Some British judges and experiences in outstation courts

Excerpted from the Memoirs of Cabinet Secretary BP Peiris

Sir Sydney Abrahams, Chief Justice, who had succeeded MacDonnell, said that on behalf of the little band of brothers of which he was proud to be the captain, he wished to tell his eldest brother how much they would miss him, how much they loved him and how much they admired him. Poyser left to assume duties as the Chief Justice of the Straits Settlements.

Of Abrahams, I know very little because, shortly after his assumption of office, I left the Bar for Legal Drafting. I do know that he insisted that R. V. Perera should take silk and should take his oaths wearing the Chief’s silk gown. I believe Abrahams left after some displeasure with the Government following the famous Bracegirdle case.

I must now speak of the few occasions on which I appeared in our outstation courts. I have mentioned how I came to be in my uncle Jayawickrama’s house at Matara on the day before a rape case in which I was his junior. The Magistrate was a man who was puffed up with his own pride, thought a great deal about his own self, used unjudicial language from the Bench and could be nasty to anyone, including senior members of his Bar.

My uncle told me that in his 30 years at the Bar, he had not had a “breeze” with the Bench, and had accordingly, during the whole of that Magistrate’s three year term as judge in the town, consistently refused to accept briefs in his court. He asked me to appear in court the next day and also give his own appearance. I was in court with my barrister’s blue bag on which were marked my initials. I was happy to meet three colleagues from the Law Library who had set up in practice there – R. H. E. de Silva, A. F. Wijemanne and Fred Alles.

An excise case, having been called before mine, the Excise Inspector got into the box and made his complaint to the effect that he had arrested the accused woman for being in possession of illicit toddy. The pot of toddy was produced in court. The judge listened to the Inspector’s evidence without putting pen to paper. He then told “the Inspector to clear out of court without wasting his time. He asked the Inspector to put his time to better use without harassing poor innocent women. He then called the woman and asked her to take her pot away which she proceeded to do.

She was then called back and asked why she removed the pot if it was not her’s. Receiving no reply, the judge fined her two rupees. Up. to now, the judge had. recorded no evidences, and, I asked Wijemanne about this new procedure. I was told that the judge often acted in this manner. He would record a summary of the Inspector’s evidence and add, “Accused pleads guilty – fined two rupees”. The senior proctors did not dare to file a petition of appeal. In order to avoid incurring the displeasure of the judge, they paid a junior a fee for his signature on the petition.

The next case was one of Wije’s which was down for legal argument. When he had developed his argument and started to quote a judgment of the Supreme Court, reported in the New Law Reports, the pompous man on the bench interposed “Don’t bother to cite Supreme Court law to me. I gave a judgment to the same effect some time ago, and I prefer to follow mine.” There was a sharp interchange of words on this between judge and advocate. Wije, at that time, had that youthful short temper. My recollection is that he packed up his books and left the court without completing his submissions.

With this introduction to a type of Magistrate I had not met before, my case was called. I informed the court that Mr Jayawickrama appeared with me for the accused. “Who? Our Sylvester?” asked the judge, and continued “He never appears in my court. I should like to have him in my court. I will give you a date. What’s your name?” Now, this last question is one which a judge never puts to counsel in keeping with the etiquette of the Bar, the assumption being that the most junior advocate is well known to the judiciary of the country.

Normally counsel appearing for the first time in a strange court hands a chit with his name well in advance to the Secretary of the court and this chit is discreetly passed to the Bench when his case is called. To the question what my name was, I said “B. P. Peiris”. The judge apparently did not hear and, cupping his hand to his ear, kept repeating “D. P. ?” I turned my blue bag with my initials towards him. He looked at it, was obviously annoyed, but nodded.

He again asked me to take a date to allow Mr Jayawickrama to appear, but I protested, saying that the clients had been put to a deal of expense and that I was ready to go on with the trial. The Prosecution was therefore asked to lead evidence. The first witness was the Government Medical Officer who had examined the twelve year old girl who had been raped. The girl’s mother, a good-looking woman, was in the employ of the next witness, another doctor, who was a cousin of the judge.

When this witness, to whom the first complaint had been made, was in the box, the judge asked him “May I know, Doctor, in what capacity the girl’s mother is employed under you”. “As the ayah to my children,” answered the witness. Said the judge “I will put that down on the record, Doctor, to make the position quite clear.” After the evidence of the two doctors the judge forced a date on me and I had to submit. I did not appear on the next date; nor did my uncle. He probably asked the proctor to carry on. The judge “retired” a few years later to resume his practice at the Bar.

I appeared, some months later, before an equally arrogant man who was Magistrate at Gampola. My father’s brother, a poor man, was trying to eject a tenant, after due notice, from a small tea land which he owned. I was appearing pro deo. Having no car, I went to Gampola by train. The proctor for the tenant was E. G. Jonklass who came to court accompanied by two labourers carrying suitcases, said to contain law books, on their heads. My proctor asked me not to be nervous; the suitcases were there everyday but they had never been opened.

Jonklass obtained seven postponements in all. I was then compelled to tell the judge that I was determined to see the case to its conclusion and asked for a short date. He fixed a day three days later and said he would take the case up on that day even in the absence of Mr Jonklass. I wasted three days on each trial date, one to go up by train, one for the trial and one to come down; and the judge knew it. I said I would have to stay in the town. He said “Well, stay here, its a nice town; have a look round the place.”

