THE KING v. JAMES CHANDRASEKERA

026-NLR-NLR-V-44-THE-KING-v.-JAMES-CHANDRASEKERA.pdf


97
The King v. James Chandrasekera.
[Court of Criminal Appeal.]
1942 Present: Howard C.J., Soertsz, Heame, Keuneman, de Kretser,Wijeyewardene and Jayatileke JJ.
THE KING v. ‘JAMES CHANDRASEKERA.o—itf, C. Galle, 33,768.
Self-defence—Plea of a general or special exception under the Penal Code—Accused fails to establish the plea—Reasonable doubt created on thewhole case—Accused not entitled to the benefit of the doubt—EvidenceOrdinance, ss. 2, 3, 4, 103, and 105.
By Howard CJ.,. Soertsz, Heame, Keuneman, Wijeyewardene, Jayatileke JJ.(de Kretser J. dissenting) :—
Where, in a case in which any general or special exception under thePenal Code is pleaded by an accused person and the evidence relied uponby such accused person fails to satisfy the Jury affirmatively of theexistence of circumstances bringing the case within the exceptionpleaded, the accused is not entitled to be acquitted if, upon a consider-ation of the evidence as a whole, a reasonable doubt is created in theminds of the Jury as to whether he is entitled to the benefit of the excep-tion pleaded.
Per Howard C.J.:—
“ The Jury shall regard the fact as proved that the accused did notexercise the right of private defence till it is satisfied that he did so orthat it is so probable that he did so that a prudent man should act uponthat supposition. ’’
T
HIS was a case stated for the decision of the Court of CriminalAppeal in terms of section 355 (1) of the Criminal Procedure Code,
as affected by section 21 of the Court of Criminal Appeal Ordinance.
The question stated for decision was whether, having regard to section 105of the Evidence Ordinance and to the definition of “ proved ” insection 3 thereof, in a case in which any general or special exceptionin the Penal Code is pleaded by an accused person and the evidencerelied on by'such accused fails to satisfy the Jury affirmatively of theexistence of circumstances bringing the case within the exception pleaded,the accused is entitled to be acquitted if, upon a consideration of theevidence as a whole,, a reasonable doubt is created in the minds of theJury as to whether he is entitled to the benefit of the exception pleaded.The facts are stated in the reference by Moseley S.P.J.-as follows : —
The prisoner, James Chandrasekera, was tried on October 5, 6,and 7, 1942, before me and an English-speaking Jury on an indictmentcharging him with having committed murder by causing the death of"Talpe Liyanage Francis, an offence punishable under section 296 of thePenal Code.
By a unanimous verdict the 'accused was convicted of causinggrievous hurt, an offence punishable under section 317 of the Penal• Code, and he was sentenced to nine months’ rigorous imprisonment.
At the trial the causing of death was common ground and thedefence set up on behalf of the accused was. that, in causing the- death of the deceased, he was acting in the. exercise of the right ofprivate defence.
98
The King v. James Chandrasekera.
A statement of the facts appears to me to be unnecessary. Theaccused and one witness for the defence gave evidence detailing thecircumstances in which they claimed that the right of private defencearose. No evidence of such circumstances emerged from the case forthe prosecution.
If the Jury believed the evidence of the accused and his witness,the former, in my opinion, was entitled to an acquittal. The accused,however, having sought to excuse his offence under the protection ofsection 89 of the Penal Code, was faced with the burden of proof placedupon him by section 105 of the Evidence Ordinance. This sectionwas quoted in extenso to the Jury by Counsel for the accused. Havingdone so he read passages from the decision of the House of Lordsin the case of Woolmington v. Director of Public Prosecutions'and impliedly invited me to direct the Jury in the words of Sankey L.C.,that if they “ are either satisfied with his (accused’s) explanationor, upon a review of all the evidence, are left in reasonable doubtwhether, even if his explanation be not accepted, the act was uninten-tional or provoked, the prisoner is entitled to be acquitted ”.
On this point my direction to the Jury was as follows : —
(The passages in the charge ^to the Jury are reproduced in the judg-ment of the Chief Justice).
• Before finally asking the Jury to consider their verdict, I summed upthe -position in the following way :
“ The question which it seems to me you should put yourselves isthis: ‘ Has the accused satisfied you, in the way in whichI have told you you must be satisfied, that is, by a prepon-derance of evidence, that he was acting in the exercise of theright of private defence. If he has satisfied you, why, then, heis not guilty of any offence. But if he has not satisfied you,by that preponderance of evidence, then he has failed inhis defence and he is guilty of an offence in accordance withthe intention which you are prepared to attribute to him ’. ”.
The Jury, by their verdict, indicated that they were not satisfied and,in my view, it is impossible to say that they were wrong.
H. V. Perera-, K.C. (with him J. E. M. Obeyesekere, L. A. Rajapakse,and H. W. Jayewardene), for the accused.—The point of law stated forconsideration appears in the concluding paragraph of the case stated,namely, whether, having regard to section 105 of the Evidence Ordinanceand to the definition of “proved” in section 3 thereof, in a case in whichany general or special exception in the Penal Code is pleaded by anaccused person and the evidence relied upon by such accused person failsto satisfy the Jury affirmatively of the existence of circumstances bringingthe case within the exception pleaded, the accused is entitled to beacquitted if, upon a consideration of the evidence as a whole, a reasonabledoubt is created in the minds of the Jury as to whether he is entitled to thebenefit of the exception pleaded.
1 {1935) A. C. 482.
The King v. James Chandrasekera.
99
The branch of law involved in the case stated is concerned with theproduction of evidence and the effect of the evidence led. The rules ofevidence are codified in Ceylon, and consequently they are often veryabstract and sometimes border on the metaphysical. See, for example,the definition of “ Fact ” in section 3. The difficulty of interpreting theEvidence Ordinance is discussed at length by Bertram C.J. in Eliyatambyv. Gabriel a case which was taken to the Privy Council. [(1925) 27N. L. R. 396.] Even apart from the provisions of section 100 of theEvidence Ordinance, whenever a question of evidence arises not providedfor by the Ordinance, reference may be made to fundamental rulesof justice.
The expression “burden of proof ” is used in two senses, (1) in the senseof establishing a case, whether by a preponderance of evidence or beyondreasonable doubt, and (2) in the sense of the duty or necessity of intro-ducing evidence—Woodroffe and Ameer Alt’s Law of Evidence (9th ed.)p. 703. It is in the second sense, of introducing evidence, that theexpression is used in the Evidence Ordinance. Section 101 is the first ofthe sections dealing with burden of proof. It says no more than that if aparty asserts certain facts he must prove them. Though he provesthose facts to exist, it does not follow that he will necessarily get judgmentin his favour. The ultimate result of, or verdict in, a case depends onprinciples which are quite independent of any rules of evidence found inthe Evidence Ordinance. In other words, the principles deciding theactual effect of the evidence adduced are nowhere to be found in any Codeand are quite distinct from the principles governing production of evidence.It is only in regard to the introduction of evidence that the sections in theEvidence Ordinance dealing with burden of proof are applicable. Allrules regarding burden of proof are mainly regulative principles for gettingthe evidence in. Once the evidence gets in, the artificial rules disappearand natural processes of reasoning come into play. The quantum of proofnecessary to establish a case is nowhere dealt with in the EvidenceOrdinance, and, by virtue of section 100, English principles will apply.The question as to the burden of proof is not pertinent when the relevantfacts are before the Court, and all that remains. for decision is whatinference should be drawn from them—Seturatnam Aiyar et al. v.Venkatachela Goundan et al~.
To take an example, in an action for defamation, there may be threequestions in issue, viz., (1) whether the publication is defamatory,
whether the defendant can prove privilege, and (3) whether the plaintiffran prove malice on the part of the defendant. In such a case, althoughthe onus of proof in the sense of the burden of adducing evidence maychange from one party to the other at different stages of the case, the finalverdict to be given in respect of the case as a whole is not regulated by anyprovisions of the Evidence Ordinance and would depend on naturalprocesses of the mind in dealing with the evidential facts after they areadmitted in the manner provided for by law. Similarly, in the illustration
to section 106 of the Evidence Ordinance, when A is charged withtravelling without a ticket, A would not necessarily be acquitted if headduces evidence that he had a ticket on him, because, to take one instance,1 (1923) 25 ~X. L. R. 373 at 37S et seq.* (1920) A. I. R. P. C. 67.
100The King v. James Chandrasekera.
it would be open to the prosecution to lead evidence that the ticket wasstolen. The stage of proceedings contemplated in the expression “ burdenof proof ” in the sections of Chapter 9 of the Evidence Ordinance is a stageanterior to the close of the case, i.e., the stage of the production of evidence.The definition of the word “ proved ” in section 3 gives the key to thewhole question. The proof referred to in that section is the proof regard-ing each fact in issue. It is significant that what is defined in section 3 isthe word “ proved ” and not the word “ prove ”. The position, therefore,is that it is important to recognise two stages in a trial, each distinct fromthe other : (1) proof regarding each fact in issue and the judgment on eachof these facts in issue, (2) finding whether the accused is guilty or notguilty in regard to the whole case. On given findings the verdict is aquestion of law depending on fundamental principles of justice which arenowhere codified. The burden of proof on each fact in issue is a matter ofprocedure ; the final verdict is a matter of law. The following passageoccurs in the introductory chapter of Professor Wigmore’s The Science ofJudicial Proof (3rd ed.) : “ The study of the principles of Evidence fallsinto two distinct parts. One is Proof in the general sense,—the partconcerned with the ratiocinative process of contentious persuasion,—mind to mind, Counsel to Judge or Juror, each partisan seeking to movethe mind of the tribunal. The other part is Admissibility,—the proceduralrules devised by the law, and based on litigious experience and tradition,to guard the tribunal (particularly the Jury) against erroneous persuasion…. The procedural rules for Admissibility are merely a preli-
minary aid to the main activity, viz., the persuasion of the tribunal’smind to a correct conclusion by safe materials.”
In regard to section 105, the expression “ burden of proving ” is used inthe sense of burden of introducing evidence and not burden of establishinga case, for the latter remains throughout the trial on the prosecution.The burden of proof in section 105 is an evidentiary provision. All thatthe section says is that the duty of making a general or special exception afact in issue is on the accused. I adopt the interpretation given tosection 105 and to the word “ proved ” in section 3 by the four out of theseven Judges in Parbhoo v. Emperor particularly the reasoning of theChief Justice. There is nothing in section 105 or in the definition of“ proved ” inconsistent with the recognition and acceptance of thefundamental principle of law enunciated in Woolmington’s casez In thewords of Iqbal Ahmad C.J., in Parbhoo v. Emperor (supra) : “Theconcluding portion of section 105 means no more than this : that, inconsidering; the evidence for the defence relating to an ‘ exception ’ or‘ proviso ’ pleaded by the accused, the Court must start with the assump-tion that circumstances bringing the case within the exception or provisodo not exist. It must then decide whether the burden of proof has or hasnot been discharged by the accused. If it answers the question in theaffirmative it must give effect to its conclusion by acquitting the accusedor punishing him for the lesser offence. If, on the other hand, it holds thatthe burden has not been discharged, it cannot from that conclusion jump tothe further conclusion that the existence of circumstances bringing thecase within the exception or proviso has been disproved. All that it can1 (1941) A. I. R. All. 402.- a (1935) A. C. 462.
The King v. James Chandrasekera.
101
do in such a case is to hold that those circumstances are ‘ not proved It would be noted that section 3 draws distinction between the words* proved ’, ‘ disproved ’ and * not proved'. It- enacts that ' a fact is saidnot to be p~oved when it is neither proved nor disproved ’. Theburden of bringing his case within an exception or proviso is put on theaccused by section 105, but there is no provision in the Act to justify theconclusion that the failure to discharge that burden is tantamount todisproof of the existence of circumstances bringing the case with-n anexception or proviso pleaded …. It is one thing to hold that theexception or proviso pleaded has not been proved and it is quite anotherthing to say that it has been disproved. If a reasonable doubt as to theexistence of the exception or proviso exists the Court cannot, whileconsidering the evidence as a whole, deny to the accused the benefit ofthat doubt.” The accused is entitled to be acquitted if upon the con-sideration of the case as a whole (including the evidence given in supportof the plea of self-defence) a reasonable doubt is created whether he is oris not entitled to the benefit of the said exception. If in his summing-upthe Judge had told the Jury “ If you are in a state of doubt in regard to theissue of self-defence, you will acquit him ”, that would have been a correctdirection.
Section 105 formulates a rebuttable presumption of law in theconcluding part of the section. “ The chief function of a rebuttablepresumption of law is to determine upon whom the burden of proof rests,using that term in the sense of adducing evidence. With regard to thisclass df presumptions it has been said -that they are merely prima facieprecepts; and they presuppose only certain specific and expressed facts.The addition of other facts, if they be such as have evidential bearing,may make the presumption inapplicable. All is then tu~ned into anordinary question of evidence, and the two or three general facts pre-supposed in the rule of presumption take their place with the rest, and.operate with their own natural force as part of the total mass of probativematte-. Of course, the consideration which may have made these two orthree facts the subject of a rule of presumption may still operate, or maynot, to emphasise their quality as evidence ; but the main point to observeis that the rule of presumption has vanished ”—Phipson on Evidence(7th ed.) p. 651. The first part of section 105 should be read in relationto the second part. The word “ circumstances ” must have the samemeaning as it has in the first pa~t. The presumption mentioned in thesecond part of the section is therefore rebutted by the presence of“ circumstances ” as the word is used in the first part. The burden ofproof on the accused is thus limited to leading evidence of the. existence ofcircumstances. The truth or untruth of the evidence is a matter for theJury when they consider the case as a whole.
There is a general presumption against misconduct of all kinds, nopresumption being more highly favoured in law than that'of innocence.The proof of guilt must depend on positive affirmation and. cannot beinferred f~om mere absence of explanation. See the judgment of thePrivy Council in R. v. Seneviratne1 and R. v. Attygalle'. See also TheAttorney-General v. Rawther3 ; R. v. Chalo Singho *; Woodroffe and
1 (1936) 3$ -V. L. R. 203 at 222.5 (1924) 25 N. L. R. 385 at 390.
1 (1936) 37 N. L. R. 337.- ‘ (1941) 42 N. L. R. 269 at 274
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The King v. James Chandrasekera.
Ameer Ali on Evidence (7th ed.) pp. 760-1. The presumption of inno-cence displaces and overrides the presumption referred to in section 105 oftile Evidence Ordinance. It is true that the presumption of innocence isnot provided for by enactment, but all notice of certain general legalprinciples which are sometimes called presumptions, but which in realitybelong rather to the substantive law than the law of Evidence, was design-edly omitted, not because the truth of those principles was denied, hutbecause it was not considered that the Evidence Act was the proper placefor them'—Woodroffe and Ameer Ali on Evidence (7th ed.) p. 78.
