Wijesena Silva and Others v. Attorney-General
WIJESENA SILVA AND OTHERS
COURT OF APPEALISMAIL, J„
DE SILVA, J.
C.A. NO. 126 – 130/96
C. NEGOMBO NO. 48/93NOVEMBER 20, 24, 26, 1997DECEMBER 08, 09, 16, 1997
Murder – Unlawful assembly – Common object – Penal Code – S. 32, 140, 296,315, 146 – Criminal Procedure Code 15 of 1979 amended by Act 11 Of 1988- S.16, 195(ee), 283 (1) (2) – Duty imposed on a Trial Judge to inquire fromthe accused – Whether or not the accused elects to be tried by a jury – Mandatoryor comparative.
The 5 accused-appellants members of one family were indicted before the HighCourt under sec. 149, 296, 315 of the Penal Code. After Trial (Second Trial) beforea judge sitting without a jury all five accused were convicted. It was contendedthat the trial judge erred in not complying with the mandatory provisions ofS. 195 (e) (e) and 7 of the Code of Criminal Procedure.
Court is required to inquire from the accused whether or not he electsto be tried by a Jury. This is a duty imposed on the trial judge upon receiptof indictment. This duty implies no discretion but a mandatory obligationon the part of the High Court judge.
“This is a recognition of the basic right of an accused person to betried by his peers". Per de Silva, J.
“It can never be said that if an accused is defended by a counsel theTrial Judge is relieved of his statutory obligations. The right to be triedby a jury is not given to the counsel but to the accused person.
2. It cannot be said that retrial is not a fresh Trial different from the firsttrial and that the provisions of the Criminal Procedure Code would thereforenot apply or would apply only in part. For all purposes even in a retrialwhich is no different from the first trial every provision of law applicableto any trial before a High Court would be mutatis mutandis applicable ata retrial.
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APPEAL from the judgment of the High Court of Negombo.
Cases referred to:
Nimal Bandara v. Sfafe-1956 1SLR 214.
R. V. William – 1971 1AER 874.
Dr. Ranjith Fernando with Ms. Anoja Jayaratne for accused-appellant.
C. R. de Silva, PC ASG with S. Samaranayake, SC for Attorney-General.
Cur. adv. vult.
January 16, 1998.
DE SILVA, J.
The five accused-appellants are members of one family. The 1 st, 2nd,3rd and 5th accused are brothers while the 4th accused is their father.The first three charges against them in the indictment were:
That on 11th May, 1989, at Heenatiyana, they were members ofan unlawful assembly the common object of which was to cause hurtto Koronchige Etin Silva and that in the course of the same transactionthey did commit the murder of the said Koronchige Etin Silva andcause hurt to Madampage Charlotte Ariyawathie offences punishableunder section 140, sections 296 and 315 respectively, read withsection 146 of the Penal Code.
The 4th and 5th counts related to committing the murder of thesaid Koronchige Etin Silva and causing hurt to Madampage CharlotteAriyawathie on the basis that they acted in furtherance of a commonintention under sections 296 and 315 read with section 32 of the PenalCode.
After a trial before a Judge sitting without a jury all five accused-appellants were convicted on 04.Q4.96 as charged on counts 1, 2and 3. They were sentenced to 6 months, imprisonment on count 1and to 1 year's rigorous imprisonment on count 3. They were sen-tenced to death on count 2. The trial Judge has failed to arrive ata finding on counts 4 and 5 of the indictment.
The prosecution relied on the testimony of Madampage CharlotteAriyawathie, the widow of the deceased and the injured referred to
CAWijesena Silva and Others v. Attorney-General (de Silva, J.)311
in counts 3 and 5 of the indictment. According to her evidence shewas living with her husband together with their two children in theirhouse at Heenatiyana. Three days prior to this incident her husbandhad been released after serving a sentence of five years for havingcaused the death of a family member of the accused-appellants. On11.5. 1989 after having dinner at about 8.00 pm her husband havinglighted a beedi stepped out of the house through the rear door. Shortlythereafter within about five minutes he had rushed back into the houseshouting out in pain. All five accused-appellants who were armedfollowed him inside the house and attacked him further. Ariyawathietoo received blows when she went to the assistance of her husband.She was assaulted by the 1st accused on the back of her chest.
The deceased was then dragged out of the house by his feet bythe 1st and 2nd accused and was further assaulted. Ariyawathie raisedcries and after the accused-appellants left the scene her brother whohad come there accompanied her to the Police Station. She wasadmitted to hospital and her statement was later recorded.
At the hearing of this appeal the learned counsel for the appellantssubmitted the following as the grounds of appeal:
The learned trial Judge erred in law by failing to comply withthe mandatory statutory obligation under section 195 (e) (e) and(7) of the Code of Criminal Procedure Act, No. 15 of 1979,as amended by Act No. 11 of 1988;
That he erred in law failing to pronounce verdict and sentencein respect of counts (4) and (5) of the indictment as requiredby sections 283 (1) and (2) of the Code of Criminal ProcedureAct, No. 15 of 1979;
That he erred in law by misdirecting himself on the legalconcepts of unlawful assembly, common object, commonintention and common murderous intention; and
That he erred by failing to consider items of evidence favourableto the accused.
