013-SLLR-SLLR-2009-V-1-JAYASOORIYA-AND-OTHERS-vs-ATTORNEY-GENERAL.pdf
CA
Jayasooriya and others vs. Attorney General
101.
JAYASOORIYA AND OTHERS
vsATTORNEY GENERAL
COURT OF APPEALROHINI MARASINGHE. J.SARATH DE ABREW, JCA 152/2002/HCPHC (WP) GAMPAHA 20/2001FEBRUARY 25, 2009MARCH 30, 2009
Penal Code – Section 296 – Murder – Offensive Weapons Act – Section4 (2) – 15 of 1979 – amended by 11 of 1988 – Section 195 (ee) – Section351, Section 465A – Failure to offer to accused option to be tried bya jury – Statutory duty – Fatal? – Evidence Ordinance – Section 35 -Section 114 (d) – Relevancy – Constitution Art 13 (3) – Code of CriminalProcedure – Section 351 – retrial?
The 2nd accused-appellant along with two others were indicted andconvicted under Section 296 and causing injuries to ten others -punishable under the provisions of the Offensive Weapons Act.
It was contended that, the trial Judge failed to comply with Section 195(ee) of the Code of Criminal Procedure Act and the failure to offer theaccused the option to be tried by a jury is fatal.
It was contended by the respondent that, there is no statutory provisionwhich imposes a duty upon a trial Court to record every such detail,and the presumption in Section 114 (d) Evidence Ordinance shouldoperate in favour of the respondent.
It was further contended that, the failure to aver such a fundamentaldefect as a ground of appeal in the petition of appeal would lead to theconclusion that the jury option was in fact offered, and that the entryas to a non-jury trial in the official file maintained by the prosecutingState Counsel is relevant under Section 35 of the Evidence Ordinanceand further the Court of Appeal in the interest of justice could act underSection 351 of the Criminal Procedure Code.
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Held:
It is settled law that failure to offer the jury option to an accusedperson under Section 195 (ee) is a fundamental breach whichcannot be cured under Section 465 (A)
Per Sarath de Abrew. J
“Every trial judge has, an obligation and responsibility to maintaina proper and accurate record of what transpires before him in
every trial the appellate Court should always be guided
by what transpires in the case record and not on some extrinsicmaterial of which the trial judge had no control whatsoever.’
Fundamental defect cannot be cured by invoking the presumptionunder Section 114(d). It would have been desirable that thepetition of appeal pleaded the fundamental breach as a failure tooffer the jury option, it would not necessarily debar an appellantfrom raising such an important question of law at the hearing, if ithas occasioned a substantial miscarriage if justice.
Per Sarath de Abrew. J
“To ensure a fair trial, the legislature in its wisdom from time totime has promulgated several fundamental concepts and statutoryduties into our criminal law, the offering of the jury option is onesuch concept”. 3
(3)The file maintained by the State Counsel is not part of the caserecord and is not in the custody and control of Court – and is notby itself satisfactory proof that the jury option has in fact beenoffered.
APPEAL from a judgment of the High Court of Gampaha.
Case referred to:*
A.G. vs. Segulebbe Latiff – SC 794/2007 – SCM.12.9.2008
Aravinda Athurupane for 2nd accused-appellant
Buwaneka Aluvihare – DSG for Attorney General
CA
Jayasooriya and others us. Attorney General
(Sarath De Abrew, J.)
103
June 19, 2009SARATH DE ABREW, J.
The 2nd Accused -Appellant (hereinafter sometimesreferred to as the Appellant) along with two other accusedwere indicted in the High Court of Gampaha and convicted ofthe following offences:
On or about 10th May 1996 at Gampaha committingthe murder of one Peiris Subasinghe punishable underSection 296 of the Penal Code.
Committing the murder of one K. Kaushalya Hapugodapunishable under section 296 of the Penal Code.
Causing injuries to ten others (10 other counts) witha hand grenade punishable under section 4(2) of theoffensive Weapons Act.
