135-NLR-NLR-V-48-THE-KING-v.-VELAIDEN.pdf
409
The King v. Velaiden.
[Court of Criminal Appeal.]
1947Present: Howard C.J. (President), Soertsz S.P.J.
Jayetileke, Dias and Windham JJ.
THE KING v. VEL AIDEN.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 .tefence of drunkenness is put forward,the burden is on the accused to prove that by reason of the intoxicationthere was an incapacity to form the intention necessary to committhe crime.
The King v. Punchi Banda (.1947) 48 N. L. R. 313 overruled.
A
PPLICATION for leave to appeal against a conviction in a trialbefore 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 intoxicationon criminal responsibility is contained in sections 78 and 79 of the PenalCode. The draftsman evidently was adopting the principles of Englishlaw at a certain stage of its development. Originally intoxication underthe English law was no defence at all to a criminal charge but theEnglish law in the course of its development adopted certain modi-fications in that respect, and section 78 represents one phase of suchdevelopment.
Section 78 affords a complete defence and the essential conditionsfor the section to come into operation are clearly laid down, i.e., (1) Anadvanced stage of intoxication where the offender is incapable of knowingthe nature of his act or that he is doing what is wrong or contrary tolaw. (2) The thing that intoxicated him was administered to himagainst his will or without his knowledge. There can, therefore, beno doubt that section 78 is a general exception and consequently section105 of the Evidence Ordinance comes immediately into operation ifand when an accused seeks the benefit of that exception.
Section 79 deals with self-induced intoxication and there are obviousdifferences between the two sections 78 and 79 both as to the actualwording and the underlying principles. Firstly, the degree of intoxi-cation for section 79 to come into operation is not defined, not evendescribed. Secondly, it only applies to a particular class of offences,i.e., to offences where a particular intention or knowledge is a necessaryingredient.
[Soertsz S.P.J.—What do the words “ liable to be dealt with ”in the section mean ? Do they mean shall be dealt with ?]
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The King v. Velaiden.
In all cases which involve knowledge as an ingredient of mens rea dieoffender, notwithstanding his intoxication, is imputed the knowledge Oi asober man. See dicta of Bertram C.J. in King v. Rengasamy . Bui thequestion of intention is left at large. The prosecution must prove intentionapart from knowedge. It is not possible, as Garvin J. says in King v.Rengasamy (supra), to proceed from an imputation of artificial knowledgeto an imputation of artificial intention. Knowledge and intentionare different instances of mens rea. The requisite mens rea differsin various offences. For murder under section 294 of the Penal Codeintention is the requisite mens rea except under the fourth head whereknowedge is sufficient. In this case the question of knowledge doesnot arise and intention is the ingredient of the offence.
The maxim that a person must be presumed to intend the naturalconsequences of his act does not apply in cases where intoxication hasbeen proved. See observations of Patterson J. in R. v. .Cruse".In R. v. Doherty n Stephen J. definitely adopted the view that in consideringmurderous intention the fact of the intoxication must be taken intoaccount. These principles have been in substance adopted in Directorof Public Prosecutions v. Beard See also R. v. Monkhouse Theprinciples of English criminal law are the same as ours and it is perfectlylegitimate to seek guidance from these principles in interpretingsection 79.
[Howard C.J.—Do you say that the judgment of Wijeyewardem- J.in King v. Punchi Banda ‘ is correct ?]
That judgment is correct. The burden of proving intention in thiscase is on the Crown. That burden can never be shifted. The :awdoes not require that the accused should prove a negative, i.e.. that hehad no murderous intention.
Where intoxication has been proved Crown cannot claim to haveestablished the murderous intention by proof of the nature of the weapon,character of the injury, and the fatal consequences that followed. Thesetogether with the maxim that a person must be presumed to have in-tended the natural consequences of his act may establish prima facie thenecessary intention in the normal type of case. But where intoxicationis proved the criminal reponsibility of the accused must be assessed onthe footing that the accused had the knowledge of a sober man and it isstill on the prosecution to prove murderous intention notwithstandingthe intoxication. If the Crown fails to do that, then the verdict shouldbe culpable homicide not amounting to murder on the footing ofknowledge.
