Lakshman de Silva v. Hon. H. W. Senanayake and Another
LAKSHMAN DE SILVA
v.HON.H.W.SENANAYAKE AND ANOTHER
FERNANDO, J. DHEERARATNE, J. AND RAMANATHAN, J.
S.C, (SLA) APPLICATION NO.51 OF 1989.
Criminal Procedure ■ Accused conducting his own defence – Provision of facilities like tableand chair for accused to defend himself – Commencement of trial – Code of CriminalProcedure Act, No. 15 of 1979, sections 195 and 196.
The indictment against the accused petitioner was received in the High Court on 15.9.88and the Court directed the accused to be noticed to appear on 16.9.88. The accusedappeared on 16.9.88. The indictment was served on him on 16.9.88 and he wasfingerprinted (s. 195 of the Code of Criminal Procedure) and trial was fixed for 29.11.88.The accused petitioner was not called upon to plead on 16.9.88. He was absent on29.11.88 but from the subsequent dates undertook his own defence. He sought facilitiesof a chair and table to make his defence and on being refused moved for a writ ofmandamus in the Court of Appeal. Notice was refused and the accused petitioner soughtleave to appeal in the Supreme Court; eventually the matter was settled by counsel for theState undertaking that the petitioner would be provided with a chair and a table during thecourse of the trial in the High Court. On a complaint of a breach of this undertaking —
The commencement of the trial is upon the indictment being read to the accused andaccused being required to plead (s.' 196 of the Code of Criminal Procedure Act). The trialhad not commenced and therefore there has been no violation of the undertaking given on5.10.89.
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[1990J 1 Sri L.R.
Per Fernando, J. —
■ We did not then, and do not now, express any opinion as to whether the petitioner hada legal right, or a Constitutional right, to be provided with a table inside or outside the dock,although it seems to us very desirable that an undefended accused should have all suchfacilities as are reasonably necessary for the purpose of conducting his defence.'.
* In view of the settlement it has also became unnecessary to come to any finding uponthe allegations as to the events of 11.5.89 including the manner in which the petitioner wasaddressed ; these allegations, are not borne out by the record. (The allegations wererefusal by the High Court to accept a motion tendered by the petitioner seeking facilitieslike a chair and a table to take down notes and place documents, books etc. during theentirety of the trial and the High Court Judge addressing the petitioner humiliatingly as■prisoner’.) “
Case referred to :
Mohan v. Carson Cumberbatch & Co – [1988} 2 Sri L.R. 75.
APPLICATION for special leave to appeal to the Supreme Court from an order of the Courtof Appeal.
Petitioner in person.
Upawansa Yapa, Deputy Solicitor ■ General, with Mrs. Kumudini Wickremasinghe, S.C.,for the 2nd respondent (Attorney – General).
13th December 1989
Cur. adv. vult
High Court Colombo case No. 3576/88 has been pending against theaccused petitioner (“the petitioner”) since August 1988. The petitionertendered, at the hearing of this application on 4.12.89, a certified copy ofthe journal entries for the period 15.8.88 to 30.10.89. According to thesejournal entries, the indictment was received in the High Court on 15.8.88,and the Court directed that the petitioner be noticed to appear on 16.9/ 88;On 16.9.88 bail was granted, order was made that the petitioner be fingerprinted, and the trial was fixed for 29.11.88. These were steps incompliance with the provisions of section 195 of the Code of CriminalProcedure Act, and there was no attempt to comply with section 196 thatday. The learned Deputy Solicitor – General tendered a certified copy ofthe proceedings of 16.9.88, which confirms that the indictment washanded over to the Petitioner, but he was not called upon to plead on
It is common ground that on 16.9.88 and 29.11.89 the petitionerwas represented by Counsel; that on 29.11.88 the petitioner was absent
SC Lakshman de Silva v. Hon. H. W. Senanayake and Another (Fernando. J.)121
and a medical certificate was tendered on his behalf by Counsel, whoinformed the Court that he would not be appearing on the next date,namely 1.3.89 ; that the Court ordered that notice be issued on thepetitioner informing him of that trial date. On 16.9.88 the Court hadordered the issue of summons on the prosecution witnesses, and on
most of them, including witness No. 3, were present, and werewarned to appear on the next date. On and after 1.3.89 the petitionerappeared in person in the proceedings in the High Court, as well as in theCourt of Appeal and in this Court. On 1.3.89 the case was not taken up,and was postponed for 11.5.89 ; witness No. 3 was not present andsummons was ordered. On 11.5.89, that witness was again absentalthough summons had been served. On account of the CeremonialSitting of the Superior Courts on 11.5.89, the Court sat only in theafternoon. The petitioner states that he attempted to tender a writtenmotion that, inter alia –
“Equal opportunity and facilities afforded to the learned Counsel torthe Prosecution be afforded to [him].”
