013-SLLR-SLLR-1978-79-V2-Sirisena-and-another-v.-Republic-of-Sri-Lanka.pdf
Sirisena v. Republic of Sri Lanka
CA
79
Sirisena and anotherv.
Republic of Sri Lanka
COURT OP APPEAL.
RATWATTE, J- AND ABDUL CADER, J.
(c. a.) s.c. 4—5/78—d.c. (criminal) balapittya 494July 23, 1979
Administration of Justice Law, sections 184 (4), 186 (2), 213 (4)—Verdict returned more than 24 hours after evidence was concluded—Definition of ‘ evidence ’—Evidence .Ordinance, sections 3 and 57—Does‘ evidence ’ include addresses by counsel—Criminal Procedure Code,sections 190 and 214 (1).
Held
The Administration of Justice Law makes a distinction betweenevidence and addresses as two distinct parts of the procedure in acriminal trial. The taking of evidence would mean the recording of theevidence of witnesses and not the addresses and accordingly the 24 hourlimit imposed by section 186 (2) runs from the conclusion of the evidence.
It is absolutely fundamental that a Judge should record a ve-dictwhen the demeanour of the witnesses and the evidence itself is freshin his mind.
Cases referred to
(1) Dias & Another v. Suwaris & Another, (1978) 79 (2) N.L.R. 258.
No appearances for the accused-appellants.
N. M. Zuhair, State Counsel, for the Attorney-General.
APPEAL from the District Court, Balapitiya.
Cur. adv. vult
80
(1978-79) 2 S.L.R.
Sri Lanka Law Reports
August 10, 1979.
ABDUL CADER, J.
The 3 accused were charged on 3 counts under sections 447, 317and 315. The learned District Judge found the 1st and 2nd accusedguilty on counts 1, 2 and 3. The accused were absent and unrep-resented at the hearing before us, but we found clear non-compli-ance with section 186 (2), the evidence having been concluded on
and the verdict having been returned on 20.8.76, wellbeyond the 24-hour limit set down by this section, the delaybeing due to a postponement for addresses on the application ofCounsel for the accused.
Counsel for the State contended that addresses would cons-titute a part of the evidence and since the verdict was returnedon the very same day the addresses were concluded, there hasbeen no violation of the section. In support of his contention, hereferred us to the definition of “ Evidence ” in sect’on 3 and alsoto 57 of the Evidence Ordinance. He submitted that all docu-ments produced for the inspection of Court is evidence in termsof this definition and when a Counsel submits an N. L. R. or aGazette for the consideration of Court, that would fall within theword “ Law ” in section 57 (1), and since N.L.Rs were producedin the course of the addresses, they would constitute documentswithin the meaning of the definition of “ evidence. ” He,therefore, urged that the words “conclusion of the taking ofevidence” would include addresses by Counsel, too.
The short answer to this question is that the Administrationof Justice Law itself makes a distinction between evidence andaddresses as two distinct parts of the procedure in a criminal trial.Section 184(4) reads as follows:—
“ The accused may enter upon his defence and mayexamine his witnesses, if any, and then sum up his case. ”
Thus, a distinction is made between evidence called by theaccused and the summing up by the accused. A similar provisionis found in section 213 (4) under “ Trial before the High Court. ”The very words in section 186(2) “The taking of evidence”would mean the recording of the evidence of witnesses and notthe addresses.
In considering the submissions made by State Counsel withreference to the Evidence Ordinance, it appears to me that hehas confused procedure with substantive law. Section 3 gives thelaw as regards what constitutes evidence. Section 57 deals withproof of evidence. Section 57 occurs in chapter 3 which has beenheading: “ Facts which need not be proved. ” In any event, themere fact that an N.L.R. is submitted in the course of addresses
CASirisena v. Republic of Sri Lanka81
(Abdul Cader, J.)
as happened in this case would not make it a document in thecase so as to fall within the definition of evidence. It is notmarked and filed as would be a document tendered in evidence.
This matter has received attention in a well considered judg-ment by Wijesundera, J., Vythialingam, J. and Walpita, J. in S.C.894/77—D.C. Panadura No. 519, (1). In that case all the earlierdecisions were reviewed. The former states: —
“Sec. 186(2) requires the Judge to record the verdict notlater than twenty-four hours after “the conclusion of thetaking of evidenceSub sec. (1) speaks of “ after taking the
evidence of the prosecution” This means obviously
after the evidence given by the witnesses has been con-cluded and recorded. The meaning of this phrase in sub sec.
must be the same as in sub sec, (1). It may appear thatin view of sec. 184(4) this interpretation cannot be given tosec. 186(2). Sec. 184(4) gives the right to the accused tosum up the evidence. This right can be exercised only afterthe evidence called by him is over. Therefore, the questionarises whether the 24 hours run from the time the addressesare over. This may be desirable. But the language of subsec. (2) is very clear that the period runs from theconclusion of the evidence. In the ordinary case this timemay be sufficient. There may be a case where the evidence islong and an accused needs more than a day to conclude hissumming up. The answer to this may be that the Adminis-tration of Justice Law contemplated the Judge setting atime limit to the summing up to enable him to deliver theverdict in 24 hours. The Administration of Justice Law, itmust not be forgotten provided, till recently, a time limitof half an hour which can be extended by another hour forappeals.
