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Present: Lyall Grant J.
[Second Southern Circuit 1927: JKING v. PINDOBISSA.
#1—P. C. Tangalla, 19,895.
Deaf and dumb prisoner—Inability to understand proceedings—Treated asof unsound mind—Detention during His Excellency's pleasure—*Criminal Procedure Code, 88. 868 and 369.
Where & deaf and dumb person was put upon his trial for murderand the jury found that he was unable to understand the nature ofthe proceedings and to make a proper defence,—
Held that the accused should be treated as a person of unsoundmind and detained in custody until the pleasure of the Governorbe made known.
HE accused, who was deaf and dumb, was charged with murderbefore the Supreme Court Criminal Sessions at Galle. After
the evidence had concluded, his Counsel raised the point that theaccused was unfit to stand his trial as he was unable to understandthe proceedings against him. Thereupon the Judge charged thejury to consider the point first. The jury returned the verdict thatthe prisoner was not in a condition sufficiently to understand theproceedings against him.
William Silva, for accused.
. J. E. M. Obeyesekere, C.C., for the Crown.
December 6, 1927. Lyall Grant J.—
In this case the prisoner, who is accused of murder, was foundto be deaf and dumb. The Magistrate, with the aid of an Inter-preter, took the preliminary proceedings, and after reference tothe Attorney-General committed the accused for trial. Onthe case being referred to me some time since, under section 288 _of the Criminal Procedure Code, I made an order that the accusedshould be kept- under observation by a Medical Officer for a fort-night and that he should be reported upon. The Medical Officerreported that he found the accused to be dumb, but from hisgeneral behaviour, appreciation of his surroundings, and his under-standing by means of* signs he formed the opinion that he was ofsound mind, that he did not appear to be insane, and that he wascapable of making his defence. On this the" case was forwardedback by the Magistrate, who said:"I am of opinion that
the accused is of sound mind.” When the case came on for trial
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the question of the accused’s unfitness to plead was not againbrought before the Court, and the trial went through the ordinarystages. The accused himself went into the witness box and wascross-examined and, so far as I could judge, he appeared to under-stand all that was skid to him. In his address to the jury Counselfor the defence suggested that the fact that the prisoner wasdeaf and dumb, and the doubt whether he was therefore capable offollowing the proceedings in Court might be a ground for the jurytaking the view that he was unfit to stand his trial. The contentionappeared to me to be a sound one, and I charged the jury that theyshould, in the first place, consider the question whether the accusedwas capable of making his defence, whether he sufficiently under-stood the proceedings, what was alleged against him, what he wasentitled to do and say, and his power to bring forward witnessesin his own defence. I charged the jury that they should firstconsider this point, and that if their answer was that the accusedwas incapable of making a defence they should not apply theirminds to the question of whether or not he was guilty. The juryupon this returned the following verdict: “ The prisoner is not ina condition to sufficiently understand the nature of the proceedingsand make a proper defence owing to the fact that he is deaf anddumb and not on account of unsoundness of mind.” On myquestioning the foreman as to the precise meaning of their verdict,he informed me that the jury thought that the prisoner was not ableto understand the nature of the proceedings or to make a defenceas he was deaf and dumb. They were not satisfied that he wasable to understand the proceedings or to make his case understoodthrough the special Interpreter. They said that he looked a manof sound mind, but still they thought that he was incapable ofmaking his defence. They thought that it would not be safe onthe evidence to make a finding in regard to the guilt of theaccused.
The question which arose upon this verdict was, whether itamounted to a verdict in the sense of section 368 of the CriminalProcedure Code, that is to say, whether it was a finding by the juryunder section 369 that the accused was of unsound mind andincapable of making his defence. On this point there is no localauthority, and, accordingly, I adjourned the case for furtherconsideration. At the adjourned hearing Crown Counsel referredme to several English cases, which by section 6 of the CriminalProcedure Code are admissible as guiding our practice in the absenceof any local authority. The English practice in such cases is quiteclear. It is that where a person is held to be incapable of makinga defence by reason of his being deaf and dumb, he is held not tobe of sane mind and he is treated exactly as a person of unsoundmind would be treated. I refer to the case of Bex v. Governor of
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Strafford Prison/ the case of Queen v. Berry* and the case of Rexv. Pritchard.* Counsel for the defence agreed that this view was a.correct one and that the proper order for the Court to make wasone postponing the trial and reporting the case to the Governor forhis orders. Apart from authority, such an order appears to me tobe the only one possible. The only alternative is to release theprisoner. To release an accused person who may have committeda serious crime, such as murder, on the ground that he is unableto put forward a defence, would appear to be a very dangerousthing to do, and it seems only right that some control should beput over his movements. For the reasons above set forth it seemsto me that such control is permissible by our law, and accordinglymy order is that the prisoner be ^detained in custody until thepleasure of the Governor is made known.