[COURT OF CRIMINAL APPEAL.]

1947 Present: Howard C.J. (President), Soertsz S.P.J.
Jayetileke, Dias and Wind ham JJ.

THE KING v. VELAIDEN.

Application 193 of 1947.

S. C. 46-M. C. Balapitiya, 57,354,

Intoxication-Charge of murder-Knowledge and intention-Burden of proof- Penal Code, section 79-Evidence Ordinance, section 105.

Where in a case of murder the defence of drunkenness is put forward, the burden is on the accused to prove that by reason of the intoxication there was an incapacity to form the intention necessary to commit the crime.

The King v. Punchi Banda (1947) 48 N. L. R. 313 overruled.

APPLICATION for leave to appeal against a conviction in a trial A before a Judge and Jury,

Mackenzie Pereira (with him Cecil Jayetileke and G. L. L. de Silva), for the petitioner.-Our law with regard to the effect of intoxication on criminal responsibility is contained in sections 78 and 79 of the Penal Code. The draftsman evidently was adopting the principles of English law at a certain stage of Its development. Originally intoxication under the English law was no defence at all to a criminal charge but the English law in the course of its development adopted certain modifications in that respect, and section 78 represents one phase of such development.

Section 78 affords a complete defence and the essential conditions for the section to come into operation are clearly laid down, i.e., (1) An advanced stage of intoxication where the offender is incapable of knowing the nature of his act or that he is doing what is wrong or contrary to law. (2) The thing that intoxicated him was administered to hint against his will or without his knowledge. There can, therefore, be no doubt that section 78 is a general exception and consequently section 105 of the Evidence Ordinance comes immediately into operation if and when an accused seeks the benefit of that exception.

Section 79 deals with self-induced intoxication and there are obvious differences between the two sections 78 and 79 both as to the actual wording and the underlying principles. Firstly, the degree of intoxication for section 79 to come into operation is not defined, not even described. Secondly, it only applies to a particular class of offences, i.e., to offences where a particular intention or knowledge is a necessary ingredient.

[SOERTSZ S.P.J.-What do the words " liable to be dealt with" in the section mean ? Do they mean shall be dealt with ?]

In all cases which involve knowledge as an ingredient of mens rea the offender, notwithstanding his intoxication, is imputed the knowledge of a sober man. See dicta of Bertram C.J. in King v, Rengasamy 1. But the question of intention is left at large. The prosecution must prove intention apart from knowledge. It is not possible, as Garvin J. says in King v, Rengasamy (supra), to proceed from an imputation of artificial knowledge to an imputation of artificial intention. Knowledge and intention are different instances of mens rea. The requisite mens rea. differs in various offences. For murder under section 294 of the Penal Code intention is the requisite mens rea except under the fourth head where knowledge is sufficient. In this case the question of knowledge does not arise and intention is the ingredient of the offence.

The maxim that a person must be presumed to intend the natural consequences of his act does not apply in cases where intoxication has been proved. See observations of Patterson J. in R. v. . Cruse 2 In R. v. Doherty 3 Stephen J. definitely adopted the view that in considering murderous intention the fact of the intoxication must be taken into account. These principles have been in substance adopted in Director of Public Prosecutions v. Beard 4. See also R. v. Monkhouse 5. The principles of English criminal law are the same as ours and it is perfectly legitimate to seek guidance from these principles in interpreting section 79.

[HOWARD C