Knowing not what you do
By M.C.A. Hassan
One of the most com- plicated appeals in
legal cases on the question of automatism ended in October 28, this year
after the finding, conviction and sentences imposed by the Colombo High
Court were set aside and the acused acquitted.
The appeal was heard by a Bench comprising Justice F.N.D. Jayasuriya
and Justice P.H.K. Kulatilaka.
Earlier the accused, Mudunkotgedera Gamini was found guilty by the High
Court of reckless and negligent driving in that he had driven, lorry No.
27 Sri 9966 on October 19, 1992 at an excessive speed and caused the death
of Supplih Alageswaran, caused hurt to Kirama Kankanamage Ariyadasa and
Mariapillai Rengasamy in terms of Section 298 and 328 of the Penal Code
respectively. Then the lorry had veered across the road, knocked a pedestrian
at the edge of the pavement, crashed into a CEB transformer and damaged
a house.
However, the Court of Appeal Judges also said: "The accused in
his present condition must not be permitted to be a source of danger to
the community and to himself by driving motor vehicles. He should not be
kept at large to drive motor vehicles to the detriment of the community
and himself." His driving licence was suspended for three years, during
which time he was directed to face three medical boards, one each year.
The return of the driving licence would be considered on the findings of
the three medical boards.
Criticising the reason for conviction put forward by the High Court
Judge, Justice Jayasuriya stated: "The accused put forward a plea
of automatism and a plea of epilespy, but the learned trial Judge altogether
failed to view and consider this plea in its legal perspective. He has
failed and omitted to give his mind to the issue whether the prosecution
has proved a voluntary and conscious act as against the accused beyond
reasonable doubt.
"This reasoning discloses a failure to correctly comprehend, analyse
and evaluate the contents of the Dock Statement made by the accused by
the trial judge. We further hold that it is a wholly unsatisfactory and
illegal basis for a conviction on the charges."
The accused from the inception pleaded that he was subject to epileptic
fits from his younger days and his mother looked after him. At the trial
he produced a medical report and certificate to the effect that he was
subjected to an electroncephalogram (EEG) on the day of the motor collision
and that it confirmed that he was prone to epilepsy and suffering from
temporal lobe epilepsy.
Justice Jayasuriya referred to the case of Rex vs. Charlson (1955 I
WLR 3417) where an accused was charged under the Offences against the Person
Act with an attempt to murder his 10 year old son whom he struck twice
on the head with a wooden mallet and threw out of the window 20 feet below.
The boy escaped death and crawled out of the water with injuries. The accused
admitted striking the boy but took up the position that he did not know
why he had done so. Evidence at the trial proved the accused was sane,
but the medical examination and history proved that the acused was suffering
from a cerebral tumour in which case he would be liable to motiveless outbursts
of impulsive violence over which he would have no control at all.
Justice Barry who heard the case held: "There must be a conscious
act on the part of the accused. A person suffering from a disease maybe
deprived of the control of his actions. A man in the throes of an epileptic
fit does not know what he is doing. The actions of an epileptic are automatic
and unconscious and his will and consciousness will not apply to what he
is doing. If he did not know what he was doing, if his actions were perfectly
automatic and his mind had no control over the movement of his limbs, if
he was in the position as a person in an epileptic fit, then no responsibility
rests upon him at all and the proper verdict is not guilty of all three
charges."
Justice Jayasuriya held that the plea of the accused in this case is
similar. Besides, the State Counsel had formally admitted the contents
of the medical report and certificate which said he was suffering from
temporal lobe epilepsy.
After extensive reference to other authorities and an article by S.
Prevezer on Automatism and Involuntary Conduct 1958 Criminal Law Review
361 at 362, Justice Jayasuriya held that there is no legal burden on the
accused of proving any fact. Neither is there any standard of proof to
be achieved or discharged by him when he is engaged in the process of throwing
doubt on the prosecution case.
The Court of Appeal re-stated the law on this point with particular
reference to the legal burden, standard of proof and evidential burden.
