002-NLR-NLR-V-76-SOMASUNDARAM-son-of-Ramasamy-and-2-others-Appellants-and-THE-QUEEN-Respond.pdf
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Somasundaram v. The Queen
[Cotjbt of CaramAL Appeal]
Present: H. N. G. Fernando, C.J. (President), Samerawiekrame, J.,and de Kretser, J.
SOMASUNDARAM (son of Ramasamy) and 2 others, Appellants, andTHE QUEEN, RespondentC. C. A. Nos. 55-57/71, with Application Nos. 77-798. C. 29170—M. C. Nuwara Eliya, 37749Evidence—Dumb witness—Mode of dealing with evidence given by him—Oath oraffirmation—Witness who does not understand its nature but who is otherwisecompetent—Admissibility of his evidence—Oaths Ordinance, a. 9—Statementof a deceased person as to the cause of his death—Duty of Judge to warn juryas to its infirmities—Evidence Ordinance, ss. b2 (1), 118, 119.
K, who was the chief witness for the prosecution, had been deaf and dumbfrom birth and had not been trained at any time in the use of the sign languageat the School for the Deaf and Blind. A special interpreter, who had beentrained in the Deaf and Blind School and was skilled in the use of the signlanguage and had experience in interpreting witnesses who had the necessaryskill to use the sign language, put questions to K by signs and interpreted thesigns made by the witness by way of reply. There was no questioning of theinterpreter or other evidence or material before court which expressly showedthat the special interpreter was competent and able to interpret with confidencethe signs made by K and what degree of reliance could be placed onhis interpretation of them. Moreover, the same interpreter had functioned atthe time of the police inquiry ancf interrogation of K and when the latter gaveevidence at the magisterial inquiry.
SAMERAWICKRAME, J.—Somasundaram v. The Queen
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K’a mother and associates were not called to testify as to the mode in which- E communicated with them and they with him and as to the ease or difficultyof communication. –
The trial Judge permitted K to give evidence without any inquiry into hiscompetency and treated his evidence like that of any other witness.
.Held, after considering the provisions of sections 118 and 119 of the EvidenceOrdinance, that there were infirmities in the way in which the evidonoe of
was placed before the jury and dealt with by the trial Judge.
Eeld further : (i) A witness who is otherwise competent and understands theobligation to speak the truth but doe?not understand the nature of an oath oraffirmation may be permitted to give evidence without the administration tohim of an oath or affirmation.
(ii) When evidence is given under section 32 (1) of the Evidence Ordinanceof statements made by a person as to the cause of his death or as to any of theciroumstances of the transaction which resulted in his death, it is the duty of thetrial. Judge to give the jury the necessary caution in regard to how thoy shouldapproach the consideration of the statements made by a deceased person.
.A.PPEAL8 against three convictions at a trial before the SupremeCourt.
O.E. Chitly, Q.G., with 8. D. P. Valentine, G. E. Chitty (Jnr.) andJ. W. Fernando (assigned), for the 1st and 2nd accused-appellants.
S. D. P. Valentine, with J. W. Fernando (assigned), for the 3rdaccused-appellant.
J. R. M. Perera, Senior Crown Counsel, for the Attorney-General.
Cur. adv. mdt.