“In a trial by a Judge and a Jury, the addresses beginsoon after the evidence. Then there is the Judge's summingup followed by the verdict. In the average case the verdictis returned within twenty-four hours of the conclusion ofthe evidence. Therefore, it is not unreasonable to assumethat the legislature intended a similar procedure in trialsbefore District Judge with the difference that the verdicthas to be returned within a fixed time. This contemplatesaddresses being delivered soon after the evidence followedby the verdict. Such a procedure avoids the ordeal anaccused has to undergo in waiting for a verdict, caused bythe postponement of the addresses. This is a paramount
82
Sri Lanka Law Reports
(1978-79) 2 S.L.R.
consideration. In the present case, although the evidence isdirect, the verdict was returned 10 weeks after theconclusion of the evidence.
“ Section 186 may be compared with the correspondingsection in the old Criminal Procedure Code. It is sec. 214
:-
‘When the cases for the prosecution and defence areconcluded and the assessors’ opinion, if the trial has beenwith the aid of assessors, has been recorded the District Judgeshall forthwith or within not more than twenty-four hoursrecord a verdict of acquittal or conviction. ’
The words used in the section are “ cases for the prosecu-tion and defence. ” The twenty-four hours is to start fromthe time “ the cases for prosecution and defence are conclud-ed ” which, undoubtedly means from the conclusion of theaddresses. No time limit was fixed for addresses. What hasreally happened is that the old practice is being followedeven after 1.1.1974 by some Judges. There is no reason forme to conclude that in all trials the old practice is beingfollowed. That was not the position of the State.
“The State referred the court to the case of Banda v.David, 50 N.L.R. 375. That was a decision on the interpreta-tion of sec. 190 of the old Code and cannot be relied upon atall as authority for the proposition that the course adoptedby the trial Judge is lawful- The Code did not provide foraddresses after the evidence in the Magistrate’s Court.Sec. 190 of the Code relates to procedure in those courts andthe only difference between sec. 190 of the Code andsec. 186(1) of the law is the omission of the word“forthwith” from the law. In sec. 190 of the Code aMagistrate was required to record the verdict forthwithafter he finds tn accused guilty. Sec. 186(2) of the lawrequired the verdict to be recorded within 24 hours of thetaking of the evidence. The two are different. The questionreferred in that case was whether the recording of theverdict by the Magistrate on the following day when he had“ concluded the taking of evidence on both sides ” theprevious day was lawful. It is interesting to note that thecourt in that judgment appears to have regarded the words“ concluded the taking of evidence ” to mean when the
CA
Sirisena v. Republic of Sri Lanka
(Abdul Cader, J.)
83
physical recording of evidence was over. The Statesubmitted that the law contemplated witnesses being calledeven during the addresses and therefore the twenty-fourhours must start from the termination of the addresses. Ifevidence be called during the addresses I would think twenty-four hours will run from the time that evidence: is over.There was no other submission made on behalf of the State.
“ In the Sinhala version of the Administration of JusticeLaw sec. 186(2) reads :—
The words used are
These words used cannot include the addresses as Iunderstand the language. The meaning of the words in bothlanguages is clear.
Where the meaning of the words of a statute is plain,nothing can be done but to obey it. Therefore sec- 186(2)provides that the verdict should be recorded within 24 hoursof the conclusion of the evidence. To give any other meaningis to ignore the words and legislate, the office of the Judgeis “ Jus dicere ” and not “ Jus dare. ” It is indeed a matterfor the legislature whether this section should be amendedand in what manner. ”
In addition to the reason given by Wijesundera, J. viz:— theordeal an accused has to undergo in waiting for a verdict,I would like to add the further reason that it is absolutelyfundamental that a Judge should record a verdict when thedemeanour of the witnesses and the evidence itself is fresh inhis mind.
In the result, we hold that there has been clear non-compliancewith section 186 (2). Therefore, we set aside the convictionand sentence and direct that a fresh trial be had before adifferent Judge.
RATWATTE, J.—I agree.
Re-trial ordered.
G G. Ponnambalam (Jnr.),Attorney-at-Law.