Amusing and interesting courtroom experiences in pre-Independent Ceylon

Excerpted from Memoirs of a Cabinet Secretary by BP Pieris

We have an unusual practice at the Ceylon Bar where lawyers address each other by their Christian or nicknames. This in not the English practice where the rawest junior addresses the most senior silk by his surname. This was forcibly brought to my notice when I accompanied a friend of mine who wanted to meet Sir Henry Curtiss-Bennett regarding his call. When my friend addressed the silk as “Sir Henry”, he said, “Good Lord, to you I am just Curtiss-Bennett”.

My first case in the Supreme court was at the Colombo Assizes before Akbar J. I was assigned by the Crown to defend in a murder case. I took all possible pains over my brief and, when it was my turn to address the jury, put forward what I thought was a fairly good defence. Akbar, in his summing-up, did not put a single one of my points to the jury, and I was too nervous as a beginner to interrupt him. The jury found the accused guilty. The electric fans were stopped; the judge put the black cap on and passed sentence of death.

There was no Court of Criminal Appeal at the time. I mentioned the matter of the summing-up to a few senior lawyers and I was advised to see the judge in chambers next morning and explain my point of view to him. He received me courteously and listened to me with a great deal of patience. At the end of it, I was surprised to hear the judge telling me that I was probably right, that he had had a doubt in his own mind, that he had no sleep the previous night and that he had already recommended to His Excellency the Governor that the sentence of death be not carried out.

He gave me his report to read and said he had typed it himself as his mind was troubling him. He told me that the sentence would be altered to one of life, that is, 20 years, which, with remission for good conduct, would amount to about 14 years. I went to see the man in prison and asked him, now that sentence had been passed on him, to tell me the truth as regards his guilt or innocence. He said he was a religious man with a wife and several children and that murder was not in his line.

Early in my career, I had to see Mr Justice Drieberg in Chambers over a habeas corpus application. I was again nervous about seeing a “live” judge in Chambers, by which I mean a judge without robes and wig, working away in his shirtsleeves. On my knocking at his door, I was asked to come in. The judge rose and shook hands and inquired what my business was. He inquired who was on the other side and desired to see both counsel together. He then stood up, which meant that the interview was over, came across his table to the wing door which he opened in person and bowed me out. I wish there were more men like that in high places showing courtesy to younger fellows and the public.

Soertsz J. held his drinks well but, at work, was a peppery old bird. He was an extremely good speaker, particularly after dinner. In his charges to the jury, the sentences ran, clause within clause, grammatically correct. His sentences were so long that they reminded one of Walter Scott’s novels or a chapter of Thucydides. He was a master or the classics who read some Greek or Latin every morning before he came to court. He had no patience with counsel who wasted his time or who indulged in irrelevancies. On days when he had to pass a sentence of death, his whole household knew from his manner what had happened in court. The judge was in a bad mood; the family had to keep silent because the slightest talk or noise would upset him. It is said that, on these occasions, even his Alsatian crept under the dining table.

At an Assize trial, counsel was trying to make a big point before Soertsz, thumping the Bar table and asking the witness “You say here that you were four fathoms away from James when the stabbing took place. Did you say in the Magistrate’s court that you were together?” Soertsz J.: “Mr…, when the witness says they were together, he does not mean that they were Siamese twins.”

On another day, again at Assizes, a most amusing bit of conversation took place before Soertsz. Defending counsel was not very senior at the Bar and not very good in the subtle use of English words. He just got there in his questions; but only just. Something occasionally misfired in the use of a word. It was a murder trial, and a small boy had completed his evidence. The next witness was the boy’s mother, a very good-looking village woman in her early 30s. Counsel asked “Are you the mother of the previous witness?” Answer, “Yes”. Counsel: “And who is the father of this boy?” The judge, with a slight show of loss of temper at this waste of time asked, “Really, Mr…, is all this relevant to this murder case?” And counsel replied, “My Lord, I will not press the question as it appears to be embarrassing to your Lordship.”

Of Garvin J., I have the pleasantest memories. He had been my father’s classmate at the Royal College. The Editor of the New Law Reports had asked me to report a case regarding a dispute about the sale and purchase of rubber, the amount in dispute being over two lakhs of rupees. The point was taken that there was never any intention to purchase the rubber, that only the difference was to be paid according as the market price rose or fell, and that therefore it was a gaming and wagering contract unenforceable at law.

