H. N. G. FERNANDO, C. J.—Siriwardena v. The Queen
[Court of Criminal Appeal]
1971 Present: H. N. G. Fernando, C.J. (President), Samerawlckrame, J.,
and Wijayatilake, J.
D. C. M. SIRIWARDENA and another, Appellants, and THE QUEEN,
C. C. A..70-71 of 1971, with Applications 100-101S. C. 765/70—M. C. TangaUe, 46057
Trial bejore Supreme Court—Two accused represented by same Counsel—Evidencegiven by one accused implicating the other accused—Resulting position.
Where two accused persons are represented by the same Counsel at a trialbefore the Supreme Court and the 1st accused gives evidence from the witness, box implicating the 2nd accused, the proper course in such a situation is toadjourn the trial in ardor to enable defence Counsel to consider his position.
A_PPEALS against two convictions at a trial before the Supreme Court.
Miss A. P. Abeyratne (assigned), for the 1st accused-appellant.
K. Kanag-Iswaran, with (assigned) Miss A. P. Abeyratne, for the 2ndaccused-appellant.
Cur. adv. vull.
September 29, 1971. H. N. G. Fernando, C.J.—
The two appellants were convicted on a charge of murder and weresentenced to death.
One Counsel was on 26th April 1971 assigned by the Court to defendboth these accused, and on that date the trial was fixed for 3rd May1971. When the case was taken up on 3rd May, another Counsel, whohad been retained, appeared for both accused. After the trial hadproceeded for about one hour, this Counsel informed the Court that hehad received the brief only that morning and had not sufficient time evento read his brief. He explained that the relations of the accused hadnot been able to retain him earlier because of “the present circumstances ”,thus referring obviously to the insurgent activities prevailing duringthat time. The learned Commissioner then stated “ they cannot waittill the date of trial and then ask for dates ”. Considering that 3rdMay was fixed as the date of trial only one week earlier, and in view of theprevailing circumstances, we think that the Commissioner did not takesufficient regard ofthe right of accused persons to a reasonable opportunityto be defended by Counsel of their choice.
H. N. O. FERNANDO, C. J.—Striwardena v. The Queen
The learned Commissioner informed Counsel, however, that if he wasin difficulty the trial could be adjourned for the following day, and a fewminutes later the trial was so adjourned, and was resumed on the 4thMay. After the case for the prosecution was closed on 4th May, defenceCounsel informed the Court that he would call the 1st accused to giveevidence. But at the commencement of proceedings on 6th May, hostated that the accused would make a statement from the dock. Theaccused however, when addressed by the Court, expressed a wish togive evidence from the witness box.
The 1st accused thereupon gave evidence, in the course of which hedenied his own complicity in the offence charged; but he seriouslyimplicated the 2nd accused. There was then cross-examination of the1st accused by Crown Counsel, but no re-examination.
It will be seen that a most unfortunate situation arose when the 1staccused gave evidence implicating the 2nd accused, who himself wasrepresented by the same Counsel. Our attention was drawn by Counselwho appeared before us for the 2nd appellant to the case of The King v.Punchi Banda 1 (47 N. L. R. 203), in which it was held that the propercourse in such a situation was to adjourn the trial in order to enabledefence Counsel to consider his position. Unfortunately, however,neither Judge nor Counsel realized the need for such an adjournment inthe present instance.
It is manifest that the 2nd accused was gravely prejudiced by thefact that his Counsel, because he also represented the 1st accused, couldnot cross-examine the 1st accused in an attempt to refute the damagingevidence given against the 2nd accused. The circumstances also showthat this evidence must have taken defence Counsel by surprise. Ifinstructions previously given to him by the 1st accused had revealedthat such evidence would be forthcoming, Counsel would obviouslyhave taken steps to see that the two accused were separately represented.Indeed the situation which arose was probably due to the fact thatdefence Counsel had no sufficient opportunity to receive properinstructions from his clients.
In these very special circumstances, we came to the conclusion thatneither of the accused substantially enjoyed his right to be defended,and we saw no reason to think that this grave disadvantage arosethrough any fault of either accused.
For these reasons we made order setting aside the verdict and sentences,and directing that both appellants be tried afresh on the same charge.It is scarcely necessary to add that the course of assigning separateCounsel should be considered before the fresh trial is held.
Case sent back for fresh trial.
1 (1949) 41N. L. R. 203.
D. C. M. SIRIWARDENA and another. Appellants, and THE QUEEN, Respondents