TYRON PERERA vs ATTORNEY GENERAL

056-SLLR-SLLR-2005-V-2-TYRON-PERERA-vs-ATTORNEY-GENERAL.pdf


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TYRONPERERAVS
ATTORNEY GENERALCOURT OF APPEAL,
BALAPATABENDI. J.
W. L. R. SILVA. JCA (PHC) APN 7/2005.
JUNE, 28, 2005
Criminal Procedure Code – S404- Application for Bail pending appeal – Hearingof appeal will take a considerable period of time – Is it a ground? -Are exceptionalcircumstances necessary – Constitution – Art 12(1)
The accused made an application for bail under S404. The only ground urgedwas that the hearing of the appeal will take a considerable period of time.
HELD:
The application under S404 is misconceived. (The State howeveragreed to treat this matter as an application in Revision)
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Held further:
The sentence imposed on the accused is 7 years rigorousimprisonment and the mere fact that the hearing is not likely to takeplace for some time is itself no ground to enlarge the accused on bail.
Release on bail pending appeal will only be granted on exceptionalcircumstances – there are no exceptional circumstances.
Per W. L. Ranjith Silva. J.
“A fortnight or a month during 1969 can be compared to a year or twoaccording to the current state of affairs prevailing in our country”.
Application for Bail pending appeal.
Cases referred to :
Benwell vs. Attorney General – 1988 1 SLL R 1
(a) In Re Kamal Addararachchi CA (PHC) APN No. 10 of 1995 H. C.7710/96
Kama/ Addararachchi Vs. State – 2000- 3 Sri LR 393
Queen Vs. Cornell's Silva'- 74 NLR 113
Queen Vs. Perera 62 NLR 238
Thomodaram Pillai Vs. Attorney General – CA 141/75
Ranatunga Arachchilage Peter Vs. A. G. – CA 450/95 CAM 2.8.95
Salahudeen Vs. A. G. 77 NLR 262
Prince Perera for accused.
Riza Hamza SC for Attorney General.
cur.ad. vult.
July 22, 2005
W. L Ranjith Silva, J.This application for bail under S. 404 of the Criminal Procedure Code ismisconceived. S. 404 cannot be invoked in the exercise of the jurisdictionof this court in an instance of this nature where the refusal of bail pendingappeal by the High Court of Colombo by its order dated 16.12.2004 isbeing challenged. (Vide Benwell vs Attorney General at 1)
When this matter came up for inquiry before this Court on the 28.06.2005Mr. Hamza State Counsel appearing for the Attorney General agreed totreat this application as if it were an application for revision and to proceedwith the same.
In this case the accused was convicted for attempted murder on
for an offence punishable under S 300 of the Penal Code and
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was sentenced to 7 years rigorous imprisonment. An application for bailpending appeal was made to the High Court of Colombo on 15.10.2004after nearly 21 days of the conviction and the Learned High court Judgemade order refusing the said application for bail on 16.12.2004. At thetime the Accused had been on remand for a period less than three months.
The Petitioner has stated in his petition that he adduced the undermentioned facts in his bail application presented to the High Court. Theyare as follows.
The petitioner was convicted on 24.09.2004 and since then he ison remand.
He appeared before Court on all dates of hearing
The hearing of the appeal by the Court of Appeal is likely to take aconsiderable period of time, in addition to the time taken to preparethe appeal brief.
In the event of this appeal being allowed by the Court of Appeal onthe basis of the misdirection made on the law by the Learned HighCourt Judge, it would be unreasonable if the accused were to be onremand for a long period of time.
The petitioner is 34 years of age ; he has two school going childrenaged 12 and 15 years respectively, and that he is the sole breadwinner of his family
He is so poor and is unable to find the money to retain counsel toplead his case in the Court of Appeal.
The Learned High Court Judge refused to grant bail as he was of theview that none of the grounds adduced by the petitioner amounted toexceptional circumstances warranting the grant of bail pending appeal.
On a perusal of the proceedings of 16.12.2004, in the High Court ofColombo I find that the counsel for the petitioner confined himself tomaking submissions in respect of only item (C) mentioned above that is,that the hearing of the appeal in the Court of Appeal is likely to take aconsiderable period of time in addition to the time taken to prepare the
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appeal briefs. The Learned High Court Judge after hearing the submissionsof both parties refused to grant bail on the ground that the petitioner failedto establish exceptional circumstances. In this Court too the Petitionerrelied mainly on the same ground alleged in item (C). Now the function ofthis court acting in revision is to decide as to whether the order made bythe Learned High Court Judge was illegal, unreasonable, ultra wresorthelike in the light of the arguments adduced before, and the material madeavailable, to the Learned High Court Judge. Since this is not a fresh bailapplication, this court acting in revision cannot and should not unlessthere are special reasons to do so, consider fresh matters or argumentsbased on additional grounds touching the facts of the case, which werenot presented or adduced before the Learned High Court Judge, in decidingwhether the order made by the Learned High Court Judge was right orwrong, legal or illegal.