The only exceptions to the rule as explained in Woolmington’scase arise in the defence of insanity and in offences where onus of proofis specially dealt with by statute—'Woolmington v. Director of Public Pro-secutions'. In regard to the plea of insanity the onus on the defencewould be particularly heavy not only in English law but also in ourlaw. In our law, regard being had to the common course of humanconduct under section 114 of the Evidence Ordinance, the great majorityof men would be presumed to be sane, and an accused person who raisesthe defence of insanity will have to prove it clearly. Besides, the “pru-dent man ” mentioned in the definition of “ proved ” in section 3 of theEvidence Ordinance will have to be clearly satisfied before he will adjudgea man insane. As regards offences where onus of proof is specially dealtwith by statute, an example of it can be found'in section 50 of our ExciseOrdinance (Cap. 42) which says : “ In prosecutions under section 43 it shallbe presumed, until the contrary is proved, that the accused person hascommitted an offence under that section ”. In the present case, however,we are concerned with the general rule as laid down in Woolmington’scase (supra). Woolmington’s case is concerned with explaining andreinforcing the rule that the prosecution must prove the charge it makesbeyond reasonable doubt, and consequently that, if, on all the materialbefore the Jury, there is a reasonable doubt in relation to the whole case,the prisoner should have the benefit of it. The rule is of general applica-tion in all charges under the criminal law—Mandril v. Director of PublicProsecutions *. It is a rule of substantive law and a fundamental prin-ciple of justice. There is nothing in the Evidence Ordinance which canprevent the application of it in Ceylon.
M.W. H. de _ Silva, K.C., Attorney-General (with him J. MeroynFonseka, K.C., Solicitor-General, H. H. Basnayake, C.C., and E. W. P.
S.Jayewardene, C.C.), for the Crown—The Evidence Ordinanceadmits the application in Ceylon of the English law "as stated in Woolrmington v. Director of Public Prosecutions (supra). The principle thatin a criminal trial the onus of proof is on the prosecution to establish be-yond reasonable doubt all the facts and circumstances which are essentialto the offence with which the accused person is charged was accepted asfar back as 1879—Usman Sarpo v. Theodaris Fernando’. See also Reginav. John Mendis' and Kachcheri Mudaliyar v. Mohamadu'. The principleof giving the benefit of a doubt to the accused is still accepted in Ceylon.The practice is justified either by section 101 or by section 100 of theEvidence Ordinance."
» (1935) A. C. 462 nt 4S1.3 (1ST9) 2 S. C. C. 58.
• (1941) A. E. R- Vol. 3, p. 272 at 279■f (1883) 5 S. C. C. 186.
4 (1920) 21 A. L. B. 369.
The King v. James Chand.rasek.era.
103
The term “ burden of proof ” is used in two senses, (1) of establishinga case, and (2) of leading evidence—Halsbury’s Laws of England (2nd ed.)Vol. 13 p. 543. In criminal cases, even where the second, or minor,burden of introducing evidence is cast upon, or shifted to, the accused,yet the major one of satisfying the Jury of his guilt beyond a reasonabledoubt is always upon the prosecution and never changes ; and if, on thewhole case, they have such a doubt, the accused is entitled to the benefitof it and must be acquitted—Phipson on Evidence (8th ed.), p. 27. Seealso Emperor v. Damapala'; Woodroffe and Ameer Ali on Evidence(9th ed.), p. 703 ; Monir on Law of Evidence (2nd ed.), p. 724.
In section 105 of the Evidence Ordinance the term “burden of proof sis used in the sense of duty of introducing evidence. The duty of theaccused under section 105 is to introduce such evidence as will displacethe presumption of the absence of circumstances bringing the casewithin an exception, and will suffice to satisfy the Court that suchcircumstances may have existed. The burden of the issue as to the non-existence of such circumstances is then shifted to the prosecution,which has still to discharge the major burden of proving the guilt of theaccused beyond reasonable doubt—Emperor v. Damapala'; Monir on Lawof Evidence (2nd ed.), pp. 747, 748. It would be sufficient if the evidencetendered by the accused raises a reasonable doubt when the whole caseis reviewed. The burden on the accused under section' 105 is to showcircumstances which tend to make an exception applicable ; it is notpossible to read into the section words which convey the sense that theonus of proving circumstances which shall establish any exception is onthe accused.
The quantum of proof necessary for a case is nowhere specified. Wehave to fall back on section 100 of the Evidence Ordinance and say thatthe quantum of proof is determined by the principles of English law.Thus our Courts have always acted on the principles that in a criminalproceeding the guilt ,of the accused should be established beyond reason-able doubt and, in a civil proceeding, the case is decided by a balanceof testimony. Further, in the definition of “ proved ” in section 3 ofthe Evidence Ordinance, a fact is said to be proved when, after consideringthe matters before it, the Court either believes it to exist, or considers itsexistence so probable that a prudent man ought, under the circumstancesof the particular case, to act upon the supposition that it exists. As tothe standard of proof necessary to satisfy a prudent man guidance maybe had from decisions of the English Courts. Our courts have, forexample, followed English cases in regard to the evidence necessary toprove insanity (R. v. Vidanalage Abraham Appu3; R. v. Don NikolasBuiya' and criminal negligence (Wickremesinghe v. Obeyesekere ’;Wickremesinghe v. Thomas Singho°; Lourensz v. VyramuUu ’) and inrespect of the burden of proof imposed upon a person found in recent 1
1 [1937) A. I. R. Rangoon S3.* {1942) 43 X. L. R. 385.
« (ibid).5 (193o).37 X. L. It. 327 at 331.
» (1939) 40 N. L. R. 505.• (1937) 17 C. L. Rec. 58.
.’ (1941) 42 X. L. R. 472 at 473.
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HOWARD C.J.—The King v. James Chandrasekera.
possession of stolen goods (The Attorney-General v. Rawther1; Perera v.Marthelis Appu *). The effect of section 105 is also considered in Nair v.Sudanaiss, Perkins v. Dewadasan', R. v. Sellammai° and ColomboMunicipal Council v. J. A. Perera °.. .
Section 105 of the Indian Evidence Act is exactly similar to our section.Apart from Parbhoo v. Emperor (supra) and Emperor v. Damapala (supra),the case of Shivdasani v. Emperor ’ is also of assistance. The followingcases from Malaya are of importance :—R. v. Chhui Yis; Lim Tong v.The Public Prosecutor, Johore'; Chia Chan Bah v. The King "; MohamedIsa Bin Leman v. Public Prosecutor “ ; Public Prosecutor v. Chan Lip a.
However important the question of burden of proof may be in theearly stages of. the case, after all the evidence is out on both sides, it mustbe looked at as a whole and the truth of the charge must be inferredfrom it—The East India Railway Co. v. Major KikwoodIntention isan essential ingredient of the offence of murder, and if, upon a reviewof all the evidence in the case, any doubt is created regarding the exerciseof the right of private defence, the issue of the presence of intentionwould be materially affected. The rule in Woolmington’s case (supra) isdiscussed and followed subsequently in R. v. Prince11 and Mancini v.Director of Public Prosecutions (supra).
Cur. adv. vult.
December 21, 1942. Howard C.J.—
This case involves a question of law reserved and referred for thedecision of this Court by Moseley S.P.J., under the provisions of section355 (1) of the Criminal Procedure'Code (Cap. .16). Under section 21 ofthe Court of Criminal Appeal Ordinance (No. 23 of 1938) all jurisdictionand authority vested in the Supreme Court under section 355 of theCriminal Procedure Code in relation to the questions of law a~ising intrials before a Judge of the Supreme Court shall be transferred to andshall vest in the Court of Criminal Appeal. The accused was tried onan indictment charging him with having committed murder by causingthe death of Talpe Liyanage Francis, an offence punishable undersection 296 of the Penal Code. By the unanimous verdict of the Jury theaccused was convicted of causing grievous hurt, an offence punishableunder section 317 of the Penal Code, and he was sentenced to nine months’rigorous imprisonment. At the trial the causing of death was commonground and the defence set up on behalf of the accused was that, incausing the death of the'deceased, he was acting in the exercise of theright of private defence. The accused and one witness for the defencegave evidence detailing the circumstances in which they claimed that theright of private defence arose. No evidence of such circumstances emergedfrom the case for the prosecution. The learned Judge took the viewthat if the Jury believed the evidence of the accused and his witnesshe was entitled to an acquittal. The accused, however, having sought
1 11924) 25 Ar. L. R. 385.
! {1919) 21 N. L. R. 312.
3 (1936) 37 N. L. R. 439.
•{1938) 39 X.r.. R. 337.
‘ (1931) 32 N. L. R. 35 K• (1939) 40 N. T.. R. 457.
» A. I. R. (1939) Sind 209 at 212.
B 5 Malayan L. J.'177.
9 7 Malayan L. J. 41.
7 Malayan L. J. 147.
8 Malayan h. J. 160.
19 7 Malayan L. J. 153.
13 {1912) A. I. R. P. C. 195.m (2935) A. E.R. Vol. 3% p. 37
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HOWARD C.J.—The King v. James Chandrasekera.
to excuse his offence under the provisions of section 89 of the Penal Codewas faced with the burden of proof placed upon him by section 105 ofthe Evidence Ordinance. The learned Judge was, however, invited todirect the Jury in the words of Lord Sankey L.C., as reported in thecase of Woolmington v. Director of Public Prosecutions1 that if. they“ are either satisfied with his (accused’s) explanation, or, upon areview of all the evidence, are left in reasonable doubt whether, even ifhis explanation be not accepted, the act was unintentional or provoked,the prisoner is entitled to be acquitted On this point the learnedJudge directed the Jury as follows: —
“ You have been told, gentlemen, what the onus is which lies uponthe prosecution and that the case must be proved to you beyond allreasonable doubt. You may be confused, and I do not blame youif you are, as to the standard of proof which you are entitled to expectfrom an accused person. You were referred yesterday by Counselfor the defence to a case which was decided in the House of Lords,a case which has now become famous and is constantly referred to inthese Courts, and the gist of the decision in that case is that if on thewhole of the case the accused person raises a reasonable doubt in yourminds as to his guilt he is entitled to the benefit of it. That, of course,gentlemen, is the English Law, as stated in this decision in the caseof Woolmington (supra) by the House of Lords, and I say with the mostprofound' respect that that correctly states the English Lav/ on thispoint. But, gentlemen, in my view, that is hot the law of Ceylon,and on a point such as this, gentlemen, you must take my directionas being correct. If it is incorrect I shall be put right by anothertribunal. Just as you are the Judges of fact in a case, so am I theauthority on the law, and you will accept my direction on the law asbeing correct, knowing that if I am wrong I shall be put right.
“ Now, gentlemen, one or other, or perhaps both, Counsel referred youto section 1C5 of our Evidence Act. There is no provision in EnglishLaw equivalent to this. This is how the section runs : ‘ When a personis accused of any offence the burden of proving the existenceof circumstances bringing the case within any of the general exceptionsof the Penal Code . . . .. ’; here you have the accused putting
forward circumstances which, he says, and which, if they are true,do bring his case within these general exceptions of the Penal Codewhich deals with the law of private defence or ‘ within any specialexception or proviso contained in any other part of the same Code orany law defining the offence, the burden of proving the existence ofcircumstances bringing the case within any of the general exceptions ofthe Penal Code is upon him,’ that is upon the accused, and the Courtshall presume the absence of such circumstances. So you see section105 definitely places the burden of proving the existence of circums-tances indicating that the accused was exercising the right of privatedefence upon the accused.
“ Now you may ask yourselves, gentlemen, ‘ What does it mean tosay that the burden of proof lies upon the accused person ? ’ The sameEvidence Ordinance in another section says: ‘ A fact is said to be
1 {1935) A. C. 462.
106HOWARD C.J.—The King v. James Chandrasekera.
proved, when after considering the matters before it the Court eitherbelieves it to exist, or considers its existence so probable that a prudentman ought under the circumstances of the particular case to act uponthe supposition that it exists.’ You might, perhaps, bear in mind thewords : ‘ under the circumstances of the particular case.’ That maymean that some cases require a higher degree of proof than others.
“In a criminal case you are entitled to expect the prosecution toprove its case to you beyond reasonable doubt, and that seems veryreasonable, when the life or liberty of a person is at stake. On theother hand, when an accused person has to prove something whichmay secure him his life or liberty the burden upon him is not so heavy,and you will allow him a little latitude, and you will not ask him toprove his case beyond reasonable doubt. The Evidence Ordinancesays it must be proved in this way. So you will see there is, perhaps,some elasticity in this Ordinance as regards the amount of proof expectedfrom an accused person.
“ You will remember, gentlemen—some of you sat in this Courtlast week, in a case in which the defence put up on behalf of the accusedperson was that at the time of the incident ne was insane—I donot know how many of you did sit in that case but some of you musthave done so—you will remember that in that case I directed you thatit was for the defence to prove that at the time of the incident theaccused was in that condition, and I went on to tell you that it wouldbe sufficient according to our law if that state of mind of the accusedwas proved by a preponderance or balance of evidence. That, of.course, does not mean by any number of witnesses, because youwill remember, in that' insanity case, the accused called no evidence.So, when we speak of the preponderance or balance of evidence, what wemean is, is it more probable ? In that case was it more probable thathe was insane than that he was sane ?
“ That seems to me the standard of proof which, in a case like this,where the right of private defence is set up, you shpuld require from theaccused person. That seems to me, gentlemen, to be our law on thatt subject. ”
Finally, before asking the Jury to consider their verdict, the learned Judgesummed up the position in the following way : —
“The question which it seems to me you should put yourselves isthis:‘ Has the accused satisfied you, in the way in which I have told
you you must be satisfied, that is, by a preponderance of evidence,that he was acting in the exercise of the right of private defence?If he has so satisfied you, why, then, he is not guilty of any offence.But if he has not satisfied you, by that preponderance of evidence,then he has failed in his defence and he is guilty of an offence in accord-ance with the intention which you are prepared to attribute to him. ”The question -eserved by the learned Judge for decision by this Court is“Whether, having regard to section 105 of the Evidence Ordinance andto the definition of ‘ proved ’ in section 3 thereof, in a case in which anygeneral or special exception in the Penal Code is pleaded by an accusedperson and the evidence relied upon by such accused person fails to satisfy
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HOWARD C.J —The King v. James Chandrasekera.
the Jury affirmatively of the existence of circumstances bringing thecase within the exception pleaded, the accused is entitled to be acquittedif, upon a consideration of the evidence as a whole, a reasonable doubtis created in the minds of the Jury as to whether he is entitled to thebenefit of the exception pleaded”.
