must be considered by you on the footing that the accused was,at the time he is alleged to have killed the deceased, a sane man. Ifyou find he was insane, totally; different considerations, which I shallhave to explain to you, would apply.”
On the last, page of the charge the learned Judge summed up the position,both with regard, to the case submitted by the Crown and the plea ofinsanity put forward by the applicant, in the following-words :—
“ To sum up, Gentlemen, the position, assuming you are satisfiedthe accused caused the deceased’s death and intended to cause it, or tocause an injury sufficient in the ordinary course of nature to causedeath, then Me is guilty of murder, unless on the evidence adducedyou are satisfied that he was at the time, by reason of unsoundness ofmind, incapable of knowing the nature of his act, or that that particularact which he did was wrong or contrary to law. In the latter eventyou will find- that he committed the act with which he- is charged,assuming that it is established beyond all reasonable doubt, and that >he is not guilty by reason of the fact that he was of unsound mindand so unable to differentiate between right and wrong.
386HOWARD C.J.—The King v. Don Nikulas Buiya.
There are, as it appears to me, just two possible verdicts in this case.
It is for you- to decide which of them you will bring in. On the onehand you may find the accused not guilty of any offence becausehe was of unsound mind for the reasons which I have already givenyou, or on the other hand if you think the defence has not beenestablished, if you are not satisfied that the accused’s Counsel, on theevidence, has established the defence he set out to establish, then theaccused may be found guilty of murder.”
Counsel for the applicant maintains that this paragraph amounts in lawto a misdirection inasmuch as the Jury would draw the inference there-from that the burden placed on the applicant to establish his plea ofinsanity was the same as that cast upon the Crown of proving that he wasprim a facie guilty of murder. In other words, the Jury would cometo the conclusion that the plea of insanity had to be established beyondall reasonable doubt, whereas the burden cast on an accused person wasnot higher than the burden which rested upon a plaintiff or defendantin civil proceedings. In support of this .contention, Mr. de Kretser citedthe case of Sodeman v. Rex'. This was a petition by the petitionerto the Judicial Committee of the Privy Council for leave to appeal from anorder of the High Court of Australia dismissing his application for leaveto appeal. In delivering the judgment of Their Lordships, ViscountHailsham stated as follows : —
“ The Canadian .case of R. v. Clark – was referred to, but even therethe Judges were not able to find a very satisfactory definition, but it iscertainly plain that the burden in cases in which an accused has toprove insanity may fairly be stated as not being higher than the burdenwhich rests upon a plaintiff or defendant in civil proceedings.”
The point was taken by Counsel for the petitioner that the Jury mayhave been misled by the Judge’s language into the impression that theburden of proof resting upon an accused to prove insanity is as heavyas the burden of proof resting upon the prosecution to prove the factswhich they have to establish. The only question for Their Lordships’decision was whether the distinction with regard, to the burden of proofwas sufficiently brought home to . the minds of the Jury by the languageused in the summing-up. The opinion of the two Appeal Courts inAustralia was that there was no misdirection. Their Lordships advisedHis Majesty to dismiss the-petition as they did not think that the questionwhether or not the language used was enough clearly to bring the matterhome to the Jury in the particular case can, except in a very clear case,be' a ground for exercising the very exceptional jurisdiction reservedto the Board in criminal cases.
The principle formulated in Sodeman v. Rex (supra) was accepted by aBench constituted by three Judges in the King v. Vidanalage Abraham. Appu In referring to Viscount Hailsham’s judgment, Soertsz A.C.J.stated as follows : —
“It is, I think, clear that the Lord Chancellor said what was saidin the earlier cases but in a circumlocutory manner. If Counsel’ssuggestion was that this case is authority for saying that it is sufficientfor a prisoner– to throw doubt on his sdnity, I cannot entertain that
’ {1036) 2 AH England Rep. 1138.2 (1921) 61 S. C. R. 608.1 40 N. L. R. 500.
Kader v. Marrikar.
387
suggestion. In the case before him the Lord Chancellor was face toface with M’Naughton’s case, for an attempt was made to obtain areconsideration of the rules laid down there by pleading that * un-controllable impulse ’ was a good ground for exculpation. Heunhesitatingly rejected that contention, upheld the prevalent view,and went on to consider ' the other point ’ that is the burden of proof.On that point, the Judges in M’Naughton’s case had laid down, as Ihave already pointed out, that insanity must be proved, to the Jury’ssatisfaction, that it must be clearly proved, and it cannot, in my view,be supposed that Lord Hailsham meant to depart from that interpreta-tion when he expressed himself as he did.”
We are in agreement with the view expressed by Soertsz A.C.J. thatViscount Hailsham did not intend any departure from the opinions of theJudges, as expressed in M’Naughton’s case, that insanity must be clearlyproved to the Jury’s satisfaction. That burden, however, is no higherthan that resting on the plaintiff or defendant in a civil case or in otherwords is discharged by an accused person who tenders a preponderanceor balance of evidence in support of such a. plea. In our opinion there isnothing inconsistent in this dictum with regard to the burden of proofwith the principle formulated by the Judges in M’Naughton’s case thatinsanity must be clearly proved. The Judges in M’Naughton’s casedid not express any opinion as to the weight of evidence that wouldconstitute clear proof.
Adverting to the present case, we do not consider that the distinctionbetween the burden resting on the Crown to prove its case and thatresting on the appellant to prove insanity was sufficiently brought hometo the minds of the Jury by the language used by the learned Judge in thesumming-up. Moreover, there was a considerable volume of evidence tosupport the plea of insanity put forward by the applicant. It is, there-fore, impossible to say that the verdict of the Jury would have been thesame if the distinction to which I have referred was brought home tothem. In these circumstances the application is allowed and theconviction is set aside. Under the proviso to sub-section (2) of section 5of the Criminal Appeal Ordinance we order a new trial, pending whichthe applicant will remain in custody.
Set aside.