003-NLR-NLR-V-56-T.-SUMANASENA-Appellant-and-TH-QUEEN-Respondent.pdf
ROSE C-J.—Sumanasena o. The Queen
n-
[ Court of Criminal Appear)
1954 Present: Rose C. J. (President), de Silva J. and Sanson! J.T.SUMANASENA, Appellant, and THE QUEEN, RespondentC. C. A. 31 of 1954, with Application 60
S.C. 19—M. C. Matara, 33,135
Evidence—Child—Capacity to give evidence—Procedure far ascertaining it.
In a trial before tlie Supreme Court the questioning of a child with a viewto considering whether that child is of sufficient mental power and lit to"ive evidence must be done in the presence of the jury.
Appeal, with application for leave to appeal, against a convictionin a trial before the Supreme Court.
if. M. Kumarakulasingham, with S. Saravanamuttu, for the accusedappellant.•
Ananda Pereira, Crown Counsel, for the Crown.
August 3, 1954. Rose C.J.—
In this matter the appellant was convicted of the offence of rapeagainst a small girl who is stated to be about 6 years of age. One ofthe questions which the learned Commissioner had to consider waswhether this child was of sufficient mental power to be able to be affirmedto enable her to give evidence. Now, unfortunately, before decidingthat question, which was eminently a matter for the learned Commissioner,no jury having yet been empanelled the whole panel of the jury for thatAssize were asked to withdraw from the precincts of the Court. Thelearned Commissioner then proceeded to consider the point. He.putcertain questions to this child and as a result of her answers to those
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questions he decided that she was fit toYbe affirmed and that her evidenceshould therefore be received. Thereupon the panel of the jury returnedto the Court, the selection of this particular jury was made and thetrial began.
– Now, Counsel for the appellant contends that the fact that this childwas questioned on these preliminary matters in the absence of the juryis a fatal irregularity. It seems to us—had the matter not been coveredby authority—that this is a point that might well be argued withsubstantial cogency either way. But this yery problem has beenconsidered by the Court of Criminal Appeal’in England by a Benchpresided over by the Lord Chief Justice in the case of Ernest AlbertReynolds1. The Lord Chief Justice there said that in the view of theCourt it was essential that the questioning of a witness with a view toconsidering whether that witness was fit to give evidence must be donein the presence of the jury. Moreover, that has, we understand, beenthe general practice in ^Ceylon. It seems to us that that is an authoritywhich we should follow. It follows therefore that the appeal mustsucceed.
The only other question that remains for consideration is whether weshould order a hew trial. In all the circumstances of this case we thinkthat it is not desirable to do so. The appeal.is therefore allowed and theconviction quashed.
Appeal allowed.