003-SLLR-SLLR-1994-V1-DHARMASENA-v.-THE-STATE.pdf
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DHARMASENA
v.
THE STATE
COURT OF APPEAL
A. DE Z. GUNAWARDENA, J.
H. S. YAPA. J.
C.A. APPEAL NO. 101/93HC GALLE NO. 132MAY 11TH AND 12TH, 1994
Criminal Law – Election of trial by jury – Subsequent change of election to trial byJudge, without a jury – Accused's right to change such election upto thecommencement of the trial – Accused bound by the selection of panel of jurors -Code of Criminal Procedure Act, No. 15 of 1979, Section 161, 195(ee) and
WO-
The accused-appellant first elected to be tried by a jury. On the date ofcommencement of trial, Counsel for the accused-appellant informed Court thatthe accused-appellant wishes to be tried by the High Court Judge, without a jury.Accordingly, he was tried by Judge without a jury. An objection was taken at thehearing of the appeal that the learned trial Judge had erred in law. in allowing theCounsel who appeared at the trial, to change the election first made by theaccused-appellant, to be tried by a jury.
That upon an examination of what transpired in Court it is clear that it was theaccused-appellant who had desired to change the election made by him in thefirst instance, and that the Counsel had merely conveyed that wish to Court. It iswithin the competence of the Counsel to do so.
That the restriction of being bound by the ‘election so made*, in the firstinstance, applies only the election of a panel of jurors, by whom the accusedwishes to be tried.
Per Gunawardena, J.
'Thus, this leaves the accused, with the option of changing the election hemakes, in regard to whether he should be tried by a jury or Judge, upto thecommencement of the trial.*
CA
Dharmasena v. The State (A. De Z Gunawardena, J.)
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APPEAL from conviction and sentence entered by the High Court of Gaile.
Dr. Ranjit Fernando with Shanika Atapattu for accused-appellant, C. R. de Silva,D.S.G. for (he State.
Cases referred to:
Punchiappuhamy v. Wijesinghe: 49 NLR 216
Saram v. Neina Marikar:(1900) 4 NLR 154
Dr. Ranjith Fernando with Shanika Atapattu for accused-appellant.
C. R. de Silva, D.S.G. for State.
Curadvvult.
June 7th, 1994.
A. DE Z. GUNAWARDENA, J.
The accused-appellant in this case was indicted in the High Courtof Gaile with having committed the murder of one D. K. Wimalasena,on March 25, 1986, an offence punishable under Section 296 of thePenal Code. After trial by Judge, without a Jury, the accused-appellant was convicted of the said offence, and was sentenced todeath. This appeal is from the said conviction and sentence.
The learned Counsel for the accused-appellant submitted that thelearned trial Judge has erred in law in permitting the Counsel for theaccused, at the trial, to change the election made by the accused, tobe tried by a Jury and require that the trial be held by a Judge,without a Jury.
He pointed out that Section 161 of the Code of Criminal ProcedureAct No. 15 of 1979, which provided for jury trials, was amended byCode of Criminal Procedure (Amendment) Act No. 11 of 1988,whereby section 161 of the principal enactment was repealed andthe following new section was substituted therefor:- *
*161. Subject to the provisions of this Code or any other law, allprosecutions on indictment instituted in the High Court shall betried by a Judge of that Court:
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Provided that in any case where at least one of the offencesfalls within the list of offences set out in the Second Schedule tothe Judicature Act, No. 2 of 1978, trial shall be by a jury, beforea Judge, if and only if, the accused elects to be tried by a Jury."
Thus we see that by virtue of the said amendment, the procedureprovided for trials in the High Court, in the principal enactment, hadbeen changed. However, the proviso to the new section still providesfor a trial by a jury before a Judge of the High Court, if the accusedso elects.
In view of the above change in the procedure, a furtheramendment to the principal enactment had been made by the saidamending Act, by adding paragraph (ee) to Section 195 of theprincipal enactment. The new paragraph states as follows:-
“(ee) if the indictment relates to an offence triable by a jury,inquire from the accused whether or not he elects to be tried bya jury:"
Hence under the new procedure the accused has to first electwhether or not he wants to be tried by a jury.
