009-NLR-NLR-V-71-R.-S.-JAYANETTI-Petitioner-and-K.-M.-MARTINUS-and-5-others-Respondents.pdf
H. N. G. FERNANDO, C.J.—Jayanelli v. Martiniu
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1968 Present: H. H. G. Fernando, CJ., and Weenmantiy, J.S. JAYANETTI, Petitioner, and K. M. MARTINUS and 6 others,
Respondents
S. C. 414165—Application, for a Mandate in the nature of a Writ of Certiorarion Captain (S) K. M. Martiniu, Royal Ceylon Navy, and five others
Naval Court Martial—Judge-Advocate—Quasi-judicial character of his offioe—Navy Act, es. 39 (d), 91—Criminal Procedure Code, e. 913—Certiorari.
In court martial proceedings under the Navy Act, the failure of the Judge-Advocate to perform the statutory duty, explicity imposed by section 39 (d)of the Act, to sum up on the evidence before the court deliberates on itsfinding is a fatal illegality. It is also the duty of the Judge-Advocate to sumup on the law.
PPLICATION for a writ of certiorari in respect of certain courtmartial proceedings under the Navy Act.
W. Jayeioardene, Q.C., with Nimal Senanayake, Bala Nadarajahand N. J. Abeysekera, for the Petitioner.
L. de Silva, Crown Counsel, for the Respondents.
Cur. adv. vult.
July 14, 1968. H. N. G. Fernando, C.J.—
After hearing argument, we made order quashing the finding of aNaval Court Martial, and the order of punishment imposed against thepetitioner, the finding being that he was guilty of having negligentlysuffered to be stranded a ship in his charge, an offence punishable under8. 91 of the Navy Act. We now state our reasons.
Section 39 of the Navy Act prescribes the powers and duties of theJudge-Advocate in court martial proceedings. They are inter alia, togive advice on questions of law or procedure during the proceedings ofa court martial, to give advice on any matter before the court, to ensurethat the accused does not suffer any disadvantage at his trial, and at theconclusion of the case to sum up the evidence and advise the courtupon the law relating to the case.
LXXI:3
10 -PP 006137 (98/08)
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H. N. G. FERNANDO, C.J.—Jayaneili v. Marlinun
The reason why such powers and duties are vested and imposed onthe Judge-Advocate is almost obvious. A court martial, although itlias the power to try and punish offences, which if committed by civilianswould be tried by the ordinary courts, is not ordinarily composed ofofficers with legal knowledge or judicial experience. In fact the courtin the present case was composed of two supply officers and one surgeonofficer. It is because of this lack of legal or judicial training andexperience that the function of advising courts martial is committed by lawto the Judge-Advocate. Indeed, his functions are comparable to thoseof a Judge of Assize in cases tried by Jury. Although it is the functionof the Jury to decide all questions of fact, the law requires that beforethe Jury deliberates on the facts, the Judge must sum up to them theevidence. Section 39 (d) imposes a similar requirement in the case ofa trial by court martial :—
“ (d) At the conclusion of the case he shall, unless both he and thecourt martial consider it unnecessary, sum up the evidence and advisethe court martial upon the law relating to the case before the courtmartial proceeds to deliberate upon its finding.”
In the present case, the Judge-Advocate did address the Court beforethe Court deliberated upon its finding. It cannot therefore be thought,and learned Crown Counsel quite properly did not argue, that this was acase in which both the Judge-Advocate and the court considered asumming-up unnecessary. With reference, however, to the charge onwhich the petitioner was ultimately found guilty, there was not in thesumming-up any reference whatsoever to any of the evidence relevant• to the consideration of that charge. The Judge-Advocate told the Courtthat, if they had any reasonable doubt on the question whether thepetitioner had acted negligently, they should not convict him of thecharge. But he failed to discuss the items of evidence which mightjustify a finding of negligence, or which on the other hand might createdoubts as to the issue of negligence. This failure of the Judge-Advocatewas the more lamentable because of certain special circumstances presentin this case.
A relevant provision of the King's Regulations requires that in thecase of a charge concerning the stranding of a ship, the court mustobtain a report from experts based on an examination of entries invarious ship’s books, including the ship’s log book. The importanceof having such a report becomes clear in the present case, which at theleast appears to be one in which the members of the court martial hadthemselves no knowledge of matters concerning navigation. But nosuch report was obtained in this case, nor even were any of these booksproduced at the trial. The petitioner’s evidence was that he had takencertain actions at particular times in regard to the navigation of hisship, and that appropriate entries made contemporaneously in the log
H. N. O. PERNAIfDO, C.J.—Jayanett* v. Mciriinus
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book would bear out bis testimony at the trial. The principal prosecutionwitness admitted that the books had been taken from the custody ofthe petitioner and subsequently delivered to the appropriate authorities;and he also quite fairly admitted that in the ordinary course the logbook would contain entries as to the actions which the petitioner claimedto have taken. The failure of the prosecution to produce these booksto the court martial was therefore seriously prejudicial to the petitioner’sdefence. Hence the Judge-Advocate had a duty to advise the courtthat the petitioner was deprived of the benefit of evidence which underthe relevant King’s Regulation should have been produced by theprosecution, and to further advise the court that no adverse inferencecould be drawn against the petitioner On the ground that the bookswere not produced.
Moreover, there was no direct evidence at the trial which could establisha prima facie case of negligence against the petitioner. The evidence,if any, which might have justified a finding of negligence, was purelycircumstantial. The Judge-Advocate failed to refer to this featureof the facts of the case, and he failed to advise the court upon the principlesof law applicable where the prosecution relies only on circumstantialevidence to prove a charge.
Had it been necessary for me to decide that the failure of a Judge-Advocate to sum up on evidence and on the law will be a ground forquashing the finding of a court martial only if that failure resulted in amiscarriage of justice, the matters discussed in'the two precedingparagraphs of this judgment would compel me to hold that there didresult in this case a miscarriage of justice.
I prefer, however, to rely on the ground that the failure of a Judge-Advocate to perform the statutory duty, explicitly imposed by s. 39 (d)of the Navy Act to sum up on evidence before^tbe'court deliberateson its finding, is a fatal illegality. I hold that a finding reached withoutsuch a summing-up is one reached without jurisdiction, just as wouldbe a verdict of a jury reached at the conclusion of a trial without there• having been the charge of the trial Judge which is required by s. 243 ofthe Criminal Procedure Code. It is true that s. 39 (d) of the Navy Actallows the summing-up to be dispensed with, if both the Judge-Advocateand the court consider it unnecessary. But the legislature surelyassumed that such a dispensation would be permitted only if the factsof a particular case are unusually simple, or perhaps if both partiesconsent to the dispensation. The Legislature could not have contem-plated that a Judge-Advocate, the very title of whose office denotes itsquasi-judicial character, might through caprice or inadvertence denyto an accused person his right to a summing-up on the evidence and onthe law.
We quashed, by our order of 6th July 1968, both the finding and thesentence or punishment imposed on the petitioner by the court martial.
Bi
Peoria v. kirilothayd
The quashing of the sentenoe or punishment has the consequence that,in relation to seniority in the Navy and to his entitlement to pay andprivileges, the petitioner must be treated as though the sentence orpunishment was never imposed. We have no doubt that the properauthorities will heed the observation which we have just made.
Wkkbamaktby, J.—I agree.
Procudinga quashed.