It is quite sufficient for the accused to involve the intention in doubtso long as section 79 is not a general or special exception. See obser-vations of Soertsz J. in King v. ChandrasekereT. Section 79 is not a generalor special exception. No mitigatory or exculpatory plea can be foundedon section 79. The section merely enunciates a principle of liabilityas for instance section 32 of the Penal Code does, or, the section may be
1 V924) 25 -V. L. ft. 43S.
* {1838) 2 Mood,) 53.
3 (1887) 16 Cox 306.
■ (1948) 44 .V. L. ft. 97.
1 (1920) 14 C. A. R. 159.5 (1849) 4 Cox. 55.
« (1947) 48 N. L. It. 315.
The King v. Velaiden.
411
considered as a rule of construction on the application of a particularmens tea. Lord Macaulay in his Legislative Minutes says he did notadopt any scientific method of classification when inserting sectionsunder various heads. So that the mere fact that section 79 comes underthe head of general exceptions does not mean it is an exception.
The exception burden of proof ” as used in our law has two meanings.It may mean either establishing a fact or introducing evidence. Undersection 79 the burden is on the accused to adduce evidence of intoxication.
In this case the charge to the Jury contains serious misdirectionswith regard to the burden of proof as regards intoxication. Further, theexception of grave and sudden provocation has not been put to theJury, though it arises on the evidence.
M. F. S. Pulle, Acting Solicitor-General (with him T. S. Fernando,C.C., and D. Jansze, C.C.), for the Crown.—The provisions inChapter IV of the Penal Code are exhaustive of the grounds onwhich a person may seek to avoid responsibility for acts which wouldotherwise expose him to the full penalties provided by law. Minority,unsoundness of mind and involuntary intoxication are specially providedfor. If section 79 were not in the Code it would not be open to anyaccused person to plead intoxication caused by his own act either by wayof exculpation or mitigation. Therefore, voluntary intoxication canbe pleaded only to the limited extent laid down in section 79 and nofurther.
The intoxication contemplated t>y section 79 is not any and everydegree of intoxication. The words “ as if he had the same knowledgeas he would have had if he had not been intoxicated ” clearly indicatethat the intoxication must reach at least that degree which renders theaccused incapable of possessing the knowledge required to constitutethe offence. The question of intention is left at large. If on a chargeof murder the prosecution proves such acts as would in the case of asober person establish a murderous intention, then the burden wouldrest on the accused to prove that he was incapable of forming the inten-tion which the acts committed by him would lead one to infer. Theproposition laid down in Punchi Banda's case “ while the burden of provingdrunkenness rests on the defence, the burden of proving criminal intentionrests throughout the case on the prosecution and in deciding thatquestion the court has to bear in mind the drunkenness of the appellant ”is not precise for the reason that one is left to speculate as to what ismeant by the term “ drunkenness ” in that context. The facts fromwhich drunkenness was inferred in Punchi Banda’s case threw no lighton the mental condition of the accused.
If it is held, upon proof that the accused was under the influence ofliquor, that it was enough for him to create a doubt as to intention andthus entitle him to an acquittal on the charge, then certain anomalousresults would flow. Where a person is charged with theft it would besufficient for him to plead self-induced intoxication to raise a doubtas to his intention, whereas if the plea were unsoundness of mind orinvoluntary intoxication, the accused would have affirmatively to provehis incapacity to form the intention. The result is that,a greater burden
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The King v. Velaiden.
would be thrown on an accused pleading unsoundness of mind or in-voluntary intoxication than on one who pleads intoxication which wasself-induced. It is hardly likely that the framers of the Penal Codeintended to place the latter in a more advantageous position.
