Don Piyasena v. Mayawathie Jayasuriya (Ramanathan, J.)
SUDHARMAN DE SILVA
SHARVANANDA, C.J.. ATUKORALE. J. AND TAMBIAH, J.
S. C. APPEAL NO. 45/85.
S. C. (LA) No. 48/83.
H. C. COLOMBO No. 583/78.
AUGUST 5. 1985. ■
Criminal Procedure – Appeal – Right of appeal – Is it available to an accused who hasjumped bail and absconded at the trial ? – Section 14 of the Judicature Act.
Section 14 of the Judicature,Act has specifically endowed an accused who is convictedwith a substantive right of appeal and this right of appeal cannot be taken away fromhim on the ground that he had been acting contumaciously or in defiance of the law.Contumacious conduct on the part of an accused is relevant only where the exercise ofa discretion vested in the court js involved. Here the right of appeal is statutory and canbe asserted as of right by the accused although he had jumped bail and was abscondingat the trial.
Sri Lanka Law Reports
 1 SriL.R.
Cases reffered to :
A. G. v. Sillem (1864) 10 H.L. Cases 704.
Colonial Sugar Refining Co. v. Irving [ 1905] A. C. 369.
Robert Edward Wynyard  Criminal Appeal Reports 413. 421.
APPEAL from the judgment of the Court of Appeal in Sudharman de Silva and Anotherv. the Attorney-General reported in  2 Sri L. R. 12.
Mrs. M. Muttetuwegama. with Miss S. de Silva, for accused-appellant.
D. P. Kumarasinghe. S.S.C. for State.
Cur. adv. vult.
September 9. 1985.
SHARVANANDA, C. J.
This is an appeal against the order of the Court of Appeal, rejecting theappellant's appeal to that court.
This appellant who was the 2nd accused-appellant, along with twoother accused, appealed to the Court of Appeal from their convictionand sentence, on charges of conspiracy to commit robbery of thePeople's Bank at Gangodawila, and of having with other accusedcommitted robbery of a sum of Rs. 634,315.66 from the Manager ofthe People's Bank, at Gangodawila, abetment and robbery of car No.3 Sri 5609. The appellant was found guilty on all counts andsentenced to a term of 7 years R.l. on each count, the sentences torun concurrently. When the appeal came up for hearing before theCourt of Appeal, preliminary objection was raised by State Counselthat the appellant could not be heard in appeal as he had abscondedfrom the trial and the trial against him had proceeded in absentia withthe trial of the other accused who were present and represented at thetrial, and had not made any application to the High Court undersection 241 of the Criminal Procedure Code and shown that hisabsence was for bona fide reasons. State Counsel stated that theappellant had not sought to reopen the trial at the High Court andtherefore he could not be heard in appeal. The appellant had beenabsconding at all relevant times, even at the time of'the hearing of hisappeal in the Court of Appeal. It was the contention of State Counselthat it would be farcical and contemptuous of the law to allow theaccused-appellant under such circumstances to be heard in the Courtof Appeal while he was still absconding. Counsel for the appellant
Sudharman De Silva v. Attorney-General (Sharvananda, C.J.)
contended that as the accused-appellant had plainly absconded andhad no bona fide reason to establish to the satisfaction of. the HighCourt, applying to that court to reopen the case under section 241 ofthe Criminal Procedure Code, served no purpose and submitted thatirrespective of his conduct, the appellant was "as of right" entitled toappeal to the Court of Appeal under section 14(b) of the JudicatureAct No. 2 of 1978, from his conviction and sentence and that thepreliminary objection-was misconceived.
The Court of Appeal held that the conduct.of the appellant injumping bail and absconding up to date was clearly designed tocircumvent and subvert the law and the institutions of justice andtherefore he could not invoke the right of appeal "as a matter of right",as contended by his Counsel and' accordingly upheld the preliminaryobjection of State Counsel and rejected the appeal of the appellant.The appellant has preferred this appeal from the rejection.
