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217
[COURT OF CRIMINAL APPEAL]
1954 Present: Rose C.J. (President), Pulle J., Swan I., Sansoni J.
and Fernando A.J.
D. M. MUTHU BANDA, Appellant, and THE QUEEN, Respondent
APPEAL NO. 52 OF 1954
S. C. 39-M. C. Kandy, 5,2m
Culpable
homicide-Provocation-Intoxication-Scope of its relevancy-Penal Code, s. 294,
Exception 1.
When considering, in a prosecution for murder, whether the accused was deprived
of the power of self-control by grave and sudden
provocation, the jury must
apply an objective test, i.e., whether in the particular case under
consideration a reasonable or average
man with the same background and in the
circumstance of life as the accused would have been provoked into serious
retaliation.
The effect of this proposition is that the intoxication of the
accused is not to be regarded as affecting the gravity of the provocation
offered, and should only be taken into account, together with the idiosyncrasies
of health and temperament, when the jury determine
subjectively whether or not
the accused lost his self-control under the stress of the provocation.
The King v. Punchirala (1924) 25 N. L. R. 458, overruled.
APPEAL
against a conviction in a trial before the Supreme Court.
G. E. Chitty, with L. F. Ekanayake, A. S. Vanigasooriyar and Daya Perera,
for the accused appellant.
H. A. Wijemanne, Crown Counsel, with V. S. A. Pullenayagam and E, H. C.
Jayetileke, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
December 21, 1954. ROSE C.J.-
The principal matter that we have to consider is whether the law is correctly
stated in a passage from the charge of the learned
trial Judge dealing with the
exception of grave and sudden provocation. The passage in question appears at
page 11 of the charge
and reads as follows:
" Mr. Carthigesu, I wish you to follow this carefully, because I am deliberately
directing the Jury in a sense which I know
is not the sense in which the matter
is understood sometimes, and that there is authority in favour of your view. Now
gentlemen,
by provocation is meant anything which a reasonable man is entitled
to resent. Provocation, as I said, must be sudden, and provocation
must be
grave. Grave provocation would be provocation that can cause a reasonable man, a
man of ordinary sense and prudence and
temper of the same class of life or
station in life as the accused, to lose his power of self-control. It is quite
possible that
an act which may not cause a sober man to lose his self-control
may cause a drunken man to lose his self-control.
218
Once you are satisfied that
provocation was grave and that it would be grave provocation to a reasonable
man, then in considering
whether this particular accused lost his self-control
as a result of that provocation you should take into account the circumstance
that he was drunk, if you are satisfied that he was drunk. But if you are
considering whether the provocation was grave, it is
not open to you to say, '
it is true that this act of the deceased man would not be grave provocation to a
sober man but to a drunken
man it would be '. You will not take into account the
particular weakness of the accused when you are considering whether the
provocation
offered was grave. That question ," you will resolve by reference to
an ordinary reasonable man, that is to a man who is sober.
"
The direction criticized in this appeal is that which expresses the proposition
that in considering whether a particular episode
contains the elements of grave
and sudden provocation the jury must apply an objective test, i.e. whether in
the particular case
under consideration a reasonable or average man with the
same background and in the same circumstance of life as the accused would
have
been provoked into serious retaliation. The effect of this proposition is that
the intoxication of the accused is not to be
regarded as affecting the gravity
of the provocation offered, and should only be taken into account, together with
the idiosyncrasies
of health and temperament, when the jury determine
subjectively whether or not the accused was acting under the stress of the
provocation.
The matter has been considered in the English Courts, not of course
in reference to Section 294 of the Ceylon Penal Code but in
the context of the
English Law which, however, in the matter which we are considering, would appear
to be not dissimilar, in the
recent case of Bedder v. Director of Public
Prosecutions. [1 (1954) 2 A. E. R. 801.].
In that case it was held by the House of Lords in a judgment delivered by Lord
Simonds L.C. that the test to be applied in determining
whether there had
been provocation sufficient to reduce the homicide from murder to manslaughter
was that of the effect of the
alleged provocation on the mind of a reasonable
man ; and in applying this test the hypothetical reasonable man did not have to
be invested notionally with the physical peculiarities of the accused. In the
course of his speech at page 803 Lord Simonds quotes
with approval a
passage from the speech of Lord Simon in Holmes v. Director of Public
Prosecutions[2 (1946) 2 A. E. R. 124.]: "
If, on the other hand, the case
is one in which the view might fairly be taken (a) that a reasonable person, in
consequence of
the provocation received, might be so rendered subject to passion
or loss of control as to be led to use the violence with fatal
results, and (b)
that the accused was in fact acting under the. stress of such provocation, then
it is for the jury to determine
whether on its view of the facts manslaughter or
murder is the appropriate verdict", and goes on to say, " The argument,
as I
understood it, for the appellant was that the jury, in considering the reaction
of the hypothetical reasonable man" to
the acts of provocation, must not only
place him in the circumstances in which, the accused was placed, but must also
invest him
with the personal physical peculiarities of the accused. Learned
counsel, who
219
argued the case for the appellant
with great ability, did not, I think, venture to say that he should be invested
with mental or
temperamental qualities which distinguished him from the
reasonable man ; for this would have been directly in conflict with the
passage
from the recent decision of this House in Mancini's case which I have cited. But
he urged that the reasonable man should
be invested with the peculiar physical
qualities of the accused, as in the present case with the characteristic of
impotence, and
the question should be asked : what would be the reaction of the
impotent reasonable man in the circumstances ? For that proposition
I know of no
authority ; nor can I see any reason in it . . . . It was urged on your
Lordships that the hypothetical reasonable
man must be confronted with all the
same circumstances as the accused, and that this could not be fairly done unless
he was also
invested with the peculiar characteristics of the accused. But this
makes nonsense of the test. Its purpose is to invite the jury
to consider the
act of the accused by reference to a certain standard or form of conduct and
with this object the ' reasonable
' or the ' average ' or the ' normal' man is
invoked. If the reasonable man is then deprived in whole or in part of his
reason,
or the normal man endowed with abnormal characteristics, the test ceases
to have any value. This is precisely the consideration
which led this House in
Mancini's case to say that an unusually excitable or pugnacious person is not
entitled to rely on provocation
which would not have led an ordinary person to
act as he did ".
