JAYET1LEKE J.—Karunathilleke and Ameen.
1943Present: Jayetileke J.
KARUNATHILLEKE, Appellant, and AMEEN, Respondent.
M. C. Colombo, No. 18,401.
Accused compelled to give evidence for prosecution—Illegality—Fatal toproceedingsi
An accused person cannot be compelled to give evidence tor ’theprosecution.•,
^J^PPEAL from a conviction by the Magistrate of Colombo.
O.L. de Kretser (Jr.) for accused, appellant.
No appearance for respondent.
Cur. adv. vult.
February' 19, 1943. Jayetileke J.-— .
In this case the accused was charged under section 2 of the NuisanceOrdinance (Cap. 180) with having kept premises bearing assessmentNo. 157, Prince of Wales’ avenue, belonging to rhim, in a filthy and un-wholesome state so as to be a nuisance to or injurious to the health ofpersons.
JAYETILEKE J.— Karunathilleke and Ameen.
He was convicted and sentenced to pay a fine of Rs. 10. In order toprove that the accused was the owner of the said premises the prosecutioncalled the accused into the witness-box.
Mr. O. L. de Kretser (Jr.), who appeared for the accused in theMagistrate’s Court, states that he objected to the accused being called asa witness. He contends that an accused is an incompetent witness andcannot be examined by the prosecution at all. There can be no room fordoubt that his contention is sound.
From the time of the Charter our law has been that in a criminal casethe onus of proof is on the prosecution to establish by evidence all the factsand circumstances which are essential to the offence with which theaccused is charged. That onus never changes, for every man is presumed'to be innocent till his guilt is established by the prosecution. This isone of the most important basic principles of Criminal Law in Englandestablished by centuries of traditions and precedents, and it is on theprinciples of the English Law that our own system is based. That onuscannot be discharged by calling the accused as a witness.
Under the Common Law of England a person charged with the com-mission of an indictable offence or any offence punishable on summaryconviction was incompetent to testify. This Common Law rule has beenin force in this Island from the time of the British occupation.
In 1895 the Legislature recognising, the inconvenience, and injusticeof this rule which prevented ah accused person from giving, evidence inhis own behalf removed the. disability by enacting: in-section 120 (4> of -Jthe Evidence Ordinance (Cap. 15) that in criminal cases the accused shall,be a competent witness in his own behalf and may give evidence in thesaifie manner and with the like effect and consequences as any otherwitness. In Rex v. Ukku Banda.1, a divisional Bench interpreted thissub-section as meaning that the accused may go into the box as apordinary witness and give such evidence as he thinks fit on his own side.
This subrsection did not. alter the ..Common Law, rule,.that an accusedperson cannot, in a criminal case, be called as a witness by the prosecutionor by a co-accused. ‘Indeed, it may everi be said: that the sub-sectionby specifying the case in which an accused person shall, be competentto testify impliedly enacted that he shall in all other cases be incompetent' to testify. It seems to me quite impossible, to take any other view on anyproper principle of construction.
The question arose in a different form in the case-of Simon A-ppuhamy tuRowel Appu". In that case the Magistrate called the accused into thebox after the case for the prosecution had been dosed and Layard C.J.held that the Magistrate has no power to do so and acquitted the accused.
There is no law or principle which supports the course adopted by theprosecution in this case. I wouid, therefore, set aside the conviction, andsentence and acquit the accused.
2 J BaL Rep. p. 44.
1 24 X. L. R. p. 327.