The Crown does not accept the position taken up in Punchi Banda’scase that it is not possible to regard section 79 as an exception becauseit does not enable an accused person to put forward a mitigatory orexculpatory plea. If section 79 is pleaded to reduce what would other-wise be murder to culpable homicide not amounting to murder, thenit can be said that that section enables an accused person to put forwarda mitigatory plea. If section 79 can be availed of to obtain a completeacquittal on a charge like theft, then it can be said that the sectionenables an accused person to put forward an exculpatory plea. In thecase of Nga Tun Baw 1 * decided by the Full Bench of the Burma HighCourt, Hartnoll J. said (page 870) in regard to section 86 of the IndianCode which is identical with our section 79—
“As it stands amongst the general exceptions. I think that it wasenacted so as to form a general exception in the case of a man who hasmade himself voluntarily drunk to the ordinary presumption oflaw that is drawn when deciding whether a certain intention shouldbe held to exist or not, where the intention is of the essence of theoffence. That general presumption of law is that a man is takento intend the ordinary and natural consequences of his acts and itis that presumption that a man who pleads drunkenness is allowedto rebut, and moreover, if he pleads that through drunkenness hecould not have had the intention imputed to him, the burden of prooflies strictly on him to show that the ordinary presumption shouldnot be drawn. This is laid down by section 105 of the EvidenceAct. The concluding words of that section enact that the Courtshall presume the absence of circumstances bringing the case withinthe general exception and, in my opinion, it cannot be too stronglylaid down, that, where a plea of being incapable to form an intentionthrough drunkenness is urged, very strict proof should be insisted on,for men who have made themselves drunk should not be lightlyexcused the consequences of their acts. ”
The result reached is in line with the English Law. In Rex v. Monk-house z the issue was put in the form whether the prisoner was renderedby intoxication entirely incapable of forming the intent charged.Coleridge J. said in that case, “ Drunkenness is ordinarily neithera defence nor excuse for crime and where it is available as a partialanswer to the charge it rests on the prisoner to prove it. ”
That a person in a state of intoxication may form an intention to kill,appears from Rex v. Doherty Stephens J. said, “ A drunken man mayform an intention to kill another or to do grievous bodily harm to him.or he may not; but if he did form that intention, although a drunkenintention, he is just as much guilty of murder as if he had been sober.
In Beard’s case ‘ the trial Judge placed the same burden on the prisoner as
1 (1912 13 Criminal Law Journal Reports 864.3 (1887) 16 Cox C. C. 306.
* (1849) 24 Cox C. C. 65.4 (1920) 14 Cr. Ajtp. R. 159.
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HOWARD C.J.—The King v. Velaiden.
in a case of insanity. While the charge was criticized by the Houseof Lords as being favourable to the prisoner exception was not taken tothe burden being put on him. The law in South Africa is that the burdenis on the accused person to prove by a preponderance of probability that byreason of intoxication he was incapable of forming the requisite intention.See Rex v. Kankani. *
Mackenzie Pereira, in reply.—The case of Nga Tun Baw (supra) touchedon the question of burden of proof only incidentally and is not bindingon this Court.
Cur. adv. vult.
September 8, 1947. Howard C.J.—
The main ground of the appeal of the applicant in this case, who wasconvicted on a charge of murder, is based on the contention that thelearned Judge misdirected the Jury in regard-to the burden of proof.It was also contended by the applicant’s Counsel that the question asto whether the applicant committed the act when he had lost his powerof control by reason of grave and sudden provocation should have beenput to the Jury. The learned Judge did not put such an aspect ofthe case to the Jury. We do not consider that it was incumbent onhim to do so. The question of grave and sudden provocation was notraised by Counsel for the applicant at the trial. This would not relievethe Court from doing so if there was any evidence to support such aplea. Such evidence does not, however, appear either in the case putforward by the Crown or in the unsworn statement made by the appli-cant from the dock. In the circumstances there were no materialson which the Jury could come to the conclusion that the act was commit-ted by the applicant when he had lost his power of self-control by reasonof grave and sudden provocation. This question was not, in our opinion,one to be left for the Jury’s decision.
The contention in regard to the burden of proof raises the questionas to the effect of intoxication on the intention of an accused person.The applicant did not elect to go into the witness box and give evidenceon oath. He made an unsworn statement from the dock. In thatstatement he says ■“ As a result of the toddy I drank I lost completecontrol of my senses. I cannot completely say how I must have acted.
