[In the Court of Criminal Appeal]
Present: Basnayake, C.J. (President), Gunasekara, J.,Weerasooriya, J., H. N. G. Fernando, J., and
B. de Silva, J.
THE QUEEN v. ALUTHGE DON HEMAPALAAppeal No. 230 of 1960, with Application No. 263S. G. 41—M. C. Horana, 27640
Court of Criminal Appeal—Notice of appeal—Right of appellant to rely on a groundof appeal not slated in the notice—Trial before Supreme Court—English-speaking jury—Proceedings conducted in Sinhala—Validity—CriminalProcedure Code, ss. 165B, 224 (2), 225 (6) (e), 229, 232, 254, 257, 261 et seq.,299, 300, 302, 425—Official Language Act, No. 33 of 1958, s. 2—Language ofthe Courts Act, No. 3 of 1961, s. 8—Court of Criminal Appeal Ordinance,s. 5 (2).
Held : (i) Although Counsel for an appellant cannot as of right rely on aground not stated in the notice of appeal, the Court of Criminal Appeal mayin an exceptional case permit such a ground to be argued where it is in theinterests of justice to do so. (Observations to the contrary in previousjudgments delivered by the Court of Criminal Appeal when constituted onlyof throe Judges, not followed.)
(ii) (H. N. G. Fernando, J., dissenting) Where, in a trial before the SupremeCourt, the accused elects in terms of section 165 B of the Criminal Procedure• Code to be tried by a jury drawn from an English-speaking panel of jurors,not only the evidence of the witnesses but also the addresses of Counsel inSinhala must he interpreted into English, even when the Jury and Counsel haveexpressed their ability to understand and follow the proceedings in Sinhala.
j The accused-appellant had elected to be tried by an English-speaking jury.At the commencement of the trial, the presiding Judge enquired from thejury whether they were sufficiently conversant with Sinhala to be able tounderstand well (1) the questions put to witnesses and answers given by them,-(2) the address of Counsel if it was made in Sinhala. The Foreman answeredin the affirmative. The defence Counsel also, on being questioned by Court,stated that he was able to follow the proceedings in Sinhala. He was thentold by Court: “ You are at liberty to put any question in English at any
■B. 3344—1,983 (6/62)
BASNAYAKE, C.J.—The Queen v. Hemapala
stage of the case if you so desire and you will also be able to follow thetranslation which the interpreter will make for the benefit of the stenographerDuring the trial the addresses of Crown Counsel, both at the opening and atthe end, were delivered in Sinhala only, without interpretation into English.Although many of the witnesses were examined in Sinhalo, their evidencewas in fact interpreted into English by the interpreter, whose interpretationwas loud enough to have been heard by tho jury.
Held (H. N. G. Fernando, J., dissenting), that the delivery of the addressesby Crown Counsel in Sinhala without any interpretation of them into Englishwas not in accordance with the law governing the procedure at a trial by ajury drawn from an English-speaking panel.
Held further (Basnayake, C.J., and L. B. de Silva J., dissenting), that nosubstantial miscarriage of justice occurred in the circumstances of the presentcase in consequence of any irregularity or illegality in the delivery of theaddresses of Crown Counsel in Sinhala. Accordingly, the proviso tosection 5 (1) of the Court of Criminal Appeal Ordinance should be applied.
.AlPPEAL against a conviction in a trial before the Supreme Court.
Colvin R. de Silva, with Nanda K. Rodrigo (retained) and LucianJayetileke (assigned), for Accused-Appellant.
Douglas St. C. B. Jansze, Q.C., Attorney-General, with AnandaPereira, Senior Crown Counsel, and V. S. A. Pullenayegum, CrownCounsel, for the Crown.
Cur. adv. vuU.
December 11, 1961. Basnayake, C.J.—
The question for decision on this appeal is whether the procedureadopted by the learned trial Judge is wrong in law. The material factsbriefly are as follows :—
The accused-appellant had elected to be tried by a jury drawn froman English-speaking panel of jurors. This election he is required tomake under section 165B of the Criminal Procedure Code. That sectionreads:
“ 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 ofthe trial being held before the Supreme Court, and the Magistrateshall record such election if made. The accused so electing shall,if the trial is held before the Supreme Court be bound by and may betried according to his election, subject however in all oases to theprovisions of section 224. ”
At the trial an English-speaking . panel was in attendance inaccordance with the accused’s eleotion and a jury was drawn from thatpanel in accordance with the provisions of section 224 (1) of the
BASNAYAKE, C.J.—The Queen v. Hemapala
Criminal Procedure Code. After the jury had chosen their Foremanand had been sworn, in accordance with section 227 of the Code, thelearned trial Judge addressed them thus : “ May I ask you, gentlemenof the jury, whether you are sufficiently conversant with Sinhala to beable to understand well the questions put to witnesses and answersgiven by them ? ”, To that inquiry the Foreman replied “ Yes MyLord,”. The learned Judge then inquired “ And also address of counselif it is made in Sinhala ? ”. The Foreman said “ Yes ” to thatquestion also. He next asked the counsel for the defence “ Mr. Tampoe,are you able to follow the proceedings in Sinhala ? ” and received theanswer “ Yes My Lord ”. The learned Judge then stated : “ Youare at liberty to put any question in English at any stage of the case ifyou so desire and you will also be able to follow the translation whichthe interpreter will make for the benefit of the stenographer. ”
The Crown Counsel then opened his case in Sinhala. Except in thecase of Dr. Gamini Edirisinghe and Police Sergeant De Waas Tillekaratnethe transcript does not indicate in what language the witnesses who
were able to give evidence in English testified. There is also nothingin the transcript to indicate that the evidence given by Sinhalesespeaking witnesses was interpreted into the English language in a toneloud enough to be heard by the jury. The transcript does notexpressly state in what language Crown Counsel delivered his* closingaddress. But as he opened the case in Sinhala it can be assumed thathis address at the close of the case was in that language. Thetranscript makes no special mention of the language in which counselfor the defence delivered his address. But as the learned Judge didnot in the words addressed to him at the outset of the trial inquirewhether he was able to address the jury in Sinhala, it may be assumedthat he addressed in English. It would appear that whenever it wasnecessary to address the jury the Judge did so in English and hissumming-up was also in that language.