Thereafter the accused is required to make a second election, interms of the provisions of Section 195(f), of the principal enactment,which states as follows:-
"(f) Where trial is to be by a jury direct the accused to elect fromwhich of the respective panels of jurors the jury shall be takenfor his trial and inform him that he shall be bound by and maybe tried according to the election so made:”
In the instant case when the accused appeared in Court on4.11.1992, for service of indictment, a Counsel had appeared for him.(Not the Counsel who appeared at the trial). In addition, at therequest of the accused, a Counsel had also been assigned by Court.Thereafter when the accused was asked whether he wishes to betried by the High Court Judge without a jury or tried by a jury before aJudge, the accused had replied that he wishes to be tried by a
CA
Dharmasena v. The State (A. DeZ Gunawardena, J.)
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Sinhala speaking jury before a Judge. Then the trial was fixed for8.3.1993. On that date the trial was not taken up as the State Counselwas not available and the accused was represented by retainedCounsel (i.e. the Counsel who appeared at the trial) as well asassigned Counsel. On 11.3.1993, the case was called and the sameCounsel appeared for the accused. The same Counsel appeared forthe accused on 26.7.1993, the second trial date, and it was refixedfor 22.9.1993. On 22.9.1993, which was the third trial date, the sameCounsel appeared for the accused. On this day when the case wasmarked ready for trial, the retained Counsel who appeared for theaccused, submitted to Court that the accused wants him to informCourt that, the accused would like to be tried by the High CourtJudge, without a jury. The Counsel had added that he was notpresent on the day the indictment was served, and that he also wouldprefer if the trial is held by the High Court Judge, without a jury.Accordingly, he sought permission of Court to conduct the trial,without a jury. The State Counsel had no objection, and the learnedHigh Court Judge allowed the application to have the trial before him,without a jury.
The learned Counsel for accused-appellant submitted that theelection made by the accused to be tried by a jury had beenchanged, by the Counsel, who appeared for the accused. He addedthat, the Counsel could not do so and that if there was to be achange in the election, it had to be done by the accused personally,and conveyed to Court by him. What actually transpired in Court wasset out above, in detail, with a view of assessing objectively, what thefactual position is. As referred to above it is apparent from what hasbeen stated by the Counsel for the accused in open Court that, he isconveying the wish of the accused, to change the election theaccused had made earlier, to be tried by a jury. It is manifestly clearfrom the words spoken by the Counsel that he is merely conveyingthe decision made by the accused, to change the election he hadmade, at the first instance. The Counsel had added that, he alsoprefers that the trial be held by the High Court Judge. Although theaccused has not directly spoken, and informed the Court personally,his wish to change the election had been conveyed in open Court, inSinhala. by his Counsel, which the accused also would have heard. Itis pertinent to note that, if in fact, the accused had not changed the
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election, he had two opportunities at the trial, at least belatedly, tobring it to notice of the trial Judge. One occasion was when he madethe statement from the dock and the second was when he was askedunder provisions of Section 280 of the Criminal Code, (allocutus)whether he has anything to say why the judgement of death shouldnot be pronounced against him. In addition, he has not taken up thisposition even in the petition of appeal. Thus from the facts andcircumstances enumerated above it is reasonable to infer that theaccused had personally opted to change, the election he made, atthe first instance, and elected to be tried by the High Court Judge,without a jury. Although the very words of the change of the electionhas not come out of the mouth of the accused, the intention of theaccused had been conveyed to the Court, in clear language, by theCounsel. Therefore, we hold that it is not the Counsel who hadchanged the election, earlier made by the accused, but it was theaccused himself.
The learned Counsel for the accused-appellant further submittedthat election to be tried by a jury or Judge, is similar to the situation ofrecording a plea from the accused at a trial. He pointed out that aplea must be tendered by an accused himself. He cited the casereported in Punchiappuhamy v. Wijesinghewhere it was held that,
“Section 188 of the Criminal Procedure Code makes noprovision for the pleader of the accused making the statementrequired thereunder. An accused cannot be punished on anadmission of guilt unless that admission is unqualified andmade by the accused in person.”
