1927 Present: Lyall Grant J.

[Second Southern Circuit 1927.]

KING v. PINDORISSA.

21-P. C. Tangalla, 19,895.

Deaf and dumb prisoner-Inability to understand proceedings-Treated as of unsound mind-Detention during His Excellency's pleasure-Criminal Procedure Code, ss. 368 and 369.

Where a deaf and dumb person was put upon his trial for murder and the jury found that he was unable to understand the nature of  the proceedings and to make a proper defence,-

Held that the accused should be treated as a person of unsound mind and detained in custody until the pleasure of the Governor be made known.

THE accused, who was deaf and dumb, was charged with murder before the Supreme Court Criminal Sessions at Galle. After the evidence had concluded, his Counsel raised the point that the accused was unfit to stand his trial as he was unable to understand the proceedings against him. Thereupon the Judge charged the jury to consider the point first. The jury returned the verdict that the prisoner was not in a condition sufficiently to understand the proceedings against him.

William Silva, for accused.

J. E. M. Obeyesekere, C.C., for the Crown.

December 6, 1927. LYALL GRANT J.-

In this case the prisoner, who is accused of murder, was found to be deaf and dumb. The Magistrate, with the aid of an Interpreter, took the preliminary proceedings, and after reference to the Attorney-General committed the accused for trial. On the case being referred to me some time since, under section 288 of the Criminal Procedure Code, I made an order that the accused should be kept under observation by a Medical Officer for a fortnight and that he should be reported upon. The Medical Officer reported that he found the accused to be dumb, but from his general behaviour, appreciation of his surroundings, and his understanding by means of signs he formed the opinion that he was of sound mind, that he did not appear to be insane, and that he was capable of making his defence. On this the case was forwarded back by the Magistrate, who said: "I am of opinion that the accused is of sound mind." When the case came on for trial

the question of the accused's unfitness to plead was not again brought before the Court, and the trial went through the ordinary stages. The accused himself went into the witness box and was cross-examined and, so far as I could judge, he appeared to understand all that was said to him. In his address to the jury Counsel for the defence suggested that the fact that the prisoner was deaf and dumb, and the doubt whether he was therefore capable of following the proceedings in Court might be a ground for the jury taking the view that he was unfit to stand his trial. The contention appeared to me to be a sound one, and I charged the jury that they should, in the first place, consider the question whether the accused was capable of making his defence, whether he sufficiently understood the proceedings, what was alleged against him, what he was entitled to do and say, and his power to bring forward witnesses in his own defence. I charged the jury that they should thirst consider this point, and that if their answer was that the accused was incapable of making a defence they should not apply their minds to the question of whether or not he was guilty. The jury upon this returned the following verdict: " The prisoner is not in a condition to sufficiently understand the nature of the proceedings and make a proper defence owing to the fact that he is deaf and dumb and not on account of unsoundness of mind." On my questioning the foreman as to the precise meaning of their verdict, he informed me that the jury thought that the prisoner was not able to understand the nature of the proceedings or to make a defence as he was deaf and dumb. They were not satisfied that he was able to understand the proceedings or to make his case understood through the special Interpreter. They said tha