At the conclusion of the trial the 2nd and 3rd accused wereconvicted of the aforesaid charges while the 1st accused wasacquitted. Being aggrieved of the above convictions the 2ndand 3rd accused preferred appeals to this Court. When theappeals were taken up for hearing the 3rd accused appellantwithdrew his appeal. At present only the appeal lodged by the2nd accused (Appellant) remains for consideration.
On behalf of the Appellant the learned counsel raised apreliminary issue that the learned trial judge had failed tocomply with section 195(ee) of the Code of Criminal Procedureas amended as follows:
The failure to offer to the accused the option to be tried bya Jury.
The denial of the right of the accused to be informedof his statutory right to be tried by a jury. The learned
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counsel further contended that failure to comply withthe aforesaid statutory duty would be to render allproceedings, conviction and sentence invalid. In supportseveral case law authorities were cited including the recentSupreme Court decision in A.G. Vs. Segulebbe Latiff andothers.™ At the time of the serving of the indictment, theCourt proceedings and the journal entries disclose thatthe learned trial Judge had failed to record that section195(ee) of the Code of Criminal Procedure had beencomplied with.
The learned Deputy Solicitor General did not disputethe fact that the offer of Juiy option to the accused by thelearned trial Judge is not recorded anywhere in the Courtproceedings or the journal entries. However, the learned D.S.G.endeavoured to distinguish the facts in the present case tofall into a category where the Jury option had in fact beenoffered but due to an oversight and/or some inadvertence.that part of the proceedings has not got recorded in theproceedings. In support of this contention the learned D.S.G.relied heavily on a minute made by the prosecuting StateCounsel in the file maintained by the Attorney General’sDepartment that a non-iurv trial was fixed pertaining to thiscase. It was the contention of the respondent that the juryoption had in fact been offered though not recorded and thecomplaint of the appellant therefore is bereft of any merit.Even in the absence of a specific recording to that effect inthe Court record, the learned DSG contended, the followingfactors would enable the Appellate Court to take duecognizance of the fact that the statutory duty embodied insection 195(ee) of the Code of Criminal Procedure as amendedhas been duty complied with to the satisfaction of Court. Infurtherance of the above, the learned DSG submitted thefollowing:
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Jayasooriya and others vs. Attorney General
(Sarath De Abrew, J.)
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There is no statutory provision or duty cast by law whichimposes a duty upon a trial Court to record every suchdetail.
The presumption contained in section 114(d) of theEvidence Ordinance “that judicial and official acts havebeen regularly performed” should operate in favour of therespondent, unless the Appellant proves otherwise.
While appreciating the right of the Appellant to raise freshgrounds of appeal not stated in the petition of appeal, itis significant that the Appellant had failed to aver such afundamental defect as the failure to offer the jury optionas a ground of appeal in the petition of appeal, whichomission would lead to the reasonable conclusion thatthe jury option was in fact offered, though not recorded,which the Appellant was well aware of at the time ofdrafting the petition of appeal, especially so as the verysame counsel who defended the Appellant at the trial wasresponsible for drafting of the petition of appeal.
The entry as to a non iurv trial' in the official filemaintained by the prosecuting state counsel is relevantunder section 35 of the Evidence Ordinance to determineas to whether the jury option had in fact been offered.
The Court of Appeal may, if it thinks necessary orexpedient in the interest of justice act under section 351of the Code of Criminal Procedure which enables Court to“ order the production of any document, exhibit or otherthing connected with the proceedings, the production ofwhich appears to it necessary for the determination of thecase,” and order the production of the aforesaid officialfile and peruse the entry concerned.
Having carefully perused the written submissionstendered by both counsel, I am inclined to reject theseveral contentions urged by the learned D.S.G. for thefollowing reasons.
