1935 Present: Drieberg J.

THE KING v. LUDOWYKE.

IN THE MATTER OF AN APPLICATION UNDER SECTIONS 47 AND
48 OF THE COURTS ORDINANCE, NO. 1, OF 1889.

P. C. Galle, A 4,032.

    Transfer of a sessions trial-Application for retransfer-Special jury-Accused charged with misappropriation of funds of a club-Interest of members -Fair and impartial trial not possible-Criminal Procedure Code, ss. 135, 262, 265, 274-Courts Ordinance, s. 47.

The accused was charged with criminal misappropriation of funds entrusted to him as Assistant Sweeps Secretary of the Galle Gymkhana Club and was committed for trial at the Supreme Court Criminal Sessions at Galle. The Attorney-General acting under section 47 of the Courts Ordinance by his fiat transferred the case to the Sessions of the Western Circuit to be held at Colombo.

The case was ordered to be tried by a special jury and the jury list at Galle consisted of one hundred and nine members of whom forty were members of the Galle Gymkhana Club.

Held, (on an application by the accused for a retransfer of the case to Galle) that, in the circumstances a fair and impartial trial cannot be held at Galle.

The rule that every offence must ordinarily be tried by a Court within the local limits of whose jurisdiction it was committed is enacted not only in the interests of and for the convenience of accused but also on grounds of public policy, and the necessity is greater in the case of trials by Judge and jury than in trials by a Judge alone. A departure from this rule should only be permitted in exceptional circumstances.

THIS was an application under section 47 of the Courts Ordinance.

H. V. Perera (with him Amarasekere), for the accused.

Obeysekere, Deputy S.-G. (with him Schokman, C.C.), for the Crown.

February 15 1935. DRIEBERG J.-

The accused was committed for trial at the Supreme Court Sessions at Galle; the inquiry was by the Police Court of Galle. The Attorney-General, acting under section 47 of the Courts Ordinance, by his -fiat transferred the case to the Sessions of the Western Circuit to be held at Colombo. The Attorney-General then moved under section 222 of the Criminal Procedure Code that a special Jury be summoned to try the case.

The accused applied, under the provisions of section 47 of the Courts Ordinance, for a retransfer of the case to the Southern Sessions to be held at Galle.

Both applications were dealt with on the same day.

Mr. H. V. Perera for the accused did not oppose the application for a special jury. The trial will involve the examination of accounts extending over several years, there are four hundred and eighty-nine documents listed on the indictment and I think it most desirable that a case of this nature should be tried by a special jury.

The accused applied for a transfer to Galle for several reasons. The first ground is the greater expense he would have to incur in bringing his witnesses to Colombo. The second is the greater cost of the services of his proctor and his junior counsel, who is a member of the Galle bar. if they had to appear in Colombo. The third is the state of his health. The fourth is that if he had to appear in Colombo, the trial is expected to take three weeks, he would lose a certain income which he could continue to draw during the trial if it is held at Galle. The fifth is that no sufficient reason was shown by the Crown why the trial should not be in Galle.

There is no substance in the first ground, for the batta of witnesses for the defence, if summons on them have been duly obtained, will be paid by the Crown.

As regards the second objection, if counsel from the Colombo bar is to lead for the defence, and it is suggested that this is so, his services can be secured at a lesser fee to appear in Colombo than at Galle and this saving would make up to an appreciable extent for the greater expense of the appearance at Colombo of the accused's junior counsel and pr