It has been contended by Mr. H. V. Perera, K.C., on behalf of theaccused, that the passage cited from the summing-up of the learned Judgewas not a correct statement of the law. The Attorney-General, whoappeared for the Crown, has not submitted any contrary view. Thisis all the more remarkable having regard to the fact that the authorsof the standard text books on the Law of Evidence do not supportMr. Perera’s contention. Moreover, the opposite view was adopted bythree of the Judges out of the Court of seven, who heard the appealin the case of Parbhoo v. Emperor1, the main authority for thecontention put forward by both Counsel. Our consideration of thiscase has, therefore, been more in the nature of a discussion thanan argument. In contending that the law of England, as laid down byLord Sankey L.C., in the case of Woolmington v. Director of PublicProsecutions (supra), applies to Ceylon, Mr. Perera has invited ourparticular attention to section 100 of the Evidence Ordinance. Thisprovision is worded as follows : —
“Whenever in a judicial proceeding a question of evidence arisesnot provided for by this Ordinance or by any other law in force in thisIsland, such question shall be determined in accordance with theEnglish Law of Evidence for the time being. ”
He maintains that the expression “ burden, of proof ” referred to in sec-tion 105 of the Evidence Ordinance merely creates a duty on the personon whom the burden is imposed to prove all the evidence he can and thatthe expression “ burden of proving ” must be interpreted to mean merely“ burden of introducing evidence ”. He further argues that once evi-dence has been introduced in support of an exception a fact in issue hasbeen raised and the final words of the section, that is to say, the presump-tion, no longer applies. With regard to the definition of “ proved ”in section 3 of the Ordinance, Mr. Perera contends that this refers tothe effect of evidence on the mind of the Jury and can have no meaninguntil the Jury has registered its verdict. For these reasons, Mr. Pereramaintains that no provision is made by Ceylon law for the quantum ofevidence that must be submitted by a person who relies on bringing .his case within any of the general exceptions in the Penal Code or withinany special exception or proviso contained in any other part of the sameCode, of in any law defining the offence. Therefore, section 100 permitsus to invoke in aid English law and apply the rule laid down by LordSankey L.C., that if the Jury “are either satisfied With the accused’sexplanation or, upon a review of all the evidence, are left in reasonabledoubt whether, even if his explanation be not accepted, the act wasunintentional or provoked, the prisoner is entitled to be acquitted”.
Even if the rule as laid down in section 105 of the Evidence Ordinanceis clear, unambiguous and unequivocal Mr. Perera maintains that it ismerely a rule of procedure and not substantive law and the presumption
1 (1941) A. I. R. All. 402.
108HOWARD C.J.—The King v. James Chandrasekera.
therein formulated must give way to the presumption of innocence which isnever rebutted, unless the prosecution has established its case on the wholeof the evidence put before the Jury.
The Attorney-General’s argument was submitted on somewhat differentlines. He embraced the contention of Mr. Perera that the. EvidenceOrdinance did not deal with quantum of evidence, that “ burden of proof ”in section 105 meant merely “the introduction of evidence” and that thematter was governed by English law. The principle of English law wasthat a Juryman, in coming to a conclusion as to whether a case againstan accused person had been established, should put himself in the positionof a prudent man. If there was a'reasonable doubt as to whether anaccused person had brought himself within an exception, a prudent manwould acquit him.
In support of their contentions Mr. Perera and the Attorney-Generalcited the Rangoon case of Emperor v. Damapala' and the Allahabadcase of Parbhoo v. Emperor (supra) and several Malayan cases.Both Ceylon and Malaya have adopted the Indian Penal Codeand the Indian Evidence Act. These cases are all, therefore,/ directlyconcerned . with the question reserved for our decision. They nodoubt constitute a formidable weight of authority in support of theview submitted on behalf of the accused and, as such, although notbinding on this Court, are entitled to our respect and careful consideration.In tlie Rangoon case there was as in the present case a plea of self-defence.In his judgment Robert C.J., after referring to the fact that in somequarters there had been much confusion as to the meaning of the words“ burden of proof ”, stated as follows : —
“ In many instances little or no evidence in favour of the accusedwill have transpired at the end of the case for the prosecution. Whenthis is so, then in another arid quite different sense the burden of proofis cast temporarily on the accused ; when sufficient proof of the com-mission of a crime has been adduced and the accused has been connectedtherewith as the guilty party, the burden of proof in the sense of in-troducing evidence in rebuttal of the case for the prosecution is laiddown upon him. If evidence is then adduced for the defence whichleaves the Court in doubt as to whether the accused ought to be excusedfrom criminal responsibility, or found guilty of a lesser offence thanthat with which he stands charged then, at the conclusion of all theevidence, it must still be remembered that it is incumbent upon theprosecution to have proved their case. Put shortly, the test is notwhether the accused has proved beyond all reasonable doubt' that hecomes within any exception to the Indian Penal Code, but whether insetting up his defence he has established a reasonable doubt in thecase for the prosecution and has thereby earned his right to anacquittal. ”'
Further on, the learned Chief Justice states : —
“ Passing on to the second question I hold that the decision inWoolmington v. Director of Public Prosecutions (supra) is in no wayinconsistent with the law in British India. Indeed, the principles
1 (1937) A. I. R. Rangoon 83.
HOWARD C.J.—The King v. James Chandrasekera.
109
there laid down form a valuable guide to the correct interpretation ofsection 105, Evidence Act. It is unnecessary to decide any questionrelating to insanity in the present reference, and the effect of ourdecision in no way alters the existing law on the subject.”
Dunkley J., in his judgment, after referring to the fact that where thelaw of British India appears on examination to be the same as the law ofEngland on any subject, a decision of the House of Lords on such a subjectmust be considered to be a paramount authority in India, stated thedecision of the House of Lords in the Woolmington case was the latestand most authoritative exposition of the law of England on the subjectof the duty which lies upon an accused person who, when the elementsconstituting a criminal offence have been proved against him by the. prosecution, pleads in defence that owing to the existence of specialcircumstances has act or acts did not amount to an offence. The learnedJudge stated as follows : — „
“The judgment of Viscount Sankey L.C., in this case, ought to beaccepted as a binding authority by every Criminal Court in BritishIndia in so far as the law of British India on this subject, which iscomprised within the terms of section 105, Indian Evidence Act,coincides with the law of England.”
Dunkley J. then stated that the true construction of section 105 dependedupon the meaning to be assigned to the expression “ burden of proof ”and referred to the fact that the phrase is used in two distinct meaningsin the Law of Evidence, namely, the burden of establishing a case, and theburden of introducing evidence. After considering the effect of section 101and the definition of “ proved” in section 3, he states as follows : —
“ It is plain that in this section the term ‘ burden of proof ’ is usedin the first of its meanings, namely, the burden of establishing a case.In a criminal trial the burden of proving everything essential to theestablishment of the charge against the accused lies upon the prose-cution, and that burden never charges. But it would clearly impose animpossible task on the prosecution if the prosecution were requiredto anticipate every possible defence of the accused and to establishthat each such defence could not be made out, and of this task theprosecution is relieved by the provisions of section 105 and its closelyallied section, section 106. Section .105 enacts that the burden ofproving the existence of circumstances bringing the case within anygeneral or special exception in the Penal Code shall lie upon the accused,and the Court shall presume the absence of such circumstances. In thissection the phrase ‘burden of proof’ is clearly used in its secondsense, namely, the duty of introducing evidence. The major burden,that of establishing on the whole case the guilt of the accused beyondreasonable doubt, never shifts from the prosecution. The duty of theaccused under section 105 is to introduce such evidence as will displacethe presumption of the absence of circifmstances bringing the casewithin an exception, and will suffice to satisfy the Court that suchcircumstances may have existed. The burden of the issue aS to.thenon-existence of such circumstances is then shifted to the prosecution;which has still to discharge the major burden of proving on the whole
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HOWARD C.J.—The King v. James Chandrasekera.
case the guilt of the accused beyond reasonable doubt. I should,perhaps, point out that the examination of the accused before -thecommitting Court is, under section 287, Criminal P. C., evidence at theSessions trial, and that, under section 342, the examination of the accusedat any trial * may be taken into consideration ’ and i.s to this extentevidence at the trial. ”
The third member of the Court, Leach J., merely stated that he was inagreement with the views expressed in the judgment of Roberts C.J.It will thus be seen that the Court based its decision on the ground thatan accused person who desires to bring himself within an exceptionsatisfies the “ burden of proof ” imposed by section 105 by merely intro-ducing evidence. If this is a correct statement of the law, the law of Indiaand a fortiori that of Ceylon which possesses section 100 applying the EnglishLaw of Evidence can no doubt be reconciled with the Woolmington case.The interpretation thus given by the Rangoon Judges to the words “ burdenof proving ” in section 105 ignores the illustrations to this provision and thedefinition of “ proved ” in section 3. It will be noted that those illustra-tions place a plea by an accused person of insanity and one of deprivation ofself-control by reason of grave and sudden provocation in the samecategory. The burden? of proof according to these illustrations is on theaccused. Moreover, no authority other than the passage itself fromtext-book writers can be discovered for the following passage from the-judgment of Dunkley J. : —
“The duty of the accused under section 105 is to introduce suchevidence as will displace the presumption of the absence of circumstancesbringing the case within an exception, and will suffice to satisfy theCourt that .such circumstances may have existed. The burden of theissue as to the non-existence of such circumstances is then shifted tothe prosecution, which has still to discharge the major burden ofproving on the whole case the guilt of the accused beyond reasonabledoubt. ”
In Woodroffe and Ameer Ali’s Law of Evidence as applied to BritishIndia and in Basu’s Law of Evidence in British India these learnedauthors express the opinion that section 105 is an important qualificationof the general rule and it is for those who raise the plea of private defenceto prove it. The burden of. the general issue rests upon the prosecutionand never changes until a good prima facie case is made against theaccused sufficient to justify his conviction and shifts the burden upon theaccused to prove any special issue raised by him. It is sufficient for anaccused person in such circumstances to establish a prima facie case forthen the burden of proving such issue is shifted to the prosecution.Moreover, the fact that this principle is subject to the qualification Ihave mentioned is in one sense not inconsistent with the decision in theWoolmington case. In the course of his judgment in that case LordSankey L.C., stated as follows : —
“ Throughout the web of the English Criminal Law one goldenthread is always to be seen, that is the duty of the prosecution to provethe prisoner’s guilt, subject to what I have already said as to thedefence of insanity and subject also to any statutory exception. ’’
HOWARD C.J.—The King v. James Chandrasekera.
Ill
Lord Sankey, therefore, recognises that defence of insanity and thestatutory exception as qualifications of the principle that the burdenon the prosecution never shifts. The defences, however, based on theexistence of circumstances bringing persons within the general exceptionsin the Penal Code are not statutory exceptions in English Law andhence arises the inconsistency between Ceylon and Indian Law on theone hand and English Law on the other.
The Rangoon case was subsequently followed by the four majorityJudges in the case of Parbhoo v. Emperor {supra). Generally speaking,the reasoning of the Rangoon Judges was adopted by the majority ofJudges in the Allahabad case. Thus Bajpai J. held that in section 105the expression “ burden of proof ” is used in the sense of burden ofintroducing evidence and not burden of establishing a case, for such aburden rests throughout the trial on the prosecution. The Presidentof the Court, Iqbal Ahmed C.J. seemed to base his opinion on a beliefthat the framers of the Indian Law could not have intended to departfrom the English Law on the subject under discussion. In this vcon-nection it is relevant to point out that at the time when the IndianEvidence Act was framed the judgment of Lord Sankey had not beendelivered and different views to those expressed in that judgment wereaccepted. No doubt it is, as stated by the learned Chief Justice, afundamental principle of English Law that criminality must never bepresumed against an accused person but must be established by evidencesuch as to exclude to a moral certainty every reasonable doubt about hisguilt. But even this fundamental principle of English law is qualifiedwhen pleas of insanity and statutory exceptions are raised by accusedpersons. One of the other majority Judges, Mohammed Ismail J., inadopting the views of the Judges in the Rangoon case, stated that theLaw of Evidence regulates procedure only and has nothing to do withconviction or acquittal of an accused person. This view ignores thedefinition of “ proved ” as contained in section 3 and cannot be accepted.The remaining majority Judge in the Allahabad case, Mulla J., heldthat the purpose of section 105 was merely to relieve the prosecution ofthe burden of establishing that the act with which the accused is chargeddoes not fall within any one of the general exceptions in the Penal Code.If this view is correct, the illustrations to this section are singularlyinapt.
For the reasons I have given I find the reasoning and decisions of themajority Judges in the Allahabad case as unacceptable as those of theCourt in the Rangoon case. I do not propose to make reference to theviews of the three minority Judges except to say with all respect that Ifind their reasoning unassailable.
I will diverge at this stage to a brief consideration of the Malayancases to which our attention was invited by the Attorney-General. Inthe case of Rex v. Chhui Yil it was held that it is the duty of theCrown to give evidence sufficient, if believed, to prove every ingredient ofthe offence of which they invite the Jury to find the. accused guilty but,once that onus is discharged, it remains for the accused to establish anyfacts which may show that.what he did is, in his case, and as an exception44/12'1 5 Malayan L. J. 177.
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HOWARD C.J.—The King v. James Chandrasekera.
to the general law, not a criminal offence. There can be no legalobligation on the Crown, as a part of its case, to rebut, in advance, allpossible grounds of defence. The following passages occur in thejudgment of Whitley A.C.J.: —
“ The next question was that which was raised in the seventhground Of appeal, which alleged that certain parts of the summing-upof the learned trial Judge constituted a misdirection because he hadfailed to direct the attention of the Jury to the recent decision of theHouse of Lords in Woolmington’s case which, it was alleged, had hadan ‘effect’ on section 105 of our .Evidence Ordinance. It was notvery clearly explained how a decision even of the House of Landscould be said to ‘ effect ’ a statutory provision of our law but probablywhat this was intended to mean was that section 105 of our EvidenceOrdinance should now be construed in some way different from thatin which it has hitherto been construed in our Courts. We do not thinkthe decision of R. v. Woolmington can have any effect on our lawi_»
Now, not only does section 105 provide such a statutory exceptionbut our definition of murder unlike that in England is a statutoryone. It is laid down, as we all know, in sections 299 and 300 of ourPenal Code and these sections make it clear that the prosecution mustalways prove the existence, in the mind of the accused, of one of theintentions or of the knowledge therein described. We think that,with these sections before him, no Judge of this Colony would everhave given to a Jury a direction such as that which led to the quashingof the conviction in Woolmington’s case.
Section 105 of our' Evidence Ordinance in no way lessens the onuswhich always remains upon the prosecution. All that that sectionlays down .is that:—“ "When a person is accused of any offence, theburden of proving the existence of circumstances, bringing the casewithin any of the general exceptions in the Penal Code, or within anyspecial exception or proviso contained in any other part of the sameCode, or in any law defining the offence, is upon him, and the Courtshall presume the absence of such circumstances,” and illustration (b)to that section shows that, inter alia, the burden of proving suddenprovocation (which would reduce the offence, in accordance with the; terms of Exception 1 to section 300 of the Penal Code, to one ofculpable homicide not amounting to murder) is a burden which ison the accused. This burden, however, can never arise unless the• Crown has already produced evidence sufficient in law to satisfy theJury, in the absence of evidence from the defence, that the killingamounted to culpable homicide committed with one of the intentionsor with the knowledge described in section 300 of the Penal Code.
In Lim Tong v. The Public Prosecutor, Johore1 a Court constituted byTerrelKA.C.J. and Horne J. followed the Rangoon case of Emperor v.Damapala (supra), and held that if the accused fails to discharge fullythe burden of proving provocation, but by his evidence or argumentsraises a reasonable doubt as to whether the prosecution has satisfied the
1 7 Malayan L. J. 41.
