003-NLR-NLR-V-12-THE-KING-v.-ELIATAMBI-et-al.pdf
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1909.Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice.
January 21.
THE KING v. ELIATAMBI et al.
D. G. (Criminal), Batticaloa, 2,462.
Assessors, refusal of Judge to summon—Discretion—Courts Ordinance(No. 1 of 1887), 8. 72—Criminal Procedure Code, s. 200.
Where a District Judge in the exercise of his discretion undersection 72 of the Courts Ordinance (No. 1 of 1889) refuses to summonassessors to try a criminal case, such refusal is final, and the SupremeCourt has no power to over-rule it.
PPEAL by the acoused from a conviction by the District Judge
"*- ■(H: R. Freeman, Esq.). The facts sufficiently appear in the
judgment.
Jayewardene, for the aooused, appellants.
W. Pereira, K.C., S-G., for the Crown.
January 21, 1909. Hutchinson C. J.—
The appellants apply to have the conviction set aside and a newtrial ordered by the Judge with assessors, on the ground that theJudge wrongly refused to have a trial with assessors. Section 72 ofthe Courts Ordinance enacts that the District Judge may in hisdiscretion, at his own instance, or upon the application of any party,have three assessors associated with him at the hearing and decisionof any cause ; and that in case of any difference of opinion betweenhim and the assessors, his judgment shall prevail. And section 200and following of the Criminal Procedure Code direct the manner oftrial with or without assessors, .j
The aooused were committed for trial and were convicted for
causing hurt, an offence under section 314 of the Penal Code;and (2) committing mischief by fire, an offence under section 419.It seems that when they were committed for trial they informedthe Magistrate that they wished for a trial with assessors ; but theDistriot Judge, after the indictment was filed, but some days beforethe trial, made the following note in the record :—“ This is a verysimple case, and I am unwilling to have assessors summoned for it.The jury list here is a short one, and a good deal^of inconvenience isbeing caused by the monthly summoning of assessors in oases inwhich there is no necessity for them. Moreover, I object on principleto assessors in the present state of the law ; the Judge is not boundhy their opinion (section 213 of Ordinance No. 15 of 1898); yet, when
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sitting with assessors, it is natural to leave the facts to' them. Last 1909.month in two cases when I was sitting with assessors one found the January 21.aooused guilty, the other found them not guilty. It is less easy in Hutchinsonmy experience to absorb the facts when there are assessors on whomC. J.
one is relying to decide ; and I therefore think suoh oases as this canbe more effectively dealt with without assessors. Assessors not tobe summoned therefore.” He accordingly tried the case withoutassessors. There is no note that at the trial the accused or hiscounsel applied for assessors.
Counsel in support of the appeal urged that the discretion givento the Judge by section 72 of the Courts Ordinance must be exercisedby him on reasonable grounds, and that in this case the Judge didnot really exercise his discretion at all, but that he said in effect thathe did not approve of the system of trial with assessors, and that hewould not in any case direot a trial with assessors.
The Ordinance does not give any hint as to what kinds of oasesought to be tried with assessors. The Judge oannot know until hehas heard the evidence whether the .case which he is going to try iseasy or difficult, and the opinions of Judges may very well differ asto the kinds of cases in which they would like to have the advioe ofassessors. The same reason which might be given by one Judge forsummoning assessors might be given by another Judge as his reasonsfor not doing so. It appears to me that the Legislature intended toleave the matter absolutely in the hands of the Judge, and that he isnot bound to give any reason. In this case the Judge gave onereason, which would have been enough, that the case was a verysimple one. But I am bound to say that his other reason appears tome to be a bad one. The trial with assessors, who do not deoide,but only give their opinion, which the Judge may over-rule, is notpeculiar to Ceylon; it exists in other colonies; and the principle isthe same as that which prevails in the Executive Council of everyColony, in all of which the Councillors give their opinion, but theGovernor decides. However, in my opinion, the discretion of theJudge is absolute, and whether he gives no reason at all, or givesone which we may think mistaken, this Court cannot over-rule hisdiscretion.
I dismiss the appeal.
Appeal dismissed.
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