The appellant along with others was arraigned on indictment onseveral charges contained in the indictment as mentioned above.Indictment was served on all the accused including the appellant on29.5.1978. Thereafter the appellant had absconded and a warrantwas issued against him and though the surety was noticed to producehim he failed to do so and part of the security was confiscated. Theappellant has since then been absconding. Trial commenced without ajury against all the accused on 1 6.10.1 980. The appellant along withfourth accused was absconding and not present and wasunrepresented at the trial. The trial was concluded on 29.10.1980and judgment delivered on 7.1 1.80. The appellant was found guiltyon three counts and sentenced to a term of 7 years R.l. on eachcount, sentences to run concurrently. The fact that the appellantabsconded after service of indictment is admitted. As it is the fact thatthe appellant had not thought fit to surrender to the High Court duringthe pendency of the trial or after conclusion thereof or sought toreopen the proceedings under section 241 of the Criminal ProcedureCode, Counsel for the appellant conceded that the appellant had nobona fide reason for absconding, Notwithstanding the fact that he wasabsconding, he had through his Attorney-at-Law filed a petition ofappeal to the Court of Appeal within the stipulated time. Counsel forthe appellant also admitted that the conduct of the accused in jumpingbail after indictment was served and in absconding ever since was inno way defensible.
Sri Lanka Law Reports
(1986) 1 SriL.R.
Counsel however urged before us that the appellant had "as ofright", a statutory right of appeal against his conviction and sentenceand that the right of appeal was not dependent on the exercise of anydiscretion in his favour by the Court of Appeal and that the Court ofAppeal had-on irrelevant considerations denied him the right of appeal,which the law has vested him with. Counsel submitted that the Courtof Appeal had fallen into error in denying the appellant his right ofappeal which he was entitled to by virtue of the provisions of theJudicature Act No. 2 of 1978. In order to determine the validity ofcounsel's contention, it is necessary to examine the language of therelevant provisions relating to the appellate jurisdiction of the Court ofAppeal.
Article 138 (1) of the Constitution spells the appellate jurisdiction ofthe Court of Appeal. It provides –
"The Court of Appeal shall have and exercise, subject to theprovisions of the Constitution or any law, an appellate jurisdiction forthe correction of all errors of fact or law which shall be committedby any court of First instance"
Section 14 (£>) of the Judicature Act No. 2 of 1978 provides –
"Any person who stands convicted of any offence by the HighCourt may appeal therefrom to the Court of Appeal –
(b) in a case tried without a jury, as of right, from any convictionor sentence except in the case where –
the accused has pleaded guilty ; or
the sentence is for a period of imprisonment
Provided that in every such case there shall be an appeal on aquestion of law or where the accused has pleaded guilty on thequestion of sentence only."
This section gives a right of appeal to any person who standsconvicted of any offence by the High Court. It draws no distinctionbetween a person who appeared at the trial and a person who wasabsent at the trial, whether he was absconding or not to be competentto appeal. A right of appeal-
"is the right of moving a superior court and invoking its aid and
mterposition.to redress the error of the court below 'It seems absurdto denominate this paramount right, part of the practice of theinferior tribunal"-per Westbury, L. C., in A. G. v. Sillem-( 1).
Sudharman De Silva v. Attorney-General (Sharvananda, C.J.)
"A'right of appeal is a matter of substance and not ofprocedure " – Colonial Sugar Refining Co. v. Erving(2).
An appeal is not a fresh suit but is only a continuation of the originalproceedings and a stage in that suit itself.
A right is an interest which is recognised and protected by law. As itis recognised by law a person who is vested with a right is entitled toexercise it and enforce it. The legislature provides for what isnecessary in the interests of the public, and the courts must obey andenforce all statutes. However unjust or absurd the results be, a statutemust be given effect to and if the statute endows-a convicted personwith a right of appeal, a court is bound by the statute and will have torecognise that right and give effect to it, however repugnant theconduct of that person be and however undeserving such person be ofany rights.
Section 14 of the Judicature Act has specifically endowed anaccused who is convicted with a substantive right namely, a right ofappeal and this right of appeal cannot be taken away from him, on theground that he had been acting contumaciously or in defiance of thelaw. When the legislature has vested in the accused an absolute rightof appeal "as a matter of right" it is not open to a court to qualify orcondition that right on the ground that –
"An appeal as a matter of right can'be availabe only to a personwho obeys the law and its sanctions and not to any person who hasdefied and acted in contempt of it." The Court of Appeal has takenthe view that to recognise such a "right in the appellant can onlyhave the effect of bringing the law and the institutions of justice intoridicule and contempt."