“ Facilities to sit (provided with a chair) and to be able to take downnotes and to place books, documents (provided with a table) during theentirety of this trial, which may be placed in front of the Dock.”
The petitioner says that the learned High Court Judge, the 1 st Respon-dent, refused to accept this motion, whereupon he made an oral applica-tion for these facilities, which was refused. The case was postponed for
but the reason for the postponement is not stated in the journalentries or in the proceedings. The petitioner then applied to the Court ofAppeal for Mandamus, averring that he could not conduct his defencefrom the dock, as there were no facilities to keep his books and papers,
and to take down notes, and “as the wooden bars of thecaged dock
not only denies petitioner's visibility partially and also partially denies thehearing, due to partial reflection of sound waves, thereby not being able
to hear properly the words spoken by witnesses”; he further alleged
that the 1st respondent had addressed him as" Prisoner”. Claiming thatthese were violations of his fundamental rights under Articlesl2 (1) and13 (3) of the Consititution, he prayed for a Reference to this Court underArticle 126 (3); for a Reference under Article 125 (1), as to the meaningof a “fair trial”; and for Mandamus on the 1st respondent to accept hismotion, to grant the several requests therein, and to treat him in accor-
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dance with Articles 12 (1) and 13 (3) during the course of the entire trial.The Court of Appeal refused leave to issue notice of this application, andon 20.7.89 refused leave to appeal to this Court ; the petitioner thenapplied to this Court on 27.7.89 for special leave to appeal, amplifying hisallegations, for instance, that he had been addressed as “prisoner" by the1st respondent “ in a degrading form in an effort to lower [his] status ….with the additional effect of shaming and humiliating [him]". .It is relevantto mention that had the petitioner suceeded in obtaining leave, he wouldhave had to succeed in several other proceedings before obtaining anypart of the relief which he sought: first an appeal in this Court, which ifsuccessful would have resulted in a direction to the Court of Appeal toissue notice in the Mandamus application ; if the respondents to thatapplication disputed his interpretation of the Constitution, References tothis Court would have been required ; the Court of Appeal would thenhave had to decide the Mandamus application in accordance with thedeterminations of this Court upon such References ; and from thatdecision a further appeal to this Court was possible. At some stage, thequestion might also have arisen whether the 1 st respondent's action was“ administrative action” (within the meaning of Article 126(1) of theConstitution ) , and if so whether the only remedy was by way of anapplication under Article 126.
It was thus manifestly to the petitioner's advantage that the followingsettlement was reached on 5.10.89 in the course of the hearing of theapplication for special leave to appeal:
“in answer to a question from the Court, Mr. Yapawho appears for
the 2nd respondent, gives an undertaking that the petitioner will beprovided with a table and a chair for the purpose of keeping hisbooks and documents during the course of the trial in the HighCourt. If this table and chair cannot be accommodated within thedock, these facilities will be provided for the petitioner outside thedock. In view of this undertaking the petitioner moves to withdrawthis application.".
We did not then, and do not now, express any opinion as to whetherthe petitioner had a legal right, or a Constitutional right, to be provided witha table, inside or outside the dock, although it seems to us very desirablethat an undefended accused should have all such facilities as-are rea-sonably necessary for the purpose of conducting his defence. In view of
SC Lakshman de Silva v. Hon. H. W. Senanayake and Another (Fernando, J.).123
the settlement, it also became unnecessary to come to any finding uponthe allegations as to the events of 11.5.89, including the manner in whichthe petitioner was addressed; these allegations are not borne out by therecord.
On 14.8.89 the case was postponed for 30.10.89, as there were threepartly – heard cases; witness No. 3 was again absent, and a third orderfor summons was made. On 30.10.89, the petitioner tendered a certifiedcopy of the settlement to be filed of record in the High Court. On the verynext day, the petitioner made this application to this Court complaining ofa deliberate breach of the undertaking given on 5.10.89.
