SOBRTSZJoAn Appuhamy *. David.
[Court op Criminal Appeal.J
1946 Present: Howard C.J., Keuneman and Jayetlleke JJ.THE KING v. H. C. PERERA.
18—M. C. Chilaw, 25,873.
Absence of Counsel—Murder trial advanced—Counsel assigned—No explana-tion of absence—Fair and proper tried of accused.
Where the date of a murder trial was advanced, and in the absence ofCounsel, who had been retained, assigned Counsel appeared for theaccused and there was no explanation afterwards by Counsel, who wasbriefed, of the circumstances of his absence—
Held, that the absence of Counsel did not afford a good ground for theCourt to hold that the accused did not have a fair and proper trial.
PPEAL against a conviction by a Judge and Jury.
H. C. de Silva (with him Ananda Pereira), for appellant.
H. T. Ounasehera, C.C., for the Crown.
HOWARD C.J.—The King v. H. C. Per era.
February 11, 1946. Howard C.J.—
The appellant in this ease, charged with, the offence of murder, wasfound guilty by a majority verdict of six to one of the offence of culpablehomicide not amounting to murder. The main ground of appeal is thatthe appellant has not received a fair trial by reason of the fact that thedate of trial of the case was advanced and his Counsel was not able to bepresent. The case was taken up for trial by the learned Judge onNovember 9, 1945. The record on page 1 is as follows :—
“ When the case is taken up Mr. Raja, assigned Counsel for theaccused, intimates to Court that the accused has informed him that hehas retained Counsel and since the case was originally fixed for hearingon Monday, the 12th instant, but has been advanced for today he hasnot been able to inform his Counsel of the change in dates and conse-quently his Counsel is not present.
The Court informs Counsel that since he is there to watch the inter-ests of the accused the case must go on.
The accused pleads not guilty to the charge, and adds that hisCounsel has not been able to be present today in view of the fact thatthis case has been advanced and he has not been able to inform hisCounsel of the change in dates ”.
Mr. Raja, assigned Counsel, appeared for the appellant on November 9,and on November 12 and 13. On the latter day the Jury gave theirverdict. It does not appear from the record that the name of theCounsel, who the appellant anticipated would appear and conduit hisdefence, was disclosed to the Court. The case was originally fixed fortrial on November 12, but Counsel did not appear before the Court onthat day or on the 13th to carry on with the conduct of the defence andexplain to the Court that he had been briefed and for some good causehad been unable to appear when the trial commenced on November 9.Nor has any statement from Counsel or assigned Counsel been placedbefore this Court explaining these matters. In spite of the lack ofmaterial put before us, Counsel for the appellant asks us to say that,because the appellant anticipated that this particular Counsel wouldappear and conduct his defence and did not do so, there has been such amiscarriage of justice as to invalidate the trial. There is no evidencebefore the Court that Counsel had been briefed. Nor is there anyexplanation as to why Counsel if briefed could not appear on the 9th.Nor even assuming that he was unable to appear on the 9th why he didnot appear on the 12th, the day on which the case had originally beenset down for trial. No authority for the setting aside of the verdict insuch circumstances has been brought to our notice. In Galos Hirad andanother v. Rex1 the appellants were convicted in British Somaliland of theoffence of murder and in accordance with the provisions of section 3 (1)of the Poor Persons’ Defence Ordinance, 1939, were assigned a Counsel
128 C. L. W. 97.
HOWARD C. J.—The King v. H. C. Per era.
permanently practising at Aden and the only person enrolled to practisein British Somaliland. The hearing of the appeal was fixed for June 22,1942, and the proper authorities had been instructed to arrange for apassage for Counsel. But owing to shipping difficulties, they failed toobtain a passage which would enable him to reach Hargeisa, the place ofhearing of the appeal, on or before the date of hearing. On June 22,1942, the Appeal Court Judge proceeded with the hearing withoutmaking any inquiry with regard to the absence of Counsel or as to thedate wKen he might be expected to arrive. He heard some short state-ments by the appellants and dismissed the appeals. It was held by thePrivy Council as follows :—
“ (i.) That the provisions of a statute as regards the right of a convictedperson are not of a merely directory character ;
(ii.) That the necessity for an assignment of Counsel for the purpose ofconducting an appeal involves the necessity of seeing that itwill be possible for the Counsel to be present at the hearing ;
(iii.) That the failure to grant an adjournment of the hearing to enableCounsel to be heard has resulted in the appeal not beingeffectively heard ”.
The facts in Qalos Mir ad v. Bex do not bear comparison with those in thepresent case. In giving the judgment of the Court Gfalos Hirad v. BexIlord Maugham said the appellants would probably be illiterate andtherefore completely unable to make any criticism on the written judg-ment even if they could read it. The appeal was heard without theappellants having the assistance of any Counsel. In the present caseMr. Baja who had been assigned appeared for the appellant. In ChiosHirad, v. Bex it was manifest to Their Lordships of the Privy Council thatCounsel assigned for the appellants was unable to reach the Court intime to conduct the appeal without any default on his part. In thepresent case there is nothing before the Court to make it clear thatCounsel had been briefed and if briefed why he could not appear if not onthe 9th at any rate on the 12th and 13th. We are therefore of opinionthat the principles formulated in the Privy Council case have no appli-cation to the facts of the present case. The case of Bex v. Woodward1 wasalso brought to our notice. In that case an accused person who had beenassigned Counsel under the Poor Prisoners’ Defence Act 1930 claimedat the beginning of the case the right to qbnduct bis own defence. TheCourt of Criminal Appeal held that he was entitled to do so and quashedthe conviction. We do not for the reasons I have given consider that theabsence of the particular Counsel appellant maintained was expected toappear affords any valid ground for holding that the appellant has nothad a fair and proper trial.
We are moreover of opinion that the other grounds of appeal arewithout substance. For the reasons I have given the appeal is dismissed.
1 60 T. L. R. 114.