In this respect the Court quoted the article by Lord Denning in 61 Law
Quarterly Review, page 379 RV. Lobell 1957 I QB 547, DPP vs. Wolmington
1935 Appeal Case 462, King vs Chandrasekera 44 NLR 97, Queen vs. Jayasena
72 NLR 313, Mancim v. DPP 1942 ACI and said one of these elements is that
the accused's act is voluntary, conscious and willed. Where the defence
has discharged its evidential burden and ultimately the Court or jury is
left in doubt whether or not the accused acted in a state of automatism,
on principle, the accused ought to be acquitted on the footing that the
actus reus has not been proved beyond reasonable doubt by the prosecution.
In this case the prosecution did not challenge the EEG report of the accused,
instead the state counsel formally admitted it under section 420 of the
Code of Criminal Procedure act.
Referring to the development of the law in England in this regard, the
Judges preferred to lay down the law for Sri Lanka by adopting the principles
laid down by Viscount Kilmuir, Lord Chancellor and Lord Denning. They said,
"This development of the English Law is inconsistent with the scheme
and symmetry of the Evidence Ordinance relating to burden of proof of Chapter
IV of the Penal Code of Sri Lanka." The court held that the evidence
led by the accused in laying a sufficient foundation for the plea of epilepsy
has thrown a reasonable doubt on the ingredient of the offence, the proof
of a voluntary act against the accused on the part of the prosecution and
allowed the appeal, subject to the suspension of the accused's driving
licence for three years during which he has to face three medical boards.
Human rights go to court
The row over the extradition of General
Augusto Pinochet now goes to the House of Lords. The affair has prompted
fresh debate over how well legal systems can and do protect human rights
- about the gap that can exist between the pursuit of justice and the application
of the law.
So it is timely that a new European Court of Human Rights comes in to
existence - the only court in the world in which an individual can file
complaint against his state for the violation of human rights.
The new Strasbourg court is unprecedented in legal history. It has jurisdiction
over some 800 million people from Greenland to Russia. The court will have
40 judges, one from each member state of the Council of Europe, and it
is likely to receive about 5,000 cases a year.
The new court replaces the old creaking human rights machinery in Strasbourg,
which has seen a steady stream of rulings against the United Kingdom since
it was set up in 1950 - most recently when the court ruled that police
forces could be sued if they were negligent in failing to protect a person
known to be at risk.
In all 99 cases against England have been taken to the European Court.
In 52, the court found violations of human rights, spanning telephone tapping,
prisoners' rights, journalists' sources, court martials and caning. All
of them prompted changes to the law.
In place of the old part- time, two tier structure of the European Commission
of Human Rights and European Court of Human Rights comes the new single
court, which will operate full time.
The idea is that it will be quicker and more efficient: the old system
has become deluged with cases and was well past its sell- by date. Created
as part of the framework set up in Europe in the wake of the Second World
War - to protect human rights and guard against racism - it began with
only 13 member states. In recent years, the break up of the Soviet Union
and other East European countries has brought a flood of applications to
join the Council of Europe, from Croatia to Ukraine.
By the end of October, when the old court delivered its final judgment
- in the case of Podbielski v Poland, a judgment now assured a place in
the legal textbooks - it has handed down 837 judgments. But whereas it
took 26 years for the first 100 to be delivered, 95 were delivered in just
that past ten months.
Cases cover the whole spectrum of rights guaranteed under the European
Convention on Human Rights - from the right to privacy to the right to
a fair trial, from the right not to be subjected to inhuman and degrading
treatment to the right to freedom of expression.
Jack Hanning, head of public relations at the Council of Europe, says:
"It is an important and historic event. For the first time, Europe
will have a full time human rights court - exactly 50 years after the Hague
Congress which launched the machinery for adjudication of human rights."
Another change is that the court will become totally judicial. The old
court was quasi-judicial but, as Chris Kruger, deputy secretary general
of the Council of Europe puts it, there was a political element. No longer
will it be possible for governments to opt out and remove the right of
individuals to petition the court - that right is now automatic for every
member state.
How will it work? A committee of three judges will first filter applications
and those cases deemed admissible will then go to panels of seven judges.
Exceptionally, a grand chamber of 17 judges will sit, taking on the
most difficult cases and instances where there may be a departure from
previous rulings.
