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KING v. RAMASAMY
NLR42V529
[COURT OF CRIMINAL APPEAL.]
1941 Present: Moseley S.P.J., Soertsz and Wijeyewardene JJ.
THE KING v. RAMASAMY
25-M. C. Nuwara
Eliya, 3,844.
Evidence of child-Oath deliberately not administered-Not a case of omission under Oaths Ordinance ss. 4 and 9 (Cap. 14).
Where the unsworn testimony of a child of tender years was deliberately admitted on the ground that the Judge was of opinion that the child did not understand the significance of an oath or affirmation,-
Held, that the evidence was inadmissible as the deliberate non-administration of an oath or affirmation does not amount to an act of omission within the meeting of section 9 of the Oaths Ordinance.
THIS was an application for leave to appeal from a conviction for using criminal force.
No appearance
for applicant.
E. H. T.
Gunasekera, C.C., for A.-G. as amicus curiae.
October 6,
1941. MOSELEY S.P.J. -
This is an application for leave to appeal on the facts against conviction for using criminal force. Assuming that the evidence of the principal witness for the prosecution, viz., the girl whose modesty is alleged to have been outraged, is admissible, we are unable to say that the verdict of the Jury is unreasonable or that it cannot be supported having regard to the evidence. The girl, at the date of the trial, appears to have been eight years of age. She was questioned by the trial Judge who satisfied himself, in accordance with the provisions; of section 118 of the Evidence Ordinance (Cap. 11), that she was capable of giving evidence. She was not, however, allowed to be affirmed since, in the opinion of the trial Judge, she did not understand what is meant by affirmation. I may add that the Jury were carefully warned as to the effect of this procedure upon the value of her evidence.
The point that arises for decision is whether or not, in view of the provisions of the Oaths Ordinance (Cap. 14), the evidence of the girl was admissible.
Section 4 of that Ordinance provides that oaths (or affirmations) shall be made by " all witnesses, that is to say, all persons who may be lawfully examined, or give or be required to give evidence . . . . " Section 9 enacts that " no omission to take any oath or make any affirmation, .... shall invalidate any proceeding, or render inadmissible any evidence whatever in or in respect of which such omission .... took place".
There can be little doubt but that section 9 is capable of curing an omission due to inadvertence, or evasion on the part of a witness. Does it correspondingly cure an omission which, as in the present case, is advisedly made by the Court ?
As far as we have been able to ascertain the only local authority on the point is the case of The King v. Jeeris.[11 Balaxing