The Criminal Procedure Code gives an accused person a right to electto be tried by a jury drawn from any one of three panels. The panelsare drawn in the manner prescribed in section 261 et seq. from listsprepared by the Fiscal under section 257 and published in the Gazetteunder section 260. By the former section he is required to preparethree lists of persons who satisfy the requirements of section 254,possess the prescribed income, and who can—
(а)speak, read, and write the English language,
(б)speak, read, and write the Sinhalese language,
speak, read, and write the Tamil language.
The procedure followed in a trial by a jury drawn from a panel ofjurors able to speak, read, and write the English language is so wellestablished and so well known that, when an accused person elects tobe tried by such a jury, it may be presumed that he does so with theoertain knowledge of the procedure that would be followed at his trial.
BASNAYAKE, C.J.—The Queen v. Hemapcila
In a trial by a jury drawn from a panel of those who can speak, read,and write the English language, the counsel would put his questionsto the witnesses in English, address the jury in English, the evidencegiven in a language other than English would be interpreted to them,the Judge would address them and they would address him in English.In the instant case there has been a departure from that procedureand a procedure not authorised by the Criminal Procedure Code hasbeen adopted on the direction of the trial Judge. It is essential in atrial by jury that the safeguards prescribed by law to ensure that thejurors understand the proceedings should be observed. The jury wasdrawn from a panel which under the law consisted of persons competentin law to try the accused in proceedings conducted before them in theEnglish language. The Crown Counsel’s opening address which is anessential part of a trial by jury (s. 232) was in a language in whichin law they were not competent to try the accused. He also appearsto have examined the witnesses who did not give evidence in Englishin a language in which the jury were nob competent in law to try theaccused and in which he had not chosen to be tried. It is a fundamentalright of an accused person to be tried in accordance with the procedureprescribed in the Criminal Procedure Code and the practice establishedthereunder. In the instant case there has been no such trial and thecomplaint of the accused is one that is justified. It is illegal in acriminal trial to follow a procedure not warranted by the Code or thepractice thereunder. We recall the following words of Lord HerschellL.C. in Smurthwaite v. Hannay 1 :
“ If unwarranted by any enactment or rule, it is, in my opinion,much more than an irregularity. ”
Although he was there dealing with a set of rules which were meantto be a code of civil procedure the principle is applicable with evengreater force to a code of criminal procedure as would appear from thefollowing words of Lord Goddard in the case of R. v. Neal 2 :
*' There is no doubt that to deprive an accused person of theprotection given by essential steps in criminal procedure amountsto a miscarriage of justice and leaves the court no option but to quashthe conviotion. ”
He was there following Lord Sumner’s decision in Crane v. Directorof Public Prosecutions 3. The fact that neither the accused nor hiscounsel took objection to the procedure is no ground for refusing touphold the submissions of counsel. We find support for our view inthe following words in the judgment of the Privy Council deliveredby Lord Phillimore in Abdul Rahman v. The King Emperor 4 :
.. they wish it to be understood that no serious defect in
the mode of conducting a criminal trial can be justified or cured bythe consent of the advocate of the accused. ”
I (1894) A. C. 494 at 501.' * (1921) 2 A. C. 299.
• (1949) 2 All E. R. 438.• "(1926-27) I. A. 96 at 104.
WEERASOORIYA, J.—The Queen v. fj eUpapain. ■
It is also well established in criminal law that an Ucfdjjised. person cannotwaive a rule of evidence or procedure even if it woiii&;Jje hij jady&ntRgefor him to do so (R. v. Gee & others)l. There has been "Sfr''essentialdeparture from the well established rules of procedure prescribed forthe accused’s trial that we have no option but to hold that there hasbeen no trial of the accused according to law.
We accordingly quash the conviction and direct a new trial.
In regard to the argument of learned counsel for the appellant basedon the Official Language Act 33 of 1956 it is sufficient to observe thatit is common ground that at the time of the enactment of the OfficialLanguage Act No. 33 of 1956 English was the language of the Courtsand that at the relevant time—15th to 20th December I960—it waslawful to use English as the language of the Courts by virtue of thenotification published in Gazelle No. 10,949 of 7th July 1956.
The procedure adopted in the instant case gains no support fromthe Official Language Act. The Language of the Courts Act No. 3 of19G1, section 8 of which proceeds on the assumption that after 1stJanuary 1901 English is not the language of the Courts, has noapplication to the instant case as it was enacted after the trial.
Gunasekara, J.—
I entirely agree with the judgment that has been prepared by mybrother Weerasooriya and I have nothing to add.
Weerasooriya, J.—
The accused-appellant was convicted of murder and sentenced todeath.
The only ground on which learned counsel for the appellant soughtto have the conviction set aside is one involving a question of procedure.It is not a ground taken in the notice of appeal. But despite observa-tions to the contrary in previous judgments delivered by this Courtwhen constituted only of three Judges, we entertained this ground onthe basis that although counsel for an appellant cannot as of right relyon a ground not stated in the notice of appeal, this Court may. in anexceptional case permit such a ground to be argued where it is in theinterests of justice so to do.
The trial took place before a jury chosen from an English-speakingpanel in accordance with the election made by the appellant undersection 165B of the Criminal Procedure Code. After the members of
1 [1936) 2 All E. R. 89.
2*—R 3344 (6/G2)
WEERASOORIYA, J.—The Queen v. Hemapala
the jury had been sworn or affirmed the trial Judge put certain questionsto them and to defence counsel. Those questions and the replies theretoare.recorded as follows in the transcript of the notes of evidence :
“ Court: May I ask you, gentlemen of the jury, whether you aresufficiently conversant with Sinhala to be able to understand well thequestions put to witnesses and answers given by them ?
