069-NLR-NLR-V-48-THE-KING-v.-VIDANAGAMAGE-EDWIN.pdf
The King v. Vidanagamage Edwin.
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1947Present: Dias J.
THE KING v. VIDANAGAMAGE EDWIN
3—M. C. Gampaha, 30,237.
Jury—Bias of one of the jurors—Ground for discharging the jury—Criminal
Procedure Code, s. 230.
Where, at an early stage of a trial before the Supreme Court, counselfor one of the accused informed the Court that it was brought to hisnotice that one of the jurors was related to one of the chief witnessesfor the prosecution—
Held, that the jury should be discharged under section 230 of theCriminal Procedure Code, in view of the partiality, real or apparent, ofthe juror in question.
O
RDER made in the course of a trial before the Supreme Court, 2ndWestern Circuit.
C. J ayawickreme, for the 1st and 2nd accused.
Nihal Gunasekera, for the 3rd accused.
C. AUes, C.C., for the Attorney-General.
» (1910) 13 N. L. R. 176.
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DIAS J.—The King v. Vidanagamage Edwin.
April 21, 1947. Dias J.—
Mr. Nihal Gunasekera, learned counsel for the 3rd accused, has informedme that about 1.15 p.m. today, it was brought to his notice that one ofthe jurors, Mr. C. C. Gunawardena, is related to one of the chief prosecutionwitnesses, known as Hettiaratchi. I have questioned the juror and headmits that Hettiaratchi’s sister is married to one Alfred Gunawardena,whose first cousin the juror in question is.
Mr. Nihal Gunasekera says that had he known these facts he wouldhave exercised his right of challenge, but now he is precluded from doingso as the jury has been empanelled and sworn. He therefore relies onsection 230 of the Criminal Procedure Code which provides. “ The Judgemay also discharge the jury …. whenever in the opinion of theJudge the interests of justice so require ”.
The rule of the English Law is precisely the same as our law. InArchbold, 1944 edition, page 196. it is laid down that it is establishedlaw that a jury sworn and charged with a prisoner, even in a capital case,may be discharged by a Judge at the trial without giving a verdict, if a■“ necessity ”, i.e., a high degree of need for such a discharge is madeevident to his mind.
It is, therefore, clear that a judicial discretion is vested in the trialJudge to discharge a jury in case of a grave necessity, or as our Codeputs it, “ whenever in the opinion of the Judge the interests of justice sorequire ”.
The only question I have to decide now is whether on the admittedfacts a case has been made. out for me to stop this trial and dischargethe jury and order the case to be retried. The juryman, himself, proteststhat he has not seen this first cousin of his for many years, but I do notthink his views matter very much. It is a cardinal principle of our lawthat not only must justice be free from bias, but it must also be free fromthe faintest suspicion of bias. Furthermore, no great harm will be doneby discharging the jury at this stage, because only the first witness is inthe box and only a portion of his cross-examination has yettranspired.
Therefore, in the exercise of my discretion, I think the interests ofjustice demand, in a case of this kind, that the objection should be upheldand the jury discharged.
It is a matter for regret that proctors who are retained to watch theinterests of accused persons do not take a little trouble to find out whothe jurors are and to instruct counsel in time if any of them are dis-qualified or biassed. It is true that owing to the unforeseen death ofthe learned Commissioner of Assize a little confusion has arisen in ourwork, but this case would have been tried by this panel, and therefore,the proctor could have, with the exercise of a little diligence ascertainedwhat he did in fact ascertain later.
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NAGAL1NGAM AJ.—Mohotti Appuhamy v. Bowela.
therefore, make the following order: The jury will be dischargedunder section 230 of the Criminal Procedure Code in view of the partiality,real or apparent, of this juror, and the case will be retried by anotherpanel of jurors.
Cose to be tried by another panel of jurors.