King V. Don Nikulas Buiya

[COURT OF CRIMINAL APPEAL.]

1942 Present: Howard C.J., de Kretser and Cannon JJ.

THE KING v. DON NIKULAS BUIYA.

10-M. C. Tangalla, 14,522.

Insanity-Proof to satisfaction of Jury-Degree of proof-Balance of probability as in civil case.

Where in a charge of murder a plea of insanity is set up, insanity must be clearly proved to the satisfaction of the Jury.

The burden is discharged, by an accused person who tenders a preponderance or balance of evidence in support of such a plea.

APPEAL from a conviction by a Judge and Jury before the 1st Southern Circuit.

O. L. de Kretser (Jnr.), for accused, applicant.

E. H. T. Gunasekera C.C., for the Crown.

Cur. adv. vult.

July 20, 1942. HOWARD C.J.

The accused in this case begs leave to appeal from his conviction on a charge of murder on the grounds that the learned Judge's failure to direct the Jury (a) on the extent of the burden placed on the defence in establishing a plea of insanity, (b) on the weight to be attached to the expert evidence in the case, amounts to misdirections. With regard to (a), scrutiny of the learned Judge's charge to the Jury indicates that on page 1 thereof he stated as follows:

"Assuming you are satisfied and you must be as I have had occasion to tell you so often, beyond all reasonable doubt, that the accused was responsible for the death of the deceased, the question of his intention, of which you must also be satisfied beyond all reasonable doubt, must be considered by you on the footing that the accused was, at the time he is alleged to have killed the deceased, a sane man. If you find he was insane, totally different considerations, which I shall have to explain to you, would apply."

On the last page of the charge the learned Judge summed up the position, both with regard to the case submitted by the Crown and the plea of insanity put forward by the applicant, in the following -words

"To sum up, Gentlemen, the position, assuming you are satisfied the accused caused the deceased's death and intended to cause it, or to cause an injury sufficient in the ordinary course of nature to cause death, then he is guilty of murder, unless on the evidence adduced you are satisfied that he was at the time, by reason of unsoundness of mind, incapable of knowing the nature of his act, or that that particular act which he did was wrong or contrary to law. In the latter event you will find that he committed the act with which he- is charged, assuming that it is established beyond' all reasonable doubt, and that, he is not guilty by reason of the fact that he was of unsound mind and so unable to differentiate between right, and wrong.

There are, as it appears to me, just two possible verdicts in this case. It is for you to decide which of them you will bring in. On the one hand you may find the accused not guilty' of any offence because he was of unsound mind for the reasons which I have already given you, or on the other hand if you think the defence has not been established, if you are not satisfied that the accused's Counsel, on the evidence, has established the defence he set out to establish, then the accused may be found guilty of murder. "

Counsel .for the applicant maintains that this paragraph amounts in law to a misdirection inasmuch as the Jury would draw the inference therefrom that the burden placed on the applicant to establish his plea of insanity was the same as that cast upon the Crown of proving that he \vas prima facie guilty of murder. In other words, the Jury would come to the conclusion that the' plea of insanity had to be established beyond all reasonable doubt, whereas the burden cast on an accused person was not higher than the burden which rested upon a plaintiff or defendant in civil proceedings. In support of this contention, Mr. de Kretser cited the case of Sodeman v. Rex[(1936) 2 All England Rep. 1138.]. This was a petition by the petitioner to the Judicia

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