Foreman ■: Yes My Lord.
Court: And also address jf Counsel if it is made in Sinhala !
Foreman : Yes.
Court: Mr. Tampoe, are you able to follow the proceedings inSinhala ?
Mr. Tampoe : Yes My Lord.
Court: You are at liberty to put any question in English at anystage of the case if you so desire and you will also be able to followthe translation which the interpreter will make for the benefit of thestenographer. ”
The transcript also shows that the opening speech of Crown Counselwas made in Sinhala. Two, or may be three, out of the nine witnessesoalled by the prosecution, and the only witness called by the defence,appear to have testified in English, and the others in Sinhala. At theconclusion of the evidence, counsel for the defence addressed the juryand Crown Counsel replied. The transcript does not show in whatlanguage these addresses were delivered, but it may be assumed thatCrown Counsel adopted the same language as in his opening speech,while defence counsel spoke in English. The summing-up may also beassumed to have been in English.
Learned counsel for the appellant submitted that the trial was notheld in accordance with law in that— •_
(а)the two addresses of Crown Counsel were delivered in Sinhala
without any interpretation of them into English ;
(б)the evidence of six, or, perhaps, seven of the witnesses examined
at the trial was in Sinhala, and although such evidence wasinterpreted into English for the purpose of the record, thejury were in effect invited by the trial Judge to follow theevidence as given in Sinhala ;
(cl the procedure at (a) and (6) amounted to a denial to the appellantof a trial by an English-speaking jury in terms of his election.
Section 5 (1) of the Court of Criminal Appeal Ordinance, No. 23 of1038, provides that an appeal against a conviction shall be allowed bythe Court of Criminal Appeal if “ they think that the verdict of the. jury should be set aside on the ground that it is unreasonable orcannot be supported having regard to the evidence ; or that the judg-ment of the court before which the appellant was convicted should be
WEERASOORJYA, J.—The Queen v. Hemapala
set aside on the ground of a wrong decision of any question of law orthat on any ground there was a miscarriage of justice, and in any othercase shall dismiss the appeal ”. Then follows a proviso to which I shallrefer later. While counsel for the appellant did not rely on the firstof these grounds, he invited us to interfere with the conviction on thegrounds that there was a wrong decision of a question of law by thetrial Judge as regards the mode of trial and also that a miscarriage ofjustice had resulted.
It will be convenient to refer at this stage to those provisions of theCriminal Procedure Code which have a bearing on the question ofprocedure arising for consideration in this case. Section 254 dealswith the liability of a person, who has the requisite qualifications, toserve as a juror. One of the qualifications is that he should be ableto speak, read, and write English, Sinhalese or Tamil. Undersection 257 the Fiscal is required, inter aha, to prepare “ three severallists of the persons who, under section 254, are qualified and liable to, act as jurors ”. Section 201 provides for the summoning of three panelsof jurors for attendance and service as jurors at each criminal sessionsof the Supreme Court, and that one panel shall be prepared from eachof the three lists of persons who can speak, read, and write English,Sinhalese or Tamil and possess the other qualifications in respect ofincome or property. For convenience I refer to these panels as theEnglish-speaking, Sinhalese-speaking and Tamil-speaking panels.Section 224 (1) provides that the jury shall be taken from the panelelected by t'he accused unless the court otherwise directs. In thepresent case no direction was given by the trial Judge that the juryshould be taken from a panel other than that elected by the appellant.Section 225 specifies what objections taken at the trial to a juror, ifmade out to the satisfaction of the court, shall be allowed. Oneobjection (section 225 (b) ) is on “ some personal ground such asdeficiency in the qualification required by any law or rule having theforce of law for the time being in force ”. Another objection (section225 (e) ) is on the ground of “ his inability to understand the languageof the panel from which the jury is drawn ”. A deficiency in therequisite qualifications would include a juror’s inability to speak, readand write the language of the panel from which the jury is drawn.The objection in section 225 (e) is on the ground of his inability tounderstand the language of the panel. The legislature seems to haverecognised that, as a general rule, a person who is able to speak, readand write a language may be assumed to possess a sufficient under-standing of it for the purpose of following proceedings in that languageat a trial in the Supreme Court. But prov'sion was also made insection 225 (el for a case where this assumption may not be justified, andit is shown t • the satisfaction of the court that a juror, although includedin the panel on the basis that he possesses, among other qualifications,the ability to speak, read and write the language of the panel, is unableto understand that language. In such a case the court is required touphold the objection.
WEERASOORIYA, J.—The Queen v. Hemapala
In my opinion, section 225 (e) and the other sections to which I havereferred, necessarily imply that proceedings at a trial by jury in theSupreme Court shall be held either in the language of the panel fromwhich the jury is drawn or be interpreted into that language.Section 229 was relied on to some extent by the learned Attorney-General for his argument contra. The relevant part of section 229provides that if “ in the course of a trial by jury at any time before thereturn of the verdict …. it appears that any juror is unableto understand the language in which the evidence is given or when suchevidence is interpreted the language in which it is interpreted, theJudge may either order a new juror to be added or discharge the juryand order a new jury to be chosen. ” But even in framing section 229the legislature seems to have had in contemplation that evidenceadduced at a trial by jury, if not given in the language of the panelfrom which the jury is drawn, will be interpreted in that language. Hence,the power given to the Judge under section 229 to order a new jurorto be added or discharge the jury and order a new jury to be chosen,should, I think, be construed as referable to a case where a juror isunable to understand the language of the panel, when evidence is givenor interpreted in that language. On this construction it may be thatsections 229 and 225 (e) to some extent overlap, but the power givenunder section 229 can be exercised at any time before the verdict isreturned, whereas the application of section 225 appears to be limitedto the early stages of the trial.
