113-NLR-NLR-V-65-THE-QUEEN-v.-K.-.Y.-SIRIPINA.pdf
The Queen v. Siripina
345
[Ik the Cottbt op Cbbun'al Appeal]
1962 Present: Basnayake, C.J. (President), Herat, J., and
Abeyesundere, J.
THE QUEEN v. K. Y. SIREPINAAppeal Nq. 42 op 1962, with Application No. 46S. G. 405—M. C. Ratnapura, 78,048
Evidence—Omission to administer oath to witness—Effect—Oaths Ordinance,ss. 4 (I) (o), 9—Evidence Ordinance, s. 118.
Once the Judge has elected to take the statement of aperson as evidence, hehas no option but to administer either an oath or affirmation to such person asthe case may require. Section 9 of the Oaths Ordinance ■which provides thatevidence is not invalidated by omission of oath applies only to cases of accidentalomission to administer the oath and not to cases of deliberate omission.
Where, without an oath or affirmation being administered, the evidence of aboy who was 11 years of age was taken after the trial Judge made the followingorder:—
“I order that in view of the fact that the witness does not seem tounderstand the meaning of the words of the affirmation that his evidence berecorded without the witness being affirmed. ”—
Held, that the evidence of the boy was inadmissible.
The King v. Dingo (1948) 50 N. L. R. 193 not followed.
Appeal- against a conviction in a trial before the Supreme Court.
K.Vilcnctrajah (assigned), for Accused-Appellant.
Vincent T. Thamotheram, Deputy Solicitor-General, for Attorney-General.
546
BASSfAYAKS, 0. X—The Qveen v. Siripma
September 4, 1962. Basstayakb, G. J.—
It is common ground that the only evidence in the case is the evidenceof the hoyilL Y-Piemadaea.—Thedearoedrtrial Judge-after questioningthe boy made the following order :—
“ I order that in view of the fact that the witness does not seem tounderstand the meaning of the words of the affirmation that his evidencebe recorded without the witness being .affirmed. ”
The boy was 11 years of age, and bis evidence was taken without the oathor affirmation being administered. Section 4 (1) (a) of the Oaths Ordin-ance provides that all witnesses shall make an oath or affirmation.Section 11S of the Evidence Ordinance provides that all persons shall becompetent to testify unless the Court considers that they are preventedfrom understanding the questions put to them or from giving rationalanswers to those questions, by tender years, extreme old age, disease,whether of body ox mind, or any other cause of the same kind. Oncethe Court is satisfied that a person is competent to testify, then such aperson must be required to make an oath or affirmation before beingexamined as a witness. Except in the cases covered by section 9 of theOaths Ordinance, the testimony of a witness competent to testify whodoes not take an oath or affirmation cannot be regarded as legal evidence.Section 9 reads—
“ jSTo omission to take any oath or make any affirmation, nosubstitution of any one for any other of them, and no irregularitywhatever in the form in which any one of them is administered, shallinvalidate any proceeding or render inadmissible any evidence what-ever in or in respect of which such omission, substitution, or irregularitytook place, or shall affect the obligation of a witness to state the truth.51
The cases of The Queen v. Buye Appu 1> The King v. Jeeris 2 and TheKing v. Ramasamy 3 all support that view. In the case of The King v.Jeeris {supra) the effect of section 9 (then section 10) of the Oaths Ordin-ance was considered. It was held by a full Bench that once the Judgehas elected to take the statement of a personas evidence, he has no optionbut to administer either an oath or affirmation to such person as the casemay require, and that the omission contemplated in section 9 is an acci-dental omission. In the case of The King v. Ramasamy (supra) it was heldthat a deliberate non-administration of an oath or an affirmation does notamount to an act of omission within the meaning of section 9. In thecase of The King v. Dingo4, following a decision of the Privy Council inthe case of Mohemed Bugal JSsa Mamasan Mer Alcdah 6 it was held thatsection 9 applied not only to cases of accidental omiasLon to administer
1 (1883) Wendt, p. 138 at 140 (FJ3.).* (1942) 48 N. L. 8. 629.
* (1906) 1 BcUueingham Report* 185.4 (1948) 50 L. R. 193.
* 1946 Appeal Oaeee 57.
T. S. FERNANDO, J.—Mafihooka v. Thassim
547
the oath, but also to cases of deliberate omission. We find ourselvesunable to subscribe to that view and we prefer the view taken in the earliercases.
We therefore hold that the failure of the Judge to require the witnessl?remadasa tomake an oath or affirmation renders the statements madeby him in Court inadmissible in evidence.
We accordingly quash the conviction and direct that a judgment ofacquittal be entered.
Accused acquitted.