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HOWARD C.J.—The King v. James Chandrasekera.
assessors that such criminal intention as would justify a verdict ofmurder has been satisfactorily established, the accused is, therefore,entitled to the benefit of such doubt, and the offence would be reduced frommurder to culpable homicide not amounting to murder. This decisionwas shortly followed by the case of Chia Chan Bah v. The King1by a Court composed of McElwaine C.J., Terrell and Home JJ., whenit was held that “in a trial for murder it is incumbent on the. Crown toprove beyond reasonable doubt that the accused killed the deceased byan act which constituted murder within the meaning of section 300 of thePenal Code. Where the defence is insanity the onus is on the accusedto prove that he was probably insane. This onus is placed upon him bysection 106 of the Evidence Ordinance, hut the law does not require anaccused person setting up an exception such as insanity as a defence toprove that exception beyond reasonable doubt. It is sufficient if heinduces in the mind of the Jury a feeling that he was probably insanethough the Jury may have its doubt whether he really was insane.”Soon afterwards in Public Prosecutor v. Alang Mat Nesir Bin AnjangTalib and Public Prosecutor v. Chan Lip' a Court constituted byWhitley A.C.J. and Gordon-Smith J. (Cussen J. dissentiente), held that“ while it is for the prosecution to prove its case heyond reasonable doubt,the burden of proving the existence of circumstances bringing the casewithin one of the exceptions contained in section 84 of the Penal Codelies upon the accused. It is open to him to discharge that burdeneither by adducing himself or by relying upon the evidence adduced bythe prosecution or by both these means. The burden of proof castupon an accused to prove insanity is not so onerous as that upon theprosecution to prove the facts which they allege and may fairly bestated as not being higher than the burden which rests upon a plaintiffor defendant in civil proceedings. Held, further, that the trial Judgehaving found in each case that the evidence did raise a reasonable doubtin his mind as to whether or not the accused was insane when committingthe acts complained of and such a doubt being based as it was upon avery definite and weighty expert medical opinion, and having regard tothe lesser degree of proof required in such a case, the accused had dis-charged the burden cast upon them by section 105 of the EvidenceEnactment and brought themselves within the exception provided bysection 84 of the Penal Code.” The last Malayan case to which 1 needinvite attention is that of Mohamed Isa Bin Leman v. Public Prosecutor *,in which it was held by Roger Hall C.J. that, the onus of provinginsanity is upon the accused—section 105 of the Evidence Enactment.That onus is not a heavy one. The burden is no higher than that whichrests upon a party to civil proceedings. The story of the decisions of theMalayan Courts may be summarised as follows. In 1936 it was heldthat the decision in Woolmington’s case (supra) could have no effect on thelaw in the Straits Settlements and that the burden of proving sudden pro-vocation by virtue of section 105 rests on the accused. In 1937, after thedecision in the Rangoon case, it was held that the law in Johore as regardsthe onus placed on the prosecution and the principles laid down in the
1 7 Malayan L. J. 147.* 7 Malayan Law Journal, p. 153.
*8 Malayan Law Journal, p. 160.
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HOWARD CJ.—The King u. James Chandrasekera.
Woolmington case should be applied. In 1938 it was even held thatwhen the accused pleaded that he was insane, he had only to raise areasonable doubt in the mind of the Judge to discharge the burden castupon him by section 105 and bring himself within the requisite exceptionprovided by the Penal Code. I may remark that this finding iscontrary to the decision in the English Courts in Macnaughten’s case1in which it was. held that, if the accused person relied on insanity,he must clearly prove it. In two other cases in Malaya in 1938it was held, following Sodeman v. Rexthat the burden in cases in whichan accused has to prove insanity may fairly be stated to be not higherthan the burden which rests upon, a plaintiff or defendant in civil pro-ceedings. The Malayan cases are entertaining but not really helpful.
Having given the grounds, which have led me to the conclusion thatthe decisions in the cases I have cited cannot be accepted, I propose torefer briefly to the various relevant sections of the Evidence Ordinancein order to see whether any gap or hiatus occurs with regard to the matterin dispute as would allow under. section 100 recourse to English law.It is only in such circumstances that recourse can be had to such law.It will be observed that the heading of Part III of the Ordinance is notmerely “ Production of Evidence ”, but “ Production and Effect ofEvidence ”. Section 101 is worded as follows : —
“ Whoever desires any Court to give judgment as to any legal rightoi liability dependent or; the existence of facts which he asserts, mustprove that those facts exist.
When a person is bound to prove the existence of any fact, it is saidthat the burden of proof lies on that person.”
1 would, in particular, refer to the second paragraph.
Section 102 says^-
“ The burden. of proof in a suit or proceeding lies on that personwho would fail if no evidence at all were given on either side.”
Section 103 enacts—
“ The burden of proof as to any particular fact lies on that personwho wishes the Court to believe in its existence, unless it is providedby any law that the proof of that fact shall lie on any particularperson.”
Omitting section 104 which is not' relevant and section 105 for themoment, section 106 says^-
“ When any fact is especially within the knowledge of any person,the burden of proving that fact is upon him.”
Section 103 seems to -throw on the accused the burden of proving thathe had acted in exercise of the right of private defence because it is heand not the prosecution who wishes the Court to believe that he did so.The illustration to the section, which is worded as follows : —
' V
“ A prosecutes B for theft, and wishes the Court to believe that Badmitted the theft to C. A must prove the admission.
B wishes the Court to believe that, at the time in question, he waselsewhere. He must prove it.”
. 1 (1843) 10, Ch. F. 200.
* (1936) 2 A. E.R. 1138.
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HOWARD C.J.—The King v. James Chandrasekera.
bears out this contention. Section 103 does not, however, stand byitself for section 105 is in the following terms: —
i
“ When a person is accused of any offence, the burden of provingthe existence of circumstances, bringing the case within any of thegeneral exceptions in the Penal Code, or within any special exceptionor proviso contained in any other part of the same Code, or in any lawdefining the offence, is upon him, and the Court shall presume theabsence of such circumstances.”
It has been contended that “ burden of proving ”, as used in this sectionhas not the same meaning as “ burden of proof- ”. Any doubt as to themeaning is, as I have already observed, removed by the languageof the illustrations. I need only quote the first one, which is asfollows: —
“ A, accused of murder, alleges that, by reason of unsoundnessof mind, he did not know the nature of the .act.
The burden of proof is on A.”
Obviously the Legislature did not intend to apply different. meaningsto the terms “ burden of proof ” and “ burden of proving ”. Moreover,no distinction is drawn either in the section or in the illustrations betweenthe various general exceptions and the various special exceptions orbetween general and special exceptions. The same rule applies to themall. No distinction is made between the question of private defence’and the question of unsoundness of mind. If the burden of provingunsoundness of mind is upon the accused, the burden of proving the rightof private defence is upon him too. It may be conceded that one of thereasons .why the final words of section 105, namely,' “ and the Court shallpresume the absence of such circumstances ”, may have been inserted wasso as to make it clear that the non-existence of such circumstances wasnot a matter to be established by the prosecution as under the old law.On the other hand, the fact that such words have been inserted seemsto manifest only too clearly the burden cast on the accused. In thisconnection I Would refer to the definition in section 3 of the term“ Facts in Issue ”, which is as follows : —
** * Facts in Issue ’ means and includes—
any fact from which, either by itself or in connection, with other
facts, the existence, non-existence, nature, or extent of any rights
liability, or disability, asserted or denied in any suit or proceeding,necessarily follows.
Explanation Whenever, under the provisions of the law for thetime being in force relating to Givil Procedure, any Court records anissue of fact, the fact to be asserted or denied, in the answer to Suchissue, is a fact in issue.”
The question of an accused being faced with the burden of provinga fact in issue such as grave and sudden provocation can only arisewhen the prosecution has established beyond all reasonable doubt facts'
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HOWARD C.J.—The King v. James Chandrasekera.
which constitute an offence. Then only does the burden arise. Theillustration to this definition which is as follows : —
“A is accused of the murder of B. At his trial the following factsmay be in issuerThat A caused B’s death ;
That A intended to cause B’s death ;
That A had received grave and sudden provocation from B.
That A, at the time of doing the act which caused B’s death,was, by reason of unsoundness of mind, incapable ofknowing its nature
indicates what facts may be in issue in a case of murder. The first twoissues must be established by the Crown and then by section 105, theburden of proving the existence of the third or last fact in issue is uponthe accused and the Court Shall presume until he has proved it that itdoes not exist. If, however, the provisions of section 105 of the EvidenceAct mean only that the accused was bound to produce some evidence,as it has been contended, the following position would arise. After theproduction of that evidence, if the Jury remained in doubt as to whetherthe accused had established the existence of circumstances bringing himwithin an exception, it would still go back to the original burden upon theprosecution and hold that the prosecution had failed to prove that theaccused had not acted in exercise of the right of private defence andwould, therefore, give him the benefit of the doubt. If such was theposition, the Jury who decided the case would have recorded in the sameproceeding two contradictory findings upon a fact in issue in that proceed-ing. Having regard to the view I take of the section I have quotedI am of opinion that the existence of circumstances bringing an accusedwithin an exception is a fact in issue that must be proved by him. Imust now inquire as to whether the Ordinance states how that burden isdischarged. In section 3 the expression ‘ proved ’ is defined as follows : —
“ A fact is said to be 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 of theparticular case, to act upon the supposition that it exists.”
The expression “ Court ” is defined earlier in the same section asfollows : —
“ ‘ Court ’ includes all Judges and Magistrates, and all personsexcept arbitrators, legally authorised to take evidence.”
These words would not seem t.o include a Jury, but in view of thewords ‘‘unless a contra-y intention appears from the context” thatappear in the opening words of section 3, I have no hesitation in holdingthat the expression “ Court ” does include a Jury. In fact, it hasbeen so held in India (vide Monir, p. 10; Ameer Ali, p. 109 and Basu,p. 31). It has been contended that the. definition does not come intoexistence until a Jury has returned its verdict. I am unable to under-stand this argument. It seems to me that it is a direction to a Jury anda Court when functioning as a Jury as to the manner in which it shouldcome to a decision as to whether a fact is proved. The Jury properly
HOWARD C.J.—The King v. James Chandrasekera.
117
directed with regard to the onus of proof has to apply the directionscontained in the definition of “ proved The fact that the definitioncontains the words “ under the circumstances of the particular case ”permits a “ prudent man ” to require a different standard of proof incriminal and civil cases. In this connection, I cannot do better thancite the dictum of Baron Parke in R. v. Sterne1 that in a criminal caseowing to the serious consequences of an erroneous condemnation both tothe accused and society the persuasion of guilt must amount to such amoral certainty as convinces the minds of the tribunal, as reasonablemen, beyond all reasonable doubt. Hence a prudent man in criminalproceedings when the burden of proof is on the prosecution requires theestablishment of the case against an accused beyond all reasonable doubt.No doubt also this differentiation in the standard of proof required incriminal and civil cases is a legacy bequeathed by English law which wasapplied before the enactment of the Evidence Ordinance. In Sodeman v.Rex’ to which reference has already been made, it was held thatthe standard of proof required by an accused person who pleads insanityis not higher than that required by a plaintiff or defendant in a civil suit,that is to say a mere preponderance of probability. Or, in other words,the standard required by the addition of “proved” in section 3. Theauthority of Sodeman’s case is accepted by both Counsel but it has beencontended that “ insanity ” stands in a particular class and that aprudent man would require a higher standard of proof to rebut thepresumption of sanity than he would to rebut the presumption of theabsence of circumstances, the existence of which would bring an accusedperson within an exception other than unsoundness of mind. Noauthority has been cited in support of the proposition. Moreover, it iscontrary to the meaning of section 105 as inte-preted by the illustrationswhich draw no distinction between insanity and other exceptions.Moreover, it is contrary to the judgment of Lord Sankey L.C., inWoolmington’s case, in which insanity and statutory exceptions areexcluded from the principle formulated therein. In considering what isthe correct interpretation to be given to section 105 it appears to me thatthe Legislature has made the matter perfectly clear when it has said that“ the Court shall presume the absence of such circumstances ”. Theterm “ shall presume ” is defined in section 4 of the Ordinance as follows : —“ Whenever it is directed by this Ordinance that the Court shallpresume a fact, it shall regard such fact as proved unless and until it isdisproved.”
It seems to me perfectly clear that the Jury shall regard the fact asproved that the accused did not exercise the right of private defencetill it is satisfied that he did so or that it is so probable that he did sothat a prudent man should act on that supposition.
I may conclude by referring briefly to some further points that havebeen raised in the course of the argument. In order to reinforce hiscontention that the Court should adopt the standard of proof requiredby English law of an accused person who puts forward a plea of self-defence, the Attorney-General referred us to various cases in which the1 Surrey Sum. Ass. 1843, MS., Best on Ev. p. 82.2 (1936) 2 A. E. R. 1138.
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HOWARD CJ.—The King v. James Chandrasekera.
Courts of Ceylon had adopted the English law as to what constitutes“ criminal negligence It is true that the Courts in Ceylon haveturned to English decisions for assistance as to what constitutes criminalnegligence. As the Penal Code does not supply a definition as to whatconstitutes a negligent act, it is right and proper that the Courts inCeylon should consult other systems of law for guidance in such a matter.The fact that they do so cannot be said to be relevant in consideringwhether it is proper to do so on a matter for which provision is madeby Ceylon law.
Reference was also made to the case of Attorney-General v. Rawther1and Perera v. Marthelis Appu' which dealt with the burden of proofimposed upon a person found in the recent possession of stolen goods.In both these cases the Courts adopted the principle laid down byLord Reading C.J. in R. v. Abramovitch * as follows : —
“ In a case such as the present where a charge is made against aperson of receiving stolen goods well knowing the same to have beenstolen, when the prosecution have proved that the person charged wasin possession of. the goods, and that they had been recently stolen,the Jury should then be told that they may, not that they mustin the absence of any explanation which may reasonably be true,convict the prisoner. But if an explanation has been given by theaccused, then it is for the Jury to say whether on the whole of theevidence they are satisfied that the prisoner is guilty. If the Jurythink that the explanation given may reasonably be true, althoughthey are not convinced that it is true, the prisoner is entitled to beacquitted, inasmuch as the Crown would then have failed to dischargethe burden imposed upon it by our law of satisfying the Jury beyondreasonable doubt of the guilt of the prisoner. The onus of proof isneyer changed in these cases ; it always remains on the prosecution.That is the law. In pronouncing it to be so, the Court is not givingforth any new statement of the law, but is merely re-stating it; andit is hoped that this re-statement may be of assistance to those whohave to try these cases.”
The offence in both these cases and in R. v. Abramovitch (supra) was oneof dishonestly retaining stolen property. The prosecution had toestablish beyond all reasonable doubt all the ingredients of such an offence.One of these ingredients is guilty knowledge. If the accused gives anexplanation as to his possession which may reasonably. be true, it isobvious that a reasonable doubt must exist as to whether he has guiltyknowledge or mens rea, one of the ingredients of the offence to ,beestablished by the Crown. It is, in these circumstances, difficult to under-stand what bearing these cases have on the matter now under considera-tion except once again to show that where Ceylon law is silent, assistanceand guidance has been sought from English law.