In his affidavit dated 31.10.89, the petitioner does not state that beforethe proceedings commenced State Counsel assured him that a table andchair would be provided in terms of the settlement; however, in his oralsubmissions to us on 13.11.89, (a summary of which was contempora-neously recorded and confirmed by him to be accurate), he admitted that
“ prior to the case being calledState Counsel had agreed that a table
and a chair would be provided in terms of the order of5th October,
1989, When the trial commences", in a further affidavit dated 20.11.89,he states that he was assured that “ at the commencement of the hearingof the case, [he] would be provided a table and chair. ” Having regard tothe reasons urged on 5.10.89 as to why the table and chair were required,and the phrase emphasized above, it is clear that both State Counsel andthe petitioner had in mind a future point of time – the commencement ofthe trial, or of the actual hearing. The petitioner however vehementlycontended at the hearing of this application that the settlement contem-plated the provision of these facilities throughout the entire proceedings,including dates on which the case was merely called or mentioned ; that“ trial date” (and the Sinhala equivalent used in the journal entries)referred to any date on which proceedings took place , that 11.5.89,14.8.89 and 30.10.89 were fixed as “ trial dates" and were so describedin the journal entries ; and accordingly, the proceedings that took placeon 30.10.89 were “ during the course of the trial”, and that the failure toprovide a table constituted a breach of undertaking.
Before considering that submission, it is necessary to refer to theevents of that day in some detail. In his first affidavit, the petitioner allegesthat “ the Hon. Trial Judge [before he came on the bench] also heard theState Counsel with the case brief in his Chambers, in my absence”; on
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his position was that “ before this case was called, the StateCounsel conferred with the Judge in Chambers, but that he does not knowwhat was discussed"; there was no suggestion of any impropriety, andquite understandably no counter affidavit was filed in reply.
When the present High Court Judge, who had succeeded the 1stRespondent, came on the bench, according to the petitioner, even beforehe could comply with the Mudaliyar's direction to go into the dock, StateCounsel made an application for a postponement on the ground thatsummons had not been served on witness No. 3, who was absent; it wassubmitted that the case could not be commenced without that witness,and if the evidence of that witness was not available, the prosecutionmight have to be withdrawn. This is borne out by the record, andconfirmed by the petitioner's submission to us on 13.11.89 that “ when thecase was taken up, State Counsel informed the High Court Judge thatwitness No. 3 was not in Court and that without that witness the Statecannot begin the proceedings, and State Counsel applied fora postpone-ment on this basis although other witnesses were present". For the fourthtime, order was made for summons on witness No. 3, and the otherwitnesses were released, being warned to appear when noticed; no datewas mentioned at this stage. In view of the petitioner's categoricalsubmission to us on 13.11.89 it is quite clear that he was then not allegingany impropriety against State Counsel, and that the latter's submissionswere heard and understood by him. He further submitted that StateCounsel had misled the Court by stating that summons had not beenserved on witness No. 3, for, he said, summons had previously beenserved ; this is an unwarranted accusation, for what was then relevantwas that summons had not been served, despite the order made on
requiring attendance on 30.10.89 (and not whether summonshad earlier been served). Another contention, advanced on 4.12.89, wasthat he did not hear all that was said by State Counsel when applying forthe postponement, and that some of the submissions referred to in theproceedings may have been made in Chambers ; this conflicts with theposition taken up on 13.11.89, and must be rejected.
Although the petitioner stated in his first affidavit that" the case waspostponed for trial on 14.12.89", it is clear from the proceedings that thiswas not a trial date, but only a calling date. According to the petitioner hethen sought to make submissions, in English, in regard to the provisionof a table, as well as certain legal objections to the indictment; although
SC Lakshman dg Silva v. Hon. H. W. Sgnanayake and Another (Fernando. J.)125
State Counsel had been permitted to make submissions in English (whichwere translated for the record by the learned Judge), the petitionercomplains that he was asked to make his submissions in Sinhala ;although in his first affidavit it was suggested that there was a Sinhala •English interpreter available. It later transpired that in fact there was nointerpreter, and (according to the petitioner) “ the Mudaliyar’s Sinhala wasnot very good". The application for the postponement obviously would nothave occasioned any great difficulty in translation, but it is understand-able that the learned High Court Judge felt that legal submissionsinvolving the validity of the indictment should be precisely recorded: if thepetitioner could not make those submissions in Sinhala, then, in theabsence of a competent interpreter, it was desirable that this be done ona subsequent date.
