The Attorney-General v. Seneratne
1958 Present: Weerasooriya, J., Sansoni, J., and Sinnetamby, J.
THE ATTORNEY-GENERAL, Applicant, and SENERATNE,
In the matter of an Application under Section 17 of the CourtsOrdinance (Cap. 6)
Courts Ordinance—Section 17—Proctor convicted of offence—Proceedings for hisremoval from Roll of Proctors—Application to lead more evidence to show thatconviction was wrong—Permissibility.
Quaere, •whether, in an application made undor section 17 of the Courts Ordi-nance for an order of removal of a Prootor convicted of a crime or offence,the respondent can bo permitted by Court to adduoe evidence relating to theoffence which was not led at the trial and which would prove that he was notguilty of that offence although he was convicted of it.
OrDER made in relation to an application under section 17 of theCourts, Ordinance.
M. Tiruchelvam, Acting Solicitor-General, with J. G, T. WeeraratneCrown Counsel, and Arthur Keuneman, Crown Counsel, in support of theApplication.
B. Wi&ramanayake, Q.C., with M. C. Aheywardene, A. Samban-dan and C. D. 8. Siriwardene, for the respondent.
Cur. adv. wilt.
'.N.B 8674 (11/58)
WEERASOORIYA J.—The Attorney-General v. Seneratne
April 1, 1958. Weerasoobiya, J.—
The respondent has been called upon in these proceedings to showcause under Section 17 of the Courts Ordinance why he should not beremoved from the office of Proctor of the Supreme Court. The groundof removal as stated in the rule issued on him is that he was on the 2nd ofJuly, 1956, found guilty and convicted by the District Court of Colomboof the following offences:
That between the 8th day of October, 1952, and the 11th dayof December, 1952, at Colombo in the division of Colombo within thejurisdiction of the District Court, Colombo, he being entrusted withproperty, to wit, a sum of Rs. 760 by M. Wijesiri Theio in the way ofhis business as Agent, to wit, Proctor for the Plaintiif in
No. 5,517/L of the District Court of Colombo did commit criminal bread,of trust in respect of the said property, and that he did thereby comm •!an offence punishable under Section 392 of the Penal Code ;
That on or about the 26th day of May, 1953, at Colombo in thedivision of Colombo within the jurisdiction of the said District Court ofColombo, he being entrusted with property, to wit, a sum of Rs. 1,575by Mr. H. M. A. S. Abeywardene in the way of his business as Ageni.to wit, Proctor for the defendant in case No. 380/Z of the DistrictCourt of Colombo, did commit criminal breach of trust in respect ofthe said property and that he did thereby commit an offence punishableunder Section 392 of the Penal Code.
For each offence the respondent was sentenced to undergo simple imprison-ment for six months and to pay a fine of Rs. 100, in default of paymentto undergo simple imprisonment for a further period of two weeks, thesentences of imprisonment to run concurrently.
The respondent appealed to this Court against the conviction andsentences aforesaid but his appeal was dismissed on the 13th March.1957. His application to the Privy Council for special leave to appealfrom the order of this Court dismissing his appeal was refused on the3rd October, 1957.
The first of the offences referred to was committed while the respondentwas acting as Proctor for the Rev. Dhammadassi who was the plaintiffin D. C. Colombo case No. 5,517 /L which was an action relating to theincumbency of a certain temple at Mount Lavinia. The Rev. Dhamma-dassi was at the time nearly eighty years old and resident in Kandy,and his pupil Rev. Wijesiri, who lived in a temple at Gampaha, attendedto various matters connected with the case. After trial judgment wasgiven in favour of the plaintiff but an appeal which had been filed againstit was pending.