I was in a state of unconsciousness. I was semi-conscious at one time. ”The applicant was seen by the Inspector and the Doctor about 4 or 5 hoursafter the stabbing had taken place. The Inspector says that the applicantwas smelling of liquor, while the Doctor says that he was not drunk.The defence was raised that the applicant was so drunk that he couldnot form an intention to kill. This defence has been dealt with by thelearned Judge at page 14 of the charge in the following passage : —
“ The burden is on the accused to prove that he was so drunk asnot to be able to form the necessary intention and in . is case youhave to ask yourselves :How has the accused proved it ? ”
In other similar passages in the charge the trial Judge has placed theburden of proof in regard to his intention on the accused. Mr. Mackenzie
1 South African Late Reports (1947), Pt. II, p. 807.
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HOWARD C.J.—The King v. Velaiden.
Pereira’s main support in his contention that the trial Judge has mis-directed the Jury is the judgment of Wijeyewardene J. in the recentCourt of Criminal Appeal case of The King v. Punchi Banda.' Theheadnote of this case is as follows : —
“In all cases of self-induced intoxication it is a question of factwhether, in spite of the intoxication the accused entertained a criminalintention. The burden of proving this intention lies on the prose-cution and in deciding the question the Court must bear in mind thedrunkenness of the accused.
“ Further, section 79 of the Penal Code does not enable an accused toput forward a mitigatory or exculpatory plea and does not thereforecreate a general or special exception such as is contemplated by section105 of the Evidence Ordinance. ”
.At p. 315 of the judgment Wijeyewardene J. says :
“ In all such cases of self-induced intoxication it remains a questionof fact to be decided whether, in spite of the intoxication, the accusedentertained a criminal intention (vide The King v. Rengasamy (1924)25 N. L. R. 438).
“ On whom then lies the onus to prove the facts necessary to establishwhether or not an accused in such a case had the necessary criminalintention ? The accused would have to prove the fact of drunkenness,as that is a matter especially within his knowledge (vide EvidenceOrdinance, section 106). He may prove it either by evidence ledby him or through the evidence of Crown witnesses. He woulddischarge this burden by establishing the fact of drunkenness on abalance of evidence. If the Court is so satisfied that the accused was•drunk, the Court would then examine, taking the fact of drunkennessinto consideration, whether the prosecution has proved the necessarycriminal intention beyond reasonable doubt. For instance, in ordinary•cases of murder, the Court usually decides this question by takinginto consideration, the weapon used in inflicting the injury, thenature of the injury, the position of the injury and similar matters.In such cases the Court would also make use of the legal maxim thata normal man is presumed to intend the natural and inevitable con-sequences of his acts. But where the Court is dealing with the caseof an accused in a state of intoxication, the Court will also have totake into consideration the fact of drunkenness and see how far thelegal maxim mentioned by me could be applied in his case. In other•words, while the burden of proving drunkenness rests on the defence,the burden of proving criminal intention rests throughout the caseon the prosecution and in deciding that question the Court has tobear in mind the drunkenness of the appellant.
“Section 105 of the Evidence Ordinance discussed by this. Court inThe King v. James Chandrasekera (1942) 44 N. L. R. 97 does not applyto the present case, as this is not a case where an appellant seeks toclaim the benefit of any general or special exception referred to in that■section. I may add that, in any event, it is not possible to regard
1 {1947) 4S -V. L. R. 313.
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HOWARD C.J.—The King v. Velaiden.
section 79 ci the Penal Code as such an exception, as that section doesnot enable an accused person to put forward a mitigatory orexculpatory plea.
“ The Court was not concerned with the question of burden of proof'in The King v. Rengasamy (supra), but there are certain passages inthe judgments in that case which support the view taken by us.
" In our opinion, it is a misdirection of law to state that theappellant must satisfy the Jury on a balance of evidence ‘that hisdrunkenness had obscured his idea of intention
It has, therefore, been held in The King v. Punchi Banda that as it isnot possible to regard section 79 of the Penal Code as a general or specialexception section 105 of the Evidence Ordinance interpreted as in The-King v. James Chandrasekera1, does not apply. The burden of provingcriminal intention rested therefore throughout the case on the prosecution.
