SOERTSZ J.—The King v. Mudiyanse.
[Court of Criminal Appeal.]
1942Present: Soertsz, Keuneman, and • Jayetileke J J.
THE KING v. MUDIYANSE.
10—M. C. Kurunegala, 6,053.
Plea of Self-defence—Charge to the Jury—Burden of proof—EvidenceOrdinance s. 105—Questions put by Jury to Judge—Confused state ofmind—Re-trial.
Where in charging the Jury in regard to the plea of private defence 'the Judge stated as follows :—
“ In that connection I must say that by law the burden is placed onan accused person to prove to you that he was exercising that right.Now that burden is not so heavy as is imposed on the Crown to proveits case beyond all reasonable doubt. All that the accused had to dois to show by a preponderance or balance of evidence that the circum-stances are such as to bring him within this provision of law.”
Held, that there was no misdirection of law.
Where it appears to the Court of Criminal Appeal from questionsput to the Judge by the Jury, before returning their verdict, that theJury were in an extremely confused state of mind, although the Judgehad charged them fully and properly, the Court may order a re-triaL
PPEAL from a conviction by a Judge and Jury before the 2ndMidland Circuit 1942.
J.E. M. Obeyesekere (with him V. if. Guneratne), for accused-appellant,who is also the applicant in the application.
E. H. T. Gunasekera, C.C., for the Crown-
Cur. adv. vult.
October 26, 1942. Soertsz J.—
This is an appeal from a sentence of death passed on the appellant bythe Presiding Judge, when the Jury empanelled to try the case returneda verdict" of six to one, finding the appellant guilty of the offence ofmurder with which he was charged.
The case for the Crown was that the appellant had taken the deceasedman at a disadvantage, and stabbed him while he was reeling to a fallunder two blows dealt him by the appellant’s brother.
The Medical Officer, who performed the,autopsy, found an injury that,if it was not necessarily fatal, was undoubtedly, sufficient to causedeath in the ordinary course of nature.^""
The case for the defence was that the appellant stabbed the deceasedman when he was about to attack the appellant’s brother with a knifeand that, in the circumstances of the case, it was justifiable homicide.On this plea, there also arose the question whether the appellant’s offencewas not that of culpable homicide hot amounting to murder if, in theview, of the Jury, he had exceeded the right the law gave him.
Counsel for the appellant appears also to have submitted to the Juryfor their consideration, as alternative defences, the questions whetherthe appellant’s offence was not that of culpable homicide not amounting
SOERTSZ J.—The King v. Mudiyanse.
to murder either-on the ground that, at the time he caused the death ofthe deceased, he had been deprived cf his power of self-control by graveand sudden provocation; or on the ground that the death of the deceasedoccurred in circumstances that brought the case within the plea of asudden fight.
The learned Judge charged the Jury as fully and as clearly as waspossible^ He explained to them the meaning of the word “ murder ”and repeatedly drew their attention to the fact, that, for the constitutionof that offence, it was necessary that there should be, on the part of theassailant, an intention either to cause death or to cause bodily injurysufficient, in the ordinary course of nature, to cause death. He thentold them that if they could not find such an intention, or were inreasonable doubt as to the existence of such an intention, they shouldnot find him guilty of murder, but should go on to consider whether theycould find that he had the knowledge that his act was likely to causedeath. If they so found, the offence would be that of culpable homicidenot amounting to murder. If they did not find even this requisiteknowledge, or had a reasonable doubt in regard to it, they would thengo on to consider whether he intended to cause the grievous injury thathad resulted.
The learned Judge next dealt with the defence that the appellant wasexercising the right of private defence and explained the law on thatpoint again fuliy and clearly. He summed up the evidence on thisquestion and called their attention to such contradictions and discre-pancies as existed in the evidence. Finally, he dealt with the alternativedefences of provocation and sudden fight, and he asked the Jury toconsider their verdict.
Counsel for the appellant confined himself to two of the several groundson which this appeal was taken. He contended, firstly, that there was^misdirection in that the learned Judge in charging the Jury in regardto the plea of private defence said to them : —
" In that connection I must say that by law the burden is placedon an accused person to prove to you that he was exercising thatright ” (namely, the right of private defence).
