069-NLR-NLR-V-46-THE-KING-v.-NADARAJAH-et-al.pdf
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DIAS, COMMISSIONER OF ASSIZE.—The King v. Nadarajah.
1040Present: Dias, Commissioner of Assize.
In the Matter of an Application under Section 222 of thbCriminal Procedure Code for Selection of a Jury.
THE KING v. NADARAJAH et al.
M. G. Jaffna, 6,291.
Jury—Selection of a jury by prisoners—Transfer of trial to another Circuit-Application for a trial by different kind of Jury—Discretion of Judge—Criminal Procedure Code, s. 224 (1).
The prisoners when the; were committed to stand their trial in theNorthern Circuit at Jaffna elected to be tried b; an English-speakingjury.
When the Attorney-General transferred the case from the NorthernCircuit to the Western Circuit-, the prisoners moved that the; be tried bya Tamil-speaking jury.
Held, that the prisoners were bound by their election to be tried by anEngliah-Bpeaking jury and that the Court would not use its discretionunder section 224 (1) of the Criminal Procedure Code to alter the panel,as the prisoners would not be prejudiced by their being tried accordingto their original election by an English-speaking jury.
T
HIS was an application by the prisoners to alter their originalelection to be tried by an English-speaking jury.
R.L. Pereira, K.C. (with him H. W. Thambiah}„ for applicants.
H. H. Basnayake, Act. S.-Q. (with him Abeyewardene, C.C.), for Crown.
Cur. adv. vult.
May 15, 1945. Dias, Commissioner of Assize.—
The prisoners when they were committed to stand their trial electedto be tried by an English-speaking jury. Ordinarily, .the trial would havetaken place in the Northern Circuit at Jaffna. The Attorney-Generalby his fiat, however, transferred the case from the Northern Circuitto the present sessions at Colombo.
The prisoners now move that they may be tried by a Tamil-speakingjury. Their application is opposed by the Crown.
I agree with the Solicitor-General that the application has been madeunder the wrong section. Section 222 of the Criminal Procedure Codedeals with an application for trial before a Special Jury. The prisonersmake no such application.
1 am, however, prepared to deal with this matter as one made undersection 224 (1).
The questions for decision are whether the prisoners can make thisapplication at all, having once elected to be tried by an English-speakingjury, and if so, whether it should be allowed ?
DIAS, COMMISSIONER OF ASSIZE.—The King v. Nadorajah. 199
Section 165b of the Criminal Procedure Code provides: —
" On committing the accused for trial before any higher Court, theMagistrate shall ask the accused to elect from which of the respectivepanels of jurors the jury shall be taken for the trial in the event of thetrial being held before the Supreme Court, and the Magistrate shallrecord such election, if made. The accused so electing shall, if thetrial is held before the Supreme Court, be bound by and may be triedaccording to his election, subject, however, in all cases to the provisionsof section 224."
Section 224 (1) provides: —
“ That the jury shall be taken from the panel elected by the accused,unless the Court otherwise directs. ”
The language of section 165b shows that it does not necessarily follow 'that the prisoner will always be tried by the jury which he elected beforethe Magistrate. The words used are “ shall be bound and may be tried ”and not " shall be bound and shall be tried ". The position then is thatwhile the accused is bound by his election, it does not follow that thetrial must necessarily take place before a jury of the panel selected by theaccused.-•
Section 224 (1) makes it clear that as a rule the jury shall^be taken fromthe panel elected by the prisoners " unless the Court otherwise directs ”.A common example of the practical working of these sections is to befound where a prisoner who, before the Magistrate elects to be tried by aSinhalese-speaking jury, but on the opening day of the sessions expresseshis desire to be tried by an English-speaking jury. The presiding Judgein such a case has power in his discretion to give effect to the prisoner’sdesire.
In my view, a prisoner who once makes his election under sectionvJ.65Bis bound by it: but there is nothing to prevent him subsequently' frommoving the trial Judge under section 224 (1) for trial before anotherpanel. A judicial discretion is thus vested in the trial Judge which hewill exercise one way or the other, after hearing both sides, and havingconsidered the matter in all its aspects.
It is probable that at the time the election was made, it was believedthat the trial would be held before an English-speaking jury at Jaffna, andit was hoped that the majority of, if not all, the jurors would be Tamil-speaking gentlemen, well versed in local conditions et cetera. The actionof the Crown by transferring the case to Colombo may have frustratedthat intention.
The question I have to address myself to is whether the case of theseprisoners would be prejudiced by their being now tried according to theiroriginal election by a Colombo English-speaking jury ?
-. The language of our Courts is English. If a Tamil-speaking jury isempanelled a great deal of public time will be lost by the Tamil andEnglish interpretation which will be required without any correspondinggain to the accused who are defended by eminent counsel, who will nodoubt be adequately instructed in advance.
All jurors, whether English-speaking or Tamil-speaking, must bedeemed to be honest men, so that no hardship would be caused to an
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accused by his not being able to understand the language in which thetrial is being conducted. In the majority of cases tried by juries, theaccused do not understand the language of the Court, although theinterpretation enables them to follow the questions put to and theanswers given by the witnesses.*
The reasons stated in paragraphs 4 to 8 of the affidavits are unsound.I cannot agree that "it is absolutely necessary that this case should betried by a Tamil-speaking jury for the better appreciation of the evidencethat would be given by the witnesses in this case.” I am also unable toagree that because the majority of the witnesses in this case are JaffnaTamils, who will be speaking the Tamil language, it is therefore expedientthat a Tamil-speaking jury shall try the case.
The interpreters of the Supreme Court are efficient officers and can dojustice to the evidence of any Tamil-speaking witness. Even if localcustoms, manners or the ” local setting in which the alleged incident tookplace ” are material, I do not see how a Tamil-speaking jury would be ina better position to understand them than an English-speaking jury. Ido not understand how the charge against the accused can be prejudicedby the trial taking place before an English-speaking jury.
The argument that a trial before a Tamil-speaking jury will enable theaccused to follow more readily the questions put by the jury is an unsoundargument, as all questions put by the jury to witnesses will be translatedinto Tamil and the accused will then hear them.
The only matter which merits consideration is the one raised inparagraph 9 of the affidavits, namely that an English-speaking Jaffnajury is necessarily a Tamil-speaking jury, and that the action of theCrown in transferring the case to Colombo has prejudiced them. As thereseemed to be some substance in these contentions I reserved my order.
Having carefully weighed all the pros and cons, I see no reason todirect that the trial should take place before a panel other than that whichthe accused elected. Convenience certainly indicates a trial before anEnglish-speaking jury. I do not see how the prisoners will in any way beprejudiced by being so tried.'
The application is therefore refused.
Application refused.