August 2,1971. Samebawickbame, J.—
The three appellants who were labourers on Bagala Estate wereconvicted of the murder of one Muttiah, a kangany on the estate. Atthe hearing of the appeals we set aside their convictions and directed afresh trial on the charge of murder in count 2 of the indictment. Thereasons for our order are now set forth. '
According to the evidence for the prosecution, Muttiah was injuredabout 7 p.m. on the 2nd of January, 1969. At about 8 p.m. he wasquestioned by police officers and he told them that Ramasamy Soma-sundaram of Ragala Estate, who is tfie first accused-appellant, had cuthim. One Palaniappan Kandasamy gave evidence that before Muttiahwas removed to the Police Station he questioned him and that Muttiahtold him “ Sonnan was responsible for this ; Somasundaram, Dhanukodyand Periyasamy cut. ” Sonnan was the 4th accused in the trial Courtwho was charged along with the appellants on count 1 of conspiracy to .murder. They were all acquitted of that offence. The learned Com-missioner gave no special direction in regard to the alleged statement bythe deceased to Palaniappan Kandasamy. About the statement made
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SAMERAWICKKAME, J.—Somaarmdaram v. The Queen
to the police officers, he said, “ This is a very vital matter for the reasonthat under our law a statement made by a man who is very seriouslyinjured is considered with great sanctity, because the law assumes that aperson in that position will not unnecessarily implicate an innocentman. ”
This direction does not correctly set out the position under our law.Section 32 (1) of the Evidence Ordinance which enables evidence to begiven of statements made by a person as to the cause of his death or as toany of the circumstances of the transaction which resulted in his deathfurther states, “ such statements are relevant whether the person whomade them was or was not at the time when they were made under
expectation of deathStatements so made are not tested by
cross-examination and the jury are always “ to be cautioned as to the. inherent weakness of this form of hearsay evidence—vide The King v.Asirvadan Nadar1, and Justinpala v. The Queen*. Further, a PresidingJudge should caution the jury as to the risk of acting upon thestatement of a person who is not a witness at the trial and as to theneed to consider with special care the question whether the statementcould be accepted as true and accurate—vide The Queen v. Anthonypillai 3.The learned Commissioner failed to give the jury the necessary cautionin regard to how they should approach the consideration of the statementsmade by the deceased person toPalaniappanKandasamy and his directionstouching the statement made by the deceased to the police officersinvited the jury to give to it much greater weight than should be givento it.
Apart from the statements of the deceased, the only evidence againstthe appellants was that of Koolanehetty which was to the effect thatthe three appellants made a concerted attack on Muttiah. This witnesshad been deaf and dumb from birth and a special interpreter put questionsto him by signs and interpreted the signs made by the witness by way ofreply. Mr. Chitty submitted that though s. 119. of the EvidenceOrdinance permitted the witness to give evidence by signs there was nowarrant for putting questions to him by signs and that the signs madeby the witness must be intelligible to the court though the Court may beassisted by a special interpreter. A witness who does not understandEnglish, Sinhala or Tamil is questioned in a language which he doesunderstand by a special interpreter. It is not much different when aninterpreter skilled in the sign language puts questions by signs. Theprovision which enables a witness to give evidence by signs is found in8. 119 of the Evidence Ordinance which states :—
" A witness who is unable to speak may give his evidence in anyother manner in which he can make it intelligible, as by writing or bysigns ; but such writing must be written and the signs made in opencourt. Evidence so given shall be deemed to be oral evidence. ”
1 (1950) 51 N. L. B. 322 at 324.
• (1965) 69 N. L. B. 34.
(1964) 66 N. L. B. 409.
SAMERAWjLCKJKAME, if.—Somasundaram v. The Queen
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While the section provides that the evidence must be given in a mannerin which he can make it intelligible and that if it is made by signs itmust be made in open court it does not expressly state that the signsmust be intelligible to the court. Learned Senior Crown Counsel hasreferred us to authorities which show that it is the practice of courts ofdifferent jurisdictions to have interpreters skilled in the sign language whointerpret the signs made by a dumb witness.
Archbold: Criminal Pleading Evidence and Practice (36th Edition)page 477, s. 1286 contains the following :—“ A person who is deaf anddumb is not incompetent if he can be made to understand the nature ofan oath, and if intelligence can be conveyed to and received from himby means of signs : Rex v. Ruston 1 Leach 408 and may be examinedthrough the medium of a sworn interpreter who understands his signs,ibid. ”
Wigmore on Evidence s. 811 contains the following :—
“ The mode of communication will usually be in words or othersymbols directly intelligible to the tribunal. If the witness cannotemploy a mode thus directly intelligible, some intermediary may andmust be sought who can interpret the witness' mode into the ordinaryone: .
It must appear however that intelligence can be conveyed to andreceived from the witness by means of signs. On this point there issome difficulty in this case. Koolanchetty had been deaf and dumbfrom birth and had not at any time attended the School for the Deaf andBlind and had not been trained in the use of the sign language. Thespecial interpreter had been trained in the Deaf and Blind School and wasskilled in the use of the sign language and had experience in interpretingwitnesses who had the necessary skill to use the sign language. Therewas no questioning of the interpreter or other evidence or material beforecourt which expressly showed that the special interpreter was competentand able to interpret with confidence the signs made by Koolanchetty andwhat degree of reliance could be placed on his interpretation of them.