Counsel for the appellant also submitted that English is the languageof the courts. The Attorney-General conceded that all evidence takenat a trial in a language other than English must be translated intoEnglish for purposes of the record! 1 do not think that it is necessaryto decide in this appeal whether the Official Language Act, No. 33 of1956, has any application to the language of the Courts, or whetherEnglish continued to be the language of the Courts at the time whenthe trial took place, by virtue of the notification under the proviso tosection 2 of the Act and published in Government Gazette No. 10,949 ofthe 7th July, 1956.
In my opinion, the delivery of addresses by Crown Counsel in Sinhalawas not in accordance with the law governing the procedure at a trialby a jury drawn from an English-spa'iking panel. The addresses shouldhave been in English. The irregularity or illegality may be.broughtwithin the terms of section 5 (1) of the Court of Criminal Appeal 'Ordinance by stating that in initiating a procedure whereby thoseaddresses were delivered in Sinhala, the learned trial Judge wronglydecided a question of law relating to procedure. In regard to theevidenoe given by those witnesses who testified in Sinhala, the positionis, however, different. More likely than not, Sinhala was the onlylanguage in which they were able to testify. The questions put tothem by counsel and Judge (if they were directly questioned inSinhala), and the evidence which they gave, were duly interpreted into
WEERASOORIYA, J.—The Queen v. HemapaJa
English, though this was done for the purpose of the record. Theremarks of the trial Judge quoted earlier indicate that the interpretation,was loud enough to have been heard by the jury. In the circumstancesI am unable to hold that any irregularity or illegality has been madeout on this ground.
The further question that arises is whether the conviction of theappellant should be set aside because of the irregularity or illegalityin the delivery of the addresses of Crown Counsel. It is necessary, inthis connection, to consider the proviso to section 5 (1) of the Courtof Criminal Appeal Ordinance which reads as follows :
*. A. . »
*♦.— -WJ t3— …i
“ Provided that the court may, notwithstanding that they are ofopinion that the point raised in appeal might be decided in favour• of the appellant, dismiss the appeal if they consider that no substantialmiscarriage of justice has actually occurred. ”
This proviso is the same as the proviso to the corresponding section 4(1)of the English Criminal Appeal Act of 1907. The expression “nosubstantial miscarriage of justice has actually occurred ” in the provisohas been considered in several decisions of the Court of Criminal Appealin England. In the case of Alfred Williams and Albert Wondlpy1, whereinformation as to the previous convictions of the appellants wasinadvertently given to the jury before the verdict, it was h"ld thatnotwithstanding the irregularity, which the court considered to be aserious one, the proviso should be applied as the verdict ret urned wasthe only reasonable and proper verdict on the evidence. In the caseof Percy Herbert 2 the court was of the view that the jury would havecome to the same conclusion if the irregularities had not occurred andthat, therefore, the proviso should be applied as no injustice had beendone. The meaning of the expression was discussed at length byHumphreys, J., who delivered the judgment of the court in the caseof Albert Edward Haddy3. Applying his reasoning- to the present case,what we have to consider is whether, had there been no wrong decisionof a question of law by the trial Judge, the jury might fairly andreasonably have found the appellant not guilty, or, to put the matterin another way, whether the appellant, as a result of the wrong decisionlost the chance which was fairly open to him of being acquitted.
To turn to a local case, in The King v. A. A. Kitchilan et al* the pointtaken in appeal was whether there was a misjoinder of charges whichvitiated the convictions of the appellants. The court, by a majoritydecision, held there was no misjoinder of charges and stated, further,that even had they held otherwise they would have applied the provisoto section 5 (1) of the Court of Criminal Appeal Ordinance which intheir view, conferred a discretion wider than that conferred upon anappellate court by section 425 of the Criminal Procedure Code.
i 14 C. A. R. 135.* 23 C. A. R. 124.
3 29 a. A. R 1*2.
3 (1944) 45 N L. R. 82.
H. N. G. FERNANDO, J.—The Queen v. Hemapala
An irregularity or illegality in the mode of conducting a criminaltrial may be of such a serious nature as to render the trial a nullity.The question of applying the proviso would not then arise. In myopinion, the irregularity or illegality in the present case was not of aserious nature for the following reasons : The addresses of Crown Counselin Sinhala came after the trial Judge had asked the members of thejury (all of whom, if their surnames are any indication, appear to havebeen Sinhalese) whether they had a sufficient understanding of thatlanguage. There is no reason to think that the affirmative replies ofthe foreman to the questions put by the Judge were not given with thefull assent of each member of the jury. Learned counsel who appearedfor the appellant at the trial also stated that he was able to follow theproceedings in Sinhala. The fact that the irregularity or illegality isnot even referred to in the grounds set out in the notice of appeal maybe regarded as indicating that neither he nor the appellant felt thatany prejudice was thereby caused to the defence.
I do not, therefore, consider that, had the addresses of Crown Counselbeen in English, the jury might fairly and reasonably have returneda different verdict, or that as a result of the addresses being deliveredin Sinhala the appellant lost the chance which was fairly open to himof being acquitted. In my opinion the proviso to section 5 (1) shouldbe applied as no substantial miscarriage of justice has actually occurredin this case, and the appeal should be dismissed.
H. N. G. Fernando, J.—
The appellant was convicted of the offence of murder by theunanimous verdict of the jury and sentence of death was passed uponhim. I am in agreement with the observations of my brotherWeerasooriya concerning the discretion of this court to admit argumenton behalf of an appellant of grounds of appeal not taken in the petitionof appeal.
When the appellant was committed for trial by the Magistrate undersection 163 of the Criminal Procedure Code he- was asked undersection 165(B) to elect from which of the respective panels of jurorsa jury shall be taken for his trial, and the Magistrate thereafterrecorded that he elected to be tried by an English-speakingjury. In accordance with this election an English-speaking jury wasempanelled at the commencement of the trial. The following questionsfrom the court and the replies thereto have been recorded :
“ Court: May I ask you, gentlemen of the jury, whether you aresufficiently conversant with Sinhala to be able to understand wellthe questions put to witnesses and answers given by them ?
Foreman : Yes My Lord.