In the evening, I paid a courtesy call on him with no intention at all of discussing the case. We were both advocates and I saw nothing improper in it. A very interesting conversation, over whisky found the time passing quickly. It was 9 p.m. and I stood up to leave. The judge said, in parting, “Peiris, I hate that fellow Jonklass; he had all the Civil Service judges in his pocket with his big house, his tennis court and his bridge parties. He can’t have me. I’ll give you judgment but I am weak on the civil law. Direct me.”

‘What ho!’ I thought, I was a bloody fool to have come. But, having come, what was I to do? Tell Jonklass? Tell my proctor and throw up the brief? Was it the judge speaking, or the whisky? My mind was confused as I walked away fulminating. In the end, I decided to lie doggo, take Sandara’s advice, and go into court with an open mind. In court the next day, it was smooth sailing at about five knots. I was asked to submit my argument at dictation speed and every word was taken down. The judgment was so strongly in my favour that even the appeal court could not upset it. Here, I felt, was another unjudicial judge. He also “retired” prematurely and started practising in another outstation.

T. F. C. Roberts, my good friend, took up his first judicial appointment as Magistrate of my home town, Panadura, and as friends, we visited each other frequently. Naturally, I did not expect him, by reason of our friendship, to extend to me the slightest preferential treatment if I had occasion to appear in his court. I did appear once, again pro deo, and had to call a number of witnesses to prove that my client, who was charged with theft was, at the time of the alleged offence, several miles away from the scene of the offence.

Although, at this time I was living at Panadura, I was considered as “Colombo Counsel” and my case was called first. The judge had a heavy roll that day and lost his temper when I had seven witnesses. “All you people seem to think, when you come here, that you are in the Supreme Court. You must remember that this is a summary trial,” to which I replied that a summary trial was not necessarily a short trial, which appeared to make him more angry. “Call them all, call them all”, he shouted at me, referring to the witnesses, and after hearing them, gave my man the maximum sentence.

Lalitha Rajapakse appeared free for my client in appeal and got him off. Fortunately, there are still honourable members of our profession who are willing to appear and who have appeared pro deo in certain circumstances for clients who are unable to pay their fees or when they are called upon to assist the court. Among these are eminent and expensive silks. But why should these gentlemen be asked to give their time and their services to save an innocent pauper who has been ordered to undergo some punishment by a judge who is peppery and impatient, or who, that morning, has had a quarrel with his wife, or whose qualities are such that he should never have become or been appointed a judge?

In another case before judge Roberts, a friend of mine, a photographer in Panadura, was charged with the theft of a Colt revolver from a British soldier who was, at that time stationed in the town. My friend had volunteered for service in the war of 1914-1918, had fought at Gallipoli and at other places in France and returned home safely with a long row of medals. In World War II, he used to entertain the British soldiers in the town lavishly in his studio. He was not the man to steal the revolver of another soldier.

Only one witness was called for the defence, my father, Gate Mudaliyar Edmund Peiris, J.P., U.M. who gave evidence as to the good character of the accused. Judge Roberts found him guilty and imposed the maximum penalty, I believe, six months jail. My friend, A. H. C. de Silva appeared for him in appeal before Dalton J. I advised my client to come to court with all his medals pinned on his breast and sit in the last row at the very back of the court. At the end of counsel’s argument, Dalton asked whether the accused was present in court and, to a reply in the affirmative, said “Let him stand up”. He studied the man’s medals for some time, he probably recognized them, and dictated a judgment returning the case to the Magistrate for the imposition of a nominal fine of one rupee.

In concluding this Chapter, I must refer to the three bits of advice which B. F. de Silva gave me at the beginning of my career as an advocate: about reading the New Law Reports – I did that assiduously, indexing every case.

About not appearing for less than one guinea, I have a story. A proctor friend of mine asked me to come to the Court of Requests instead of wasting my time in the Appeal Courts and promised to give me all his work and that of a friend of his provided I showed my bona fides by just sitting in this crowded court for two weeks. After two weeks, I told him I had done so and he immediately gave me a brief for the next day. Inside the brief was a five-rupee note. I asked him what the money was for and was told that it was my fee. I told him that my fee was one guinea and was rebuked for standing on my dignity. I was asked why I should be paid a guinea when he was able to retain the then most senior advocate practising in that court for the same fee. I handed the brief back and never entered the Court of Requests thereafter.

About never signing a proctor’s receipt for more than the actual fee paid, I have, again, a story. I had been retained as junior to a silk and had been paid the usual guinea but had not been given a brief, with the result that I did not know what the case was about. We were for the respondents and were not called upon to speak. In due course, the proctor brought the bill of costs for my signature “Fee paid to Mr Advocate B. P. Peiris. 3 Guas”. I said I was paid only one guinea and would sign for that.

Then came the bargaining as if I was buying half a pound of brinjals off a basket-woman. “These are hard days, Mr Peiris, I’ll give you another guinea and you sign for three. We’ll split the difference.” I told him that if he gave me another guinea, I would sign for two. I did not get the other guinea. I signed for one, and I never got another brief from that proctor again. B. F., that honest and upright man, must have known all about the dishonesty in the profession and the tricks of the trade.