This case followed the earlier decision in Saram v. Neina Marikar.'*>We are in agreement with the said decisions, but the position thatarises in this case, is different.
It is to be noted that Section 197 of the Criminal Procedure Codewhich deals with a trial in High Court provides that,
‘If the accused pleads guilty and it appears to the satisfactionof the Judge that he rightly comprehends the effect of his plea,the plea shall be recorded on the indictment and he may beconvicted thereon."
CA
Dharmasena v. The State (A. De Z. Gunawardena, J.)
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There is a significant difference in the words in Sections 161 and195(ee) when compared with Section 197 of the Criminal ProcedureCode. It is to be noted that the words, “it appears to the satisfactionof the Judge that he rightly comprehends the effect of his plea", donot appear in Sections 161 and 195(ee). Furthermore, Section 183 ofthe Criminal Procedure Code provides for the manner in which a pleashould be recorded in a trial before the Magistrate. It states that,
"If the accused . . . makes a statement which amounts to anunqualified admission that he is guilty of the offence of which heis accused, his statement shall be recorded as nearly aspossible in the words used by him; (my emphasis)…"
There is no such requirement in the provisions of Sections 161 and195{ee) of the Criminal Procedure Code. Thus it is reasonable to inferthat, it is not imperative that, the election made by the accused, to betried by a jury or Judge, should be personally conveyed to Court bythe accused himself, provided of course that such election, is madeby the accused, personally.
The learned Counsel for the State submitted that, it is within thecompetence of the Counsel for the accused to convey to Court, theelection or change of election made by the accused, to be tried by ajury or Judge. He added that in this case the accused had done sothrough the medium of his Counsel.
In this context it may be observed that there are two otherinstances, other than the pleading to the indictment in a trial beforeHigh Court, where the accused is personally obliged to make thestatements required. The two instances are, when the accusedexercises his right to make a statement from the dock and when theaccused is asked in terms of the provisions of Section 280 of theCriminal Procedure Code 'whether he has anything to say whyjudgment of death should not be pronounced against him.” Thestatements contemplated in both instances by their inherent nature,have to come from the accused, and conveyed to Court by theaccused, because of the manifestly evident personal element inthem. In our view such is not the situation, in regard to the election tobe made whether to be tried by a jury or Judge. In our view, whilst
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such an election will no doubt have to be made personally by theaccused, the decision so made by the accused, may neverthelessbe conveyed to Court by his Counsel.
The learned Counsel tor the accused-appellant further submittedthat when an election is made by the accused, to be tried by a jury orJudge, the accused is bound by the election so made, in the firstinstance, and cannot change it. He relied on the provisions in section195(f) to substantiate his argument. He argued that the words, insection 195(f) of the Criminal Procedure Code “ … he shall bebound by and may be tried according to the election so made;" areapplicable both to the election whether to be tried, by a jury orJudge, in terms of sections 161 and 195(ee), and the election ofpanel of jurors, under section 195(f) of the Criminal Procedure Code.Firstly, it must be pointed out that there is no mention of the accusedbeing bound by the election made under Section 161 and 195(ee) ofthe Criminal Procedure Code, in the words of those two sections.Secondly it is clear upon a plain reading of the provisions of section195(f) of the Criminal Procedure Code that the words *. . . shall bebound . . are applicable only to the provisions of that subsection.The learned Counsel for the State also submitted that the saidrestriction should apply only to the selection of panels of jurors. Weare of the view that the restriction of being bound by the 'election somade", in the first instance, applies only to the election of a panel ofjurors, by whom the accused wishes to be tried. Thus, this leaves theaccused, with the option of changing the election he makes, inregard to whether he should be tried by a jury or Judge, upto thecommencement of the trial.
In view of the above stated reasons, we are of the view that, nomaterial prejudice has been caused to the accused-appellant.Accordingly we affirm the conviction and sentence of the accused-appellant and dismiss the appeal.
H.S.YAPA.J. -1 agree.
Appeal dismissed.