Thilakaratne v. Attorney-General .
COURT OF APPEAL
RAMANATHAN, J., W. N. D. PERERA, J.
AND WIJEYARATNE, J.
C.A. NO. 106/87
H. C. ANURADHAPURA NO. 23/86MARCH.03, 1989
Criminal Procedure – Accused tried in absentiaShould court assign a-counsellor such an accused? – Code of Criminal Procedure Act, No. 15 of 1979, ss. 241(1),241(2), 241(4), 195(g).•_
Where an accused is being tried in absentia under section 241(1) of the CriminalProcedure Code, it is undesirable for court, to assign a counsel to defend him, withouthis consent; even though it is for his benefit, as such a step would deprive him of thevaluable right of re-opening the proceedings' (vide section 241(4)).
Section 195(g) contemplates' a case where the accused is present in court andrequests that counsel be assigned to him on being questioned by court.
Section 241(2) does not make it obligatory for court to: assign a counsel to defendan absent accused. This subsection applies to a case where an absent accused orsomeone on his behalf retains a counsel to defend him in absentia, or to a case wherea counsel (assigned or retained) is defending an accused who absconds during thecourse of the trial.'
APPEAL from judgment of High Court of Anuradhapura.
W. P.Wijenayake for 1st accused-appellant
Mrs. B. J. Tillakaratne, State Counsel for Attorney-General.
Cur. adv. vult.
April 27, 1989.
In this case the 1st, 2nd and 3rd accused were charged in the High
Court of Anuradhapura on two counts as follows:- 1
(1) With having on 21.1:1983 at Halmillakulama committed robberyof gash Rs. 18,552/40 and a bicycle valued at Rs. 600/-,property in the possession of Ukkubanda Semasinghe andhaving caused hurt to the said Semasinghe in committing the
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said robbery, an offence punishable under sections 380 and 382read with section 32 of the Penal Code.
(2) With having at the same time and place aforesaid and in thecourse of the same transaction committed robbery of a bicyclevalued at Rs. 700/-, property in the possession of PunchiBandage Ratnayake, an offence punishable under section 380read with section 32 of th^ Penal Code.
On this indictment all three accused appearedjn Court on 22.9.1986and • they were represented by Mr. Mahinda Bulankulama,Attorney-at-Law. Copies of the indictment along with the annexureswere served on all three accused and the trial was fixed for 17.1.86.Bail in Rs. 1,500/- was ordered on each accused.
On 17.1.86 when the case was taken up for trial the 1st accusedwas absent, but the 2nd and 3rd accused were present. Mr. MahindaBulankulama along with Mr. Benny Wickramasinghe appeared for the2nd and 3rd accused. No excuse was proferred for the Absence ofthe 1st accused. Accordingly a warrant was issued on the 1st. accused for 20.1.87 and the trial'too was refixed for the same date.
On 20.1.87 when the case was taken up for trial, the 1st accusedwas absent, but the 2nd and 3rd accused were present and theywere represented by Mr. Benny Wickramasinghe, Attorney-at-Law.
In the proceedings of that date it is recorded that before the casewas called on that date, the 1st. accused and his. surety were presentin court, but when the names of the accused were called for the‘purpose of taking up the trial, the 1st accused was absent but hissurety was present.
Thereupon the surety of the 1st accused, one Kongalla LiyanageJayawardena was called to give evidence. It is not clear from theproceedings whether this surety, was called ais a witness on theapplication of learned State Counsel for the prosecution or at theinstance of court. However, this is immaterial. The surety stated inevidence that the 1st accused came with him that morning to court atabout 9 a.m. and that the 1st accused was with him and that he sawhim at about 9.30 aim. After the court Police Officer came andinquired from him the whereabouts'Of the 1st accused, he too lookedfor the 1 st accused in the court house premises and also on the roadoutside, but.he was not to be seen,'He stated that it was his beliefthat the accused had gone away because the trial was going to betaken up that day.
CAThilakaratne v. Attorney-General (Wijeyewaine, J.)193
After recording this evidence the learned trial Judge made theorder that on the evidence of the surety, of the 1st accused, he wassatisfied that the 1st accused was absconding and made order thatthe trial against the 1st accused do proceed in his absence. He alsoissued an open warrant against the 1st accused.
