HOWARD C.J.—The King e. Amarakoon.
[Court of Criminal Appeal.]
Present: Howard C.J., Keuneman and de Krefcser JJ.THE KING v. H. D. AMARAKOON.
17—M. C. Tang alia, 18,245.
JSvidence—Absenceof witness fromtrial—Illnessinhospital—Admissibility
of deposition—Evidence Ordinance, s. 33.
In acharge ofmurdera materialwitness whose name appeared onthe
back of the indictment was present at the opening day of the trial,but wastakenillandremoved tohospitalsufferingfrom pneumonia
and wasunabletogiveevidence at the trial.
Therewas noevidencecm recordas to how long a delay woudbe-
occasionedif thetrial waspostponed inorder toenable thewitnessto give
evidence in personorwhether hispresenceto giveevidencewould
necessitate a trial de novo with another Jury.
Held,that hisevidencecould notbe admitted under section 33 ofthe
Held, further, that temporary) illness did not come within the categoryincapable of giving evidence ”, contemplated by the section.
PPLICATION for leave to appeal against a conviction by a Judgeand Jury before the 1st Southern Circuit, 1944.
H. Wanigatunge, for the applicant.
H. W. R. Weerasooriya, C.C., for the Crown.
Cur. adz. vult.
July 28, 1944. Howard C.J.—
The applicant applies for leave to appeal from his conviction on a-,charge of murder. The main ground of appeal is based on the admissionin evidence of the deposition of one N. A. Pedris. Crown Counsel statedthat Pedris whose name appeared on the back of the indictment waspresent on the opening day of the trial but had been taken ill and removed'to hospital suffering from pneumonia. In these circumstances he askedthat the deposition of Pedris should be put in evidence. Counsel for thedefence raised no objection to the deposition being read. Subsequently,Mrs. N. R. Walpola, Admitting Officer at the Galle Hospital, testifiedto the fact that Pedris was admitted to the hospital suffering from*
HOW ABO C.J.—The King v. Amarakoon.
pneumonia, that she did not think he was capable of attending Courtnnd giving evidence, and that he would not be able to give evidencefor some days. Before Crown Counsel closed his case he moved to readthe deposition of Pedris. Xt was then read in evidence.
The deposition of Pedris was admitted in evidence under the provisionsof section 33 of the Evidence Ordinance. This section is worded asfollows: —
“ Evidence given by a witness in a judicial proceeding, or beforeany person authorised by law to take it, is relevant, for the purposeof proving, in a subsequent judicial proceeding or in a later stageof the same judicial proceeding, the truth of the facts which it states,when the witness is dead or cannot be found, or is incapable of givingevidence, or is kept out of the way by the adverse party, or if hispresence cannot be obtained without an amount of delay or expensewhich, under the circumstances of the case, the court considersunreasonable:
that the proceeding was between the same parties or their
representatives in interest,
that the adverse party in the first proceeding had the right and
opportunity to cross-examine,
that the questions in issue were substantially the same in the first
as in the second proceeding.
(Explanation—A criminal trial or inquiry shall be deemed to be aproceeding between the prosecutor and the accused within the meaningof this section).”
Presumably his deposition was admitted because Pedris was consideredt>y the learned Judge to' be either “ incapable of giving evidence ” orbecause “ his presence cannot be obtained without an amount of delay or■expense, which, under the circumstances of the case, .the Court considersunreasonable.” We are of opinion that temporary illness would notcome within the category “ incapable of giving evidence ”. There is noevidence on record as to how long a delay would be occasioned if thetrial was postponed in order to enable Pedris to give his evidence inperson, or if his presence to give evidence would necessitate a trial de novowith another Jury. There is nothing to indicate what ” delay or expensewould be involved or if the Court considered such delay or expense” unreasonable ”. In this connection I would refer to the case of TheKing v. Kandappu1 where Shaw J. held that it is only in extreme casesof delay or expense that the provisions of section 33 should be broughtinto operation. The learned Judge also stated that it was an importantsafeguard of the accused that the witnesses who speak to material factsagainst him should be present in Court and should be seen by the Judgeor Jury who has to decide on the evidence. In the Eighth Edition ofPhipson on Evidence at p. 432, it is stated that ‘‘ if the indispositionbe merely temporary, the proper course is not to admit the evidence,shut to postpone the trial
1 20 N. L. R. 18.
HOWARD C.J.—The King v. Amarakoon.
In his deposition before the Magistrate, Pedris gave evidence with regardto an alleged threat against the deceased uttered six weeks previously.Pedris was, therefore, a witness who spoke to material facts and in ouropinion the deposition should not have been admitted in evidence butthe trial should have been postponed. Having regard to the fact thatboth Counsel consented to its admission, the learned Judge was no doubtin a peculiar position. The attitude of Counsel for the defence isinexplicable.
It is impossible to say what effect the evidence of Pedris had on theminds of the Jury. In these • circumstances the conviction cannot beallowed to stand. Nor do we consider, having regard to the flimsiness,of the remainder of the evidence, that this is a case in which a new trialshould be granted. The conviction is therefore quashed and the accuseddischarged.
THE KING v. H. D. AMARAKOON