Rev. Wijesiri was called as a witness for the prosecution at the trial ofthe criminal case against the respondent, and he said that in connectionwith the pending appeal he gave the respondent a sum of Rs. 230 on the8th October, 1952, of which Rs. 210 was on account of fees to be paid toCounsel who would be retained to appear for the Rev. Dhammadassiat the hearing of the appeal and Rs. 20 was for a typewritten copy of theevidence. He also said that some time later he received the letter P2
WEERASOORIYA, J.—The Attorney-General v. Seneratm
dated the 9th December, 1952, from the respondent requesting him to" send another Rs. 420 for Mr. Weerasooria’s fees and Rs. 105 forMr. Dissanayaka’s fees. Also Rs. 25 for extra typewritten oopy ”,that as he was ill at the time he gave the sums oalled for in P2 (totallingRs. 550) to the Rev, Nandasena on the 10th December, 1952, to be handedto the respondent on the following day and the Rev. Nandasena left forColombo early on the 11th Deoember (which was a Thursday) andreturned at about 11 a.m. saying that he had given the money to therespondent.
Rut when the appeal came up for hearing there was no appearance ofCounsel for the plaintiff-respondent (the Rev. Dhammadassi). Judgmentwas delivered on the 19th July, 1954, allowing the appeal and dismissingthe plaintiff’s action with costs in both Courts. The Rev. Dhammadassihas stated in evidence that when he heard of the result, and also thatthere had been no appearance of Counsel for him, he got in touch with therespondent who informed him that he had retained Counsel for the pur-poses of the appeal. This evidenoe is of special importance because it isentirely contrary to the defence put forward by the respondent at histrial, which was that he did not retain Counsel as he never received anymonies to enable him to do so, either from the Rev. Wijesiri or theRev. Nandasena. In faot, the respondent could not possibly have takenup any other defence since it has been established beyond all doubt thatno Counsel was retained by him in connection with the appeal. Rev.Dhammadassi subsequently retained another Proctor and took steps tohar e the appeal decision vacated in which he succeeded. The appealwas thereafter re-listed and was heard in the presence of Counsel forboth sides, and on that occasion judgment was delivered dismissing theappeal with costs. In convicting the respondent of the two offenceswith which he was charged the learned District Judge stated that he hadnot the slightest doubt regarding the truthfulness of the evidence of theRev. Dhammadassi, the Rev. Wijesiri and the Rev. Nandasena.
I have set out in some detail the facts relating to the first offence ofwhich the respondent was convicted in view of an application made tous by Mr. Wickremanayake, who appeared for the respondent, that he bepermitted to adduce certain evidence relating to the offence which hadnot been led at the trial and which, he submitted, would prove that therespondent was not guilty of that offence although he was convicted of it.In making this application, Mr. Wikramanayake cited the case of In reKandiahl. In that case the principle applicable as regards the leadingof evidenoe in proceedings under Section 17 of the Courts Ordinancewhere (as in the present case) an order of removal is sought to be obtainedagainst a member of the legal profession on the basis of his convictionfor a crime or offence, was expressed in the following terms by Macdonell,
“ If the conviction alleged be of full force and effect, that is, hasbeen affirmed on appeal or has not been appealed against within thetime allowed for appeal then doubtless this Court will not allow thatconviction to be re-argued before it on the evidence upon whioh thatconviction was based; it will not re-hear a matter which has been heard1 (J932) 86 a. L. W. 87.
WEERASOORIYA, J.—The Attorney-General v. Seneratne
and determined or allow argument that evidence which was believedby the Court should not have been believed or that evidence disbelievedby it should have been accepted. But if the respondent has evidencebesides that produced at the trial and conviction which evidenceshows conclusively that he was not guilty of the crime or offencewhereof he was convicted, a rule so framed as the present one—whichis the usual way of framing it—does not deter him from bringingforward that evidence. Thus to illustrate the matter with an extremecase, if respondent had been convicted of committing a crime inColombo on a certain day and could now bring forward evidencewhich was not brought before the Court convicting to prove conclusivelythat he was not in Colombo on that day but at a distance from it therule so framed would not prevent this Court from considering thatevidence or from holding if satisfied with that evidence that the res-pondent was not guilty of that crime or offence whereof he had beenconvicted as stated in the rule .”
