Yeung Pak Lun v. The Queen

CACC000782/1981

Murder. Defence of Automatism only to be left to the jury if a proper foundation is laid for it.

BETWEEN

Coram: Sir Denys Roberts, C.J., Sir Alan Huggins, V.-P. and Barker, J.A.

Date: 30 March 1982

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JUDGMENT

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Barker, J.A.:

1. In this case the appellant, Yeung Pak Lun, appeals by leave of the single judge from his conviction on a charge of murder. He was in fact also convicted of a charge of attempted murder but no appeal or complaint is made against that conviction.

2. Two points were raised in front of us by Mr. Payne and the second I can deal with quite shortly. It was that when the Judge said in his summing up "In my view, members of the jury, you may well think that he knew very well at the time what he was doing", that went too far and over-stepped the bounds of judicial licence which a Judge undoubtedly has to comment to the jury. In our view it does not. It has been laid down time and time again that provided a Judge warns the jury as the Judge did in this case that they were at liberty to disregard his comments, if they did not agree with them, the Judge is thereafter entitled to comment and to comment strongly. In our view this comment wax perfectly proper and indeed not strong.

3. But the main around of appeal is that the learned Judge did not leave to the jury the defence of automatism. He did leave to the jury the defence of provocation, weak though it undoubtedly was, because it was specifically raised by Counsel then acting for the appellant who was not Mr. Payne and indeed it was one of the main planks of his argument. Therefore the Judge properly left the question of provocation to the jury. Having properly been left that question the jury rejected that defence and went on to convict of murder. What is now said before us is that the Judge should have specifically directed the jury as to the question of whether then the appellant strangled this unfortunate girl, and the inference was overwhelming from the evidence that he did in fact do so, his mind did not go with his act and he was as it were acting in a state of automatism. The appellant himself made a statement to the police in which no sort of suggestion of automatism was made and the only foundation, if foundation it be, which could be relied upon to support this defence is the evidence which the appellant gave to the effect that after he had tied the victim's wrists and ankles, she nevertheless was somehow able to squeeze his scrotum with such force that he did not know what he was doing. As he put it in answer to the learned Judge Q.  "Are you saying that after the scrotum was squeezed which caused you to lose control of yourself to such an extent, to the degree that you were not conscious of what you were doing?"  A. "Yes".  That is the highest that the appellant's case could be put. In previous answers he gave evidence from which it would be perfectly open to the jury to have come to the conclusion that he knew precisely what he was doing. It could have come to the conclusion that this story of his scrotum having been squeezed press a last minute attempt to wriggle out of overwhelming facts against him or they could quite easily nave come to the conclusion that even if his scrotum was squeezed he nevertheless knew precisely what he was doing.

4. We have been referred to the case of Bratty v. Attorney General for Northern Ireland⁽¹⁾. From the speeches which were made in that case it is perfectly clear that the question of automatism has only to be left to the jury if a proper foundation for it is laid by the defence. As Lord Donning said at page 21:-

"What then is a proper foundation? The presumption of mental capacity of which I have spoken is a provisional presumption only. It does not put the legal burden on the defence in the same way as the presumption of sanity does. It leaves the legal burden on the prosecution, but nevertheless, until it is displaced, it enables the prosecution to discharge the ultimate burden of proving that the act was voluntary. Not because the presumption is evidence itself, but because it takes the place of evidence. In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary. The evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental incapacity. It is not sufficient for a man to say "I had a blackout": for "blackout is one of the first refuges of a guilty conscience and a popular excuse." "

5. And as Lord Morris said in the same case at page 25:-

"…it is not every facile mouthing of some easy phrase of excuse that can amount to an explanation. It is for a judge to decide whether there is evidence fit to be left to a jury which could be the basis for some suggested verdict."

6. And when one looked at the evidence that there was in Bratty's case ⁽¹⁾ there was evidence not only from the appellant himself but also other evidence as to his general behaviour and backwardness and his characteristics and all the evidence relating to the circumstances attending the death of the deceased. Nevertheless in that case where the appellant said in the witness-box he did not at the time know what he oral doing or did not realise exactly what he was doing or realise at the time what he had done or did not remember what he had done and said that he had not meant to do any harm, notwithstanding all that evidence the House of Lords said that the trial Judge was correct in refusing to leave the defence of automatism to the jury. We think in the present case that there was no proper foundation laid in the present case for a defence of automatism. The prisoner's mere ipse dixit that he was not conscious of what he had done is not in our view a proper foundation. For these reasons in our judgment the summing-up of the learned Judge was correct and the appeal is dismissed.

(1)    [1961] 46 C.A.R. l