On the Bench were Garvin and Akbar J. For the appellant was H. V. Perera; against him Soertsz. The judges were told that there might be an appeal to the Privy Council. The law of wagering was traced from the Twelve Tables downwards. All the available law was cited and the Bar table was an array of books. There was a book on the subject by Perezius, a Latin writer, an enormous book about the size of a bound edition of the Times of Ceylon, covered with the dust of the Law Library and which no one on the Library had ever looked at. The judges insisted on looking into the book and it was dusted and brought in, flagged at the proper page and handed to H. V. who said “My Lords, this is in Latin”.

Soertsz rose and said “My Lords, I will translate the relevant passage for Your Lordships”, and went through the passage like a Latin unseen in our school days. The judges wanted a written translation in English which was furnished by E. B. Wikramanayake, who also translated and published a complete work of Perezius.

Professor Lee, in his book on Roman-Dutch Law which the judges now looked at, had, in a footnote, referred the reader to a very useful article on wagering contained in a certain volume of the South African Law Journal which the court wanted but no one seemed to have. A hurried search of the Judges’ Library, the Attorney-General’s Library and the private libraries of the leading Colombo lawyers proved fruitless. I told Soertsz that my uncle Jayawickrama had the book in his library at Matara and, at Garvin’s request, a telegram was sent to him asking him to be kind enough to lend the book. The book was sent; but it was not returned-by the court.

About five months later, I was retained in a rape case at Matara as Junior to my uncle. I drove to his house the previous evening and he complained to me of the probable loss of the book by its loan to the Supreme Court. The set of volumes had lost its value. He did not wish to write officially to the court, but asked me, on my return, to speak to Garvin. And there I was, a few days afterwards, standing before Garvin’s chambers, waiting for the Judge’s return for lunch. While he was having his sandwiches, I related the story of the unreturned book. He was very angry and there and then dictated, to his private secretary, a personal letter of apology to be sent along with the book. In reprimanding his secretary, the judge to my surprise, used one of those famous four letter words which has not yet got into the dictionaries.

Duff House case

The Duff House case, where, Stephen Seneviratne stood charged with the murder of his wife by chloroform, came for trial before Akbar. R. L. Pereira was defending with M. W. H. de Silva, Solicitor-General, and Wendt, Crown Counsel, appearing for the crown. Wendt, a straight man, told me years later, that he was miserable throughout the case. He did not go into detail. Apparently, there were many features grating against decorous judicial behaviour. The jury found the accused guilty and sentence was passed.

There was an appeal to the Privy Council which was allowed. Akbar resigned shortly afterwards. There was something which I found very difficult to explain in Akbar’s attitude whenever a person of some education and respectability appeared before him as an accused. There was the case where a silver-haired Tamil gentleman, shroff in a Bank, stood in the dock between two Fiscal’s officers, accused of fraud. He did not look to me the type of man who would throw an ink pot at the Judge, but as soon as the jury returned a verdict of guilty, the judge said “Handcuff the prisoner”.

Mr Justice E. W. Jayewardene, father of J. R. and Corbett, was portly and pompous, and at the same time, a kindly and dignified man who, on coming on the Bench, carefully placed a few of his personal belongings, like his gold watch, on his desk. He was familiar with his Bible and his Shakespeare and expected counsel to be equally proficient. He was also fond of cracking a joke and appreciated a crown counsel who was able to make an appropriate and equally humorous remark in reply.

In a murder trial before him, in which Crown Counsel E. H. T. Gunesekera was prosecuting, the Police Inspector was giving evidence and producing several pieces of bloodstained clothing which the deceased, a basket woman, had been wearing at the time she was stabbed to death. There was a bloodstained camboy marked P1, a bloodstained jacket marked P2, and when the Inspector produced a bloodstained chemise marked P3, the judge interjected “Mr Crown Counsel, do basket women wear chemises?” Replied E. H. T., “My Lord, I am not acquainted with the undergarments of basket women”. “Proceed with the case, Mr Crown Counsel,” said the Judge.

On another occasion, again with E. H. T. for the Crown, a string of Sinhalese village witnesses with names like Charles, James, David, had given evidence when the Judge asked “Why these names, Mr Crown Counsel? Haven’t we got good old Sinhalese names?” To which the prosecutor replied that no blame could be attached to these poor villagers for following those more and better educated who preferred to call their sons Richard and Corbett. Crown Counsel was asked to proceed with the case.