We were also referred to the.case of Nair v. Saundias', in which aCourt constituted by three Judges held that the burden was on theprosecution to prove, thattheownerdidconsentto the commission
of the offence or that the offencewas due to an act oromission on hispart
1 (1924) 25 N. L. R. 385.* (1914)84 L. J. K. B. 397.
a (1919) 21 N. L. B. 312.4 (1936)37 N. L. R. 439.
HOWARD C.J.—The King v. James Chandrasekera.H9
<f*~
or that he did not take all reasonable precaution to prevent the offence.Section 80 (3) (b) of the Motor Car Ordinance does not cast upon theaccused the burden of proving an exception within the meaning of section105 of the Evidence Ordinance. This decision turned upon the questionas to what ingredients the prosecution had to prove in order to constitutethe offence. The Legislature not having indicated that it intended toeffect any changes in the general law governing the burden of proof,it was held that mens rea had not been established.
It was suggested that the question before us was affected, in somemeasure, by the provisions of section 5 of the Penal Code, which arethat every definition of an offence shall be understood subject to theexceptions contained in the Chapter entitled “ General Exceptions ”,though these exceptions are not repeated in such definition. In myjudgment, this provision does not affect the question in any way; It issufficient for me to say that the section is not concerned with the burdenof proof and cannot be held to overrule section 105 of the EvidenceOrdinance. The section 6 has been inserted to facilitate brevity ofexpression so as to obviate the necessity of repeating in every sectiondefining an offence that the definition is to be taken subject to theexceptions.
The point has also been taken with regard to the burden of proofand the interpretation of section 105 that presumptions disappear whenan issue of fact has been raised as the result of evidence tendered on bothsides. In this connection we were referred to the following passagefrom the judgment of Lord Sumner in East Indian Railway Co. v.Kirkwood1:—
“However important this question may be in the early stages of acase, after all the evidence is out on both sides, it must be looked at asa whole, and the truth of the occurrence must be inferred from it.The judgments in question have not sufficiently observed this.”
1 do not think that there is anything in this paragraph to dispute theproposition that where the burden of proof of a fact in issue lies on aparticular person it remains on such person until discharged.. Ourattention was also invited to the following passage from the judgment ofSir Lawrence Jenkins in Aiyar v. Goundan & othersa —
“This proposition is open to the construction that the burden layon the plaintiff not only to establish his title but also to negative thedefendants’ claim to permanency, and if this is what was meant it waswrong. But the sentence that immediately follows shows a truerperception of the position. The learned Judges there say ‘We alsohold that even if that fact could be of any use to him the variouscircumstances' proved, unrebutted by anything in the plaintiff’s favour,necessarily raise a presumption that the defendants have occupancyrights ’.
“ The controversy had passed the stage at which discussion as to the ?burden of proof was pertinent and the relevant facts were before theCourt, and all that remained for decision was what inference should bedrawn from them.
1 (1922) A. I. R.—Privy Council—195.2 (1920) A. I. R.—rPtivy Council—67.
120
SOERTSZ J.—The King v. James Chandrasekera.
“ In the end the learned Judges drew the inference—they speak ofit as a presumption—in favour of the defendant’s occupancy rightsand, as finally expressed, their determination was unvitiated by anyerror as to the burden of proof.”
I can find nothing in this passage to assist the argument of Counsel forthe accused. It merely states that the question at issue in the particularcase was what inference was to be drawn from the relevant facts beforethe Court.
It has been seriously maintained that the decision at which- I havearrived will have the effect of limiting one of the fundamental principlesthat lies at the whole basis of British Criminal Jurisprudence, namely,the presumption of innocence. If this is so, it is not a reason for importinginto Ceylon law a principle of English law contrary to the clear, definiteand unequivocal language employed in a Ceylon enactment. On theother hand, in my opinion, the decision gives rise to no such limitationand, as I have already indicated, is in one sense consistent with the prin-ciple formulated in the Woolviington case. Moreover, I am unable tounderstand any logical necessity for imposing on an accused who raisesa defence of insanity a greater burden than on an accused who pleads the’existence of circumstances indicating that he was exercising the right,of private defence or had lost the power of self-control by reason of graveand sudden provocation.
For the reasons I have given I am of opinion that the charge of thelearned Judge was in accordance with our law and the appeal shouldbe dismissed.
Soertsz J.—
After careful consideration of the judgments delivered in the Rangoon,Allahabad, and Malayan cases, and of the arguments submitted to usfrom the Bar, I am confirmed in the view which commended itself to me,and to which I ventured to give expression obiter, when a DivisionalBench-of our Court was called upon to deal with the question of the burdenof proof resting upon a prisoner who pleads insanity in answer to a criminalcharge. (The King v. Vidanelage Abraham Appu )
That view, shortly stated, is that, in virtue of sections 103 and 105 readwith sections 2, 3, 4 of our Evidence Ordinance, our law differs materially,on the question before us, from the English law as stated by Lord Sankeyin his speech in Woolmington v. The Director of Public Prosecutions' andas expiained by Lord Simon in the speech he made in the later case ofMancini v. The Director of Public Prosecutions.* I should have been content-to record, in this brief manner, my concurrence with the answer given to1 the question by my Lord the President but that my brother de Kretserhas taken a different view, and the importance of the subject makes itdesirable that I should state my reasons for agreeing with the majority.
The difficulty that attends the question before us seems to me to be duealmost entirely to the fact that by the time our Evidence Ordinance cameto be enacted, we-had followed the English Law of Evidence, for nearly acentury, and modes of thought and speech acquired during the longassociation have persisted in our Courts even after we had received a codewith a different orientation.
x 40 N. L. R. 505.2 (1035) A. G.4GZ.2 (1941) A. E. R. koI. 3, p. 27 at 29.
121
SOERTSZ J.—The King v. James Chandrasekera.
In these circumstances, I think, as Jackson J. observed in the case ofRex v. Asbutosh Chuckerbutty1:—
“ Embarrassment and difficulty will be greatly lessened if, instead ofassuming the English Law of Evidence, and then inquiring what changethe Evidence Act has made in it, we regard as, I think, we are bound todo, that Act itself as containing the scheme of the law, the principlesand the applications of those principles to the cases of most frequentoccurrence.”
But the Judges in the Rangoon case of Rex v. Dhamapala, the majorityof the Judges in the case of Parbhoo v. Emperor, and the Judges in Malayain the cases referred to and quoted from by My Lord the Chief Justice,approached the question from the opposite direction. De Kretser J.. hastaken the same course. By way of illustration I would quote from thejudgment of Iqbal Ahamed C.J. in Parbhoo v. Emperor :—
“ Even though the Evidence Act .does, in certain respects, differ fromthe English law and supplies a distinct body of law, I decline tobelieve that the framers of the Indian law could or did intend to departfrom the English law on the subject under discussion. There arecertain fundamental principles which govern the trial and decision ofcriminal cases in England. According to the English law the onus ofproving everything essential to the establishment of the charge againstthe accused lies upon the prosecutor . . . . It is on the basis ofthese principles that it is well settled in England that the evidenceagainst the accused must exclude to a moral certainty every reasonable' doubt about his guilt and if there be any reasonable doubt about hisguilt he is entitled to be acquitted. The decision in (1935) A.C. 469 (i.e.,the Woolmington case) does no more than push to its logical conse-quences the doctrines and principles just noticed. I find it impossibleto hold that Sir James Fitz-James Stephen, in framing the EvidenceAct, could have had the remotest intention of tampering with ormodifying those fundamental principles which, I consider,- are based onprinciples of Natural Justice. After all, there cannot be varyingstandards of proof about the guilt of an accused person in England and inthis country. What holds good in England must hold good in India.I, therefore, regard the decision of the House of Lords as the last wordon th° subiect and, unless I am forced by express provisions containedin the Indian Evidence Act, to ignore that decision, I should, I consider,respectfully follow it. ”
I have quoted at this length because this passage, if I may say so, istypical of the reasoning by which the Judges in Rangoon, Allahabadand Malaya reach their conclusions.
But I do not see what logical justification there could be for the learnedChief Justice of Allahabad declining “ to believe that the framers of the,
Indian law could or did intend to depart from the English law ; or. forfinding “it impossible to hold that Sir James Fitz-James Stephen had theremotetf. intention of tampering with or modifying these fundamental
J. zi. R. 4 (Cal.) 4S4.
122
SOERTSZ J.—The King v. James Chandrasekera.
doctrines ” ; or for saying “ there cannot be varying standards of proof aboutthe guilt of an accused, person in England and in this country; or, again,for saying, “ what holds goods in England must hold good in India
Speaking with' profound respect, this process of reasoning does notreveal an open mind in relation to the question under consideration.-The learned Chief Justice appears to have addressed himself to it, fullyequipped with prepossessions and assumptions and, in consequence, headopts procrustean measures for dealing with the problem. He does notmake allowance for the full dimension of our law, but he reduces itdrastically to make it fit into the frame of the English law. I wouldrespectfully associate myself with the answers given by Callister, Allsop,and Braund JJ. to the argument of the Chief Justice in the passage I havereproduced, and I would Tefer particularly to that part of the judgmentof Braund J. where he says : —
“ As I have already said, I think it would have been an inversionof the proper order of things in India to have taken that English caseof the highest authority (namely the Woolmington case) first, and thento have construed the Indian Statute in the light of the law ….that it lays down in England. What, with the greatest respect, Iventure.to think is overlooked is that (Woolmington’s case) while being,unquestionably, the highest authority in England on the burden ofproof in Criminal law, has no reference to India, where the law uponthis matter has to be looked for in Indian Statutes and nowhere else,and, when found, applied. Indeed, I think the very form of one ofthe questions propounded in the Rangoon case exposes the mistake.It was * Is the decision of the House of Lords …. inconsistentwith the law of British India ? ’. It was decided that it was not.But what, may I ask, would it have mattered if it was ? The law ofEngland is one thing and the law of India is another. And, in theresult, I am compelled to think that if we are to apply the principles(in the Woolmington case) to the one before us, the construction of anIndian. Statute 'Will have to be strained to conform to the law of Eng-land rather than that the Indian Statute will itself have beenconstrued. ”
If, then, we shut our eyes to the English Law of Evidence as, I think,we must, except so far as a casus omissus renders recourse to it necessary,and call to mind the provisions of our Ordinance to see if there are anythat deal with the question before us, sections 103 and 105 read withsections 3 and 4 (2) occur to us at once.
Section 103 says—
“ The burden of proof as to any particular fact lies on that person whowishes the Court to believe in its existence, unless it is provided by anylaw that the proof of that fact shall lie on any particular person. ”
Section 105 says—
‘ “ When a person is accused of any offence, the burden of proving theexistence of circumstances bringing the case within any of the generalexceptions in the Penal Code, or within any special exception or
SOERTSZ J.—The King v. James Chandrasekera.
123
proviso contained in any other part of the same Code or in any lawdefining the offence, is upon him, and the Court shall presume theabsence of such circumstances. ”
Section 3 says—
“ A fact is said to be proved, when after considering all the mattersbefore it, the Court either believes it to exist or considers its existenceso probable that a prudent man ought, under the circumstances of theparticular case, to act dp on the supposition that it exists. ”
“ A fact is said to be disproved when, after considering all the mattersbefore it, the Court either believes that it does not exist, or considers itsnon-existence so probable that a prudent man ought, under the circum-stances of the particular case, to act upon the supposition that it does notexist."
“ A fact is said not be proved when it is neither proved nor disproved. ”Section 4 (2) says—
“ Whenever it is directed by this Ordinance that the Court shallpresume a fact, it shall regard such fact as proved unless and until it isdisproved. ”
As I understand these provisions, their effect is to establish one measureof proof, and to make that measure applicable, due regard being had to“ the circumstances of the particular case ”, whenever a fact has to he“ proved ” in all Judicial proceedings in or before any Court other thanCourts-martial” …. (section 2 (i.) ). Section 2 (2) intervenesto clinch- the matter, and to prevent any doubt or ambiguity by declaringthat, “ all rules of evidence not contained in any written law so far as suchrules are inconsistent with any of the provisions of this Ordinance arehereby repealed ”. This section, so to say, cuts the pointer that held usto the English Law of Evidence, except for the slender contact provided bysection 100 which requires resort to the English law “ whenever in a judicialproceeding a question of evidence arises not provided for >y this Ordinanceor by any law in force in this Island ”. Both Counsel for the prisonerand the Attorney-General sought refuge in the somewhat shadowyamplitude of this section, and contended that the.^question now before usis such an instance. Their argument was that sections 100 to 106 ofthe Evidence Ordinance provide for the “ burden of proof ” in the senseof introducing evidence and that there are no provisions in the Ordinancedealing with the burden of proof in the sense of establishing a case and that,resort to the English law is necessary. I am unable to entertain thatargument, for it seems quite clear to me that the sections I have alreadyreferred to and quoted deal with this very question, if they are but proper-ly interpreted. Section 100 of our Ordinance does not occur in the Indianor the Malayan Evidence Acts and yet/ the majority of the IndianJudges in the case of Parbhoo v. Emperor (supra) and the Judges in Malayain the cases referred to were able to assert that, nevertheless, theEnglish law applied, while the argument I am dealing with proceeds onthe footing that the English. Law applies in virtue of section, 100. Thisis a bewildering result, for it means that for the view that the English lawapplies, section 100 is necessary and also that it is not necessary.
124SOERTSZ J.—The King v. Ja-rp.es Chandrasekera.
If section 105 is read in the light of sections 3 and 4, as it must be, itis not possible to sustain the submission made to us that sections 103 and105 mean no more than that the accused has the burden of introducingevidence sufficient to raise, as a fact in issue, the existence of the circum-stances relevant to the defence set up, and that when there is someevidence for that purpose, his burden is discharged, and- that it is thenfor the Jury to say, at the end of the trial, what their finding is in regardto the existence of the relevant circumstances : that if they believe itsexistence or if they are left in a state of mind in which they are unableto say either that they believe or that they disbelieve its existence, theymust acquit the accused because, in either of those events, the prosecutionhas not discharged its burden by eliminating reasonable doubt in relationto the whole case. This is a strained interpretatioh put upon section 105in order to assert the English law. But, under our law, the PenalCode defines precisely the different offences penalised by it, and so dothe other laws that create offences, and the whole burden that rests uponthe prosecution, under our law, is the burden'to show that the elementsthat constitute the offence exist, and that the definition is satisfied.Sections 101, 102, and 103 of the Evidence Ordinance ihake it clear thatthat is the extent of the burden the prosecution carries. See the caseof Seturatnam v. Venkatachile1. It was in view of this difficulty thatthe learned Counsel who appeared for the appellant in the case of Parbhoov. Emperor (supra), seized upon the Indian equivalent of section 3 of ourPenal Code in order to contend that the prosecution does not prove its caseand does not establish the offence charged unless and until it eliminatesthe exceptions which are contained in Chapter 4 of the Penal Code, andwhich state the matters that exempt a person from culpability. Butall the judges in that case had no difficulty in rejecting that argument.