Court: And also address of counsel if it is made in Sinhala ?
Foreman : Yes.
H. N. G. FERNANDO, J.—The Queen v. Hemapala
Court: Mr. Tampoe are you able to follow the proceedings inSinbala ?
Mr. Tampoe : Yes My Lord.
Court : You are at liberty to put any question in English at anystage ofethe case if you so desire and you will also be able to followthe translation which the interpreter will make for the benefit of thestenographer. ”
Upon this material and having regard to certain statements madeto this court by the Attorney-General, we agree with counsel for theappellant that it must be assumed that during the trial,
many of the witnesses were examined and cross-examined by
means of questions framed by counsel in Sinhala andanswered those questions in Sinhala,
that nevertheless each question and answer was in fact translated
into English by the interpreter,
that the opening address of Crown Counsel and the closing
addresses both of Crown Counsel and of defence Counsel weredelivered in Sinhala but not interpreted.
It was pointed out at the argument in this court that tbe record doesnot show that the foreman consulted with the other members of thejury before answering the two questions put to them by the learnedtrial Judge. For myself I feel it only proper to assume that no Judgeor Commissioner of Assize of the Supreme Court would have acceptedand acted upon the foreman’s answers unless the Judge was satisfiedthat the answers were given after adequate consultation. This assump-tion is certainly valid in regard to the Judge of long experience bothon the bench and as a Senior Law Officer of the Crown who tried thecase. My consideration of the arguments urged on behalf of theappellant is certainly based on this assumption.
It was suggested also that even if each member of the jurywas consulted before the foreman answered questions put by the trialJudge some or ail of the members of the jury may have been reluctantto disclose ignorance of or unfaniiliarity with Sinhala, and that theforeman’s answer may accordingly not have been a correct answer tothe question put. Similar consideration, it was suggested, might haveinduced counsel for the defence to render an incorrect answer to thequestions asked of him by the Judge. For myself again it seems onlyproper to assume that no juryman empanelled to try a charge of murderand no counsel engaged to defend in a trial for murder would have givenany but a correct answer to the question whether his knowledge of theSinhala language was adequate to enable him to understand sufficientlyeverything that was said in Sinhala at the trial.
H. N. G. FERNANDO, J.—The Queen v. Hemapala
As to the matter of the interpretation into English of all the evidencegiven at the trial, it is necessary to refer to a note whioli the learnedJudge who tried the case sent to this court with reference to a casepreviously tried by him (S. C. No. 20 M. C. Panadura 50300/1960) inwhich, similarly, questions and answers had been framed in Sinhala.In that note the Judge stated :
“ Questions to witnesses were generally addressed directly in theSinhala language and the answers were also given in that language.Every question and answer was without a single exception translatedby the court interpreter into English for the benefit of the steno- •grapher. Such translation was audible to counsel for the defenoeas well as to the members of the jury. ”
Here again I consider it proper to assume that in the present case aswell the interpretation into English of questions and answers wore infact audible to the members of the jury. Having regard to my ownfamiliarity with the court in which the trial took place, there is noreason to doubt that whatever the interpreter said when he made- hisoral translation for the benefit of the stenographers would have beenclearly audible to the Judge, jury and counsel. Since it is not at alluncommon for the Judge or defence counsel to question the correctnessof the interpreter’s oral translation, his interpretation is always listenedto by both ; and since the interpreter speaks loud enough to be heardby Judge and counsel he is equally audible to the members of the jury,
I must assume that the jury must neoessarily have heard thetranslation.
I feel the more confident in making the assumptions I have justmentioned for the reason that the petition of appeal filed by theappellant makes no single suggestion that what took place in the courtwas not that which I assume to have taken place.
Section-s 254 aivL 257 of the Criminal Procedure Code read togetherprovide that a person who can speak, read and write English, Sinhaleseor Tamil and who possesses an appropriate income or propertyqualification is qualified and liable to serve as a juror ; and the Fiscalis directed to prepare separate lists of those who are so qualified andliable, the lists to contain respectively the names of persons who canspeak, read and write the English language or the Sinhalese languageor the Tamil language, as the case may be and the fourth list being ofpersons selected from the first but possessing a higher income orproperty qualification. Under the proviso to subsection (1) ofsection 257, a person possessing the necessary qualification in morethan one language must, if he expresses a preference for one of the listsfor which he is qualified, be placed on that list. Under sections 201 to264 three panels are drawn for attendance as jurors at each criminalsession of the Supreme Court, one panel being drawn from each of thethree first lists already mentioned which panels are for conveniencereferred to as the English-speaking, Sinhalese-speaking and Tamil-speaking panel respectively.
H. N. G. FERNAJNDO, J-—The Queen v. Hemapala
Section 224 provides that the jury shall be taken from the panelelected by the accused unless the court otherwise directs. At thepresent trial the jury was taken accordingly from the English-speakingpanel which as already stated was elected by the accused undersection 165 (B).
Section 225 provides that any objection taken to a juror on anyspecified grounds, if made out to the satisfaction of the court, shall beallowed. Relevant for present purposes are the following grounds :
“ (b) some personal ground such as deficiency in the qualificationrequired by any law or rule having the force of law.
(e) his inability to understand the language of the panel from whichthe jury is drawn. ”
Section 229 provides inter alia that “ if in the course of a trial by juryat any time before the return of the verdict …. it appears
that any juror is unable to understand the language in which theevidence is given or when such evidence is interpreted the languageinto which it is interpreted, the Judge may either order a new jurorto be added or discharge the jury and order a new jury to be chosen. ”
Apart from these provisions of the Code, counsel for the appellantalso relied on the fact that the English language is the language of thecourt for purposes of record. (Irrespective of the question whetherany alteration in this respect has been effected by reason of the enact-ment of the Sinhala Only Act, No. 13 of 1956, the Attorney-Generalhas conceded that all evidence taken at a trial in a language other than.English must be translated into English for purposes of record, andthat all orders and acts of the court must similarly be recorded in theEnglish language.
