1921. Present : Bertram C.J.

THE KING v. JORONIS et al.

4-P.C. Avissawella, 32,503.

Accused only witness for defence-Time for summing up by Crown Counsel -One of several accused calling other witnesses-Time for summing up-Criminal Procedure Code, ss. 234 and 235.

Where the only witness called for the defence is the accused himself, the appropriate time for summing up of his case by counsel for the Crown is after the accused has given evidence and before the reply of his own counsel.

If there is another person accused on the same indictment and that person calls evidence (other than himself), the summing up of counsel for the Crown may be postponed till the conclusion of the case for that other person, so that counsel for the Crown may sum up as regards one accused person and reply as regards the other in the same speech. In such a case the counsel who called no evidence but his own client has the last word.

THE facts appear from the judgment.

Barber, C.C., for the Crown.

C. S. Rajaratnam (with him Senaratne), for first accused.

Georgesz, for second accused.

September 12, 1921. BERTRAM C.J.-

The question has arisen as to the point in a criminal trial at which Crown Counsel should sum up his case to the jury, where the only witness called for the defence is the accused himself. The matter came up at the Kandy Assizes last year, and there it was provisionally agreed that the summing up in such cases should take place before the prisoner had given his evidence, but it is said that the previous practice had been otherwise. Some inconvenience results from the course indicated, as, if Crown Counsel sums up before the accused has disclosed his defence in his evidence, he is not in a position adequately to address the jury. The practice works out with special inconvenience in certain cases. I have, therefore, submitted the relative section of the Criminal Procedure Code to a fuller examination.

The position appears to be as follows. Our Code was originally modelled upon the Indian Criminal Procedure Code at a time when, according to the Indian system, the accused was not a competent witness in his own defence. It dealt with two cases : Firstly, that

of a trial by the District Court (sections 208-212); and secondly, that of a trial by the Supreme Court (sections 232-237). In the first case the prosecuting counsel was not entitled to sum up the result of the evidence on the conclusion of his case. He was only entitled to a reply in the event of the accused calling witnesses. At a trial before the Supreme Court, on the other hand, prosecuting counsel, if the accused called no witnesses, was entitled to " address the jury a second time in support of his case for the purpose of summing up the evidence against the accused." To this system there is now added the new principle, now embodied in the English Criminal Evidence Act, 1898, that the accused is a competent witness in his own defence. This in Ceylon was the result of section 120 (4) of the Evidence Ordinance (No. 14 of 1895).

Thus, from 1895 to 1898, the prisoner was a competent witness on his own behalf under the old Criminal Procedure Code, and in the provisions of that Code his electing to give evidence did not affect the Crown's right of reply. Now the Criminal Evidence Act, 1898, contained two special provisions, which are in the following terms:-

Section 2.-"Where the only witness to the facts of the case called by the defence is the person charged, he shall be called as a witness immediately after the close of the evidence for the prosecution."

Section 3.-" In cases where the right of reply depends upon the question whether evidence has been called for the defence, the fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply."

The second of these provisions was embodied in our new Criminal Procedure Code passed in the same year (s