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(a) Section 195(ee) of the Code of Criminal Procedure. ActNo. 15 of 1979. as amended by Act No. 11 of 1988, readsas follows:
“If the indictment relates to an offence triable by a jury,inquire from the accused whether or not he elects to betried by a jury.” Section 195 further entails other dutiescast upon a presiding High Court Judge when anaccused person is brought before Court for serving ofthe indictment. In view of the Supreme Court decision inAG Vs Segu Lebbe Latiff & otherw it is now settledlaw that failure to offer the iurv option to an accusedperson under section 195fee) is a fundamental breachwhich cannot be cured under section 456A of the Code.Even though the learned D.S.G. contended that thereis no statutory duty cast by law for the learned trialJudge to record every detail, I am of the view that ev-eiy trial judge has an obligation and responsibility tomaintain a proper and accurate record of what tran-spires before him in every trial, especially so the com-pliance with fundamental requirements such as serv-ing of the indictment, offering the jury option, enteringa plea of guilty, recording a verdict and sentence. As thelearned counsel for the Appellant had pointed out in hiswritten submission all the requirements under section195 of the Code has been complied with and recordedin the case record except the requirement under section195(ee), namely the offering of the jury option. Thereforethe argument that the jury option has in fact beenoffered but not recorded due to some inadvertencecannot succeed. The Appellate Court should always beguided by what transpires in the case record, and not onsome extrinsic material of which the learned trial Judgehad no control whatsoever.
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Jayasooriya and others vs. Attorney General
(Sarath De Abrew, J.)
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The case record is proof of all judicial acts performedand recorded therein. Where there is no specific record ofperformance of a fundamental statutory duty cast on atrial Judge, this fundamental defect cannot be cured byinvoking the presumption under section 114(d) of theEvidence Ordinance.
Although it would have been desirable that the petition ofappeal pleaded the fundamental breach such as a failureto offer the jury option, it would not necessarily debar anAppellant from raising such an important question of lawat the time of hearing of the Appeal if it has occasioned asubstantial miscarriage of Justice.
The entry as to a non jury trial contained in the officialfile maintained by the prosecuting State Counsel by itselfis not satisfactory proof that the jury option has in factbeen offered. The file maintained by the State Counselis not part of the case record and is not within thecontrol and custody of Court. Even if this file is perusedby this Court under section 351 of the Code, it would onlygive credence to the fact that this instant case was fixedfor non-jury trial after serving of the indictment. Thisparticular entry would not establish beyond doubt thatsection 195(ee) of the Code had been complied with andthe Jury option was in fact offered to the accused. Itcould very well be that the jury option was not offeredand no jury was summoned for the trial date and the casewas listed for trial as a non-jury case. Therefore the entryin the file of the State Counsel cannot be considered asconclusive on a matter where the case record itself issilent and where a fundamental right of an accusedperson in our criminal jurisprudence is in question.
Article 13(3) of our Constitution promulgates that
“Any person charged with an offence shall be entitled to be
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heard, in person or by an attomey-at-law, at a fair trial by acompetent court.” To ensure a fair trial, the legislature inits wisdom, from time to time, has promulgated severalfundamental concepts and statutory duties into our criminallaw. The offering of the jury option is one such concept. Thereis a duty cast on the learned trial judge not only to informan accused person his right to select as to the jury optionbut also to accurately record what option the accused hadselected. Where there is a dispute whether this fundamentalduty had been in fact performed, the Appellate Court wouldprefer to be guided by the case record and would hesitate toconsider extrinsic material such as a file maintained by theState Counsel.
The indictment reveals that the alleged offences have beencommitted on 10th May 1996, 13 years hence. The learnedtrial Judge had delivered judgment on 31.07.2002, around07 years ago. There would be no purpose served in sendingthis case back for a retrial after such a long period, especiallyso as the Appellant had apparently been in remand for over10 years before and after being convicted. Due to a vital lapseon the part of the learned trial judge, it would be unjustifiableto direct the Appellant to undergo the hazards of a secondtrial after an intervening period of 13 years. In view of theabove, this Court is not inclined to order a retrial.
In view of the foregoing conclusions, I uphold thepreliminaiy issue raised by the Appellant, and set aside theconviction and sentence imposed by the learned trial Judgeof Gampaha, and acquit the Accused-Appellant. The appealis therefore allowed. The Registrar is directed to send a copyof this order with the original case record to the High Courtof Gampaha.
MARASINGHE, J. – I agreeAppeal Allowed