Now I shall deal with the issue whether the delay in the preparation ofthe appeal brief and the fact that the appeal is likely to take a long timecould be treated as constituting exceptional circumstances that warrantthe grant of bail pending appeal.
In the famous case of Kamal Addararachchi{19) J. A. N. De Silva, J.observed thus “from our experience in this case we note that it will at leasttake over one year for this appeal to be taken up. We have already'fixedappeals up to September and we have to give priority to cases involvingdeath sentences and life imprisonment. In these circumstances we holdthat it would be appropriate to enlarge the accused appellant on bail pendingappeal”.
In that judgement no judicial precedents were cited as to the law as itstood prior to the decision in that case. Yet the order in that case could bejustified on the extraordinary circumstances endemic to that case. If onewere to peruse the judgement delivered by Hecter Yapa, J. in KamalAddararachchiVs The State(2) it could clearly be seen what these specialcircumstances are. His Lordship, observed at various stages, in the courseof his judgement (Kulathilake, J. agreeing) as follows,
“No court should try to molly coddle a witness as has happenedin this case.” (Vide page 32 of the judgement)
“Suffice it to state that those factual misdirections have causedserious prejudice to the Accused Appellant..” (Vide page 34 of thejudgement)
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“therefore by reason of the trial judge misdirecting herself onthe law as stated above…” (vide page 36 of the judgement)
Even though the petitioners cannot be legally permitted to pre-emptthe main appeal by canvassing the correctness of the judgement and torely on the weakness of the prosecution case in a bail pending appealapplication as the weakness of a case is not a ground to enlarge anaccused on bail pending appeal the serious and transparent lapses whichdeprived the accused of a fair trial enshrined in Article 12(1) of theConstitution I suppose, prompted their Lordships in granting bail as thoselapses appearing on the face of the record were manifestly illegal,unreasonable and amounted to a blatant violation of the fundamental rightsof the accused in that case.
In Kamal Addararachchi’s case, the accused was a popular movie starin Sri Lanka, whose life and future was in this country. He would becompletely lost in a foreign country. Therefore it could be safely assumedthat he will not dessert this country but would be available to serve thesentence in case has lost his appeal. This fact too I believe would havebeen in the forefront of their Lordships minds when they decided to grantbail to the accused in that case.
In Queen Vs Cornelis Silva(3) it was held by Weeramanthri J. I quote“Release on bail pending appeal will only be granted on exceptionalcircumstances. Where the sentence is a long one the mere circumstancesthat the hearing of the appeal is not likely to take place for a fortnight or amonth is of itself no ground for the grant of bail”
A fortnight or month during 1969 can be compared to a year or twoaccording to the current state of affairs prevailing in our country.
In Queen Vs Pereraf4) it was held that delay likely to ensue in preparationof a brief owing to the production of a large number of exhibits in a casewhere over 100 witnesses were examined and more than 400 exhibitswere produced, was not a reason for the grant of bail.
The court in refusing bail reiterated the principle that the grant of bail bythe Court of Criminal Appeal was an exceptional and unusual course.
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In granting bail pending appeal the overriding consideration should bewhether the accused will present himself to serve the sentence imposedon him if the appeal is dismissed. In(5) Thamodaran Pillai’s case it washeld that one aspect to be considered in a bail pending appeal case isthat whether the accused will be available to serve the sentence if he isgranted bail. In that case the sentence imposed one the accused was onof 7 years rigorous imprisonment. In Ranatunga Arachchilage PeterVs.A. GS6) it was held referring to Salahudeen Vs. A. G(7) that when an accusedis convicted of culpable homicide not amounting to murder and sentencedto 3 years rigorous imprisonment, that should not'be considered as anexceptional circumstance to grant bail. In Queen Vs Cornells Silva (supra)where the accused was convicted of attempted murder and sentenced to4 years rigorous imprisonment was held to be a sentence long enough notto grant bail. In Ranatunga Arachchilage Peter Vs. A. G. (supra) the factthat the appeal will take a long time, the fact that the accused is the solebread winner, the fact that the accused had been on remand for a longperiod of time, were not considered as forming exceptional circumstances.Even the fact that the conditions of the bail bond have not been violatedcannot be taken as constituting exceptional circumstances.
In this case the sentence imposed on the accused is 7 years rigorousimprisonment and the mere fact that the hearing isn’t likely to take placefor some time is of itself is no ground to enlarge the accused on bail. Theother reasons relied on by the petitioner as forming exceptionalcircumstances scarcely bear examination.
For the reasons adumbrated, I am of the view that the Learned HighCourt Judge was quite correct when he refused to grant bail pending appealas there were no exceptional circumstances adduced before him warrantingthe release of the accused on bail pending appeal.
Balapatabandi, J.I agree only on the point that there are no exceptional circumstancesaverred by the Petitioner, in his petition to grant bail pending appeal.
Application dismissed.
2 – CM764S