012-NLR-NLR-V-56-In-re-W.-A.-P.-JAYETILLEKE.pdf
BOSS C.J.—In re JayetiUeke
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1958Present: Rose C.J., Swan 3. and de Silva J.
In re W. A. P. JAYETtLLEKE
S. C. 297—Application by W. A. P. JayetiUeke to be re-enrolledas a Proctor of the Supreme Court
Proctor—Application for re-enrolment—Palpable and definite repentance—Conditionprecedent.'
The petitioner, whose name had been stiuck off the roll of Proctors in conse-quence oi the commission by him of certain grave offences when he was 31 yearsof age and of 6 years standing in the legal profession, made application after20 years to be re -enrolled as a Proctor. He suggested that the grave offencesof whioh he had been convicted were the result of “ youthful indiscretionHeld, that the petitioner failed to establish the existence on his part of thatpalpable and definite repentance which was a necessary pre-requisite of theconsideration of the question whether the grave offences committed by himcould even after 20 years be condoned.
Application for re-enrolment as a Proctor.
N.E. Weerasooria, Q.C., with W. D. Gunasekere and O. S. M. Senevi-ralne, for the petitioner.
A. Wijemanne, Crown Counsel, with G. F. Sethukavaler, CrownCounsel, as amicus curiae.
N. K. Choksy, Q.C., with Cyril E. S. Perera, 'Q.C., and C. G.Weera-man try, for the Incorporated Law Society of Ceylon, on notice.
Cur. adv. trull.
July 9, 1953. Rose C.J.—
This is an application by Mr. W. A. P. Jayatilleke to be re-enrolledas a Proctor of the Supreme Court.
The petitioner was enrolled as a Proctor of the Supreme Court on the20th day of April, 1925, and practised his profession at Badulla fromthat date until the 21st of June, 1932, when he was convicted at theMidland Circuit with six other persons on five counts of an indictmentlaid against him, involving his being a member of an unlawful assembly,whose common object was to take possession of property, by criminalforce, and his having in prosecution of that common object committedhouse-trespass and caused hurt to two women and one man. Por theseoffences he was sentenced to periods of six, nine and fifteen monthsimprisonment, the sentences to run concurrently..
At the hearing before us Mr. Wijemanne who appeared on behalf ofthe Attorney-General as amicus curiae drew bur attention to certainf&ets, which if established, would have aggravated Mr. Jayatilleke’soffence. Moreover, as was pointed out by Dalton A.C.J. when thematter was first considered by the Supreme Court (35 N. L. R. 376),there was medical evidence to support the complaint of one of the womei*
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ROBB C.J —In re Jay&SUtke
that a criminal assault was committed-on hertby one of the gang broughtthere by the respondent, although it was not alleged that the respondentcould be held responsible for this. ' I do 'not consider, however, thatit would be correct for this Court—nor is'it in my opinion necessaryfor the decision of this matter to do so—to-'take into consideration anyof those matters, as there may be some dispute as to them, and I proposeto confine myself to the facts as accepted by this Court when DaltonA:C.J. delivered his judgment on the 3rd August, 1933.
With regard to the facts which were established in the criminal caseDalton A.C.J. says at page 378, that on arrival at the scene “ Therespondent with others entered the house, assaulted the inmates, the twowomen being seriously assaulted according to the medical evidence,and there is evidence to show that respondent personally took part ininflicting some of these injuries …. The occupants being thenturned out of the house spent the rest of the night in fear, hiding fromtheir assailants, and reported the occurrence to the Police at Lunugalanext morning ”.
The learned Judge adds at page 378, “This is not a simple case ofcriminal trespass where a party has taken a mistaken view as to hisrights. The evidence shows that respondent was the moving spiritin the incidents of that night. He has in fact been dealt with as such,since no other of the accused (all but the 2nd, 8th and 9th being convicted)has received more than 5 months’ rigorous imprisonment. His disputesWith Ellen Perera explain his conduct, although of course they cannotjustify it. He decided to take the law into his own hands to expel herfrom the property and recover possession of it, collected a gang of personsto help him in his project, coming with some from a considerable distance,and under cover of darkness entered the premises with them and attackedthe three inmates, two of them being defenceless women, inflictingnumerous injuries on them and afterwards driving them out in terrorinto the night. The conduct of the respondent—an educated mail,and one who has on his own showing occupied public positions in theUva Province—apart from the criminality of it, was most disgracefuland reprehensible even as an ordinary; subject of the King, and stillmore so as a member of the legal profession. It makes him unfit toremain a member of an honourable profession ”.