Thereafter the indictment was read out to the 2nd and 3rdaccused, who pleaded not guilty, and the case.was taken up for trial.As the 1st witness had just commenced giving his evidence, the 2ndand 3rd accused pleaded guilty to both counts in the indictment.- Thelearned trial Judge sentenced each of them to 3 years’ rigorousimprisonment and a fine of Rs. 100, in default one month’s rigorousimprisonment on each count, the jail sentences to run concurrently.
Thereafter the trial proceeded against the 1st accused in hisabsence. On behalf of the prosecution,-' Ukkubanda Semasinghe(Principal of Galadivulwewa Maha Vidyalaya), Punchi BandageRatnayake (a school teacher), A. M. Somawansa Esq. (District Judgeof Kuliyapitiya, and. formerly Magistrate of Anuradhapura), and PoliceInspector Padmasiri . Pathirana (then officer in charge ofNochchiyagama Police Station) gave evidence..
■ According to the prosecution case, School Principal ^Semasinghealong with Ratnayake, another teacher of his school, had gone onthis day on two bicycles to the Nochchiyagama Branch of thePeoples’ Bank and.at about 12 noon cashed the pay cheque of theschool staff amounting to Rs. 18,552/40. After obtaining this money,both Semasinghe and Ratnayake set out on their bicycles with themoney inside an envelope, and while passing a stretch , of shrubjungle they were accosted by all the three accused. The 1st accusedwho was armed with, a pistol' held Semasinghe by hand and the 3rdaccused, armed with a knife, held Ratnayake. The 2nd accused was-also present at the scene. After a struggle, in the course of Which the1st accused had fired the pistol and later puiled out a knife andcaused injuries to Semasinghe, he had snatched the money. The 2ndand 3rd accused made off with the two bicycles along with the 1staccused.
Semasinghe and Ratnayake obtained assistance from someworkmen at a work site closeby and were taken to NochchiyagamaPolice Station and from there Semasinghe was taken to Hospital.
On receiving information from Ratnayake about these offences,Police Inspector Padmasiri Pathirana set out with a Police party for
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inquiry at about 2.40 p.m. He visited the scene as pointed out byRatnayake and found marks of a struggle and stains like blood at thescene. Thereafter he searched the area for these accused andplaced guard at the likely exit points. They searched the surroundingjungle' and at about 7.00 p.m. arrested all three accused after astruggle. The 1st ;accused was found with a loaded locallymanufactured pistol (Pi) and the 2nd accused was found with a knife(P2), both of which were subsequently identified by the witnesses atthe trial.
The 2nd accused also had an envelope bearing the words "ThePrincipal, Galadivulwewa Maha Vidyalaya, Galadivulwewa,Anuradhapura” and a sum of Rs. 18,154/- was found therein. Inconsequence of a statement made by the 1st accused (which portionwas marked P7), the two bicycles were recovered from a junglepatch at Halmillakulam.
At an identification parade held on 22.2.1983 by Mr. A.M.Somawansa, the then Magistrate of Anuradhapura, all three accusedwere identified by Semasinghe and Ratnayake.
At the conclusion of the trial, on the same day the learned HighCourt Judge delivered judgment, finding the 1st accused guilty onboth counts. He sentenced the 1st accused to 10 years' rigorous-imprisonment and a fine of Rs. 100/- in default one month’s rigorousimprisonment on the 1st count, and 7 years' rigorous imprisonmentand a fine of Rs.. 100/- in default one month's rigorous imprisonmenton the 2nd count: The jail sentences were to run concurrently.
Thereafter the learned trial Judge issued an open warrant on the1st accused and his surety was given time till 16.2.87 to produce the1st accused.