Mr. Wikramanayake also relied on the Indian case of In re DurgaCharan1 where a pleader who had been convicted of cheating and whoseconviction and sentence affirmed in appeal was brought up before the HighCourt in the exercise of the special jurisdiction conferred on it under theLetters Patent “ to remove or to suspend from practice on reasonablecause an advocate or vakil whose name is borne on the rolls of the Court ”.On respondent’s Counsel submitting that if he was permitted to go behindthe conviction he could show that his client committed no offence atlaw the Chief Justice observed that he was entitled “ to go behind it inorder to show that ”, and it would appear that Counsel was then heard onthe question whether on the evidence adduced at the trial the act of thepleader amounted in law to the offence of cheating. But, aspointed out by the learned acting Solicitor-General, the procedureadopted in that case was expressly disapproved by the Privy Councilin the case of In re Rajendro Nath Mukerji2 where a vakil who was con-victed of the offence of using as genuine a forged document was struckoff the roll on the ground that the offence of which he was convicted wasof such a nature as to render him unfit to remain on the roll. In theproceedings for his removal before the High Court it was held that thepropriety in law or in fact of the conviction could not be questioned, andthis ruling was made the principal ground of appeal to the Privy Council.Their Lordships, in dismissing the appeal, stated, in regard to the earliercase, that they did not agree with the Chief Justice where he says thatthe pleader’s Counsel was entitled to go behind the conviction in orderto show that he had committed no offence at law.
We were also referred by the Solicitor-General to the local case of In reJayaiitteke 3 where the respondent, in showing cause against a ruleissued on him for his removal from the office of a Proctor on the groundthat he had been convicted of certain offences, filed an affidavit in whichhe traversed the correctness of his conviction. This Court held (without,however, considering the ruling in the case of In re Kandiah (supra)
1 1885 I. L. E. 7 AUahabad. 290.2 1899 I. L. B. 22 Allahabad 49.
3 (1933) 35 N. L. E. 376.
WEEIvASOORIYA, J.—The Attorney-General v. Seneratw
which, though an earlier decision, does not appear to have been broughtto its notice) that the respondent could not be heard to question thecorrectness of his conviction in those proceedings.
In South Africa power is given to the Supreme Court under the Charterof Justice to remove an attorney from his office upon reasonable cause.The procedure adopted there is stated thus in Van Zyl’s Judicial Practice(4th edition) page 42 : “ The Court has a wide discretion in these mattersand although there is a conviction against an attorney, if he is able toput such facts before the Court as to raise strong ground for thinking theconv iction was wrong, the Court may make fresh inquiiy and evenexamine all the witnesses afresh. ” He cites two cases in support of thisstatement. Incorporated Law Society v. Seme 1 and Incorporated LawSociety v. Levin.2 In the former case the respondent, who was anattorney, had been convicted of the offence of theft and sentenced to oneyear’s imprisonment with hard labour. Apparently no appeal was filedagainst the conviction and sentence. The submission of Counsel whoappeared for the Law Society in support of the application for the re-moval of the respondent from the roll of attorneys was that the convictionwas conclusive and that while the law provides certain remedies of whicha convicted person may avail himself, the Court was not entitled toconstitute itself a Court of appeal from the circuit Court by consideringthe merits of the case. For the respondent it was submitted that on theevidence adduced before the circuit Court he should have been acquitted.It was held that “ a conviction for an act which renders an attorneyunfit to remain on the roll will entitle the Court to strike him off in theabsence of any reason for doubting the correctness of the conviction ”.The Court then proceeded to consider the evidence which had beenadduced at the trial and came to the conclusion that on that evidencethe charge against the respondent had not been proved and he shouldhave been acquitted. According to these two decisions the discretionof the Courts to enquire afresh into the guilt of the respondent in regardto the offence of which he was convicted is not limited to a case wherenew evidence is available, as stated by Macdonell, C.J., in Eandiah’scase (supra).