That is the only part of the charge dealing with this question that hasbeen quoted in the notice of appeal, but that is an incorrect and mis-leading statement of what the Judge said on this point, for he addedimmediately : —
" Now, that burden is not so heavy as is imposed on the Crown toprove its case beyond all reasonable doubt. All that the accused hasto do is to show by a preponderance or balance of evidence that thecircumstances are such as to bring him within this provision of law.”
In our view this direction, if it erred at all, erred in favour of the prisoner.The direction as quoted in the grounds of appeal was in itself a correctdirection. It states, substantially, what section 105 of the EvidenceAct lays down.
Secondly, Counsel contended that the proceedings show that theJury were thoroughly confused in their minds and that, for that reason,their verdict should not be allowed to stand.
SOERTSZ J.—The King v. Mudiyanse.
The summary I have given of the charge shows that the Jury weregiven all the assistance a Judge could possibly give them. But they, orat least, some of them, as will presently appear, seem to have stood inneed of much more than assistance. After a deliberation of forty-fiveminutes’ duration, they came before the Judge and asked for furtherdirection. It is necessary to quote the full note of the proceedings thattook place there :—
“ Foreman : I have been requested to ask Your Lordship to giveus a little further instruction on the law relating to murder, and thisis the question particularly asked : If a man uses a lethal weapon onanother, but without the intention of causing death, but unfortunatelykills his victim, is he still guilty of murder?
Court : Not unless he has the intention of causing death or suchbodily injury as in the ordinary course of nature is sufficient to causedeath. Does that clear the point ? He must intend to cause deathor such bodily injury as is sufficient in the ordinary course of natureto cause death. Is that the only point ?
Foreman : Yes, that is the only point.
Court: I may say in that connection, Mr. Foreman, that a personby law is presumed to intend the ordinary consequences or normalconsequences of his acts. An ordinary, normal person is presumed tointend the ordinary consequences of his acts. What I mean to say is,if somebody in this Court got up and pointed a gun at ycu from thisdistance and fired it, he is presumed to intend the death of the personhe fired at.
Foreman:Even though he can say afterwards that he did not
Court : Yes. Is that all ?
Foreman :• Yes. That is all.
Here, again, it is perfectly clear that the learned Judge directed theJury correctly that they could net find the prisoner guilty of murder“ unless he had the intention of causing death or such bodily injury as inthe ordinary course of nature is sufficient to cause death.” But ourdifficulty is that vve cannot be certain as to the purpose of the questionthe Foreman asked. Was he seeking to ascertain whether intention tocause death, &c., was essential; or whether the prisoner would be guiltyof murder, even if he had no such intention, because he used a lethalweapon ; or whether when the Foreman used the phrase “ but unfortunatelykills his victim ”, he was asking for guidance in regard to what the positionwould be in law,- if the prisoner used a lethal weapon not with intentionin the sense of malice aforethought,'but in an attempt to exercise the rightof private defence. It seems impossible to say what exactly the Foremanintended to ask. The word unfortunately is extremely puzzling in thecontext. The question becomes even more difficult when we find thatthe Foreman was asking this question at the request of one or morefellow Jurors. Had he himself quite understood the difficulty, of theJuror or Jurors for whom he put the question ? Then there is the finalquestion put by the Foreman after the learned Judge had adduced aninstance to illustrate the rule that “ a person by law is presumed to
Wauigasekcre p. Lcmisz.37
intend the ordinary consequences or normal consequences of his actsThat question was “ Even though he can afterwards say that he did notintend ? ”
It is impossible to say what the real difficulty was that existed in theminds of the Juror or Jurors at whose instance the Foreman put thatquestion, and we are unable to free ourselves from a strong impressionthat, although the Jury had been fully and properly charged, they, orsome of them, appear to have been in an extremely confused state of mind.
We have, therefore, come to the conclusion that it is desirable that weshould quash the conviction and order a re-trial.