026-NLR-NLR-V-65-A.-D.-HEMAPALA-Appellant-and-THE-QUEEN-Respondent.pdf
SIR KENNETH GRES SON—Hemapala v. The Queen
121
ST
[In the Privy Council]
1963 Present: Viscount KadcliSe, Lord Evershed, Lord Morris ofBoith-y-Gest, Lord Devlin, and Sir Senmeth Gresson
D. HEMAPALA, Appellant, and THE QUEEN, Respondent
Pbivy Council Appeal No. 30 op 1962
C. G. A. 230 of 1960jS. C. 41 M. G. Harana, 27640
Trial before Supreme Court—Election, by accused, of English speaking jury—Trialconducted partly in Sinhala—Validity—Criminal Procedure Code, as. 165B,224 (1), 225, 229•—Court of Criminal Appeal Ordinance, s. 5.
Where, in a trial before the Supreme Court, the accused elects to be triedby an English speaking jury, the provisions of sections 105b, 224 (1), 225 (c)and 229 of the Criminal Procedure Code contemplate that the trial will beconducted throughout in the English language.
In a case before the Supreme Court the accused elected to be tried by anEnglish speaking jury under section 165b of the Criminal Procedure Code.The trial was conducted, however, partly in Sinhala after the presidingJudge had interrogated and obtained an assurance from the foreman of thejury that the jury understood Sinhala. Though the evidence of the witnesseswho testified in Sinhala was translated into English for the purposes of theRecord it was not clear that it was done in such a way as to ensure that the juryheard the translation, and as to the addresses of Counsel it was not certain thatthey were translated at all. The summing up by the Judge was in English.
Held, that the accused having eleoted to be tried by an English speakingjury the conduct of the trial partly in Sinhala so contravened the CriminalProcedure Code as to amount to a miscarriage of justice.
Appeal in forma pauperis by special leave from a judgment of theCourt of Criminal Appeal reported in (1961) 64 N. L. JS. I.
F. N. Gratiaen, Q.G., "with T. 0. Kellock and Miss Manouri de Silva,for the accused-appellant.
Mark Liftman, Q.C., with Lick Taveme, for the Crown.
Cur. adv. vuU.
May 27,1963. [Delivered by Sra Kenneth Gresson]—
This was an appeal in forma pauperis by special leave from the judgmentand order of the Court of Criminal Appeal of Ceylon dated 25th October1961 whereby the appellant’s appeal against his conviction and sentence of20th December 1960 by the Supreme Court at Kalutara was dismissed.The appellant had been found guilty of murder and sentenced to death.
6—Lxv
2—R 11745-1,555 (8/63)
122RIR IDSmwCEv. 2%« Qttxn
Ho had together with one Babbu. Singho been indicted, on a charge thaton 27th June 1960 he had murdered Mails wattage Don Carolie and thatthe said Babbu Singho had abetted the murder. On their committal fortrial by the Magistrate's Court the accused elected to be tried by an
English speaking jury under section 165b of the Criminal ProcedureCode. The Code gives an accused person a right to be tried by & jurydrawn from any one of three panels. The Fiscal is charged with the dutyof preparing three lists of persons who, as well as having certain propertyor income qualifications can respectively speak, read and write (a) theEnglish language, (6) the Sinhalese language, (o) the Tamil language. Theaccused elected to be tried by a jury drawn from the panel the membersof which could * speak, read and write the English language Such ajury was empanelled accordingly. But the learned Judge who was presidingat the trial thereupon interrogated the jury in these terms :—
!i May I ask you, gentlemen of the jury, whether you are sufficientlyconversant with Sinhala to be able to understand well the questionsput to witnesses and answers given by them ?”
Foreman : “ Yes, My Lord.’5
“ And also address of Counsel if it is made in Sinhala ?”
Foreman : “ Yes. ”
“Mr. Tampoe (who was Defence counsel), are you able to follow theproceedings hi Sinhala ?”
Mr. Tampoe : C! Yes. My Lord.”
“You are at liberty to put auy question in English at any stage of thecase if you so desire and you will also be able to follow the translationwhich the interpreter will make for the benefit of the stenographer.”
The Crown Counsel opened his case in Sinhala. Thereafter the testimonyof the witnesses was taken. The first of these gave his evidence in English.But apparently the evidence of other witnesses was given in Sinhalese andthough it would necessarily be translated into English for the Recordit is not clear that it was done in such a way as to ensure that the jurybeard the translation. It was assumed that the closing address of theCrown Counsel was in Sinhala ; the Record was silent as to whetherCounsel for the defence addressed in English or Sinhala. The summingup by the learned Judge was in English.
The appellant was found guilty of murder and sentenced to death ;the second accused, was acquitted and discharged.