■ That argument, if it were sound, can only apply, in any case, to matters dealtwith by the general exceptions alone not to those dealt with by specialexceptions and provisos. So that upon the hypothesis that that argu-ment is sound, a distinction would have to be made between the onus onthe prosecution in a case in which a defence to an offence is set up undera general exception, and that in a case in which a special exception ispleaded, an extremely anomalous state of things which would investsection 103 with a double meaning.
This argument of appellant’s Counsel in the Allahabad case was notadopted by Counsel here, except in order to submit that that argumentwas based on what the law in India had been till the Legislature enactedsection 105, and that they could no longer endorse that argument sinceby the use of the words “ the Court shall presume the absence of suchcircumstances ”, a rebuttable presumption against the accused wascreated. That presumption was, however, displaced directly someevidence relevant to the issue raised by the particular exception was in.Thereafter—the argument proceeded—when all the evidence had beenled, and the occasion arose for the Tribunal to consider its decision,section 3 merely served to caution the Tribunal that unless that evidencehad persuaded it to the point of inducing belief in its mind, it should nothold that a fact has been proved unless there was such a high degree of the1 A. I. R. 1920 (P. C. atp. 69)
SOERTSZ J.—The King v. James Chandrasekera.
125
probability of the existence of that fact as to enable a prudent man to actupon the supposition that it exists. But section 3 does not define thequantum of proof necessary for the purpose. For that, a prudent manmust look elsewhere. In Ceylon, he would, in view of section 100,look to the law of England. That was the argument. But the questionarises, should he look to the rule of “ proof beyond reasonable doubt inrelation to the whole case ” as enunciated in the Woolmington case, orto the rule as previously understood on the authority of Sir MichaelFoster. That was the rule commonly in force at the time our Ordinancewas passed. So far as India and other countries governed by the IndianEvidence Act are concerned, in the absence of a section similar to oursection 100, it would, I suppose, be open to the prudent man to rangefrom China to Peru in order to select his rule. It is so improbable ahypothesis that in a Code of- the Law of Evidence, presumably intendedto be as complete as possible, so important a matter as that of the quantumof proof was omitted or overlooked, that it must be rejected, particularlyin view of the fact that Sir James Fitz-James Stephen, who was so largelyresponsible for the Code, says in his great book on the Law of Evidence: —“ The Law of Evidence is that part of the Law of Procedurewhich, with a view to certain individual rights and liabilities in partic-ular cases decides (1) what facts may and what may not be proved insuch cases ; (2) what sort of evidence must be given of a fact whichmay be proved; (3) by whom and, in what manner, the evidence mustbe produced by which any fact is to be proved. ”
It cannot, I think, reasonably be supposed that in the Code draftedunder his supervision point (2) was omitted. The conclusion to which I findmyself driven is that sections 103 and 105 read in the light of sections3 and 4 provide not only for the “ onus of proof ” in the sense of the burdenof introducing evidence, but also for the onus' of proof in the sense ofestablishing the particular case.
As pointed out by my brother Hearne, it is not an adequate answerto his io say, as it was said, that if the tribunal started with a presumption •against the truth of the relevant circumstances it would require “ a mentalrevolution ” to find that the circumstances are true. These “ mentalrevolutions ” are matters of daily experience in our Court although theyare more simply known as changes of view.
It is often possible to test the validity of an argument by carrying it towhat would be its logical conclusion. If we take that course with themain argument submitted to us, the resulting position would be that,although section 105 requires the existence of circumstances bringing thecase within an exception to be proved by the accused, he would satisfy therequirement even though the existence of these circumstances is left indoubt by him, that is to say is not proved by him, for section 3 says that“ a fact is not proved when it is neither proved nor disproved ”. Such aconclusion appears to me to refute the argument.
The position is however different in cases in which, by involving thefact in issue in sufficient doubt the accused ipso facto involves insuch doubt an element of the offence that the prosecution had toprove. That, for instance, would have been the position under our law
126
SOERTSZ J.—The King v. James Chandrasetyra.,
in the Woolmington case, if on the charge of murde^, oq all the mattersbefore them, the Jury were in sufficient doubt as to 4hether the death ofthe deceased girl was the result of an accident or not, for, in that state ofdoubt, the Jury are necessarily as much in doubt whether the intention tqcause death or to cause an injury sufficient in the ordinary cause of natureto cause death, existed or not. In such a case, the proper view seems tome to be that the accused succeeds in avoiding the charge of murder, notbecause he has established his defence, but because, by involving theessential element of intention in doubt, he has produced the result thatthe prosecution has not established a necessary part of its case.
Similarly, in a case in which the accused’s plea is simply that he is notguilty, or in a case in which he pleads an alibi, if he creates a sufficientdoubt in the minds of the Jury as to whether he was present or not, or asto whether he did the act or not, or as to whether he had the necessarymens rea or not the accused is entitled to be acquitted because, in such anevent, the prosecution has not sufficiently proved its case.
But in the great majority of cases in which the defence calls in aid. ageneral or special exception or proviso “ the position is different, and is ona footing-similar to that under the English law in regard to pleas ofconfession and avoidance in which the burden of establishing the factsjustifying avoidance is on the accused ”.(Phipson on Evidence, 8th ed., at
p. 31.) In these cases when, at the conclusion of the trial, the occasionarises for the Jury to consider their verdict on all the matters before themthey must needs consider the defence apart from the case for the prose-cution, that is to say the defence arises for consideration on the assumptionthat op the facts established by the prosecution, “ they will bewarranted in convicting the accused of the offence with which he ischarged ” Woolmington’s case (supra) or I would add, of some otheroffence. If, on the facts established, the J.ury-.will not be so warranted, 'the case fails in limine. There is no occasion then to consider thedefence.
Let us suppose a case of killing in which the defence set up is that of
grave and sudden provocation”. That, logically, means that the actresulting in death and the intention reasonably imputable to the persondoing the act are granted. The prosecution has, therefore, establishedthe resulting offence. If the. accused proves in the manner explained insection 3 of the Evidence Ordinance that at the time he did the acthe had been deprived of the power of self-control by grave and suddenprovocation offered to him by the victim, he is acquitted of murder,notwithstanding the fact that he did the act, and the imputable intentionwas murderous. But, if he does no more than create a doubt, in the mindsof the Jury, he fails because, in that event, he has not proved the circum-stances bringing the case within the exception, and the case of the Crownremains unaffected. His defence has not been proved nor has the casefor the prosecution been disproved, or even involved in doubt.
That appears to me to be our law in virtue of the sections of the EvidenceOrdinance to which I have referred and that, in that respect, it differsfrom the common law of England, and occupies the exceptional positionof “ insanity-defence ” cases under that law. In those cases the law of
SOERTSZ J.—The King v. James Chandrasekera.
127
England, it is abundantly clear, is that the accused must “ satisfy theJury ”, must “ clearly prove ” his insanity. If he does no more thaninvolve it in doubt, he fails.
Counsel sought to surmount this difficulty by submitting that thisdeparture from the general rule in those cases is due to the fact thatthe experience of mankind is that the vast majority of men and womenare sane and that, for that reason, strong proof of insanity is insistedupon.
But that is hardly convincing. The sanity of the great majority of menand women is not to the point when an unfortunate wretch is pleading hisown insanity, and when in the nature of things, in order to advancesuch a plea with some degree of plausibility, there must be some abnor-mality, some mental aberration, some hereditary taint that he can pointto. One would have thought that, if ever a plea amounting to confessionand avoidance, deserved to be regarded with some latitude, “ insanity ”is that plea. But the clear law in England is that there shall be no such0latitude. To use the phrase familiar to English law, the plea of insanitymust be established by the “ prisoner ” “ beyond all reasonable doubtSo it has been laid down in numerous cases during a whole century'.The case of Rex. v. Sodeman (supra) does not, in my view, alter the law.But in so far as it appears to do so, it has been repeatedly commentedupon. (See Criminal Law Journal, India, Nov. 1941.) At any rate, inregard to the measure of proof in “insanity” cases under our law, it isas stated in section 3.
Section 105 of the Evidence Ordinance, as I understand it, puts allthe other general exceptions and the special exceptions or provisos inthe Penal Code, and in any law defining the offence, where an offenceother than under the Penal Code is charged, in one and the same categoryas “ insanity ”, and provides one measure of proof for all of them, that isthe measure of section 3, and for my part, I do not see any occasion forthe consternation indicated in some of the judgments in the Allahabadcase at this result; We are in no worse case than are “ insanity-defence’s ”under the common law of England, and so far as the Statute law ofthat country is concerned, there are many instances—-and they aregrowing apace—-in which the burden is expressly put upon the personcharged to prove exemption, qualification, absence of fraudulent intentand similar matters.
In short, I find it impossible to read section 105 as if it contained a pro-viso to the effect that the burden of proof shall be deemed to be dischargedif the Court is satisfied that on all the evidence in the case there is reason- -able doubt as to whether such circumstances exist or not.
That is what we are invited to do, but what, in my opinion, we haveno right to do.
The conclusion to which I come, for the reasons I have given, is thatthe learned Judge of Assize correctly directed the Jury that the accusedwas not entitled to the benefit of the exceptions he invoked, if theyfound that the existence of the circumstances relevant to that exceptionwas left in doubt, for my interpretation of sections 103, 106, 3 and 4 isthat an accused brings himself within any of the exceptions and provisionsreferred to in section 105 only if, on all the matters before the Jury in44/13
128HE ARNE J.—The King v. James Chandrasekera.
the case they are trying, they believe that the circumstances bringing thecase within that exception exist or, at least, consider that their existenceis so probable that they ought to regard them as existing.
Hearne J.—
The question we have to decide is “ whether, having regard to section 105of the Evidence Ordinance and to the definition of ‘ proved ’ insection 3 thereof, in a case in which any general or special exceptionin the Penal Code is pleaded by an accused person and the evidence reliedupon by such accused person fails to satisfy the Jury affirmatively of theexistence of circumstances bringing the case within the exception pleaded,the accused is entitled to be acquitted if, upon a consideration of theevidence as a whole, a reasonable doubt is created in the minds of the Juryas to whether he is entitled to the benefit of the exception pleaded
The decision of the House of Lords in Woolmington’s case unequi-vocally answers the question in the affirmative. Does an analysis of ourlaw lead to a conclusion which'is consistent with that decision or not ?
The arguments before us focussed attention on section 105 of the Evi-dence Ordinance. With .these arguments I, shall presently deal, but Iwould prefer, at the outset, to discuss the effect of another section of theOrdinance, namely, section 103.
This section refers to the burden of proof of a particular fact which lieson a person who wishes the Court to believe in the existence of that fact,unless it is provided by law that proof of that fact shall lie on a particularperson.
Let us take the case of an accused, charged with murder, who claimsto have acted in exercise of the right of private defence. He puts in issuethe fact that he had acted in good faith under a reasonable apprehensionof death or grievous hurt, and that he had inflicted no more harm than wasnecessary, having paid, as far as he was able, due care and attention to therisk to which he was exposed and to the means he adopted to avoid thatrisk, means which he claims were adequate but not excessive.
In putting this fact in issue, he would also put in issue the' physicalfacts from which the Jury would be asked to infer the main fact whichhe asserts. -I refer to such facts as that the deceased entered his houseand attacked him with a lethal weapon.
It may be that prosecution witnesses are in a position to speak to theevents which preceded the causing of death and that their testimony isto the effect that the events are not as the accused would have the Courtbelieve. It may be that prosecution witnesses can only speak to factsfrom which the actual causing of death by the accused may be inferredand that they have no knowledge of the events which immediatelypreceded the causing of death. In the former case, the prosecutionhas no desire to prove the facts alleged by the accused which it regardsas false. In the latter, the facts 'may possibly be within the knowledgeof the accused and nobody else. But, in either event, who wishes theCourt to believe in the facts asserted by the accused ? The accusedalone.
A consideration of section 103 leads me without any difficulty to theconclusion that the burden of proving the facts asserted by the accused
HEARNE J.—The King v. James Chandrasekera.
129
is on the accused, and he must prove these facts at the least by showingthat their existence is so probable that a prudent man, after consideringall the matters which have been brought to his notice in evidence andunder all the circumstances of the case, ought to act on the suppositionthat they existed (section 3). It is not enough if the Jury are left in astate of doubt as to whether they existed or not.
I now come to section 105. If one takes that section to mean thatit casts upon an accused the burden of proving the circumstances whichbring “ the case within any of the exceptions ” it is in complete harmonywith section 103. In fact, section 105 would, on that view of it, be butan application of the general provisions of section 103 to a particularcase, the case of an accused claiming the benefit of one of the exceptionson the basis of circumstances or facts in the existence of which he “ wishesthe Court to believe ”.
It was, however, argued both by Counsel for the accused and theAttorney-General that this is not the correct view of section 105. It wasargued that the section means that an accused who sets up a defencebased upon a general or special exception is required “ to introduce intothe case evidence which, if believed, would show or tend to show thathe was entitled to the benefit of the exception invoked by him ” and nomore than that. It was even said that the section was merely a preceptor caution to the accused, in his own interests, to adduce some evidencewhich, if accepted by the Jury, would operate in his favour.
The key to the meaning of section 105, it was argued by Counsel, is tobe found in the concluding words “ and the Court shall presume theabsence of such circumstances It was argued that “ burden of proof ”and “ rebuttable presumptions ” have essentially the same meaning inlaw : that the first and second parts of the section are, therefore, differentways of saying the same thing ; that the converse of an absence ofcircumstances is the existence of circumstances irrespective of their truth :that the question of the truth of the circumstances alleged is consideredby the Jury at a later stage: and, finally, that-'the burden of proofcontemplated by the section is discharged, and the presumption statedin the section is rebutted, once some evidence is before the Jury whetherthat evidence was adduced by the accused or elicited by his Counsel incross-examination.
One answer to this argument can, I think, be stated quite simply bysaying that it makes the section an unnecessary and even absurd pieceof legislation. If there is a complete absence of evidence of-jaich circum-stances as are referred to in section 105, the Judge will take note of itand at the proper time will bring it to the notice of the Jury, hot becauseof the presumption contained in the section, but for the reason that inpoint of fact no evidence of any such circumstances has been given.What is the object of the presumption ? Surely-it is'not to lay down theproposition that if there is an absence of circumstances appearing inevidence at the trial, it must be presumed that there are no such circum-stances appearing in evidence at the trial ? Is there any point in enactingthat there is a presumption of absence against what is absent and knownby everybody to be absent—Judge, Jury, Counsel and accused alike ?Would this not reduce the section to a piece of legislative levity ?
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On the contrary, is not the commonsense of the matter that the words“ existence ” or “ absence ” of circumstances, as they occur in the section,refer respectively to the existence or absence of circumstances at thetime of the commission of the offence with which the accused is charged ?The opening words of the section are “ when a person is accused of anoffence ”. The offence is alleged in the indictment to have been commit-ted at some previous time. It is to the existence of circumstances atthat time that the first part of the section must relate and the presumptionmust similarly relate to an absence of circumstances at that time. Itwas said that if the Jury started with a presumption against the truth ofcircumstances, they would only arrive at a finding that the circumstancesalleged were true by a process of thought that would amount to a “ mentalrevolution ”. But is this in accordance with every day experience ?Cannot and do not Jurymen, to take a few of the general exceptions,start an inquiry on the assumption that the accused is sane, or that hewas not intoxicated or that his act was not accidental and yet, on credibleevidence being offered, adopt the reverse of these assumption as thetruth ?