This was not rudeness on the part of the judge. He just enjoyed the ready wit even though, at times, it was a hit at him. The foreman of the jury was once dozing in the jury box. E. W. J. would not address him. Instead he said “Mr Registrar, will you please wake up the Foreman of the Jury.” I don’t think the judge was ever known to lose his temper on the Bench. This is a quality inherited by the sons.

MacDonnell, Chief Justice, was a classical scholar from Oxford and a contemporary of Lord Birkenhead. When MacDonnell disliked an argument, he had a habit of slipping down his chair, with the result that he could not be seen from the Bar Table. He held a blue pencil in one hand and a red pencil in the other, and used both pencils and hands to mark his brief, blue for points with which he agreed, red for those contra.

Each day, the briefs for the following day were put into his car. He took these with him to the Galle Face k, and, with his car parked under one of the street lamps, read them all and marked them with his two pencils. Where the trial judge had said that he agreed with the evidence of a witness, the Chief also often agreed and underlined the relevant passage in blue. If the judge had said he disbelieved the evidence, the passage was marked in red. It was thus possible, by looking at the judge’s brief, to see which way his mind was working.

My good and dear friend, James Homer Vanniasinkam who is now dead, had a case before the C. J. in which he was appearing for the respondent. He had a brainwave. The marked briefs were returned to the Registry each morning to be placed on the judge’s desk before court sat. James looked at the brief and found the underlining to be in his favour. He marked his own brief accordingly.

Appellant’s counsel did not have an easy passage with the judge. James rose to reply and did not waste the time of the court. He referred to the “strong” judgement of the trial judge, and the C. J. bowed. He then, shortly referred to page 2, line 5; page 6, line 10, and so on, and each time, the judge gave a polite bow. After about eight of such references, James bowed in turn and sat down. The Chief said “Thank you, Mr Vanniasinkam for putting your case so concisely. It’s amazing, but the identical points struck me last night.”

MacDonnell bought a small Austin motor car and learned to drive. He drove at about five miles an hour up San Sebastian Hill, with the driver seated by his side. Protruding on the right of the driving seat was a peculiar fixture, an artificial hand which was worked from a switch on the dashboard. This worked palm downwards vertically to indicate that the judge was going to slow down, and palm forwards horizontally to indicate that he was ready to be overtaken. The gadget was used liberally by the Chief.

Poyser J., in his last year, was Senior Puisne. As a judge, he was silent and polite. Every member of the Bar liked and respected him. He was, if I may say so, a popular judge. This may not be an appropriate epithet to use in reference to the holder of judicial office, but fact, the undoubted, inexplicable and obvious fact of his popularity, was there. Perhaps, it was the smile on his lips; or it might have been that twinkle in his eye. I do not know. But the Bar, which rarely accords a farewell to a retiring judge except by their presence in court when the Attorney makes his customary farewell speech, rose spontaneously in a body and accorded Mr Justice Poyser a lunch at the Galle Face Hotel.

More than one hundred lawyers, including judges, sat. R. L. Pereira, in proposing the toast of the chief guest, said that he was proud of the fact that he had been asked to give utterance to the mingled feelings of joy and sorrow of the Bar on the promotion of Mr Poyser. He continued: “I can say that we have always found Mr Poyser to be a courteous, patient and painstaking judge. The belief in British justice is as widespread as the British Empire is far-flung and if anybody has done his best to maintain that belief, it is Mr Justice Poyser.

“This is neither the time nor the place for any comparisons to be drawn, but this can be said, that Mr Justice Poyser has made himself a most excellent judge. Coming here to a new system of complex land laws, he soon tackled the problems before him, and in a short time, showed a complete mastery of the laws prevailing in this country. Those of you who have appeared before him will know with what unfailing patience he listened to the rawest junior arguing the complications of a case. Mr Poyser has always listened to them with interest and attention and has made them feel that the points they were urging were fully appreciated and considered by him.

“Our sorrow at his departure is, in a measure, relieved by the fact that he is going on well-earned promotion. After all, it is not possible for a man to resist the temptation of higher office, better salary and the prospects of earning a good pension. From that standpoint, we congratulate him on his good fortune. As a matter of fact, we were surprised that his capabilities were not recognized much earlier. A bird, however, has whispered to me that many promotions did come his way, but his love for Ceylon was so great that he turned them down.”