On 16.2.87 when the case was called in court, the surety obtainedtime till 5.3.87 to produce him. On 5.3.87 Mr. Denzil Gunaratne,Attorney-at-Law appeared for- the surety and stated that the suretyhad made^every effort to apprehend the 1 st accused but was unableto do so and was willing to forfeit the amount of the bail, namely Rs.1,500/-tendered by him. Accordingly the learned High Court Judgemade order forfeiting this amount and issuing an open warrant on the- 1st accused.,
On 7.12:87 the 1st accused was arrested and produced in court,b.ut as the learned High Court Judge was on leave he was remanded
CAThilakaratne y. Attorney-General (Wijeyaratne, J.)195
by the Anuradhapura Magistrate till 21.12.87, and as the learnedHigh Court Judge was on leave on this date too, the .1 st accused wasagain remanded till 4.1.88.
On 4.1.88 the 1st accused was produced in court before thelearned High Court Judge, but there was no appearance for him. Onthe application of the learned State Counsel for the prosecution, thecase was ordered to be called on 13.1.88 and the 1st accused wasremanded till then.
On 13.1.88 the 1st accused was producedJn court from remandcustody and Attorney-at-Law Mr. Illangasinghe appeared for him.According to the proceedings, Mr. Illangasinghe had made certainsubmissions on behalf of the 1st accused and moved for bail. He hadalso stated that the accused was not well, but he has not stated to.court on what date or period the 1st accused was unwell; no medicalcertificate was submitted on his behalf.
Learned State Counsel for the prosecution stated that on the trialdate the 1st accused, though present earlier, had left the courtpremises without presenting himself for the trial and that he was nowproduced in court on an open warrant. Thereafter the learned HighCourt Judge refused the application for bail and made order that thesentences passed on the 1st accused be carried out. ';
It is noteworthy that on this occasion no application was made bylearned counsel, for the 1st accused under section 241(3) of theCriminal Procedure Code to satisfy the court that his absence wasbona fide and that the' conviction and sentence should be'set aside.
If the 1st accused was in fact unwell on 20.1.87 or during any othersubsequent period, it is inexplicable why the surety' had failed tomention this fact either .on that day itself or on any subsequent date.No medical certificate was ever tendered-on his behalf. It was onlyabout one year later on 13.1.88, after he had been arrested on awarrant and remanded, that it was mentioned for the first time thatthe 1st accused Was unwell, but no medical certificate was everproduced. Thereafter the 1st accused by his Attorney-at-Law Mr. G.B.Illangasinghe filed this petition of appeal on 26.1.88 and moved tohave the judgment and sentence passed on him set aside and thecase against him be reopened. c
At the hearing of this appeal learned counsel for the 1staccused-appellant urged, two grounds, namely, r'
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that there were no sufficient evidence of absconding by the 1staccused and the order made on 20.1.87 ordering the trial of the1st accused in absentia was made on insufficient material andtherefore bad in law.
In any event the 1st accused was undefended and counselshould have been assigned to him as contemplated in section195(g) of the Criminal Procedure Code. The failure to assign acounsel to defend the 1 st accused at his trial in absentia, it wasargued, vitiated the conviction.
As regards the first ground, the 1 st accused was present in courton 17.9.86 (along with the other two accused) when the indictmentand the annexures were served and trial was fixed for 17.1.87. On
the 1st accused was absent without any excuse. Thereaftera warrant was issued against him for 20.1.87 and trial was refixed forthe same date.
On 20.1.87 the 1st accused had been present earlier in the courtpremises, but when his name was called for the purpose of taking upthe trial, he was not preserrt*.No excuse whatsoever was given for hisabsence by his surety or anyone else on his behalf. It was only abouta year later on 13.1.88 after the accused had been arrested,remanded and produced in court that it was sought to make out thathe was unwell. Even on that occasion no attempt was made by the1st accused to satisfy court that his absence was due to bona'fidereasons. Tpe conclusion is inescapable that the . 1st accused wasabsconding.
• The learned trial Judge has correctly recorded the evidence on
and made the order that he was satisfied that the 1staccused was absconding and that the trial do proceed in hisabsence. Therefore I reject this contention.
-As regards the second-ground urged that the failure to assign acounsel to defend the, 1st accused vitiates his conviction, it isimportant to note that section 195(g) contemplates the case wherethe accused is present in court and requests that counsel be.assigned to him on being questioned by court.
Section 41(1) and (2) of the Judicature Act, No. 2 of 1978, laysdown that any party to any proceedings shall be entitled to berepresented by an Attorney-at-Law. Chapter 3 of our Constitution of1978 under the heading “Fundamental Rights” lays down in section13(3) that any person charged with ah offence shall be entitled to beheard in person or by an Attorney-at;Law.