Relying on the material which has been set out above, the argumentfor the appellant has been that :—
(а)in providing for three separate (language) panels of jurors, and
in giving the accused a right to elect the panel from whichthe jury must be drawn for his trial, the Code by necessaryimplication requires that a person tried by an English-speakingjury must be tried in English, that is to say, that allevidence and proceedings, including addresses, not actuallytaken or had in English, but in some other language, mustbe interpreted into English for the jury,
(б)in permitting questions and answers to be framed in Sinhala,
and in not directing the jury that they must take accountonly of those questions and answers as rendered into Englishby the interpreter, the Judge wrongly decided a question oflaw, and that the conviction must be set aside in consequence.
H. N. G. FERNANDO, J.—The Queen v. Hemapala
^c) in permitting oounsel to deliver addresses in Sinhala, which werenot interpreted into English for the jury, the Judge wronglydecided a question of law and the conviction must inconsequence be set aside,
alternatively, even if the action of the trial Judge referred toin (6) and (c) above did not constitute a wrong decision on aquestion of law, the faot that the trial was not conducted inthe manner stated at (a) above resulted in a miscarriage ofjustice.
The basic plank of the argument is that the relevant provisions of theCriminal Procedure. Code, considered together with the admitted pointthat English is the language of record of the court, have the necessaryimplication that all evidence and addresses must be given in the Englishlanguage or else be interpreted for an English-speaking jury in that,language.
In considering this argument, it is useful to notice in the first instancecertain provisions of the Code which require interpretation in particularcases. Section 299, in dealing with evidence taken at an inquiry beforea Magistrate, provides that the evidence of each witness shall be readover to the witness by the Magistrate ; under subsection (3), “ if thewitness does not understand English the evidence shall be interpretedto him in the language in which it was given ” ; again subsection (5)requires that after the deposition has been read over to the witnessand when it has been interpreted to him as provided in subsection (3),the Magistrate shall append a certificate to the effect that the deposi-tion was “ read over and interpreted to the witness This is one ofthe express provisions which founds the perfectly valid argument thatEnglish is the language of record of the court. The section pre-supposes that evidence given by a witness in any other language willbe recorded in English, presumably after interpretation, and willthereafter be re-interpreted into the other language for the purpose ofbeing read over to a witness who does not understand English.
Again section 302, which provides for the recording by a Magistrateof a statement made by an accused in the course of an inquiry,requires the statement to be recorded in the language in which he isexamined or if that is not practicable, in English ; where the lattercourse is adopted, his statement as recorded in English must beinterpreted to him in a language he understands if he does notunderstand English.
Section 300 provides that whenever any evidence is given in anylanguage not understood by the accused it shall be interpreted to himin a language understood by him.
What seems to be of significance in the three sections I have justmentioned is that they constitute three instances where the Codeexpressly requires a record made in English to be interpreted into someother language understood by the witness or accused person concerned.
II. N. G. FERNANDO, J.—The Queen v. Hemapala
If it was in the contemplation of the Legislature that evidence givenat a trial by a jury drawn from a particular language panel mustalways be rendered into the language of the panel, it is strange thatso important an intention was not declared by express provision inthe Code.
The first step in the argument for the appellant is that the divisionof qualified jurors into three language panels considered together withthe right of election conferred by section 165(B), has the result, as amatter of law, and without reference to the needs of any particularoccasion, that all evidence not given in English must be interpretedinto English for an English-language jury. In brief, it was arguedthat the division into panels was only a means of carrying out a basicintention that all proceedings must either be had in, or else interpretedinto, the language of the panel.
But consideration of section 254 leaves, little doubt in my mind as tothe reason why the Legislature was compelled to provide in section 257for three different language panels. Despite the fact that Englishwas the language of record, it would have been discriminatory to requirea knowledge of English as an essential qualification for jurors ; largenumbers of educated citizens would have been excluded by such arequirement. But when section 254 declared that persons who canspeak, read and write either English, Sinhalese or Tamil are qualifiedand liable to serve as jurors, there immediately arose the problemwhether it would be practically feasible to have only one list of qualifiedjurors. If of the seven jurors selected from a single list to try aparticular case, all of thorn did not have adequate knowledge of onecommon language, would it not have been extremely doubtful whetherthe necessary consultation could have taken place between the sevenin performance of their functions ? The difficulty could have beenmet by prescribing a procedure of investigation and exclusion at thestage of the selection of the jury, in order to ensure that there wouldfinally be empanelled seven jurors who had sufficient understandingof any one language. But the Legislature did not choose to adoptsuch a procedure, which undoubtedly would involve delay anduncertainty. The difficulty was in fact met by more obvious andsimple moans, namely by the division of qualified jurors into threelanguage panels, in the reasonable expectation that seven jurorsselected from one panel would all understand a common language.The division into the language panels was manifestly dictated bynecessity, and when that clear reason for the division is apparent fromthe provisions of section 254, surmise as to other possible reasons is notjustified.
The opinion that such was the purpose of the division of jurors intolanguage panels does not, however, obviate the need to consider thenature of the privilege, if any, conferred by the right of election forwhich section 165{G) provides. If that right be not referable to someintention other than that contended for by counsel for the appellant,
H. N. G. FERNANDO, J.—The Queen v. Hemapala
the intention for which he contends may. have to be accepted. Onehas therefore to consider whether there should be imputed to theLegislature a more reasonable intention. Once the language panels wereestablished, it may have been thought undesirable to leave to chancethe determination of the panel from which to take jurors for a particulartrial. One sound reason for the right of election in such a situationwould be that in a country where to some extent manners and customsdiffered in correspondence with differences of language; it might havebeen thought desirable that the jurors who tried an accused belongingto one of the language groups, if he so opts, should be persons familiarwith the manners and customs peculiar to that group. Would it nothave been reasonable for the Legislature to think that an accused personwould make his election upon such considerations, rather than withthe object of securing that evidence or addresses would be givenor rendered in some chosen language ? The fact that in the vastmajority of cases accused persons do in fact elect to be tried by English-speaking juries does not assist greatly in determining, what intentionthe Legislature had in mind. I much prefer the view that section 165(B),in a context where there had of necessity to be three different languagepanels, merely conferred a privilege of a nature not substantially differentfrom the right to be tried by one’s peers.