On the first ground of appeal it is to be noted that these fiveaccused-appellants had faced a trial before the High Court on thesame indictment. That trial had been before a Jury and after the
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conclusion of the case all the accused had been convicted on a5-2 verdict by the Jury on 21.02.1994. Against that conviction andthe sentence the accused appealed and the Court of Appeal hadordered a retrial in 1995 on the same indictment.
The accused-appellants faced a retrial and after being convictedbefore a Judge of the High Court sitting without a Jury were onceagain found guilty on counts (1), (2) and (3) and sentenced asmentioned before.
Learned counsel for the accused-appellants submitted that thelearned trial Judge has failed to follow the provisions of section 195of the Code of Criminal Procedure Act, No. 11 of 1988. The amendingAct has introduced a new paragraph numbered (ee) which states asfollows:
"(ee) if the indictment relates to an offence triable by a Jury, inquirefrom the accused whether or not he elects to be tried by a Jury".
This amendment was necessitated by the introduction of newsection 161 to the original Criminal Procedure Code. The new sectionstates as follows:
"Subject to the provisions of this code or any other law, allprosecutions on indictment instituted in the High Court shall be triedby a Judge of that court.
Provided that in any case where at least one of the offencesfalls within the list of offences set out in the 2nd schedule to theJudicature Act. No. 2 of 1978, trial shall be by a Jury before aJudge, if and only if theaccused electsto be tried by a Jury".
Thus in view of the saidamendment,ata trialbefore the High
Court the court is required to inquire from the accused whether ornot he elects to be tried bya Jury. Thisisa dutyimposed on the
trial Judge upon receipt of indictment asindicatedby the marginal
note of section 195. This duty implies no discretion but a mandatoryobligation on the part of the High Court Judge. This court inCA 71/93 (HC Kurunagala No. 252/53) decided on 25.03.94 has heldthat a trial held without compliance with this provision is a nullity.The Court of Appeal has also held that “This is a recognition of thebasic right of an accused person to be tried by his peers". (NimalBandara v. Stated).
CA Wijesena Silva and Others v. Attorney-General (de Silva, J.)313
The learned Additional Solicitor-General submitted that since theaccused-appellants were represented by counsel no prejudice hadbeen caused to them. Mr. De Silva referred to R. v. William® wherethere was an omission of formal arraignment of an accused and trialproceeded on the basis of plea of not guilty. The court held that failureto take a plea did not vitiate a trial as there was evidence to establishthat the plea of not guilty had been vicariously offered or tacitlyconveyed or a formal arraignment had been impliedly waived by theaccused.
Additional Solicitor-General further submitted that in this case toothe appellants were represented by counsel and it was the duty ofthe counsel to request for a Jury trial and the failure on the part ofthe counsel is a tacit approval of the fact that trial was to be heldby the High Court Judge alone.
It is relevant to observe that when the case was fixed for trial onlythe assigned counsel represented the accused, (see proceeding of
at page 9). However it can never be said that if anaccused is defended by a counsel the trial Judge is relieved of hisstatutory obligations. The right to be tried by a Jury is not given tothe counsel but to the accused person.
In the instant case the trial commenced on the 23rd of February,1996, when a plea was recorded and the court proceeded to hearevidence. Before the commencement of the trial the trial Judge hadnot complied with section 195 (e) (e). No option whether they wishedto be tried by a Jury had been given to the accused. In fact the trialJudge states that this trial commenced before him without a Jury (page153). it should also be noted that the accused had in fact opted fora Jury on the first trial on being given the option as required by law.
The learned Additional Solicitor-General further submitted that thistrial was as a result of an order of the Court of Appeal. Thereforethere is no fresh service of indictment and section 195 does not comein to play at this stage. We are unable to agree with this submission.
It cannot be said that retrial is not a fresh trial different from the firsttrial and that the provisions of the Criminal Procedure Act, No. 15of 1979 would therefore not apply or would apply only in part. It isobserved that for all purposes even in a retrial which is no differentfrom the first trial every provision of law applicable to any trial beforea High Court would be mutatis mutandis applicable at a retrial.
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Furthermore if Additional Solicitor-General's argument is acceptedit will be a situation where the accused-appellants have already optedfor a Jury at the time the indictment was served on them and thetrial Judge has totally disregarded that and proceeded to hear thecase contrary to the wishes of the accused.
We therefore hold that the failure on the part of the trial Judgeto comply with this new section 195 (e) (e) necessarily vitiates thistrial. Since we take this view it is not necessary to consider the othergrounds of appeal. Our courts have held that a 2nd retrial can bepermitted but not a 3rd. We set aside the conviction and sentenceof the accused-appellants and direct that a fresh trial be held earlyafter the accused-appellants are given an opportunity to elect whetherthey be tried by a Jury or a Judge alone.
ISMAIL, J. – I agree.
WIJESENA SILVA AND OTHERS v. ATTORNEY-GENERAL