DRIEBERG J.—The King v. Ludotoyke.
1935Present: Diiebeig J.
THE KING v. LUDOWYKE.
In the Matter of an Application under Sections 47 and48 of the Courts Ordinance, No. 1, of 1889.
P. C. Galle, A 4,032.
Transfer of a sessions trial—Application for retransfer—Special fury—Accused
charged with misappropriation of funds of a club—Interest of members
—Fair and impartial trial not possible—Criminal Procedure Code, ss.
135, 262, 265, 274—Courts Ordinance, s. 47.
The accused was charged with criminal misappropriation of fundsentrusted to him as Assistant Sweeps Secretary of the Galle GymkhanaClub and was committed for trial at the Supreme Court Criminal Sessionsat Galle. The Attorney-General acting under section 47 of the CourtsOrdinance by his fiat transferred the case to the Sessions of the WesternCircuit to be held at Colombo.
The case was ordered to be tried by a special jury and the jury list atGalle consisted of one hundred and nine members of whom forty weremembers of the Galle Gymkhana Club.
Held, (on an application by the accused for a retransfer of the case toGalle) that, in the circumstances a fair and impartial trial cannot be heldat Galle.
The rule that every offence must ordinarily be tried by a Court withinthe local limits of whose jurisdiction it was committed is enacted notonly in the interests of and for the convenience of' accused but also ongrounds of public policy, and the necessity is greater in the case of trialsby Judge and jury than in trials by a Judge alone. A departure fromthis rule should only be permitted in exceptional circumstances.
HIS was an application under section 47 of the Courts Ordinance.
H. V. Perera (with him Amarasekere), for the accused.
Obeysekere, Deputy S.-G. (with him Schokman, C.C.), for the Crown.
February 15 1935. Drieberg J.—
The accused was committed for trial at the Supreme Court Sessions atGalle; the inquiry was by the Police Court of Galle. The Attorney-General, acting under section 47 of the Courts Ordinance, by his fiattransferred the case to the Sessions of the Western Circuit to be held atColombo. The Attorney-General then moved under section 222 of theCriminal Procedure Code that a special Jury be summoned to try the case.
The accused applied, under the provisions of section 47 of the CourtsOrdinance, for a retransfer of the case to the Southern Sessions to beheld at Galle.ri
Both applications were dealt with on the same day.
Mr. H. V. Perera for the accused did not oppose the application for aspecial jury. The trial will involve the examination of accounts extendingover several years, there are four hundred and eighty-nine documentslisted on the indictment and I think it most desirable that a case of thisnature should be tried by a special jury.
DRIEBERG J.—The King v. L.udovay'ke.
The accused applied for a transfer to Galle for several reasons. Thefirst ground is the greater expense he would have to incur in bringing hiswitnesses to Colombo. The second is the greater cost of the services ofhis proctor and his junior counsel, who is a member of the Galle bar. ifthey had to appear in Colombo. The third is the state of his health. Thefourth is that if he had to appear in Colombo, the trial is expected to takethree weeks, he would lose a certain income which he could continue todraw during the trial if it is held at Galle. The fifth is that no sufficientreason was shown by the Crown why the trial should not be in Galle.
There is no substance in the first ground, for the batta of witnesses forthe defence, if summons on them have been duly obtained, will be paid bythe Crown.
As regards the second objection, if counsel from the Colombo bar is tolead for the defence, and it is suggested that this is so, his services can besecured at a lesser fee to appear in Colombo than at Galle and this savingwould make up to an appreciable extent for the greater expense of theappearance at Colombo of the accused’s junior counsel and proctor.
The third objection is one which deserves sympathetic consideration.The doctor states that his condition is such that he has been advised totake rest. While this may be a sufficient reason, if his condition isserious, for his not having to stand the strain of a trial, it is not very clearhow he could stand a trial at Galle and not in Colombo; but there is theclaim he makes that at Colombo he would not have the comforts which hehas in his own home.
The fourth reason is not convincing. Though the Principal, theRev. A. A. Sneath, thought he should not attend Richmond College, Galle,of which he is the Headmaster, while this charge was pending, he wasallowed to draw his full salary on his providing a substitute at his expense,and he gave some boys of the school tuition at his bungalow. Mr. Sneathhas filed an affidavit of these matters and he does not suggest in it that?the allowance will be discontinued if the accused is away in Colombo forhis trial.