Section 225 of the Code refers to peremptory objections to jurors whichthe court must allow. Paragraph (£) appears to refer to objectionstaken on the ground of the lack of the necessary qualifications and toadmit objections of at least two kinds. It is convenient to take firstthe objection that the juror does not possess the income qualificationrequired by section 257, and if the Judge is satisfied as to the hack ofthat qualification he must sustain the objection. Secondly it can beobjected that the juror cannot speak, and/or read, and/or write thelanguage qualifjdng the person for the appropriate panel. In thisconnection the Attorney-General argued that a man of twenty one whocan speak, read and write the English language in the sense that hewas promoted from the 3rd to the 4th.standard in an English languageschool cannot be objected to as lacking the English language qualifica-tion prescribed bv section 254. Having- regard- to the terms ofsection 254, it certainly seems that in the section the Legislature wasmerely providing for literacy qualification ; a person .able to speak,read and write a language in the sense mentioned by the Attorney-General cannot be successfully objected to under paragraph (6) ofsection 225. Literacy in this connection would seem to be opposedonly to illiteracy, and accordingly a person who is at all literate in alanguage does possess the qualification specified in section 254. Thatbeing so, there may well be a juror who, despite being literate in thelanguage of the panel, should nevertheless not be permitted to functionas a juror if in fact his understanding of the language of the panel is someagre that his participation in the deliberations of the jury would beineffective ; that eventuality seems to have been provided for byparagraph (e) of section 225, which permits an objection that the juror
H. N. G. FERNANDO, J.—The Queen v. Hemapala
does not understand the language of the panel. Although, therefore,a juror cannot be excluded under paragraph (6) on the ground ofilliteracy he can nevertheless be excluded under paragraph (e) on theground that be has insufficient understanding of'the language of thepanel to be able to perform all the functions of a member of the jury.
It has to to be noted that section 225 does not expressly refer to thecapacity of a juror to understand evidence, but there can be little doubtthat if a Judge is satisfied of the existence of such an incapacity as theinability to follow proceedings in court paragraph (/) of section 225could be called in aid. If it can be shown for instance that a juror isdeaf or mentally deficient or generally of low intelligence, paragraph (e)would provide a remedy. But section 225 is not even indirectlyconcerned with the medium by which the evidence in a trial iscommunicated to the jury. For example, no objection can be takenunder section 225 to a particular juryman on the ground that muchof the evidence will be given in some language not understood by him.The section is therefore of no assistance in deciding whether or not- theLaw requires .interpretation into any language of evidence given inanother language.
The only provision in the Code which appears to have a direct bearingon the matter of interpretation is section 229. In the present contextthat section gives the Judge a power to discharge a juror who “ isunable to understand the language in which the evidence is given orwhen such evidence; is interpreted the language into which it isinterpreted ”. The section does not state that evidence must bo, interpreted in-any specified circumstances. Analysed, its effect is thata juror may be discharged,
if he does not understand the language of the witness, in a case
where there is nc interpretation,
if he does not understand both the language of the witness and also
the language of interpretation, if there is interpretation. Butif he does in fact understand either the language of the,witness or else the language of interpretation when there isinterpretation, the section will not apply. In other words,if he does understand the language of a witness, section 229neither authorises his exclusion, from the jury, nor requiresinterpretation into the language of his panel.r .
Let me take the case of a trial before a Tamil-speaking jury at whicha witness gives evidence in Sinhala. On such an occasion, becauseof the necessity to maintain the record in English, there wouldordinarily be interpretation of the Sinhalese evidence into English.If then the Judge realises that any juror does not understand eitherSinhalese or English, section 229 would apply and the juror would haveto be discharged or a new jury empanelled, or else the judge might directinterpretation into Tamil. But if in fact the Judge is satisfied that
H. N. G. FERNANDO, J.—The Queen v. Hemapala
all the jurors understand Sinhala, although none of them understandEnglish, the jury will continue to try the case section 229 does not sayfthat they cannot.’. ..
Similarly in the case of a trial before a Sinhalese speaking jury, where awitness gives evidence in Tamil, the Judge is not empowered by section 229 .to discharge a juror if in fact he is satisfied that the juror does understandTamil. Accordingly a judge would have no power under section■ 229to discharge a member of an English-speaking jury, before which-a witness gives evidence in Sinhala, if in fact he is satisfied that the jurordoes understand Sinhala.
It would seem therefore, whatever be the language of a particularpanel, neither section 225 nor section 229 enpowers a Judge to discharge. any juror on the ground that evidence is given by a witness in a languagewhich is not that of the panel. If, as has been pointed out, a Sinhalese. . juror who knows no English is competent to function at a trial whereevidence is given in Tamil, and a Tamil juror who knows no Englishis competent to . function at a trial where evidence is given in Sinhala,
. *•- it would follow that an English-speaking juror is competent to functionat a trial where the evidence is given in Sinhala, provided he understandsSinhala.
The doubt in the present case therefore appears to arise through a■ matter not related to the competency or qualifications of the jurors,namely the fact that English is the language of record'of .the court.If to a Sinhalese or Tamil-speaking jury the language of record isunintelligible, interpretation of evidence into English is purely for thepurposes of record and not for the benefit of the jurors. * How thencan it be said that merely because the language of the panel is English,interpretation into English for the benefit of the jury is a sine qua nonalthough it may be clear that the jury do in fact understand the languagein which the evidence is given.
