008-NLR-NLR-V-76-L.-S.-PREMATILLEKE-Appellant-and-THE-STATE-Respondent.pdf
FERNANDO, P.—Prematilleke v. The Stats
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[In the Court op Appeal of Sri Lanka]
Present: Fernando, P., Sirimane, J., Samerawickrame, J.,
and Siva Supramaniam, J.
S. PREMATILLEKE, Applicant, and THE STATE,Respondent
Application No. 66 of 1972
C.A. 59/72—S.C. 117/2 M. C. Matara 51785
Trial by Jhry (.Special Provisions) Law, No. 12 of 1972—Its applicabilityafter May 22, 1972—Proviso to section 5 (1) of Court of CriminalAppeal Ordinance—Manner of its application.
The Trial by Jury (Special Provisions) Law, No. 12 of 1972, isdeemed to have come into effect on May 22, 1972. It is therefore,applicable to a case in which the trial of an accused personwho had elected to be tried by an English-speaking jury wassubsequently conducted in Sinhala after May 22, 1972.
Quaere, whether the manner of application of the proviso tosection 5 (1) of the Court of Criminal Appeal Ordinance “must beactive and robust and not passive and apologetic ”,
APPLICATION for leave to appeal from a judgment of theCourt of Criminal Appeal reported ih (1972) 75 N. L. R. 506.
G.' E. Chitty (Sr.), with G. L. M. de Silva, for the accused-applicant.
Kenneth Seneviratne, Senior State Counsel, for the respondent.
Cur. adv. vult.
March 19, 1973. Fernando, P.—
This is an application for leave to appeal from a judgment ofthe Court of Criminal Appeal dismissing an application for leaveto appeal on the facts as well as an appeal from a convictionon a charge of murder.
Learned Counsel for the applicant has addressed us at lengthin an effort to induce us to grant leave. The first point reliedon by him was that in respect of the question of identity of thedeceased man there had been in the trial Court a misreceptionof medical evidence and misdirection amounting to a withdrawalfrom the jury of its right to decide on the question of identity.A similar argument had been unsuccessfully addressed to theCourt of Criminal Appeal. We do not agree that there has beena withdrawal from the jury as alleged in the argument. The
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1* K 21708 —2,805 (5/73)
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FERNANDO, P.—-Prematilleke v. The State
jurors were informed of their right to decide all questions offact and that they were not bound by any views of the Judgeon such questions. Moreover, there was other more compellingevidence of identity before the jury to which no allusion hadbeen made by the trial Judge.
The most important witness in the case was a man namedSirisena who claimed to be an eye-witness of the attack madeby the applicant. The trial Judge gave a clear and explicitdirection to the jury that “ the foundation of the case rested onhis (Sirisena’s) evidence. The prosecution case has been builton his evidence. When that building collapses you will have tothrow away the entire case. ” With the return by the jury of averdict of guilt there is a necessary inference that the jurorsaccepted this eye-witness’s evidence given before them.
Counsel contended that the trial Judge should have instructedthe jury to treat the evidence of Sirisena as if he had been anaccomplice. The Court of Criminal Appeal has rightly held thatthere was no necessity for such an instruction in the circum-stances of this case as there was no evidence which could haveled to a reasonable suggestion of Siri'sena having been anaccomplice. The failure to direct the jury in a manner suggestedby Counsel does not constitute in our opinion a non-directionon a necessary point. Criticism was directed before us as wellas before the Court of Criminal Appeal that the direction to thejury to consider whether the evidence relating to drunkennessof the applicant could affect their decision as to the nature ofthe verdict they were to return was insufficient and misleading.The Court of Criminal Appeal has observed that it does notconsider the direction given inadequate. That Court has alsoset out the evidence that told against the applicant on this point,and we see no sufficient ground on which to grant leave toappeal.
The other point raised by the applicant’s Counsel before usrelated to the proceedings being had in the trial Court inSinhala whereas the applicant had elected to be tried by anEnglish-speaking jury. We think no useful purpose will now beserved in considering this point in view of the enactment of Trialby Jury (Special Provisions) Law, No. 12 of 1972, which isdeemed to have come into effect on May 22, 1972, i.e., beforethe date of the trial in question.
While we refuse the application for leave for the reasonsshortly stated above, we find it necessary to observe here thatthis refusal to grant leave should not be understood as involvingan acquiescence in certain dicta to be found in the judgmentof the Court of Criminal Appeal relating to the manner of
Mtirugeeuv. Anandasangary
SI
application of the proviso to Section 5 (1) of the Court ofCriminal Appeal Ordinance. We refer in particular to thefollowing statement in the judgment: —
“ Such application must be active and robust and notpassive and apologetic.”
Consideration of the dicta referred to above must await asuitable opportunity in the future.
Application refused.