The question which we have to decide is whether the Court in TheKing v. Punchi Banda was correct in law in holding that section 79 ofthe Penal Code was not a general or special exception. Apart fromThe King v. Punchi Banda Mr. Mackenzie Pereira was unable to callin aid any other authority. He invited our attention to the. case ofThe King v. Rengasamy’. But as Wijeyewardene J. states at p. 316in his judgment in The King v. Punchi Bamda the Court in that casewas not concerned with the question of the burden of proof. Mr.Mackenzie Pereira has however argued that certain passages from thejudgment of Garvin J. support the argument that he has adduced.In particular he relies on the following passage that appears at p.446: —
“ In the very few instances in which a particular knowledge and nota particular intention is essential before an act is punishable as anoffence, whether or not the doer of the act possessed the necessaryknowledge is a question of fact, and must be determined accordingly.It is, I think, desirable to add that where the prosecution has establisheda primaj facie case, it is for the person charged, if he relies on intoxi-cation as a defence, to satisfy the jury that he had reached a stateof intoxication which rendered him incapable of forming the requiredintention, or to prove facts or point to circumstances which arenecessarily sufficient to raise a real doubt in the minds of the jury asto his capacity to form the intention imputed to him in the charge. ”
We do not consider that the use of the words “ or point to circumstanceswhich are necessarily sufficient to raise a real doubt in the minds of theJury as to his capacity to form an intention imputed to him in thecharge ’’ threw the burden of proof in each case on the Crown. Thosewords must of necessity refer to a case in which the evidence adducedby the Crown points to a reasonable doubt as to the capacity of theaccused. The passage from the judgment of Garvin J. read as a wholesupports the argument put forward by the Solicitor-General. The latterhas moreover put forward arguments and produced authorities supporting'the contention that the trial Judge’s direction to the jury was a correct
1 (1942) 44 .V. L. R. 97.1 (1924) 25 N. L. U. 438.
48/33
416
HOWARD C.J.—The King v. Velaiden.
statement of the law. Section 79 of the Penal Code appears in ChapterIV which is headed “ General Exceptions The section is worded asfollows : —
“ In cases where an act done is not an offence unless done with aparticular knowledge or intent, a person who does the act in a stateof intoxication shall be liable to be dealt with as if he had the sameknowledge as he would have had if he had not been intoxicated,unless the thing which intoxicated him was administered to himwithout his knowledge or against his will. ”
The section refers to cases where an act done is not an offence unlessdone with a particular knowledge or intent. It then provides that if theact is committed in a state of intoxication, that person, in the case ofself-induced intoxication, shall be liable to be dealt with as if he hadthe same knowledge as a sober man. The inference to be drawn fromthis provision is that in cases where intent is an ingredient of the offencethe principle formulated in cases where knowledge is an ingredientdoes not apply. Without section 79 the ordinary law would apply,namely that a person would be presumed to intend the ordinary andnatural consequences of his act. Vide Reg. v. Monkhouse1. Section 79therefore enables a person to put forward a plea of a mitigatory andexculpatory character. Support for the argument that section 79 doesprovide an exception to criminal responsibility can also be derived fromGour’s classification of General Exceptions in the 4th Edition Vol. I,Chapter IV., p. 414. In paragraph 567 the learned author states thatthe first main principle is “ where there is an absence of criminal intent(sections 81 to 86 and 92 to 94).” 'The wording of section 86 of theIndian Penal Code is similar to that of section 79 of the CeylonPenal Code. In his commentary on section 86 Gour at page 560states that where intention is a constituent of an offence, the questionmust be dealt with on the general principles of law which are the sameboth here and in England. It is, therefore, relevant to inquireV/hat principles have been formulated in English cases in regard to theburden of proof. In this connection our attention has been directedto the case of Reg. v. Morikhouse (supra). In this case the accused wascharged with discharging a loaded pistol with intent to murder. Thequestion arose whether by reason of drunkenness the accused had thenecessary intent. The following passage from the charge of Coleridge J.to the Jury is in point :
“Drunkenness is ordinarily neither a defence nor excuse for crime,and where it is available as a partial answer to a charge, it rests onthe prisoner to prove it, and it is not enough that he was excited orrendered more irritable, unless the intoxication was such as to preventhis restraining himself from committing the act in question, or totake away from him the power of forming any specific intention. ”
This case, therefore, places the burden of proving that intoxicationproduced complete lack of control or incapacity to form any specificintention squarely on the accused. The leading case in English Law
1 4 Cox 55.