A legal right unless the statute has made its exercise dependent onthe prior performance of a l^gal duty may be asserted or claimedirrespective of such performance. But the exercise and enjoyment ofrights and freedoms is inseparable from the performance of duties andobligations. Article 28 of the Constitution may be a desirableaspiration and prescription for good citizenship but cannot constrictthe content or ambit of legal rights. An absconding accused may bepenalised otherwise but his rights cannot be taken away for thatdefault.
The Court of Appeal has endorsed and applied the followingobservation of Roskill, C. J. in the case of Robert Edward Wynyard
Sri Lanka Law Reports
[19861 1 SriL.R.
"To grant this application at this stage would, in the view of thiscourt, be to put a premium on prisoners jumping bail ; it may evenhave the effect of encouraging others to do so. It might also have asa side effect, increasing the reluctance of a court in a very long trialto grant bail lest the applicant's conduct be repeated by others. Toput a premium on jumping bail is something which this court is not
for one moment prepared to countenancethe applicant has
brought this entirely on his own head, and he must now take theconsequences. The application therefore is refused."
In my view this quotation was appropriate in the context in which itwas uttered, namely where an application to court was made for theexercise of a discretion i.e. extension of time within which to apply forleave to appeal, in favour of the applicant. Contumacious conduct onthe part of the applicant is a relevant consideration when the exerciseof a discretion in his favour is involved, but not when he asserts hisstatutory right to appeal and is not asking for the favour of anypermission. This meaningful distinction has been lost sight of by theCourt of Appeal.
The Court of Appeal has referred to the argument of Counsel for theState that if the contention of the present appellant is upheld aaccused person would be encouraged to act with gross disregard andcontempt of the original courts of justice, would jump bail withimpunity and abscond from the trial against him, and would have adistinct advantage over persons who respected the law and observedits commands and presented themselves for trial and it would bringthe entire administration of justice into disrepute. This argument ofState Counsel loses much of its force and validity when the rationale ofsection 241 (2) of the Code of Criminal Procedure Act No. 15 of1979 which provides that the commencement or continuance of atrial under section 241 (1) "shall not be deemed or considered toaffect or prejudice the right of an absconding accused to be defendedby an attorney-at-law in such trial," is appreciated in this context. If thelegislature permits an accused who jumps bail with impunity andabsconds from the trial against him to be defended by anattorney-at-law at such trial and gives its sanction to such a trial, it canonly be on the basis that even an absconding accused is entitled to thefundamental right of being heard by an attorney-at-law at a fair trial. Anappeal is a continuation of the trial and hence, it is not illogical for suchaccused even though absconding to be given the benefit of an appealand being represented at the hearing of his appeal by his
SCSudharman De Silva v. Attorney-General (Sharvananda, C.J.)15
Attorney-at-Law. In any event, a court cannot question the wisdom ofa legal provision and disregard it. When State Counsel was asked inrelation to his above argument what was the distinct advantage whichan absconding accused had over persons who respected the law andpresented themselves for trial, he was hard put to demonstrate suchadvantage. He had to concede that, on the other hand, an accusedwho presents himself for trial will definitely be at an advantage in thathe will be able to cross-examine prosecution witnesses and himselfgive evidence and call witnesses in his support.
In my view the considerations which weighed with the Court ofAppeal in rejecting the appeal of the. appellant were not relevant andout of place when he was appealing "as of right" and not with leave ofthe Court of Appeal. A fugitive from justice is also entitled to his rightsand however repellant be the idea that he could invoke the law forwhich he has scant regard, yet his legal rights will have to berespected and recognised. Since section 14 of the Judicature Actcontains no limitation that it applies only to accused who appeared atthe trial by himself or by his Attorney-at-Law, it is not open for a courtto read words of limitation where the words are clear andunambiguous. It is the court's duty to ensure that the statutory right ofa person is not lost to him except in strict accordance with the statute.The first duty of a judge is to administer justice according to law, thelaw which is established for us by an Act of Parliament. The judges intheir anxiety to uphold the dignity of courts should not fail to do justiceaccording to enacted law. Dislike of the effect of a statutory provisiondoes not justify departing from its plain language. In my view thepreliminary objection of State Counsel was misconceived and isuntenable.
I allow the appeal and remit the case to the Court of Appeal with thedirection for it to hear the appeal of the appellant to it.
ATUKORALE, J. – I agree.
TAMBIAH, J. – I agree.
Case sent back to Court of Appeal for hearing of Appeal.