V.PANNANWELA AND OTHERS
COURT OF APPEAL.
S. ANANDA COOMARASWAMY. J..
C.A. APPLICATION No. 47/89.
OCTOBER 11. 1989 AND DECEMBER 7 AND 8. 1989.
Writs – Certiorari – Order of Court Martial – Air Force Act, S. 46 and 129 (1) – Rule21 (1)(b)(iii) and (v) of the Court Martial (General and District) Regulations – Charge of illtreating and harassing – Failure to rule on preliminary objections to charges – Failure tostate particulars of the offences – Failure of Judge Advocate to caution the Court Martialthat the case against each accused should be considered separately and that thepreliminary record should not be used as substantive or corroborativeevidence – Requisites of a charge.
The petitioner and two others of the Air Force were arraigned before a Court Martial on twocounts that by ill treating and harassing Flying Officer Samarasinghe they did behave in amanner prejudicial to good order and Air Force discipline. A preliminary objection wastaken that the charges were bad for duplicity and failure to comply with Regulation 21 ofthe Regulations made under the Air Force Act. The Court Martial on a ruling by the Judgeadvocate stated the objections would be ruled upon at the conclusion but this was not ‘done. The petitioner complained of prejudicial conduct of the case, failure to consider thecase against each accused separately and improper use of the record of the preliminaryinquiry.
The Court Martial was required to be satisfied in respect of each of charge that it hasthe particulars stipulated by rule 21(1) (b)(iii) and (v) of the Court Martial (General andDistrict) Regulations, to wit. There each charge should be divided into two parts :
statement of the offence, and
statement of the particulars of the act. neglect or omission constituting the
A mere statement in the charges that by 'ill treating and harassing" the accusedbehaved in a manner prejudicial to good order and Air Force discipline did not comply withthe requirements of Rule 21." III treating and harassing' are vague and general and a formof composite terminology which may embrace wide variety of acts of mistreatment or ill-treatment.
The charges of harassing and ill-treatment levelled against all three officers wouldimply that the acts alleged were identical against all three accused. It was incumbent onthe prosecution to set down the particulars of the separate and different acts allegedagainst each of the accused. Failure to do this would result in prejudice being caused tothem. The Judge advocate failed to advise the lay members of the Court Martial of thisrequirement.
The proceedings showed that reference was made to the record of the preliminaryinquiry right through the inquiry but the Judge advocate failed to caution the Court Martialthat this record could not be used as substantive or corroborative evidence.
No ruling was given on the preliminary objection.
Application for certiorari to quash verdict of Court Martial.
H. L. de Silva, P.C. with Gomin Dayasiri for petitioner.
D. Sarath Piyasena for respondent.
Cur. adv. vult.
January 12. 1990.
This is an application for a Mandate in the nature of a Writ of Certiorari toquash the proceedings and order of the Court Martial.
The facts relevant to this application are briefly as follows
The Petitioner is a Flight Lieutnant in the Sri Lanka Air Force. 1 st, 2ndand 3rd Respondents are officers of the said Air Force andMembers of the Court Martial constituted under the Air ForceAct. The 4th Respondent is the Commander of the Sri Lanka AirForce.
On 5th October, 1988 the Petitioner and two others of the Air Forcewere arraigned before a Court Martial convened by the 4thRespondent under Section 46 of the Air Force Act, on chargesunder Section 314 of the Penal Code and Section 129 (1) of theAir Force Act.
After several dates of hearing and immediately after the summing upby the Judge Advocate, the 1 to 3 Respondents returned averdict of 'Not guilty" on count (1) and "Guilty" on count (2)against the Petitioner. Both the 2nd and 3rd accused chargedalong with the Petitioner were found "Guilty" on both counts. Thesentence of the Court Martial confirmed by the 4th Respondentwas that the Petitioner should forfeit two years seniority in the AirForce.
The Petitioner states that at the commencement of the trial, hislawyer took an objection in limine to the charges that they werebad in law on account of –
(fc>) Non compliance with the express provisions of Regulation(21) of the Regulations made under the Air Force Act.
It was further stated that the Petitioner, was gravely prejudiced in hisdefence on that account, and that if the said objection wasupheld the charges should be dismissed.
The Court Martial on a ruling by the Judge Advocate, directed thatthese objections would be decided at the conclusion of the trial.However, neither the Judge Advocate in his summing up nor the Courtmade any reference whatsoever to the objection at the conclusion of thetrial.
Several grounds have been urged by the Petitioner to quash the orderof the Court Martial.