Section 118 of the Evidence Ordinance states :—
“ All persons shall be competent to testify unless the court considersthat they are prevented from understanding the questions put tothem, or from giving rational answers to those questions, by tenderyears, extreme old age, disease, whether of body or mind, or any othercause of the same kind. ”
Dealing with this provision Sarkar states:—“ The only incompetencythat the present Act recognizes is incompetency from immature ordefective intellect. That may arise from (i) infancy (ii) idiocy, deafness,
dumbness (iii) lunacy (iv) drunkenness, illness, etc” When a person
who may probably be suffering from an incapacity referred to in s. 118 iscalled as a witness, it is for the court to satisfy itself as to his competency.Wigmore s. 1393 states, “The orthodox division of function between
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judge and jury allots, without question, to the judge the determinationof all matters of fact on which the admissibility of evidence dependsand therefore of the facts of a witness’ capacity to testify. ” The judgemay make an examination of the witness known as the voir dire or mayhear evidence of others as to the witness’ competence—vide Sex v.Dunning1. In the present case, evidence may well have been availablefrom Koolanchetty’s mother and associates on the estate as to the modein which he communicated with them and they with him and the easeor difficulty of communication. It would appear that at an inquiryinto the competency of a witness, the judge is not bound by the ordinaryrules of evidence applicable to evidence offered to the jury and in particularhe need not permit cross-examination of witnesses called to prove ordisprove another’s qualifications—vide Wigmore, s. 487. Though ajudge need not permit cross-examination of the other witnesses it isopen to him to do so and in the circumstances of a particular case ifjustice requires that cross-examination should be permitted a judgewill without doubt permit it. The examination of the witness on voirdire and the hearing of evidence from other witnesses should be madein the presence of the jury for though the decision as to competency isthat of the judge the jury may find assistance from what is said oroccurs at the inquiry in deciding what weight should be given to theevidence of the witness if he is found to be competent and is allowed togive evidence—vide Sex v. Reynolds2.
The inquiry is held for the purpose of enabling the judge to decidewhether intelligence can be communicated to and received from thewitness; whether the witness has the capacity to give an account ofwhat he has seen and heard and to understand the questions put to himand to give rational answers to them. The judge has also to decidewhether the witness understands the obligation to speak the truth. Ifcommunication with the witness is not possible the judge will of courserule that he is not competent. If the judge is satisfied that communicationwith him is possible, that he has necessary capacity and understandsthe obligation to speak the truth he will rule that he is a competentwitness. In Sex v. Imrie3, it was held that the evidence of a deafwitness unable to express himself intelligently which cannot be faithfullyinterpreted must be excluded altogether. In Sex v. Whitehead 4 a witnesswas admitted as competent to give evidence but in the course ofher giving evidence it became apparent that she did not understandthe questions and her answers could not be relied upon. The judgeasked her to stand down and struck out and withdrew her evidencefrom the jury.
The right of the defence to cross-examine the witness is not to beoverlooked and where the possible means of communication completelynegatives any real cross-examination the court may not consider thewitness competent:Wigmorp states, “ Where the cross-examination
1 1965 Oriminal Law Review 372.3 12 Criminal Appeal Reports 282.
* (1950) 1 K. B. 606.* (1866) 14 L. T. 489.
SAMERAWICKRAME, JV—Somaaundaram v. The Queen
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is hampered by the witness’ organic defects of speech, hearing, or thelike, the admissibility of the testimony should be left entirely to thetrial judge. ”—s. 1393.