It was remarked that the word “ Court ” and not Jury is used inconnection with the words “ shall presume ”. The word “ Court ”is used because it is not every Court that sits with a Jury, and a Courtor rather Judge presiding at a Jury trial will not only take note of apresumption but communicate it to the Jury.
The meaning of section 105 is, I think, made clear by the illustrationto the section. A, accused of murder, alleges that, by reason of un-soundness of mind, he did not know the nature of the act. The burdenof proof is on A—that is to say, the burden of proving that he did notknow the nature of the act. The force of that illustration was appreciatedby Counsel, but it was said that the defence of insanity is in a categoryby itself and that a different result is brought about in England whenan accused proves insanity. But the law of England is beside the point.The point is that section 105 refers to general and special exceptions,that one of the general exceptions is that the accused’s act is no offenceif at the time of doing it he did not know the nature of the act, and theillustration makes it clear that he must prove, and not merely assert,that he did not know the nature of the act committed by him.
The third illustration, which to my mind is just as illuminating, is this.“ A is charged with voluntarily causing grievous hurt under section 316.The burden of proving the circumstances bringing the case undersection 326 lies on A”. That does not mean the burden of merelygiving evidence of circumstances. It must and can only mean what itsays—the burden of proving the circumstances.
For the reasons I have given I am unable to adopt Counsel’s suggestedinterpretation of section 105. But I would point out that that inter-pretation, even if it is adopted, does not, in itself, provide an answer tothe question that has been referred to us. Even if section i05 consideredby itself means no more than that the onus lies on an accused to“ introduce ” evidence, the facts he has put in issue by the evidence sointroduced are facts which he “ wishes the Court to believe ”. What,then, is the position if he fails to satisfy the Jury that the facts which he
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has put in issue and which he wishes should be believed ever existed ?(section 103.) According to our law, regard being had to the definitionof “ proved ”, he has failed to prove those facts and he has also therebyfailed to prove his defence which is conditioned by the supposition thatthose facts existed. But Counsel’s argument is that, although theaccused has failed to carry conviction to the minds of the Jury, theprosecution has failed to discharge its burden if he leaves the facts orcircumstances which he has asserted in doubt. That, however is not adeduction from the particular view of section 105 which he advanced.It is merely a statement of the law in England. It ignores section 103and begs the question we have to decide.
In conclusion, I would refer to the Attorney-General’s argument thatthe Supreme Court has always directed juries that the case of the prosecu-tion, meaning all the elements of the offence charged, had to be provedbeyond reasonable doubt and that that direction was derived from thedefinition of proof in section 3 of the Evidence Ordinance. He argued thata prudent man would be content with proof by a balance of probabilityin a civil case, but would require a higher degree of proof in a criminalcase. But the definition does not require him or even permit him to doso. The definition does not formulate different standards of proof whichvary with the nature of the proceedings. On the contrary there isnothing in the section to justify the view that a prudent man may orshould apply the yardstick of proof to the facts of a case with any regardto the nature of the proceedings and the consequences of his decision.He takes account of all the matters before him, all the circumstancesof the case, and the probabilities—that is all.
In my opinion, section 3 lays down one measure of proof—at a minimumproof—by a preponderance of probability. It is the measure of proofrequired of a plaintiff in regard to his claim, of a defendant in regard tohis defence, Of an accused who sets up a defence based upon a special orgeneral exception and of the prosecution in regard to its case.
It is true that Judges of the Supreme Court have in the past instructedJuries that they must be satisfied beyond reasonable doubt of the truthof the facts relied upon by the prosecution in order to establish the guiltof an accused, that is to say that they must be satisfied that the elements ofthe offence charged have been proved, apart from any defence availableto and provable by the accused. This was in accordance with the pre-Woolmington view taken by Judges in England of the law of England.It was a principle of the common law which was stated, for instance, inRex v. Strerne Judges in Ceylon have imported that principle into ourlaw and the practice of the Courts has sanctified it and in effect made itpart of our law. But it is not a principle one can derive from section 3.
Proof beyond reasonable doubt of the case for the prosecution, as thatexpression was formerly understood in England and interpreted in Ceylonand in India, has of course been radically altered by the decision of theHouse of Lords in Woolmington’s case. Even the frontiers of “ the caseof the prosecution” have been extended. But this alteration andextension cannot be justified by the law in Ceylon. In fact, I am satisfiedthat, had there been in an English Act of Parliament, sections similar to^Surrey Sum. Ass. (1843) M.S.; Best on Ev., p 82.
132DE KRETSER j.—The King v. James Chandrasekera.
sections 103 and 105 of tbe Evidence Ordinance, coupled with a definitionof proof similar to that contained in section 3, the decision of the Houseof Lords in Woolmington’s case would not have been possible withoutdoing violence to the Statute Law.
I would answer the question referred to us in the negative.
de Kretser J.—
This matter comes before us on a case stated .by Moseley J. Counselfor the appellant and the Attorney-General agreed that the questionpropounded should be answered in the affirmative. The result was thatthe Bench did not listen to arguments on two sides but was forced into theposition of being the opposition.
I do not propose to recapitulate the arguments used by Counsel or thoseused in the cases cited before us. I have endeavoured to solve thequestion independently but I have had in mind the various views advancedand have dealt with some of them incidentally and without reference tothe particular person who advanced them. I do not desire to refer to thecases cited, some of which have not been available to me owing to thelarge demand for the available books. In so far as they deal with the lawin England it is unnecessary to refer to them for we are required to statewhat the law in Ceylon is and not to be shackled by our habit of relianceon what the law in England is.'
Having given ^the matter careful consideration, my view is that weshould follow the rule laid down in the Woolmington case, which is notonly high authority embodying the English law which we haveconsistently followed as a model,, but, if I may say so with all respect, isbased on sound principles and is not in conflict with the procedurehitherto followed by the Judges in Ceylon. We should follow that ruleand are not forbidden to do so by the provisions of the Evidence Ordinance.
It is not correct to say that the Codes of Civil and Criminal Procedureand not the Evidence Ordinance regulate the production of evidence, for itclearly does, and Chapter IX. is headed “ Production and Effect ofEvidence ”. It must be remembered that the Evidence Ordinance wasnot drafted with reference to these codes and may refer to cases outsidethe provisions of these codes.
In civil cases the production of evidence depends on the issues framedand the onus that arises accordingly. In criminal cases the CriminalProcedure Code directs the procedure and the order in which evidence isproduced. Where there is a conflict the Code would govern. TheEvidence Ordinance may. be held to cover the production of evidencewithout there being any fallacy in reasoning.
It is equally incorrect to say that when the burden of proof is laid on aparty that burden entails no more than the production of evidence. Theburden extends to the effect of the evidence produced. That effect woulddepend on a variety of circumstances.
In my view- it is a fallacy to say that a criminal case may be judged insections, except in the cases provided in the Code itself. There is noprovision of law justifying the process of saying either.—
that the prosecution has made out a prima facie case, whatever thatmeans ; or
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that the prosecution has proved its case, and the defence mustrebut it.
There is a provision saying that if the evidence for the Crown, taken at itsbest, establishes no case, the defence shall not be called upon. It isfallacious to argue that before the defence is called upon the Crown mustestablish a case. All that is required is that there should be evidencewhich may establish a case, but the evidence is weighed only at theconclusion of the trial.
In a summary trial by a magistrate (Chapter XVIII.), section 189requires the magistrate to take the evidence both for the prosecution andthe defence, and section 190 expressly states that it is after taking all theevidence that the magistrate makes his finding and records his verdict.
In an inquiry into a non-summary charge, where the magistrate playsthe part of a prosecutor to some extent and is only concerned to seewhether there exists a case worth committing for trial, Chapter XVI.applies. The magistrate records the evidence for the prosecution andgives the accused an opportunity of calling evidence. He then hearsCounsel for the accused and section 162 says that if the magistrate considersthat the evidence against the accused is not sufficient to put him on trialhe shall discharge him. If the magistrate considers the evidence sufficient,section 163 requires him to commit the accused for trial. Then comessection 164: where there is a conflict of evidence, disclosed presumablyin the evidence called by the prosecution itself, and that evidence, ifuncontradicted (presumably by the accused), is sufficient to raise, not a.presumption of guilt but a probable presumption of guilt, then themagistrate must commit him for trial unless for good reasons he deviatesfrom this rule. At no stage, therefore, is there a presumption of guilt.
In a trial before a District Judge (Chapter XIX.) the prosecution callsevidence and all statements made by the accused are read in evidence.Then section 210 provides for the case where the judge wholly discreditsthe evidence or thinks the evidence does not establish the commission ofan offience by the accused. If, however, he considers there are groundsfor proceeding (not that he makes any presumption of guilt or considers aprima facie case to be established), he calls upon the accused for his defence.It is only when the cases for the prosecution and the defence are concludedthat he sums up the evidence (section 215) and then records his finding.This means he has before him all the evidence and he considers all theevidence. The evidence for the prosecution may help the defence and theevidence for the defence may Kelp the prosecution.
In trials before the Supreme Court (Chapter XX) the prosecutioncalls the evidence and reads the statements made by the accused (sec-tion 232). The Jury have been told (section 231) that it is their duty tolisten to the evidence and then make their finding, that is, they mfistlisten4o all the evidence.
Section 234 prescribes that if the Judge considers that there is noevidence t;hat the accused committed an offence, then he directs the Juryto return a verdict of Not Guilty. If he considers there is some evidencehe calls upon the accused. He is not the judge of facts and he cannotsay what view the Jury may take of the evidence. He does not, therefore,decide that there is a primafacie case but there is,on one view ofthe evidence,
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the possibility that the accused committed the offence. The Jury is notcalled on to express, and does not express, any view at that stage. Trialsby jury are not held in so many stages. Section 243 enacts that when thecases for the prosecution and defence are concluded and after Counsel areheard the Judge sums up the evidence, laying down the law by which theJury are to be guided, arid it is then and then only that the Jury decidewhich view of the facts is true and return their verdict accordingly(section 245). They decide between the two views of the facts and notupon one set first and then the other. They have been guided as to howthey should treat the evidence and then as prudent men of the world,they make their decision. There is no provision requiring them to takethe defence and if it fails to come up to a certain standard—though itdoes go rather far—then to put it away and forget it, but there is an expressprovision requiring them to decide which view is true. What if theycannot say either view is true ? The Crown must fail. What if they say“We cannot say which view is true and we have reasonable doubt bothways ? ” ,Then again the Crown fails. If the accused calls no evidence,the evidence for the Crown is all that is left and the Jury must decide onit and give the accused the benefit of a reasonable doubt. If the accusedcalls evidence and fails the position is the same, the only difference beingthat the accused may have furnished evidence supporting the case forthe Crown. If the accused pleads an exception why should a differentrule be applied ? The presumption of innocence has been accepted bythe majority in the Allahabad case and the dissenting minority do notreject it. It has not been questioned in the case stated nor was itquestioned during the hearing. It 'is a natural presumption whichrequires no law to express it or confer it. It flows from the passion forfreedom which characterises all human beings and is recognised at everyturn in the British Empire. It is as natural as the air we breathe.Chapter IX. of the Evidence Ordinance is not inconsistent with it andsection 101 recognises it.
Section 3 of the Evidence Ordinance does not claim that its definitionsare exhaustive. It rather explains than defines the expressions “ proved ”,“ disproved ” and “ not proved ”. It contemplates an intermediateposition between “ proved ” and “ disproved ”. It expressly does notlay down a rigid rule as to the quantum of evidence a Court shall require.It requires all the matters before the Court to be taken into considerationand all the circumstances of the particular case. It assumes these mayvary and the quantum of proof may therefore vary. It does not call forconviction alone but allows a prudent man to act on a supposition basedon probability, and while a prudent man remains a prudent man andis the standard, a prudent man’s judgment must vary in different matters rhis approach to every matter is not the same. '
Section 4 distinguishes “ may presume ” from “ shall presumeThese words have their ordinary meaning and “ may presume ” in theOrdinance is the same as “ may presume ” in ordinary life, and “ shallpresume ” would have the same meaning.if one did not import into theexpression “ disproved ” a rule as to the quantum of evidence. Thesection gives directions and does not define. Does section 4 say morethan that a presumption must be rebutted ? I do not think so. A
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presumption is only a taking for granted, a supposition created by law,perhaps. That presumption may be rebutted by a conviction to thecontrary or by a contrary supposition. The words “ shall presume ”do not postulate a blank but the fictional existence of evidence of facts.The explanation in section 3 of “ proved ” and “ disproved ” cannot beapplied to this fiction. According to section 3 when a fact is proved itis proved once for all and it cannot be disproved. It seems, therefore,that the “ proved ” of the presumption is not the “ proved ” of section 3but something less.
. If then there is no conviction and a stage is reached when one cannotstate whether the contrary supposition exists or not, it seems to me thatone also reaches the stage when one cannot say Whether the originalsupposition exists or not. Any argument to the contrary assumes thatat that stage one’s mind become a blank and therefore the originalsupposition exists, which is not the case. To my mind this is fallaciousreasoning and is not founded on fact or common sense. Rules ofevidence are not abstract propositions but must be given a practical•' application.
The question is what is the rule to be adopted in such a position?It seems to me to make no practical difference whether one expressesoneself in terms of the defence or of the prosecution. I prefer to dothe latter. A prudent man taking all the matters before him may say—“ There is some reason to believe the defence may be true; lifeand liberty are at stake, there is a presumption of innocence and I waswarned regarding the case for the prosecution that it should be provedbeyond a reasonable doubt; well, I ought to act on the supposition,that the defence has been established and acquit the accused”, or hemay say—“ I ought to say the prosecution has not proved its casebeyond a reasonable doubt and therefore I acquit the accused. ” In thefirst case he takes the defence as ‘ proved ’: in the second he decidesthat the prosecution is “ disproved ”. The case stated proceeded onthe footing that the Crown must prove its case beyond a reasonabledoubt, and my brother gave good reasons for the rule. It was not arguedbefore us that the burden was less. Section 101 of the Evidence Ordinanceleads to the same result. If the scales are evenly balanced, if the positionreached is one of “ not proved ”—i.e., neither proved nor disproved,then the party on whom the burden lay fails. The burden is not madeany lighter when one remembers the strong presumption of innocenceand that life and liberty are at stake. If that be the case when the scalesare even, how much more favourable should be the position of anaccused when the needle is quivering ?
