Rose CJ:

The appellant was convicted of murder.

The facts of the case, briefly, were that at about 8.00 p.m. at Stanley Street on 20 September 1959 the deceased, a more strongly built man than the appellant, started an argument with the appellant, which led to a fight between them.

It must be assumed from the verdict of the jury that they accepted the prosecution evidence that the appellant during the fight drew a knife and inflicted a fatal stab wound in the abdomen of the deceased.

The deceased died some thirty hours later from shock and haemorrhage as a result of what the doctors described as a penetrating incised wound on the left side of the abdomen.

The principal matter to be determined is whether on these facts the relevant exceptions to s. 300 of the Penal Code i.e. sudden fight, provocation, or exceeding the right of self-defence, were adequately put to the jury by the learned trial Judge.

The matter is of particular importance in the present case as the facts which one must presume to have been found by the jury are clearly borderline as far as these issues are concerned.

With regard to the matter of sudden fight, which the learned trial Judge appeared to have considered to have been the most relevant of the exceptions, he stated at p. 132 of the record:

There are four elements to be considered, members of the jury. First, the fight must be sudden; secondly, there must be an absence of premeditation - it will not do if a man has time to think over what he should do and then kill the

person with whom he has been fighting; thirdly, no undue advantage must be taken by the accused; fourthly, the accused must not have acted in a cruel or unusual manner. If these factors exist in this case, then you may find the accused guilty of culpable homicide not amounting to murder. But again, at the risk of repeating myself, I must warn you that you can only arrive at that verdict if you are satisfied that the accused used a knife to stab the deceased.

Whatever the position may have been in the past, it appears now to be the accepted rule that when an accused person endeavours to bring himself within one of the exceptions, it is sufficient for his purpose if a reasonable doubt is raised in the minds of the jury as to whether or not the necessary factors exist. If as a result of the evidence of the whole case, taken and considered together, the jury find themselves in genuine doubt as to whether or not the case falls within one of the exceptions, then their verdict on the point must be in favour of the accused.

Nowhere in the summing up is this made clear to the jury in regard to any of the three exceptions to which we have earlier referred. It follows in view of what we have already said as to the borderline nature of the evidence on these matters that it is impossible for us to say that the jury, if fully directed, would necessarily still have found the appellant guilty of murder.

Having regard to our view of the above matters it is unnecessary to consider the other points that were raised in the appeal.

It was for these reasons that at the conclusion of the hearing of the appeal we set aside the verdict of guilty of murder and substituted one of culpable homicide not amounting to murder; and imposed a sentence of five years' imprisonment.

Verdict substituted.