He informed the petitioner that since the case was being postponed,arrangements would be made for his submissions to be made andrecorded in English on the next date. Admittedly, the petitioner was soinformed. Considering the petitioner’s repeated allegations of inaccura-cies in the High Court record, these arrangements cannot be faulted. Itwould have been apparent to the petitioner that no proceedings of anyconsequence were likely to take place on 30.10.89 after the applicationfor a postponement was allowed.
The petitioner repeatedly stressed that he was the victim of a fabri-cated case, and that the trial was being unduly delayed on variouspretexts ; he was clearly labouring under a tremendous sense of griev-ance. However, 11.5.89 was the third date ; and one of the two previouspostponements had been due to his absence. It would seem from thefacts set out above, that the petitioner was too quick to see an injury ora slight, where none existed or was intended ; that his recollection wasfaulty, and that he was somewhat inclined towards exaggeration andspeculation. It is clear that there was no intention on the part of Judge orCounsel to deprive the petitioner of the benefits of the settlement of
I now turn to the petitioner s contention that the proceedings that tookplace on 30.10.89 were “ during the course of the trial" and that the failureto provide a table constituted a breach of the undertaking. The petitionerrelied strongly on the judgment of Seneviratne, J., in Mohan v. CarsonCumberbatch & Co ,  2 Sri L.R. 75, who held that there is nodiscrepency between the English and Sinhala texts of Article 106 (1) of
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the Constitution, so that “ sittings ot Court" in the former is identical to“ nadu vibhaga" in the latter. Therefore, he concluded, “ trial" as used inthe settlement, and “ nadu vibhagaya” or “Vibhagaya" as used in thejournal entries, referred to any proceedings whatsoever. We are not hereconcerned with the interpretation or application of Article 106 (1), and Ihave no difficulty in assuming that the relevant proceedings in the HighCourt should have taken place at public sittings of the Court. Article 106(1) does not help in determining whether those proceedings were “ duringthe course of the trial", and that question has to be decided in the contextof Article 13 (3), as the settlement was reached [in proceedings involvingthe question whether the petitioner's right to "a fair trial”, under Article 13
, required that he be provided] with certain facilities; the “ trial"contemplated by the parties was a trial under the Code of CriminalProcedure Act. The undertaking was given in that context, and wasclearly understood by both parties to refer to the stage of the " hearing"
; even on 30.10.89, the petitioner's discussion with State Counselproceeded on the basis that the " trial” or “ hearing" had not yetcommenced. Apart from the intention of the parties, section 196 of theCode of Criminal Procedure Act indicates that the “commencement of thetrial" is upon the indictment being read to the accused and the accusedbeing required to plead ; that has not yet happened in this case, andtherefore the trial has not commenced. Faced with this difficulty, thepetitioner tried to make out that he had pleaded on 16.9.88, and that therecord was faulty, but his description of the events of that day indicatesonly that after the indictment was served either his Counsel or he hadremarked that it was a fabricated case and that he was not guilty.
I hold that there has been neither a violation of the undertaking givenon 5.10.89, nor any intention of doing so, and I am confident that whenthe trial commences, in terms of section 196, that undertaking will behonoured . If there are proceedings prior to that stage at which thepetitioner requires such facilities, it will be open to him to make anapplication to the presiding Judge – but that would be a matter not coveredby the undertaking already given.
That finding renders it unnecessary to consider the question whetherin these proceedings an order could have been made to compel compli-ance with that undertaking, by way of proceedings for contempt orotherwise ; or whether the amended petition, tendered by the petitioner,( seeking to add the present High Court Judge and the Deputy Solicitor
K. P. Karunawathie v. K. P. Kusumaseeli and Another
– General as respondents) should be accepted. The petitioner's applica-tion is dismissed, without costs.
DHEERARATNE, J. -1 agree.
RAMANATHAN, J. -1 agree.
LAKSHMAN DE SILVA v. HON. H. W. SENANAYAKE AND ANOTHER