It has been submitted that count 2 in the charge sheet does notconform to Rule 21 (1) (b) (iii) and (v) of the Court Martial(General and District) Regulations (Page 311 of the SubsidiaryLegislation) under which the Court Martial is required to besatisfied in respect of each charge that is brought before it of thefollowing
That (iii) each charge shall be divided into two parts –
the statement of the offence ; and
the statement of the particulars of the act, neglect oromission constituting the offence.
(v) The particulars shall state such circumstances respectingthe alleged offence as will enable the accused to know everyact, neglect or omission which it is intended to be provedagainst him as constituting the offence.
The charges in this case merely stated that “by ill-treating andharassing Flying Officer Samarasinghe" that the accused Officer didbehave in a manner prejudicial to good order and Air Force discipline.
The words "ill-treating and harassing” are vague and general and donot allege particular or specific acts which may amount to conductprejudicial to good order and discipline. They are a form of compositeterminology which may embrace a wide variety of acts of mistreatmentor ill-treatement. To harass another means to vex, worry or trouble aperson which may be merely verbal attacks and do not necessarily meanphysical attacks.
'2 – 0 11421-4.000(90/10)
This was a serious orhission because each of the three accusedofficers were separately charged of the same offence under Section129 (1) of the Air Force Act, in the identical manner, i.e., "harassing"and "i,ll-treating"which would indicate that the alleged acts of harassingand ill-treating are identically the same against all three accused. Thiswas far from being the case because against each Officer there werewidely different allegations, although one or two acts were common.The accused would have been misled. It was therefore incumbent onthe prosecution to set down the particulars of the separate and differentacts alleged against each of them in each of the charges.
Had the Petitioner not taken up this objection at the out set he couldnot be heard now to complain against those charges. The charges asthey stood not only caused prejudice to the Petitioner but also misled theCourt Martial. If a Ruling had been given on the objection by the defencecounsel before the commencement of the trial this question would nothave arisen now. The Court Martial erred in not giving the Ruling on theobjection.
It is submitted that the Judge Advocate in summing up the factsand law to the lay members of the court Martial has failed to directthem on a vital matter which amounts to a misdirection in law.when addressing them on the 2nd charge of acting in a mannerprejudicial to good order and Air Force discipline he failed todirect them that the case against each officer had to beconsidered separately and in doing so it was necessary toconsider what were the specific or particular acts of ill-treatmentor harassment which were alleged and proved against eachaccused. A failure to do this would lead the laymen who had todecide the question, to mistakenly assume that if some act of ill-treatment or harassment of the victim was proved then all threeaccused would be guilty of the charge, irrespective of theircomplicity in the acts proved.
The Learned Counsel for the Petitioner drew the attention of theCourt to the language in the summing up which is particularlyobjectionable on this ground. The passage reads as follows
"In respect of Nos 2,3 and 4 charges (i.e. the three charges ofacting in a manner prejudicial to good order and discipline) you willhave to consider the acts other than assault and see whether acts did
occur and if so whether these acts amount to conduct prejudicial togood order and Air Force discipline. If you accept the evidence of thewitnesses these acts are forcing liquor, getting them to walk nude inthe bar, getting same to do push ups and forcing them to take vinegarmixed with stout. It is not necessary for me to go through the entireevidence"
This charge may mean that if these acts did merely occur or happenirrespective of who did what, all these accused are guilty. Failure toinstruct the Court Martial that they had to consider the specificallegations of harassment or ill-treatment made against each accusedseparately caused serious prejudice to the Petitioner.
Prior to the convening of the Court Martial the Air Force Commanderhad ordered a Court of Inquiry be held in regard to the incident at theOfficers' mess, China Bay on the night of the 24th October, 1987. Thisinvestigation involved charges against three other Officers apart fromthe three officers who were eventually charged before the Court Martial.The defence strongly urged that the Summary of Evidence had beenillegally recorded in the absence of the accused Officers and falselycertified. This Summary of Evidence which contains the Statement ofeight witnesses and runs into nearly 20 pages was placed in the handsof the Court Martial and the proceedings indicate that reference to it wasmade throughout the trial. Nowhere in the charge is any caution given bythe Judge Advocate against using this as substantive evidence or ascorroborative evidence. This is a non direction amounting to amisdirection.
It is therefore quite clear that the Court Martial failed to properly' evaluate the case against the Petitioner and therefore the Petitioner isentitled to the reliefs prayed for.
For the foregoing reasons I issue a Mandate in the nature of a Writ ofCertiorari quashing the proceedings and the order of the Court Martialreferred to above.
The Petitioner's application is accordingly allowed with costs.
Writ of Certiorari issued.
KUMARESAN v.PANNANWELA AND OTHERS