Thilakaratne v. Attorney-General (Wijeyaratne, J.)
.Section 241(2) of the Criminal Procedure Code lays down that thecommencement or continuance of a trial (where order has beenmade to try an accused in absentia) shall hot be deemed orconstrued to affect or prejudice the rights of such person to bedefended by an Attorney-at-Law at such trial. . .
In this case when all three accused first appeared in court on22.9.86, they were represented by one attorney-at-law, namely, Mr.Mahinda Bulankulama. Therefore it was unnecessary for the courtunder section 195(g) to ask the 1st accused whether it wasnecessary to' assign a counsel for his defence.
In practice, sometimes at High Court trials, counsel are assigned to.defend an accused person who is being tried in his absence. In such,cases it is not possible to obtain his consent, but it is. for his benefit.Generally speaking such an assigned counsel is unable to getinstructions from his client as to his defence, but he is expected to dohis best on behalf of the absent accused. He can object toinadmissible questions and evidence; he can cross-examineprosecution witnesses with the material available to him; he can pointout the'deficiencies and weaknesses in the prosecution case andsubmit that the charge has not been proved beyond reasonabledoubt. In short he assists the court in the administration of justice.
The Supreme Court has recently held in the case of Sudharmande Silva vs. The Attorney-General, (1986 – 1 S.L.R. 9) that anaccused who, was tried and convicted in absentia is entitled to file anappeal and be heard in appeal.
However, different considerations apply at a trial.>;Section 196(g)contemplates, a case where an, accused person is physically presentin court and, on being questioned, requests an assigned counsel.Section 241(2) contemplates a case where an absent accused orsomeone else on his behalf retains a counsel to appear for him inabsentia. It can also apply in a case where, at the commencement ofa High Court trial, the accused is represented by counsel (assignedor retained), and during the course of the trial the accused absconds.In such a case it is possible for a counsel to continue to appear forhim in absentia right till the end of the trial.
However, when an accused person is absent, it is not possible toget his consent to have a counsel assigned to him or even to get hisconsent to be defended by that particular assigned counsel. Even
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though assigning a counsel without his consent is tor the benefit ofthe accused, once a counsel had been assigned to defend him, thensection 241(4) comes into operation.
Section 241(4) lays down that if an absent accused had beendefended by an Attorney-at-Law, he will be precluded from comingbefore court later on and satisfying court that his absence was bonafide and to have the proceedings re-opened under section 241(3).Therefore, assigning a counsel to such an absent accused willdeprive him of that valuable right of having the proceedingsre-opened under section 241(3).
Therefore, trial Judges in the High Court should keep this provisionof law in mind before they assign a counsel to defend an absentaccused.
In this particular case the conduct of the 1st accused made itimpossible for court to validly assign a counsel to defend him. If acounsel had been assigned to defend him in his absence and withouthis consent, then he would have been deprived of his right to re-openproceedings under section 241(3). Therefore I hold that there was nomerit in the submissions of learned counsel for the 1st accused.
However, as the 1st accused was undefended, I have carefullyperused the evidence against him at the trial. There is overwhelmingevidence against the 1st accused which justifies his conviction onboth counts.
I have considered the sentences imposed on the 1st accused inthe light of the sentences passed on the 2nd and 3'd accused. Thereis a disparity in the sentences passed on the 1st accused and thosepassed on the 2nd and 3rd accused. Generally speaking, uniformityin sentencing is desirable, but not where the facts and circumstancesagainst each accused are different. The evidence in this caserevealed that the 1st accused was armed with a pistol, fired a shotwith it, and then proceeded to cause extensive injuries with a knife onSemasinghe during the course of this robbery. Further, the 1staccused has previous convictions. Therefore, I see no reason tointerfere with the sentences passed on the 1st accused-appellant.
For the riasons stated herein, the appeal is dismissed and theconviction and sentences are affirmed.
RAMANATHAN, J. – I agree.
W. N. D. PERERA, J. – I agree
]THILAKARATNE v. ATTORNEY-GENERAL