Nicholas Bratza QC, the British judge at the court says "It should
significantly reduce delay and improve accessibility. Five or six years
to have a case heard is clearly unacceptable. The present route is tortuous,
bewildering and strewn with hurdles."
-London Times
Guardian of law misuses authority
The Court of Appeal re fused discretionary
relief to an accused who had committed rape and jumped bail and years later
come by way of a petition for revision.
Citing a judgment recently by him, Justice Ninian Jayasuriya said: "It
is with regret that we note that learned counsel for the petitioner is
in abject ignorance of decisions pronounced by this Court on a matter covering
the same ground that he has urged before us today.
In this context Justice Jayasuriya referred to a judgment of his court
in CA 480/97, Application in Revision, H.C Balapitiya 160/96, Sangadasa
Senatilleke, Petitioner Vs. the Attorney General, C.A minutes dated October
13, 1998.
He also said, "Had the learned Counsel the courtesy to peruse this
judgment, he would not have been as vociferous as he was before us today
urging the contention that despite the highly contumacious conduct of the
petitioner, the Court must necessarily hear the petitioner in regard to
the merits of his application where he was seeking to raise consideration
of facts before the Court of Appeal sitting in revision."
Referring to the accused petitioner, Opatha Muhandiramlage Nimal Perera
of Kandy, Justice Jayasuriya said he was a guardian of the law, an employee
of the Army, an officer in whom the Government of Sri Lanka had immense
trust and confidence and had placed him in Kandy to overcome certain subversive
activities of terrorists. In the course of his duty he had in the company
of other officers, proceeded to an estate where the terrorists had caused
wanton destruction.
He said, "This guardian of the law has misused his authority and
official position and is alleged to have raped a young girl who was overawed
by the intrusion of the army onto the estate. This guardian of the law
who has misused his position and abused his office is now seeking discretionary
relief from this Court."
The accused petitioner is alleged to have committed the offence of the
rape on October 23, 1989. There were non-summary proceedings initiated
in the Magistrate's Court. Magistrate, shortly before committing him to
stand trial in the Kandy High Court granted him bail on August 28, 1991
on certain assurances, undertakings and promises held out by the accused
petitioner that he would appear before the High Court without fail on receipt
of notice. He signed a bail bond and a recognizance before that Court.
After trial the accused was convicted of rape on November 4, 1993 and
sentenced to 10 years rigorous imprisonment and ordered to pay a fine of
Rs 2,000 and a default term of 12 months in the event of the failure to
pay the fine. The accused petitioner never concerned himself either to
file a petition of appeal within the stipulated period or to appear before
the High Court to have that order set aside on proof of facts within his
exclusive knowledge said Justice Jayasuriya.
Thereafter, the process of the law took its turn when the accused was
arrested on a warrant issued on January 9, 1997, in a maintenance case
filed against him for failure to appear before the Magistrate. Justice
Jayasuriya said, "From February 2, 1993 till he was arrested on the
warrant issued by the Magistrate in the maintenance action, on January
9, 1997 the accused petitioner has circumvented the judicial legal process
and judicial institutions altogether."
Quoting a judgment of Justice Ameer Ismail in Camillus Ignatius Vs.
Officer-in-Charge Uhana Police Station where the Judge took the view that
a meagre delay of four months in filing a revision application was fatal
to the prosecution of the revision application before the Court of Appeal,
here the delay extends to over a period of 2 3/4 years.
In refusing the relief sought for, Justice Jayasuriya referred to the
judgment of Justice Siva Selliah in the Appeal Court and the order in the
same matter by Justice Sharvananda in the Supreme Court and said, "To
entertain or grant relief to the petitioner upon this application would,
in the view of this Court, be to put a premium on prisoners jumping bail.
It may even have the effect of encouraging others to do so. It might also
have a side effect increasing the reluctance of a Court in a very long
trial to grant bail, lest the applicant's conduct be repeated by others.
"To put a premium on jumping bail is something this Court is not
for one moment prepared to countenance. The accused petitioner has brought
this entirely on this own head and he must now take the consequences."
The court then dismissed the application of the accused and ordered
costs of Rs 2,500 to be paid to the Attorney General.
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