In relation to the question of intoxication of an accused the same principle was
applied in the case of R. v. McCarthy [1 (1954)
2 A.E.R. 262.] where it was,
held that unless a man is in such a complete and absolute state of intoxication
as to make him incapable
of forming the intent charged, drunkenness which may
lead him to attack another in a manner which no reasonable, sober man would
do
cannot be pleaded as provocation reducing the crime from murder to manslaughter
if death results. In this case, of course, the
jury had also to consider the
question of whether the retaliation was in fact out of proportion to the
provocation alleged. But
on the matter which we are considering in the present
case it is clear that the learned Judges of the Court of Criminal Appeal in
England accepted and confirmed the principle that the existence of provocation
had to be decided by the Jury objectively, whereas
the question whether the
accused was in fact provoked required subjective analysis.
Having regard to these high authorities it seems to us that there can be no
doubt that the law was correctly stated by the learned
trial Judge in the case
now before us. It only remains to consider two local authorities which learned
Counsel for the appellant
in the course of his able argument suggested to us
were to a contrary effect and should not lightly be disregarded.
To deal with the later case first, that of The King v. Marshall Appuhamy [ 2
(1949) 5. N. L. R. 140.]; it seems to us that there
is in fact no real conflict
between the view of the law therein stated and that which we propose to follow
in the present matter.
The headnote of this case states:'' Intoxication which
falls short of the degree of intoxication contemplated by Section 78 of the
Penal Code could be considered in dealing with the question whether a man's
suscep-
220
tibility to provocation was
affected by intoxication " and in a passage at page 142, from which presumably
the headnote is
taken, Wijeyewardene C.J. says : " The Judge appears to have
expressed himself in such a way as to give the impression to the
jury that any
intoxication falling short of the degree of intoxication contemplated by Section
78 of the Penal Code should not
be considered in dealing with the question
whether a man's susceptibility to provocation was affected by intoxication". The
judgment then proceeds to express disagreement with that view.
So stated, we see no reason to dissent from the position there taken up as it
does not conflict with the view which we have set
out above that the question of
intoxication, when it is insufficient to affect intent, comes properly to be
considered when the
jury is answering the question whether the accused was in
fact provoked by provocation which has been objectively established.
The second case, The King v. Punchirala [1 (1924) 25 N. L. R. 458. ], might be
held to give rise to difficulty. In his judgment
at page 461, Bertram C. J.
refers with approval to the case of R. v. Thomas [2 (1837) 7 C. & P. 817.] where
Baron Park (incorrectly
in the judgment described as Jervis C. J.) said as
follows : " So drunkenness may be taken into consideration in cases where
what
the law deems sufficient provocation has been given, because the question is, in
such cases, whether the fatal act is to be
attributed to the passion of anger
excited by the previous provocation, and that passion is more easily excitable
in a person when
in a state of intoxication than when he is sober ". Moreover,
at page 463 a passage from Stroud's book on Mens Rea is cited
with approval. The
first sentence reads : " Where an act of violence, with which a prisoner is
charged, has ensued upon some
provocation or aggression of such a kind that, if
sufficient in point of degree, it would suffice to relieve or modify his
responsibility
for the act in question, the fact that he was drunk may be taken
into consideration by the jury ".
Surprisingly, however, Bertram C.J. proceeds as follows : " It appears,
therefore, that we should hold that the word ' grave
' is not an absolute but a
relative term, and that in determining whether in any particular case the
provocation received was grave,
the Court or Jury may take into account the
intoxication of the person receiving it". With great respect to the learned
Chief
Justice, we feel that we have no alternative but to say that this passage
incorrectly states the law. For the reasons that we have
already given, the true
position would seem to be that the intoxication of the accused in such a case as
is contemplated in King
v. Punchirala, only becomes relevant for the
consideration of the jury when they ate considering the question whether the
accused
was in fact provoked by provocation which would, in the opinion of the
jury, have provoked a normal or average reasonable man.
We therefore regard the learned Judge's summing-up in the case under appeal as
being unexceptionable. Moreover, there is nothing
in the record to- indicate
that a reasonable jury could properly have come to any other conclusion than to
convict the appellant
of murder.
For these reasons the appeal is dismissed and the conviction affirmed.
Appeal dismissed.
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