The recognised text-books on the construction of statutes containno comment or citation in support of the argument that the courtsmust or even may read into the Criminal Procedure Code a mandatoryrequirement that all evidence at a trial by jury must be interpretedinto the language of the panel. Craies, Statute Law, 5th ed. p. 103,dealing with construction by implication, states that “ if the meaningof a statute is not plain, it is permissible in certain cases to have recourseto a construction by implication, and to draw inferences or supply obviousomissions ”, and proceeds to cite a recent observation of Evershed,M.R. :
“ Words plainly should not be added by implication into thelanguage of a statute unless it is necessary to do so to give theparagraph sense and meaning in its context (Tinkham v. Perry, {1951)1 T. L. R. 91 at 92).
H. N. G. FERNANDO, J.—The Queen v. Hemapala
The cases in which construction by implication is permissible ornecessary are classified under two heads: firstly, ** implication toprevent words from being deprived of all meaning ”, and secondly,41 implication where enabling statutes omit some detoil
Under the first head are instances where it is permissible to supplywords which appear to have been accidentally omitted without whichexisting words h^tve no meaning. In each of the statutes referred toby Craies under this head the court only supplied omissions upon beingsatisfied that the omission was accidental, and also that the expressprovision in the statute would be “ nonsense ” or “ of no effect ” or“ nugatory ” unless the omission were supplied by implication.
In dealing with the same matter Maxwell, Interpretation of Statutes,10th ed. p. 250, states that an omission which the context shows withreasonable certainty to have been unintended may be supplied.The authorities, it is said, “ establish that the judicial interpreter maydeal with careless and inaccurate words and phrases in the same spiritas a critic deals with an obscure or corrupt text, when satisfied, on solidgrounds, from the context or history of the enactment, or from theinjustice, inconvenience, or absurdity of the consequences to which itwould lead, that the language thus treated does not really express theintention and that this amendment probably does ”. The principlehere stated would admirably fit the situation which would have arisenif section 299 of the Code contained no subsection (3). In such asituation, it would have been a manifest absurdity and injustice for thesection to require evidence to be read to a witness in the language ofrecord if that language is not understood by him. The courts thereforemust necessarily have determined that the important object which theLegislature had in view, when it expressly required the evidence of awitness to be read to him, could not be achieved unless there wasimplied an intention that the reading must be so done that the witnesswould understand what was read.
No proper parallel can be drawn between the accidental omissionsof the nature dealt with in Craies Statute Law under the firsthead and what was alleged on behalf of the appellant to have beenomitted from our Code. What is said here to have been omitted isnot some matter supplementary or ancillary to an object clearlyexpressed, but rather the object itself.
Under the second head of cases of construction by implication Craiesinstances a statute passed for the purpose of enabling something to bedone, but which omits to mention in terms some detail of greatimportance to the proper and effectual performance of the work whichthe statute has in contemplation. In the cases under this head in whichthe courts have intervened, the intervention hits only been for thepurpose of implying some matter without which the expressed purposeof the Legislature could not be effectively carried out. Consideringthe problem now before us from this aspect there is not in the Criminal
H. N. G. FERNANDO, J.—The Queen v. Hemapala
Procedure Code any express, pro vision manifesting some purpose of theLegislature in relation to which, it can properly ’be said that suchpurpose cannot be achieved unless it is implied that all the evidencemust necessarily be interpreted into the language of the particular panel.
Maxwell, Interpretation of Statutes, at p. 370, points out that a statute
which confers judicial powers is understood as silently implying, when
it does-not expressly say so, the condition or qualification that the
power is to be exercised in accordance with the fundamental rules of >
judicial procedure. To say that a proceeding has not been in
accordance with the principles of natural justice means that there has
been a breach of one of these fundamental rules. Maxwell mentions
the rule which requires that the person sought to be prejudicially affected
should have an opportunity of defending himself. Equally fundamental
would be the rule embodied in section 300 of our Code that an accused .
person must know the evidence against him, and the rule that a jurymust understand the evidence given at a trial before it.
Undoubtedly it would be both absurd and unjust that at a trial byjury any evidence should be taken which is not understood even by onejuror, and the practice of our courts whereby evidence given in somelanguage other than that of the panel has always been interpreted intothe panel’s language was designed to avoid such absurdity or injustice.But however well entrenched that practice may be, the reason foradopting or following it could not have been that the Code by necessaryimplication required interpretation in all cases into the language of thepanel. The reason which justified the practice was rather that thejury must understand the evidence ; and if a jury is capable of under-standing the evidence without interpretation, there would be nocompelling reason necessitating the delay and expense of interpretation. •The most that one can read into the Code by way of implication‘in thiscontext is a fundamental rule that the evidence is understood, by thejury. Natural justice would not necessitate any arbitrary-rule thatevidence must be interpreted into any particular language, but wouldcertainly require interpretation if evidence would not otherwise beunderstood by a jury.
The simple question therefore is whether the learned trial Judgeproperly accepted the statement of the foreman of the jury that themembers of the jury understood Sinhala well enough to follow evidencegiven in Sinhala and the addresses delivered in Sinhala. Reasonshave already been stated above for the opinion that in the absenceof any suggestion to the contrary, upto the stage of the hearing ofthis appeal, that the answers given by the foreman at the commencementof the trial and the Judge’s satisfaction with those answers leave noroom now for any doubts upon that question.
I have had the advantage of reading the judgment proposed by mybrother Weerasooriya. For the reasons stated above I do not agreesthat the provisions of the Criminal Procedure Code “ necessarily imply
Peiria v. Dassenaike
that proceedings at a trial by jury in the Supreme Court shall be heldeither in the language of the panel from which the jury is drawn or beinterpreted into that language ”, nor that “the delivery of addressesby Crown Counsel in Sinhala was not in accordance with the law govern-ing the procedure at a trial by a jury drawn from an English-speakingpanel ”. But assuming that the views of my brother on this matterbe correct, I agree that the proviso to section 5 (1) of the Court ofCriminal Appeal Ordinance should be applied in the circumstancesof this case.
I would dismiss the appeal.
L. B. de Silva, J.—
I agree with the judgment of the Hon. the . Chief Justice, thePresident of the Court.
*i ,
Appeal dismissed.