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AVUNERIS DE SILVA v. ROMANIS.
P. G., Balapitiya, 17,091.
Trial of offenders—Inability of judge to arrive at a decision—His duty
thereon—Impropriety of requesting another fudge to hear furtherevidence and determine the case.
Where a Magistrate hoard evidence for the prosecution anddefence and did not proceed to judgment, but recorded that hewas not satisfied with the evidence taken, and that further evidenceshould be taken, and that his successor in office should give-judgment after hearing more witnesses, held that this was alamentable miscarriage of justice.
The proper course is to acquit the accused, if the Magistrate hadany doubt as to his guilt.
HE accused entered into a contract with the complainant to peel
cinnamon for the complainant during a period of twelvemonths commencing from 1st May, 1897, and ending with 30thApril, 1898, and received an advance of Rs. 30. It was alleged thathe failed to attend and work. The Police Magistrate (Mr. Guna-tileke) found the accused guilty of neglecting to attend in order topeel cinnamon, in breach of section 11 of Ordinance No. 11 of 1865.
On appeal, E. Jayaioardena appeared for the accused ; Morgan.for complainant.
The following judgment of the Supreme Court sets out thehistory of the case previous to its trial by Mr. Gunatileke, andenters fully into the irregularities which necessitated the acquittalof the appellant:—
25th March, 1898. Withebs, J.—
This is a lamentable instance of miscarriage of justice.
On the 13th September, 1897, a man who signed a year’s contractfor service as a cinnamon peeler was charged with having quittedhis employer’s service without leave on the 1st,May previous.He is not tried till the 10th of March following. On that daywitnesses are heard for the prosecution and for the defence, andthe Magistrate (Mr. Woutersz) expresses himself as follows :—
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“ 1 am not satisfied with the evidence already recorded. I think“ further, evidence should be gone into before the case can be“ decided satisfactorily. I will leave it to my successor to examine“ more witnesses, if he considers necessary, and give a decision.”
What an unhappy admission of inability to decide a simple case !It was the obvious duty of the Magistrate, if he had any doubt asto the guilt of the accused, to give him the benefit of that doubtand acquit him. He does not say on what point he wishedfurther evidence, or whether that evidence was wanted for theprosecution or for the defence.
Then, what happens on the 6th December. 1808, more than ayear after the institution of the proceedings ? The man is triedover again, an exact duplicate of the original trial. The plaint isexplained to the accused, and he claims to be tried.
The complaint was that the accused had quitted his employer’sservices without leave or reasonable cause on the 1st May, 1897).At the close of the prosecution the new Magistrate (Mr. Gunetileke)alters the charge to one of non-attendance at work to peel cinna-mon at the time and place he had contracted to do. The newMagistrate, after hearing evidence for the accused, convicted himof that charge.
Now, it seemed to me that the most just way of dealing withthis case was to hear counsel on the proceedings of the firsttrial; and if the respondent’s counsel satisfied me that theprosecution had made out the charge on which the accused hasbeen convicted at the second trial, I should let the convictionstand. If he was unable to satisfy me that the accused was guiltyof the offence charged, then I should do what the Magistrateshould have done at the.first trial, and acquit the accused.
The complainant swears that the accused never attended towork on his estate on any day after signing the contract. On theother hand, the accused swears that as long as he was able to hedid attend to work, and that he was obliged to desist from workowing to an affection of his eye. It was this conflict of evidencethat overcame the Magistrate at the first trial. He gave up theproblem in despair, and left it for his successor to solve. Now,that was not the way to administer justice. As it is very doubtful,indeed, that the accused committed any offence at all under theLabour Ordinance, I shall do now what the Magistrate should havedone then, and acquit the accused. No explanation has beenoffered for the delay in instituting these proceedings. The offenceis said to have been committed on the 1st May, 1897, but it wasnot till the September following that the case was instituted.
I set aside the conviction and acquit the accused.