On appeal from the conviction it was contended that since the accusedhad elected to be tried by an English speaking jury the conduct of thecase partially in Sinhalese was a contravention of the Criminal ProcedureCode. The Court of Criminal Appeal—comprising five Judges—werenot altogether in agreement. Basnayake C.J. and L. B. de Silva J.held that there had been an essential departure from the well establishedRules of procedure—that the trial had not been ' according to law ’
SIR KENNETH GRESSON—Hemapala v. The Queen123
and accordingly that the conviction should be quashed and a new trialordered. Weerasooriya J. and Gunasekara J. held the trial to have beenirregular but there to have been no substantial miscarriage of justiceand that the appeal should therefore be dismissed. H. N. G. Fernando J.held there had been no irregularity and that the appeal should be dis-—missed. In the result the appeal was dismissed by the majority of threeto two. Special leave to appeal to Her Majesty in Council was grantedon 30th July 1962.
The crucial question is whether the accused having elected to be triedby an English speaking jury the conduct of the trial so contravened theCriminal Procedure Code as to vitiate the trial or at the least to amountto a miscarriage of justice. The Criminal Procedure Code provides(section 165b) that an accused person having elected, he '* shall be boundby and may be tried according to his election, subject however in allcases to the provisions of section 224 Section 224 (1) enacts that “ thejury shall be taken from the panel elected by the accused unless theCourt otherwise directs ”. There was no direction otherwise.
The Court of Criminal Appeal Ordinance in a set of provisions dealingwith appeals against conviction enacts in section 5 that
“ The Court of Criminal Appeal on any such appeal against convictionshall allow the appeal if they think that the verdict of the jury shouldbe set aside on the ground that it is unreasonable or cannot be supportedhaving regard to the evidence, or that the judgment of the court beforewhich the appellant was convicted should be set aside on the ground ofa wrong decision of any question of law or that on any ground therewas a miscarriage of justice, and in any other case shall dismiss theappeal: Provided that the court may, notwithstanding that they are ofopinion that the point raised in the appeal might be decided in favourof the appellant, dismiss the appeal if they consider that no substantialmiscarriage of justice has actually occurred. ”
A provision in similar terms to this enactment is to be found in manyjurisdictions e.g. in the English Criminal Appeal Act of 1907. There havebeen many cases in which its application has been discussed.
It has often been held that the adoption of a procedure other than thatauthorised by the Code under which an accused person is being tried canconstitute a miscarriage of justice ; but it is a well established principlethat this Board will not recommend Her Majesty to review or interferewith the course of Criminal proceedings unless there has been such adisregard of the procedure laid down as to occasion substantial injustice.The question is whether there was, in the trial of the appellant, such adeparture from the normal or proper procedure as to amount to a mis-carriage of justice.
Their Lordships do not think that the trial in this case can be said tohave been a nullity because of the comae followed, but there are goodgrounds for bolding that the way in which it was conducted may have
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resulted in withdrawing from the accused a protection which, the Codewas designed to secure. As was said by Lord Goddard in B. v. Neal1-
“ There is no doubt that to deprive an accused paeon of the protec-tion given by essential steps in criminal procedure amounts to a mis-carriage of justice and leaves the Court no option but to quash the
conviction. ”
The provisions of the Criminal Procedure Code under which the appellantwas tried contemplate that where there has been an election to be triedby an English speaking jury (as was the case) the trial will be conductedthroughout in the English language. Though the evidence of the witnesseswho testified in Sinhala was translated for the purposes of the Recordthis may not have been heard by the jury, or all of them, and as to theaddresses of counsel it is not certain that they were translated at all.The course the learned Judge took was based upon an interrogation ofthe jury conducted by himself. He accepted an assurance from the fore-man that the jury understood Sinhala. But this falls short of establishingthat each and every one of the jury had such an understanding. Therewas a complete absence of any sort of assent by the accused to the coursebeing followed.
There are provisions in the Code which emphasise the importance ofthe trial being had in a language which the jury is able to understand,e.g., section 225 under which objection may be taken to a juror on theground “ (c) of his inability to understand the language of the panelfrom which the jury is drawn ” and section 229 which authorises where“ it appears that any juror is unable to understand the language in whichthe evidence is given ”, the substitution of a new juror or the discharge ofthe jury. The assurance given by the foreman of the jury to which theother members of the jury gave no more than a mute assent does not,in their Lordships5 opinion provide a sufficiently solid foundation uponwhich to assume that all the members of the jury were in fact able tounderstand and appreciate evidence not given in. English and the addressesof the defence counsel. Accordingly their Lordships hold that there havingbeen a departure from the provisions of the Code with no certainty thatsuch a departure did not operate to the disadvantage of the appellantthe case must be regarded as one in which there has been a miscarriage ofjustice necessitating the quashing of the conviction.
Ordinarily in such a case as this where a conviction has to be quashedand the sentence set aside because of procedural irregularities a new trialwould be directed. But their Lordships think that the discretion as towhether there should he a new trial after so great a lapse of time shouldbe exercised by the Court of Criminal Appeal of Ceylon. Their Lordshipstherefore do no more as they have done, than humbly to tender toHer Majesty advice that the appeal should be allowed, the dismissal ofthe appeal by the Court of Criminal Appeal of Ceylon be reversed leavingthat Court to exercise a discretion whether there should be a new trial.
Appeal allowed,
111949] 9 K. B, 590 :1949 2 AH S. B. 438.