HOWARD C.J.—The King v. Velaiden.417
in regard to the defence of drunkenness where intention is one of theingredients of the charge is the House of Lords case of Director of PublicProsecution v. Beard'. The judgment of their Lordships delivered byLord Birkenhead L.C. reviewed in comprehensive manner the historyof English Law in regard to this matter. The appeal to the House ofLords was instituted on a certificate of the Attorney-General that thedecision of the Court of Criminal Appeal involved a point of excep-tional importance. The Court of Criminal Appeal had held that thedirection of the trial Judge Bailhache J. was calculated to mislead theJury by imposing a test applicable only to the defence of insanity,instead of the test imagined to be generally laid down in Meade’s case *for application to the defence of drunkenness. The relevant part ofthe trial Judge’s direction to the Jury appears on page 186 of the reportand is as follows :
“ It is no defence to say, ‘ I should not have done that wicked thingif I had not been so drunk. ’ But if he has satisfied you by evidencethat he was so absolutely drunk at the time that he really did not knowwhat he was doing or did not know that he was doing wrong, then thedefence of drunkenness succeeds to this extent—that it reduces thecrime from murder to manslaughter. What I mean by that is a sortof thing like this : Supposing he cuts a woman’s throat under theimpression that he is cutting the throat of a pig, then the crime ofmurder is reduced to the crime of manslaughter. But if a man says,* I was mad, and turned into a brute by drink, ’ it is no defence unlesshe satisfies you that he was so far out of his senses that he did notknow what he was doing. ”
With regard to this direction it will be observed that Bailhache J.placed the burden of proof on the accused and applied the same testwith regard to the effect of the accused’s intoxication as if the defence hadbeen one of insanity. On pages 197 and 198 of the report the LordChancellor deals with the direction of Bailhache J. He held that thetest of insanity should not be applied to a case of drunkenness,which a concessis did not amount to insanity. This distinction hadbeen preserved throughout the cases and it ought to be preserved,for the result of insanity is not a conviction. The Lord Chancellorfurther went on to say that Bailhache’s direction on this point; wasan innovation which is not supported by authority and whichshould not be repeated or imitated. On the other hand therewas no criticism by the Lord Chancellor on that part of thecharge that placed the burden of proof on the accused. In fact theLord Chancellor held that the summing-up was unduly favourable tothe prisoner, and he, the Lord Chancellor, was not prepared to holdthat the Jury were disabled from reaching a true conclusion upon thematters which required decision. The appeal was therefore allowedand the conviction of murder restored.
It has been contended by Mr. Mackenzie Pereira that the two Englishcases I have cited have no bearing on the point at-issue inasmuch as theCeylon Penal Code requires as one of the ingredients of the offence of 1
1 14 Criminal Appeal Reports 169.* {1909) 2 Criminal Appeal Reports, 64.
14
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HOWARD C.JThe King v. Velaiden.
murder, proof of an intention to cause death or deal such bodily injury asis sufficient in the ordinary course of nature to cause death, whereas inEnglish Law such offence is committed if the accused had an intention tokill or an intention to do grievous bodily harm or commit some felony.The point at issue, however, is the burden of proof when an accusedraises the defence that intoxication deprived him of the necessaryintention. Intention is a necessary ingredient of the offence of murderwhether the latter offence is defined by Ceylon or English Law. In thesecircumstances there is no substance in Mr. Mackenzie Pereira’s contention.