As a witness should not be sworn if he does not understand the natureof an oath it will be necessary for the judge to consider if the witnessdoes or does not understand the nature of the oath and if he finds thathe does not understand the nature of an oath but understands theobligation to speak the truth whether he should be permitted to testifywithout administering to him an oath or affirmation. In Queen v.K. T. Siripina*, a boy of eleven years who had been held competent togive evidence but to whom no affirmation was administered because hedid not appear to understand the meaning of the words of affirmationhad given evidence. This Court held that the evidence of the boy wasinadmissible. It took the view that s. 9 of the Oaths Ordinance whichprovides that evidence is not invalidated by omission of oath appliesto cases of accidental omission to administer the oath and not to casesof deliberate omission. It stated; “In the case of King v. Dingo2,following a decision of the Privy Council in-the case of Mohamed Sugal EsaMamasan Mer Alalah3, it was held that section 9 applied not only tocases of accidental omission to administer the oath, but also to cases ofdeliberate omission. We find ourselves unable to subscribe to thatview and we prefer the view taken in-the earlier cases”. One ofthe earlier cases referred to was King v. Jeeris4, and it was referred toas the decision of a Pull Bench. It was a decision of three Judges atU time when the Court was composed of more, than three judges and wastherefore not the decision of a Collective Court. That decision was notbinding, on the Bench that decided The King v. Dingo, nor is it bindingon the present Bench. No reason was given in the judgment in TheQueen v. Siripina (supra) why the reasoning or the view taken in King v.Dingo was incorrect. We think that King v. Dingo which followed adecision of the Privy Council is both correct and should be followed.We are therefore of the view that a witness who is otherwise competentand Understands the obligation to speak the truth but does not understandthe nature of an oath or affirmation may be permitted to give evidencewithout the administration to him of an oath or affirmation.
In the present case the learned Commissioner permitted Koolanchettyto give evidence without any inquiry into his competency. As s. 118of the Evidence Ordinance, unlike provision in certain statutes in forceelsewhere (e.g. the English Children and Young Persons Act 1933, s. 38),does not expressly or impliedly, by requiring the court to form an opinion,postulate an inquiry, the holding of an inquiry by the judge is a matterof prudence. The failure of the learned Commissioner to hold an inquirywas therefore at the most no more than an irregularity. Nevertheless,there were circumstances to which I have already referred which made it 1
1 {1962) 65 N. L. B. 545. "8 1946 Appeal Cases 57.
8 {1948) 50 N. L. B. 193.„* (1905) 1 Balasingham’s Reports 185.
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desirable for some consideration to be given to the question whetherthe special interpreter was in a position to understand the signs madeby Koolanchetty and to make the latter understand his signs. Therewas the further circumstance that the same interpreter had functionedat the time of the police inquiry and their interrogation of Koolanchettyand when the latter gave evidence at the magisterial inquiry. Therewas a danger that the knowledge of the facts which the interpreter hadacquired might have unconsciously affected his interpretation andprevented it from being as impartial as it might otherwise have been.It is to be noted however that certain contradictions from Koolanchetty’sevidence at the magisterial inquiry of his evidence at the trial courtwere marked. It would have been preferable if another interpreterwas employed at the trial court and it is to be hoped that at the retrialanother competent interpreter will be found and employed.
The learned Commissioner failed to ascertain whether Koolanchettyunderstood the nature of an oath or affirmation before an affirmationwas administered to him. This was at the most an irregularity andwould not affect his evidence. But the learned Commissioner also failedto satisfy himself that the witness understood the obligation to speakthe truth before he allowed the witness to give evidence. The learnedCommissioner, in his summing-up, treated the evidence of Koolanchettyas that of any other witness and failed to direct the jury that they shouldexamine his evidence with care and consider in particular whether theywere satisfied, having regard to the mode of communication, that whatthe witness wished to convey was coming through to them withoutdistortion and whether they should make some allowance for possibleerrors or inexactitudes.
There were therefore infirmities in the way in which the evidence ofKoolanchetty was placed before the jury and dealt with by the learnedCommissioner. His evidence alone, apart from the statements of thedeceased, incriminated the appellants. As I have stated above therewas also a failure to give directions which were necessary in regard tothe statements. In the circumstances, the convictions could not stand.There was however, evidence led from other witnesses in regard to themovements of Koolanchetty which showed that he must have been awitness to the attack on the deceased and this supported his evidence.The actual attack on the deceased, according to this witness, was onewhich was simple to describe and easily conveyed by signs. Therewas therefore evidence before the Court on which the appellants mightreasonably have been convicted. Accordingly, we ordered a. freshtrial.
Case sent back for afresh trial.