005-SLLR-SLLR-1985-V2-KARUNADASA-AND-OTHERS-v.-ATTORNEY-GENERAL.pdf
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Sri Lanka Law Reports
P 985)2 Sr, L.R.
KARUNADASA AND OTHERS
v.
ATTORNEY GENERAL
COURT Oh APPEAL.
SENEVIRATNE, J. (PRESIDENT. COURT OF APPEAL|. SIVA SELLIAH. JAND BANDARANAYAKE. J.
C. A. APPLICATION No. 1608/84; H. C. RATNAPURA No. 15/83.
MARCH 28 AND 29. 1985
O
Trial by jury in murder trial – Plea to lesser offence after commencement oftrial – Acceptance of plea by Judge – Validity – Sections 230 and 232 of the Code ofCriminal Procedure Act.
The accused-petitioners were indicted for murder After the empanelling of the jury andthe opening address to the Jury hy the State Counsel and trial Judge and the formalevidence of a Police Constable was led. the accused pleaded guilty to the lesser offenceof culpable homicide not amounting to murder. Without putting the question ofacceptance of the plea to the jury, the Judge on his own accepted the plea andconvicted and sentenced the accused.
Held –
The Judge has no power to accept a.plea from the accused once a jury trial hascommenced. The acceptance of a plea is then a function of the Jury. It cannot be saidthat the trial proper had not commenced as the evidence of eye-witnesses had not yetbeen led.
APPLICATION in revision from conviction and sentence of the High Court Judge ofRatnapura.
Mrs. M. Muttetuwegama for petitioner.
N. G Amaratunga, S C. for Attorney-General.
Cur adv. vult.
May 9, 1985.
SIVA SELLIAH, J.
The three accused-petitioners in this case were indicted in the HighCourt of Ratnapura for Having on 2.2.1980 caused the death ofWeerasekara Kankanamge Sirisena, on offence punishable undersection 296 of the Penal Code.
CA
Karunadasa v. Attorney-General (Siva Selliah. J.)
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The case was taken up for trial on 5.11.84 and the accusedpleaded severally not guilty. The jury was thereafter empanelled andon the following date the learned High Court Judge made hispreliminary charge to the jury after which the State Counsel openedthe case for the prosecution and also proceeded, with the leave of thejudge, to amend the indictment by adding an additional witness.Thereafter the prosecution led the evidence of PC 13164 Sunil. Afterthe evidence of this witness was led the accused pleaded guilty to thelesser offence of culpable homicide not amounting to murder and thejudge accepted the plea and sentenced the 1,2 and 4th accused to aterm of 10 years R.l. each and the 3rd accused to a term of 2 years
R.I., suspended for 10 years. The 1, 2 and 4th accused have on21.11.84 moved by way of an application in revision to set aside theconviction and sentence imposed on the ground that the judge had nopower to accept a plea from the accused once a jury trial hadcommenced and that it was the function of. the jury to do so and thathis statement to the jury at that stage that the "trial proper" had notcommenced as the evidence of no eye-witness had been led isincorrect.-
We are in agreement with this submission of learned counsel for theaccused. The provisions governing trial by jury are contained in section204-238 of the Criminal Procedure Code Act and a scrutiny of section230 and 232 which set out the relative duties of the judge and the juryat a trial demonstrate Quite clearly that the verdict must be that of thejury. The State Counsel has conceded in this case that the trial hadcommenced before the jury after they were empanelled andaddressed by the judge explaining the principles which should guidethem in the hearing and determination of the case and the StateCounsel had addressed the jury on what was the prosecution case. Inthe circumstances it was wrong for the learned judge to state to thejury that the trial proper had not commenced and thus withdraw thecase from the jury and accept a plea on the lesser offence without inthe first instance asking both the State Counsel and the jury whetherthey accepted such a plea. As I observed earlier the verdict must, in ajury trial, be that of the jury and any departure from such a duty whichis enjoined by law cannot be encouraged.
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Sri Lanka Law Reports
(1985] 2 Sri LB.
The learned State Counsel contended that we should apply theprovisions of section 7 and section 436 of the Criminal ProcedureCode Act as the accused had pleaded guilty .to the lesser offence ontheir own and therefore no prejudice has been caused and there hasbeen no failure of justice. He further contended that it was in view ofthe ground of the sentence of 10 years R.l. imposed that thisapplication has been made. We see no justification whatever in law forapplying either the provisions of section 7 or section 436 of theCriminal Procedure Code Act. It is fundamental that a trial must beheld according to law and that in a trial by jury where an accused hasbeen given into, the charge of the jury the verdict must be that of thejury. We are greatly appreciative of the fact that the learned StateCounsel following the highest traditions has brought to our notice thecase of Joe Hancoch. In that case the appellant was charged atDerbyshire Assizes on an indictment which charged him with havingcarnal knowledge of a woman without her consent. At first, theappellant pleaded not guilty but afterwards in the course of the trial, msomewhat unsatisfactory circumstances he made a confession ofsome sort in the presence and hearing of the jury and that confessionwas acted upon, although no verdict of the jury was taken and the jurywas in fact discharged. The Lord Chief Justice held that there was nodoubt that, in such circumstances, a verdict of the jury ought to betaken and set aside the conviction and ordered a re-trial
In the instant case, we are unable to sanction the step taken by the. High Court Judge to accept the plea of the accused without consultingthe jury into whose charge the accused had been given. To do sowould be to encourage short circuits in jury trials and would be inconflict with the principle that the verdict must be that of the'jury. As. the procedure adopted by the learned judge in this case constitutes amis-trial. we set aside the conviction and sentence imposed on theaccused and order a fresh trial according to law.
SENEVIRATNE, J. (President) – I agree.
BANDARANAYAKE, J. – I agree.
Conviction and sentence set aside and case sent back for fresh trial.