If we turn to the law as expounded by Judges in India we find the sameprinciple applied to the burden of proof. In Nga Tun Baw v. Emperor1the following passage from the judgment of Fox C.J. is relevant:
“ It may be gathered from the above cases that from the year 1819, theEnglish Law has been that the drunkenness of an accused person at thetime he committed the act charge as an offence may be, and should betaken into ccnsideration on the question whether he did the act withthe intention necessary to constitute the offence charged, and thatlaw does not require that the intention, which would be ascribed to asober man in connection with an act, must necessarily be ascribed to adrunken man who does the same act. ' The English Law, as stated inthe above extracts, appears eminently reasonable ; it does not involveblind adherence to any rule of law, it recognises that there are degreesof intoxiction, and that a drunken man may have the capacity forforming the intention necessary to constitute an act an offence. Avoluntary drunkard, like every other person, is in the first instancepresumed to have intended the natural consequences of his act, but thispresumption may be rebutted by his showing that at the time he didthe act his mind was so affected by the drink he had taken that he wasincapable of forming the intention requisite for making his act theoffence charged against him. The result of such law is that thequestion of intention must be determined in each individual caseaccording to the actual facts proved in the case according to theprinciples laid down. The Indian Law has, in section 86 of the PenalCode, made an expressed provision regarding the knowledge whichshould be imputed to a voluntary drunkard committing an act which isan offence when done with a particular knowledge or intent. Theeffect of the omission to make any expressed provision regarding theintention which is to be attributed to such a man doing such an actappears to me to be that the question of intention is left to be dealtwith on the general principles of law and the general principles ofIndian Law on the matter do not appear to me to differ from thegeneral principles of the English Law as stated in the judgment andsummings-up I have quoted from. ”
Mr. Pulle has also invited our attention to the South African case ofRex v. Kaukani’. In this case decided by the Appellate Division theCourt decided that both in the case of insanity, or drunkenness the1 (1912) 13 Criminal Law Journal Report 864 at pages 868 and 869.
* South African Law Reports 1947 (2) May, page 807.
HOWARD C.J.—The King v. Velaiden.
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burden is on- the accused to prove such defence by a preponderance ofprobability. In this connection the following passage at page 815 fromthe judgment of Davis A. J.A. is most relevant: —
“ And I would again emphasise the correctness of Wigmore'sstatement (3rd ed., vol. 9, sec. 2,486 in fin-.) which was accepted in.Pillay v. Krishna and another (1,946, A. D., not yet reported) that rulesas to the incidence of proof rest ‘ for their ultimate basis upon broadreasons of experience and fairness.’ The learned author had saidearlier in the same section that
‘ In criminal cases the innovation, in some jurisdictions, of .puttingupon the accused the burden of proving his insanity has apparentlyalso been based on an experience in the abuses of the contrarypractice.’
In my opinion the same consideration—as well as that of common-sense ; cf. Rex v. Ngxongo (1947 A. S. A. R. 152)—require that theonus should be on the accused, not only in a defence of insanity butalso in one of drunkenness. The latter defence is one which is so easyto raise, and so difficult entirely to disprove, that it seems to me thatthe dictates of reason and of justice, based upon one’s own experienceof presiding at criminal sessions, whether in a large town or on circuit,requires that the onus should be on the accused to prove this defenceby a preponderance of probability, and not upon the Crown todisprove it beyond all reasonable doubt.
For these reasons I come to the conclusion that in a defence ofdrunkenness, as in one of insanity, the onus is on the accused and noton the Crown. I may add that I have the authority of the ChiefJustice and of my brother Greenberg, who sat in- Ndhlovu’s case, tosay that they concur in this result. And it is fatal to the argumentadvanced on behalf of the accused in the present case, which,consequently fails.”
The authorities cited whether from Ceylon, England, India or SouthAfrica have satisfied us that the burden of proof in a case of murderin which the defence of drunkenness is put forward rests on the accusedwho must prove that by reason of intoxication there was an incapacityto form the intent necessary to commit the crime. Evidence of drunken-ness falling short of this and merely establishing that the mind of theaccused was affected by drink so that he more readily gave way tosome violent passion does not rebut the presumption that a man intendsthe natural consequence of his act. In the circumstances we havecome to the conclusion that there was no misdirection and the applicationmust be dismissed. In conclusion we feel constrained to say that,if the Crown had presented the same line of reasoning and producedthe same arguments as in this case, the decision in the case of the Kingv. Punchi Banda would have been different.
Application dismissed.