MOSELEY SJ*J.—The King v. Ramasamy.
[Court of Criminal Appeal.]
1941 Present: Moseley S.P.J., Soertsz and Wijeyewardene JJf.
THE KING v. RAMASAMY25—AT. C. Nuwara Eliya, 3,844.
Evidence of child—Oath deliberately not administered—Not a case of omissionunder Oaths Ordinance ss. 4 and 9 (Cap. 14).
Where the unsworn testimony of a child of tender years was deliberatelyadmitted on the ground that the Judge was of opinion that the childdid not understand the significance of an oath or affirmation,—
Held, that the evidence was inadmissible as the deliberate non-administration of an oath or affirmation does .not amount to an act ofomission within the meeting of section 9 of the Oaths Ordinance.
HIS was an application for leave to appeal from a conviction forusing criminal force.
No appearance for applicant.
E. H. T. Gunasekera, C.C., for A.-G. as amicus curiae.
October 6, 1941. Moseley S.P.J.—
This is an application for leave to appeal on the facts against convictionfor using criminal force. Assuming that the evidence of the principalwitness for the prosecution, viz., the girl whose modesty is alleged to havebeen outraged, is admissible, we are unable to say that the verdict of theJury is unreasonable or that it cannot be supported having regard to theevidence. The girl, at the date of the trial, appears to have been eightyears of age. She was questioned by the trial Judge who satisfiedhimself, in accordance with the provisions of section 118 of the EvidenceOrdinance (Cap. 11), that she was capable of giving evidence. She wasnot, however, allowed to be affirmed since, in the opinion of the trialJudge, she did not understand what is meant by affirmation. I may addthat the Jury were carefully warned as to the effect of this procedureupon the value of her evidence.
The point that arises for decision is whether or not, in view of theprovisions of the Oaths Ordinance (Cap. 14), the evidence of the girl wasadmissible.
Section 4 of that Ordinance provides that Qfiths (or affirmations) shallbe made by “ all witnesses, that is to say, all persons who may be law-fully examined, or give or be required to give evidenceSection 9 enacts that “ no omission to take any oath or make anyaffirmation, …. shall invalidate any proceeding, or renderinadmissible any evidence whatever in or in respect of which suchomission …. took place ”.
There can be little doubt but that section 9 is capable of curing anomission due to inadvertence, or evasion on the part of a witness. Doesit correspondingly cure an omission which, as in the present case, isadvisedly made by the Court ?
As far as we have been able to ascertain the only local authority on thepoint is the case of The King v. Jeeris The question was there
1 1 Balasingham 185.
MOSELEY S.P.J.—The King v. Ramasamy.
considered by a full Court of three Judges. The only authorities availablewere those of the Indian Courts. They were, of course, not bindingon the Court and in any case, as Layard C.J. observed, the differentHigh Courts in India did not agree. The Court considered a summaryof the Indian cases, as set out by the Chief Justice of Madras in QueenEmpress v. Viraperumal', in which attention is drawn to the divergencesof opinion which existed at that time, 1892. Layard C.J. accordinglyfound it necessary to formulate his own Opinion. He drew a distinctionbetween acts of omission and acts of commission and was of opinion that,where an oath was advisedly not administered, there was an act ofcommission to which section 10 (now section 9) could not be extended.He held that the witness had been examined contrary to law and that theevidence was inadmissible.
In 1892, the High Courts of Madras and Allahabad appear to have heldthe view that evidence taken in such circumstances is inadmissible; thoseof Bombay and Calcutta held the contrary view. Since that date,however, the Indian Courts appear very largely to have reached agree-ment on the point. That this is so would appear from the judgment ofMya Bu J. in Ah Phut and others v. The King' where at page 130 thelearned Judge says as'follows :—“The word ‘omission’ is used in thesection (section 13 of the Oaths Act which corresponds to section 9 of theOaths Ordinance) without any qualification and consequently, it mustbe held to include any omission whether that omission was deliberateor inadvertent. This is the view of the law which is now taken by all theHigh Courts ”. The judgment continues by giving references to themore recent decisions of the various Indian Courts.
With all respect to these decisions which we have considered we do notfeel disposed to take a view different from that which was expressed byLayard C.J., in The King v. Jeeris (supra). We are impressed by hisopinion that the deliberate non-administration of an oath or affirmationamounts to a case of commission rather than one of omission and doesnot therefore come within the ambit of section 9.
It may be that there have been cases in this Island in which theevidence of children of tender years has been received without theprevious administration of an oath or affirmation. This may have beendone in the knowledge of the trend of judicial opinion in India and inaccordance with the English practice which has, however, for many yearsbeen regulated by legislation. The Criminal Law Amendment Act, 1885,The Children's Act, 1908, and The Young Persons’ Act, 1933, havesuccessively provided for this contingency. If it is desired to conformwith that practice, as seem to us desirable, it is a matter which requiresthe attention of the Legislature.
As has already been observed, our view is that at present there is noprovision of law under which the evidence of an unsworn child may bedeliberately admitted. In this case there is no other evidence uponwhich the appellant could be convicted. For this reason we are ofopinion that the conviction must be quashed and the sentence set aside.The appeal is allowed.
* 41 Critn. Law Jnl. p. 129.
21 L. R. Madras p. 105.
THE KING v. RAMASAMY