As is cleat from the many authorities which learned Counsel citedto. us, it has been the practice of this Court; to decide each case upon itsparticular facts. It seems to me that the principle is well stated byBertram C.J! in the Matter of Application for Re-admittance as a Proctorin 39 N‘. L. R. p. 517, when he said, “ There is no question that‘thisCourt has an inherent jurisdiction in the exercise of its discretion, whereit is of opinion that an offender has sufficiently expiated his offence,to restore him to the roH' of practising members of the profession. It isnot necessary to say that we all feel that tins jurisdiction must be exer-cised with the greatest caution. If a membeT of the profession is guiltyof a lapse and after consideration of the fatrta is restored to the roll avery important step has been taken. In the case of In re Pool1 it wasSkid that with reference to such officers of the Court “ that their presenoe> L. B. C. p. 360 {1809),
ROSE O.J.—In re JayeliUelce
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on the roll is an indication, prima facie at least, that they are worthyto stand in the ranks of an honourable profession to whose membersignorant people are frequently obliged to resort for assistance in theconduct and management of their affairs and in whom they are in thehabit of reposing unbounded confidence ; and in looking to the factthat in restoring this person to the roll we should be sanctioning theconclusion that lie is hi our judgment a fit and proper person to be sotrusted. 1 think we ought net to do so, except upon some Bolid andsubstantial grounds*
Bertram C.J. goes on to eay “ In the cases brought to our noticethe grounds for such a proceeding have been recognized as being in thefirst place, a palpable and definite repentance and a manifestation of anhonest career during a considerable period of time, and in the secondplace adequate reparation or at any rate an offer of all possible reparationin the man’s powerI
As regards the present matter the question of reparation hardly arises.In the light of the facts there was perhaps no scope for any reparation.A's regards the manifestation of an honest career during a considerableperiod of time, the documents which have been adduced by the petitionerwould seem to indicate—and I have no reason to doubt—that for thelast 20 years the petitioner has pursued a blameless and even a usefullife.'
As to the first ground however, the existence of a palpable and definiterepentance, L am not satisfied. The facts of the case as establishedin the criminal Assizes, and set out by Dalton A.C.J. in the passagesto which I have already referred, are in my opinion extremely seriousand would, on their own account, make it difficult, in my view, for aCourt to hold that the dignity of the profession and the safety of thepublic would be adequately safeguarded by the restoration of thisProctor to the Roll of Proctors of the Supreme Court. The petitioner,however, in paragraph 12 of his petition refers to the matter in thefollowing terms : “ The petitioner tenders to Your Lordships’ Courthis sincere apologies for the incident in respect of which he was convictedand sentenced and for the regrettable indiscretion which he committed ”.
Moreover in some of the documents submitted by the petitioner insupport of his petition the same position is adopted. Mr. M. I PackirSaibo, a Justice of the Peace, writes, *'…. Apart from his
conviction there is nothing that can be said against liim. He has paiddearly for tliis youthful indiscretion ”. And Mr. Walter Pinto a Proctorof Badulla writes, " All those who know the facts of his case are awurethat he has paid a very heavy penalty for a youthful indiscretion ”.Further Mr. Henry Pinto, who is apparently a partner of Mr. WalterPinto says, “ His conduct has not been considered as anything morethan his having indiscreetly taken the law into his own hands at theyouthful age of 2S ”."
It seems to me that the reference in the petitioner’s own petition towhich 1 have referred and the above passages from the documents insupport show a complete lack of understanding of the extreme seriousnessof the offences which the petitioner lias committed. He was, accordingto his own Counsel, 31 years of age at the time of the offence and was
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Sivdkkattmthu v.JRamdUmbdl
already at that time a professional 'man «ir years standing. To
suggest that In those circumstances the grays offences of which he was
odnvicted and sentenced to a- substantial termof imjftisonment can be- dismissed as a youthful indiscretion seems tome to be quite unwarranted
and leads me reluctantly to the conclusion that the petitioner has failedto establish the existence on his part of that palpable and definiterepentance which is a necessary pre-requisite of our consideration of thequestion whether his grave offences can even after 20 years be condoned.For these reasons the application is refused. There will be no orderas to costs.
Swan. J.—I agree.
»■ Selva J.—I agree.
Application refused.