The evidence said to be available to prove that the respondent in thepresent case is not guilts' of the first offence of which he was convictedis set out in his affidavit, according to which on the 11th December, 1952,he was not in Colombo at the time when, as alleged by the Rev. Nanda-sena, he was given the sum of Rs. 550. The respondent has also filedan affidav it from Mr. H. A. de Abrew, Proctor and Notary Public, and aJustice of the Peace, the gist of which is that the respondent came withhis wife and family to Mr. de Abrew’s house in Kalutara South at about 7a.m., on the 11th December, 1952, and did not return to Colombo tillthe afternoon of the same day. If this is true the evidence given by theRev. Nandasena that he went to the respondent’s house at about8 a.m. on that day and handed him the money cannot also be true. Butas Kalutara is less than an hour’s run by motor car from Colombo thepossibility that the Rev. Nandasena gave the respondent the money onthat day, though earlier than 8 a.m. and that the respondent thereafter
1 S. A. L. R. (1927) T. P. D. 857.
* S. A. L. R. (1928) T. P. D. 229.
AVEERASOORIYA, J.—The Attorney-General v. Seneratne
went to Kalutara but reached there later than the time stated by Mr. deAbrew has, however, not been eliminated. The crucial point is the timeof the respondent’s arrival at Kalutara, and there is only Mr.de Abrew’sstatement as regards that. His affidavit is dated the 10th October,1957, which is nearly five years after the alleged visit, and there is nothingin the affidavit to show that Mr. de Abrew’s recollection after the lapseof such period may not be incorrect when he puts the time of the res-pondent’s arrival at Kalutara as 8 a.m. These matters, could, no doubt,have been gone into at the trial had it been put to the Rev. Nandasena,in cross-examination that at the time when he says ho gave the Rs. 550to the respondent the latter was away in Kalutara, and had Mr. de Abrewalso been called as a witness on behalf of the respondent. Not only wasthe Rev. Nandasena not cross-examined on this basis but Mr. de Abrewwas also not called as a witness. The affidavit of the respondent is silentas to why this evidence was not adduced at the trial. Even in the evidence given by the respondent there was nothing said about his havingbeen away from Colombo on the morning of the 11th December, 1952.
Moreover, the fresh evidence said to be available relates only to theentrustment of the sum of Rs. 550 and does not touch the case for theprosecution in regard to entrustment of the sum of Rs. 230, which wasby the Rev. Wijesiri and took place on the 8th October, 1952.
Although Mr. Wikramanayake stated that he had fresh evidenceto prove that the respondent is not guilty even of the second offence ofwhich he was convicted, the affidavit filed by the respondent does notindicate that any such evidence is available. The affidavit deals withcertain items of the evidence led at the trial relating to that offence, butan examination of the points raised discloses nothing more than a reitera-tion of the respondent’s innocence and that the evidence does not supportthe conviction.
Even if we have a discretion to embark on a fresh enquiry—whether onthe evidence adduced at the trial or on new evidence—into the questionof the respondent’s guilt as regards either of the offences of which he wasconvicted, we were of the opinion that on the material placed before us inthe affidavits no grounds were made out for permitting such a course inthe present case. We, accordingly, refused Mr. Wikramanayake’sapplication and stated that we would hear him only on the questionwhether there are any mitigating circumstances. The reasons for ourrefusal are now set out.
In view, however, of the conflicting decisions to which I have referred,the correct procedure to be adopted in proceedings such as these is by nomeans clear, and it might be necessary to have the position reconsideredby a fuller Court in an appropriate case.
Sansoni, J.—I agree.
Sinnetamby, J.—I agree.
Respondent's application refused.
ATTORNEYGENERAL, Applicant, and SENERATNE, Respondent