In a civil case regarding title to land, for instance, the presumptionbased on possession must be read with section 102, and any doubt resolvedin favour of the party who had been or was in possession. Why in acriminal case should section 102 be read only with section 105 and thepresumption of innocence be lost sight of, and even the provisions ofsection 101 ? It seems to me that section 102 gives the rule as to who.should begin when two parties are making conflicting assertions andsection 103 is applied, not to supplant section 102, but with reference toan individual fact incidentally asserted. It would apply to a plea of
136DEKRETSER J.—The King v. James Chandrasekera..
private defence but sections 101 and 102 still remain effective. In myopinion section 101 'begins by asserting that a person must prove an,affirmative and explains that that is what is meant by saying that theburden of proof lies on him. Accordingly, the Crown must prove that theaccused committed a crime and not the accused that he did not. It isnoteworthy that the illustrations to section 102 refer to civil, cases whereconflicting assertions may be made and not to criminal cases where theprosecution asserts and the accused denies. Where the accused goes onto make in addition an assertion, then section 103 requires him to provethat assertion. Is it an accident that the illustrations to section 103refer to criminal cases only, and not to civil cases already coveredby section 102 ?
It is unfortunate, perhaps, to use the word “ proved ” in a colloquialsense when charging a jury but the jury ought to be charged in simplelanguage and will have less difficulty in understanding the expression“proof beyond a reasonable doubt” than in understanding the EvidenceOrdinance. If there is a reasonable doubt then there is no convictionof the mind, not even moral certainty. A prudent man can go no furtherthan say “ not proved ”, i.e., neither provedtnor disproved.
It seems to me that if the Crown must take its case beyond a reasonabledoubt, it follows that the accused need only go up to the point of inducinga reasonable doubt.
The defence of insanity is peculiar in that there is a natural presumptionin favour of. sanity and the consequences of proving a man to be of unsoundmind entail serious consequences to him and affect even those connectedwith him. A prudent man may well adopt a different standard in sucha case from that which he would adopt in a case of self-defence. Butsuppose his answer was “ not proved ”, i.e., neither proved not disproved.
I do not see why he should then say the accused’s sanity is proved.That would be a contradiction in terms. Is fictional evidence strongerthan actual evidence, and is the fiction to be applied not only at thestart of deliberations but also after a conclusion has been reached?
Section 105 gives me no difficulty. Clearly, the legislator in that chapteris not acting logically throughout but is trying to lay down rules for theguidance of the Court. If he were acting logically section 105 would beunnecessary in view of the earlier section. Also, section 105 is tautologicalto the extent of slovenliness, for if the accused must prove an exceptionit can only be because the Court will not presume the existence of thecircumstances constituting it: if the Court must presume the absence ofsuch circumstances, then clearly the accused who depends on them mustprove them. Why does the legislator use both expressions'? To my_mind the answer is given by the history of the criminal law in India, where,sometimes at least-, it was assumed that section 5 of the Penal Code caston the prosecution the burden of proving the non-existence of the circum-stances. This was unreasonable and contrary to the commonsense rulethat a person must prove the existence of a fact and not be called upon toprove its absence or non-exfistence. The legislator therefore took the-opportunity of .removing this misconception as to the scope of section 5 ofthe Penal "Code. This is evident from the fact that he specially mentions
DE KRETSER J.—The King v. James Chandrasekera.137
offences under the Penal Code. There are exceptions known to the CivilLaw, as for example in cases of defamation, but he makes no specialprovision for them.
Again, he has already defined the word “fact”. He does not usethis word but the word “ circumstances If the absence of circumstancescomes within the definition of “fact”, equally so must the existence ofcircumstances, and yet he does not use the word “ fact ” in either part ofsection 105 though he had used it in earlier and later sections. If hehad said “ the court shall not presume the existence of such circum-stances ”, I take it the explanation of “ shall presume ” in section4 cannot be applied to “ shall not presume ”. Does the phrase he -usesamount to anything more than “ shall not presume the existence of suchcircumstances ” ?
In the explanation of “ shall presume ” it is required that the fact bedisproved. The words therefore apply to the existence of a fact whichis to be taken as proved and not to its absence, if one were to apply theexplanation to section 105, then one must say that the contrary mustibe proved and one is not applying “ shall presume ” but paraphrasing it:One is saying not merely that the circumstances are absent but thatthat their existence is disproved.
It seems to me that the concluding words of section 105 do not meanthat the Court shall presume or take as proved anything, certainly notthe guilt of the accused, but the Court must start with its mind blankand call for proof of the required circumstances. How can a Court takea fact as proved when the evidence for the prosecution itself may dis-prove it or raise a doubt about it ? How can the Court take it as provedwhen the evidence leaves it in doubt as to whether the contrary has beenproved or not ? But if all the phrase means is that the Court starts withits mind a blank, then there is ropm for it to see that that blank is dis-pelled by the presence of a definite body of evidence, or of a considerablebody of evidence lacking definiteness but nevertheless existing anddispelling the blank.
To ask a Court to say that there is a void when there is a presence ofsome kind is not reasonable or logical. To ask a. jury in particular to saythat the prosecution has made out its case and then to call upon it saywhether the defence has rebutted that case is to place a very heavyburden on a jury of laymen. How Can they say the prosecution hasmade out its case and then decide that the»defence has proved the defence ?Section 245 of the Criminal Procedure Code does not place such a burdenon them. It only requires them to consider all the evidence and saywhich version of the facts is true. If the jury must decide first for theprosecution it would not only be manifestly unfair but only then comesthe illogicality of their reversing their decision. But if they decideon all the evidence, then there is only one decision and there is no goingback involved.-
The judge should not charge them in such a way as to leave themroom to decide in sections. This Court recently, condemned such a processin the case of the Australian soldier, Rex v. Buckley The Judgeshould direct them as to the law and tell them to decide on all the
1 43 N. L. B. 474.
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evidence. If they rnnsiHer the case for the prosecution not establishedor disproved, they should acquit. If they are left in reasonable doubtthey should acquit, in whatever way that doubt arises.
Section 105 does not say that the Court shall presume the guilt of theaccused or the presence of a prima facie case against the accused andcall upon the defence. The matter of guilt it leaves to be decided br-other considerations. To say the prosecution has established pointsA and B which constitute the crime and, unless the defence establishes C,points A and B remain, may appear to be logical but it is not logical in)reality nor a practical proposition, for the prosecution establishes nothingbefore the defence is heard.
Let us take a concrete case: A kills B and says he acted in self-defence.There is no admission of the killing till A gives evidence. There may beevidence as to the killing but the jury has not yet decided on its value:Counsel, may make suggestions but suggestions are not evidence. Afterthe killing has been established will arise the question of intention.The case for the prosecution, if believed, states facts showing that therewas an intention to kill. The accused says his intention was to defendhimself. The Jury are left in doubt as to his intention to defend himself;that is, they cannot say he did not intend to defend himself. How then,can they say he had a murderous intent ?
But the defence may be that the accused acted in a panic, believing ingood faith that he had to defend himself and not stopping to think whaithe was doing. The Jury is told he ought to have had a reasonable appre-hension of harm! They may say that that presupposes a reasonable manand a reasonable man would not have got into a state of panic, so the casefor private defence breaks down in limine. But the Jury say to themselvesthat the accused did in fact act in a panic and did in good faith believehe was called upon to defend himself. Must they say that because theright of private- defence is not established a murderous intention isestablished ? I do not think so.
That brings me to an argument of the Attorney-General, which wasnot urged with sufficient emphasis or clearness perhaps. He said thatthe proof of self-defence eliminated the idea of a murderous intention,for the prisoner’s intention was to defend himself and not to kill. Toappreciate this argument one must see the reason why the killing of aperson is murder, and must distinguish between a person doing a thingdeliberately and a person doing it with a certain intent. To intend isto fix the mind upon, as the object to be effected or attained. Deli-berately means not hastily or rashly but after consideration. The Englishlaw requires malice for the offence of murder. We call it the intentionof causing death. For a person to have a murderous intent he must beshown to have had the mind fixed upon killing, that is, there is the wishto kill ; or, the mind fixed upon inflicting a wound the natural conse-quence of which must be death. Because he wished to inflict the woundhe is presumed to have had the wish to kill. Where he knows a certaininjury is likely to cause death and intentionally inflicts that injury,again he wishes to kill. Where he commits an act which will in allprobability cause death, he either – wishes to kill or does not mindkilling. In all the cases there is no lawful object behind the killing.
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3n all there is not only a deliberate act But there is the wish to kill inorder to attain some object or to satisfy some motive. The law cannotand does not punish mere killing, for the killing may be justified ; what itdoes punish is killing which is culpable, and the question is what was themind fixed upon. The law speaks of a criminal intention, as in section 73,and sometimes speaks of a deliberate intention, as in section 291a of thePenal Code. But when a person is defending himself or another there is nowish to kill, real or presumed, and the mind is fixed upon defending, he isexercising a right which the law recognises. He may kill deliberatelybut his primary wish or intention is to defend and the killing is only themeans and is involved in and incidental to the defending. The plea ofself-defence, therefore, goes to the very root of the intention which thelaw requires the Crown to prove. It is to be noted that section 93does not speak of intentionally causing death but of voluntarilycausing it.
If the chapter creating the general exceptions be closely examined onewill find that proof of an exception excludes a criminal intention. Thehangman kills deliberately but has no wish to kill the particular person hehangs and his mind is fixed on doing his duty. A person acting underthreat of instant death is excused, as for example in a case of theft, andtheft needs intention; he does not wish to steal, there is no theftuousintention, hut he wishes to save his life. That plea should excuse him incases of murder and offences against the State but for good reasons anexception is made as regards such offences. When the primary intentionis thus removed by a provision in the law, what remains is the secondaryintention, evidenced by his deliberate act.
In a case of self-defence, if the primary intention is disproved and soTemoved, then the secondary intention emerges. If the Jury considerthat it emerges sufficiently enough for them to be able to recognise it,then they can have no reasonable doubt. But if there is a doubt thesecondary intention has its way blocked.
Section 89 of the Penal Code creates the exception but section 90 limitsit and section 92 defines the limits. The second exception to section 294seems to proceed on these lines ; the person has exceeded the limit;therefore the legal right does not exist and the primary intention isremoved by the law ; therefore only the secondary intention exists and itshould be murder, but we must make allowance for the man’s good faithand since his act was culpable we shall reduce his offence. The illustrationgiven indicates that the man did not act in a panic but deliberately killedwhen he might have disabled his opponent. The section does not dealwith a reasonable doubt and assumes that that stage is passed.
The line of thought is original and I am afraid I was inclined to brush itaside during the argument but, on reflection, I think there is disclosed thegerm of a fundamental notion. A Judge may acquire certain habits ofthought. He may be able at the end of the case for the prosecution tosay that there is no case or that the witnesses are unreliable, and maydecide not to proceed any further. He may be influenced in his decision
140DE KRETSER J.—The King v. James Chandrasekera.
by his knowledge of what the defence is going to be. It may also seem to.him that at first sight the Crown has established the case and that heought therefore to go on to hear the defence, but his impressions at firstsight are not his final conclusions and these are reached only when hesums up the evidence on both sides. Habits of thought may not alwaysbe proper or justified by any provision of the law but they probablycause no serious damage in the case of a trained Judge. But it isimpossible to employ the same process when one is dealing with jurymenand when one is confronted with the express provisions of the Criminal'Procedure Code.
I have so far assumed that the absence of circumstances may be afact, not in common parlance but as defined in section 3. In my opinionit does not come within the definition. In the first place one findsthroughout the Evidence Ordinance that it is the existence of a factwhich is to be proved and not its absence. The definition of “fact”relates to the existence of things which may be perceived-by the senses,or any mental condition of which a person is conscious. Facts are mattersregarding which a witness can speak and not conclusions which areactually or presumptively reached. The illustrations relate to suchfacts as, for example, that certain things are arranged in a certain order:that a man heard or saw something ; that a man said certain words;(these illustrations seem, to relate to clause a) that a man holds a certainopinion—a thing a witness may know from having heard him express it;or had a certain intention,—again gathered in the same way. So alsowith regard to “ good, faith ”, “ fraudulently ”—inferred from what thewitness heard or saw ; that a man has a certain reputation—gatheredfrom what others say of him, and so on.. Illustration (b) relates to aperson’s mental condition of which the witness is conscious ; and illus-tration (c) only differs in that the witness is going on repute, on report,and not on his personal knowledge. Now, how is a void capable ofbeing perceived by the senses ? The senses perceive no “ thing or state ofthings or relation of things ”. A person is not conscious of a void for themind is a blank and there is no consciousness. How is a void proved ?How can a witness speak to another’s mental condition as being a void ?But a person who is judging may start with his mind a blank as. to theparticular facts or circumstances. If then absence of circumstancesis not a “fact”, still less does the direction in section 4 regarding “shallpresume ” apply.
. No mention was made during the argument of the definition of “factsin issue ” in section 3 but I see some of the judges in India were troubledby it or rather the illustrations to it. Now, the expression “ facts inissue ” is used only in regard to the admissibility of evidence and notas regards the burden of proof nor as regards the quantum of proofrequired.^ “Facts in issue” means nothing more than facta probandaand evidence is admitted only so far it bears directly on the facts to ,beproved or is relevant thereto. The expression does not mean that issuesare impliedly framed and that the evidence on each issue is taken sepa-rately. Parties are not tied down to issues as in a civil case. Thedistinction between civil and criminal cases is well recognised. In a
DE KRETSER J.—The King v. James Chandrasekera.141
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criminal case, the burden on the Crown never shifts and the final burdenis on the Crown; the broad issue in the final stage is “ Has the prosecu-tion proved its case”.
Text books on evidence are not authoritative. So far as they go theyagree in saying that an accused need not prove his case—even whenbased on aij exception—beyond a reasonable doubt, which carries with itthe implication that it will be sufficient for him to prove his case up to areasonable doubt. They go on to say that he need prove only a prim afacie case but they do not explain what they mean. One gathers theirmeaning from what they had just said, and then prima facie case means acase up to and not beyond a reasonable doubt. Prima facie onlymeans at first sight. The textbook writers do not speak of a “ prepon-derance of probabilities ” ; a phrase which I have some difficulty inunderstanding. Civil and criminal cases vary in many ways but in bothclasses one party has to prove his case. Civil cases depend on the issuesframed and on the burden of proof and the actual evidence produced.When the evidence is such that an earlier decision cannot be reached byconsidering only one or more issues, then the whole case must be dealtwith and one party proves his case because he has induced conviction orsuch a degree of probability that a prudent man will act on it. Therecannot be two such degrees of probability existing on either side for bothsides cannot prove their cases, but there may exist the possibility that bothcases are true.
In my opinion the question propounded in the case stated should beanswered in the affirmative.s
Since drafting my judgment I have had the advantage of reading thedraft judgment of the President. The main lines of my judgment stillremain the same, and I would only add that Lord Sankey’s reference tostatutory exceptions refers to statutory exceptions in England. We donot know what exactly he had in mind but there are statutory offenceswhere in certain circumstances a presumption of guilt is raised and theburden is thrown on the accused to displace the presumption. Section 105raises no presumption of guilt.
Ketjneman J.—
I agree with the judgment of the Chief Justice, Soertsz and Hearne JJ.WlJEYEWARDENE J.
I agree that the charge of the trial Judge (Moseley J.) is in accordancewith our law. I agree that the question referred to this Court be answeredin the negative.
JAYF.tiIi^kK J.—
1 agree with the judgments of the President and my brothers Soertszand Hearne JJ.