Though the Attorney-General in his discretion can direct a transfer,the proviso to section 47 enables this Court to retransfer a case on goodcause shown by an accused. The matter is open to the fullest examina-tion. Every offence must ordinarily be tried by a Court within the locallimits of whose jurisdiction it was committed—Criminal Procedure Code,section 135. This is enacted not only in the interests of and for theconvenience of accused but also on grounds of public policy, and thenecessity for this is even greater in the case of trials by Judge and jurythan in trials by a Judge alone. A departure from this rule should onlybe permitted in exceptional circumstances.
The learned Deputy Solicitor-General submits an affidavit byMr. Koelmeyer, an Assistant Superintendent of Police who prosecuted inthe Police Court, in which he said that the accused is an old and wellknown resident of Galle, that the case had roused a great deal of publicinterest in Galle where the headquarters of the Galle Gymkhana Club are,and that a strong public opinion has been formed in the district regardingthe case. He said that for that reason he believed that a fair and impartialtrial could not be had at Galle.
DRIEBERG J.—The King v. Ludowyke.
A reason such as this calls for very close examination ; but there is oneobjection raised by the Crown to the trial in Galle which in my opinionconcludes the matter.
The accused is charged with criminal misappropriation of certainmonies entrusted to him as Assistant Sweeps Secretary of the GalleGymkhana Club. These were monies in the nature of commission onlottery tickets which had to go to the credit of the club and become its*property. This case is to be tried by a special jury. The jury list showsthat there are one hundred and twelve persons on list 1 (CriminalProcedure Code, section 257), that is the English-speaking jury, who arequalified as special jurymen. Three have died since the making of thelist and this reduces the number to one hundred and nine. Of these fortyare members of the Galle Gymkhana Club. It is contended for the Crownthat it is very undesirable that any of these should try this case. Theaccused was at that time an employee of theirs. Without going intothe constitution of the club and considering whether it is a proprietaryclub or not, all its members must be regarded as having an interest in thefunds of the club at any rate to the extent that the money, alleged tohave been misappropriated, could, if available, be used for the benefitand improvement of the club and would therefore be to their advantage.It was also urged that considerations of maintaining the prestige ofthe club or a reluctance to recognize possible mismanagement might leadmembers away from a strict consideration of the matter before them asa jury. It is possible that there may be among them some whose interestin the club is so detached and remote that they will be wholly unconcernedwith any consideration save that of arriving at the truth on the evidencebefore them, but as matters now stand and with such material as there isbefore me I must recognize the force of the objection to members of theclub serving on the jury. There will thus be of the special jurymen fortywho are members and sixty-nine who are not. In his affidavit, AssistantSuperintendent Koelmeyer states that five of those who are not membersare so closely connected with the parties in the case that it is undesirablethat they should try it.
But not reckoning the five we are left with forty members and sixty-ninenon-members. Mr. Perera would not admit that there was substance inthe contention for the Crown, but he said that even if there was, that wasno reason for the trial not being in Galle for it was possible to have a jurycomposed of those who are not members; it was suggested that a largenumber might be summoned so as to allow, of a sufficient residue of non-members from whom the jury could be drawn after those who are membershad been asked to stand by on the suggestion of the prosecution undersection 224 (5) of the Criminal Procedure Code. But the number of thosewho can be summoned to forifi a panel is limited by section 262 to fifteenand this number has to be drawn in the first instance ; a name which isdrawn may be put aside and another drawn instead if it is known that theperson first drawn is absent from the Colony or unable to attend fromsickness or other good cause, but only fifteen can be summoned—section265. If it is found that summons cannot be served on any of the fifteen,other names can be drawn in place of them under section 274; but nonames once drawn can be put aside on the ground that it is undesirable
DALTON' S J*Jf—Sandra Ammal v. Jtisey Appu.
that the person should be selected for the panel. Any objection of this
kind can only be considered in pourt when the jury is drawn for the trial.
It follows that there is a possibility of so many of the fifteen beingmembers of the club that it will not be possible to make up the requisitenumber, or the number of the non-members may be such that the requisitenumber cannot be obtained if the right of challenge is exercised by theaccused. If the number proves inadequate the jury will have to be madeup by calling on some of the bystanders in Court to serve. This is theilast resort which it sometimes becomes necessary to adopt, but 1 cannotdirect a trial to take place under conditions when there is reasonablepossibility of this happening and especially so in a case of this nature.
I allow the application of the Crown for a special jury and I disallowthe application of the accused for a transfer of the case to the GalleSessions.
THE KING v. LUDOWYKE