REX v. BABA.

Evidence Ordinance, ss. 57, 60-Right of counsel to read to the jury opinions of experts expressed in a treatise, after intimating to the Judge that he would not call evidence for the accused-Procedure.

Where, in a trial for murder, after the case for the prosecution had been closed, the counsel for the accused intimated to the Court that no evidence would be called for the defence, bat in addressing the jury announced his intention to read from Taylor's Medical Jurisprudence certain 'opinions expressed therein relative to homicidal mania,-

Held, that the ruling of the presiding Judge, that the counsel had then no right, under section 60 of the Evidence Ordinance, to read the extracts which he had in view, was correct.

Moncreiff, A.C.J.-If the learned counsel had produced the book in Court in the course of the case for the prosecution, or by way of evidence, or had put the passages he desired to quote to the medical witness while he was in the box, or in any other way had done what in the meaning of the Evidence Ordinance would amount to production, he would have been in order.

Wendt, J.-If the counsel for the accused had intimated his intention to adduce evidence, and tendered in due course the book as evidence, it would have been his duty to satisfy the Court that the conditions precedent mentioned in the first proviso of section 60 of the Evidence Ordinance had been complied with; and upon the particular passages being tendered, it would have been open to the prosecution to insist that the context of the passages should also be put in as tending to make the meaning of the author clear.

MR. Justice Middleton reserved for the consideration of the other Judges of the Supreme Court the following point, which arose at the trial of the accused at the Galle Sessions holden on the 19th May, 1902.

His Lordship's statement was as follows: -

(1) The accused was tried for murder, under section 296 of the Ceylon Penal Code, before me and an English-speaking jury on 19th May, and was defended by Mr. Jayawardene, assigned by me as counsel.

(2) The cross-examination of the witnesses for the prosecution tended to show that the defence raised was insanity.

(3) The doctor who gave evidence was only asked by counsel for the defence if the accused had been in the house of observation; but, after the doctor's re-examination as to accused's state of mind, counsel for the accused, with my leave, elicited from the doctor that he had never seen a case of what counsel styled homicidal mania.

(4) The Crown Counsel closed his case and, upon counsel for the defence stating he had no witnesses, declined to address the jury.

(5) Counsel for the defence then began to address the jury, and announced his intention of residing from a book, said by him to be

written by a well-known scientific authority (Taylor's Medical Jurisprudence), certain opinions expressed therein relative to homicidal mania.

(6) Counsel for the Crown objected to this, and I, after hearing counsel for the defence, who relied on the proviso to section 60 and sub-section (14) of section 57 of the Evidence Code, and who also referred me to page 377 of Field's Law of Evidence in British, India, declined to allow this to be done.

(7) Counsel for fine accused thereupon sat down and refused to continue his address to the jury, on the ground that he had no other defence to offer.

(8) I then summed up, quoting and explaining to the jury the opinion of the Judges given to the House of Lords in Mc Naughton's case, and also drawing their attention to section 77 of the Ceylon Penal Code and to section 105 of the Ceylon Evidence Ordinance. The jury returned an unanimous verdict of guilty of murder, and I passed sentence according to law.

(9) I have to submit for the opinion of two Judges of this Honourable Court whether I was right in refusing to allow counsel to read to the jury opinions from a book which (1) had not been proved to be what