044-SLLR-SLLR-1994-V2-VICTOR-IVAN-V.-THE-ATTORNEY-GENERAL.pdf
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Victor Ivan v. The Attorney-General
411
VICTOR IVAN
v.
THE ATTORNEY-GENERAL
COURT OF APPEAL
DR. A.' DE Z. GUNAWARDENA, J.
HECTOR YAPA.J.
CA. APPLICATION NO. 337/94.
C. COLOMBO CASE NO. 5454/93.
JUNE 20,23 AND 24.1994.
Criminal Defamation – Penal Code, section 480 – Code of Criminal ProcedureAct, No. 15 of 1979, sections 420 and 436 – Admission by accused – Bias.
The question was whether an admission had been recorded during the HighCourt trial of the accused for criminal defamation (punishable under section 480of the Penal Code) by a publication in the Ravaya edited by the accused.
The accused had accepted the publication of the alleged defamatory article andwhat was left to be proved by the prosecution was that by such a publication theaccused-petitioner intended to harm the reputation of Indradasa Hettiarachchi, aMinister.
f
The admission was that Indradasa Hettiarachchi did not utilize the money for hispersonal use. In the indictment too no such allegation is mentioned.
Onder Section 420 of the Code of Criminal Procedure Act when an admission ismade by an accused person he must be represented by an attorney-at-law.When the accused made the so called admission he was not represented by anattorney-at-law. In fact there was no allegation that Indradasa Hettiarachchi hadutilized the money for his personal use and it is difficult to conclude that theaccused when he stated this made an admission. Even if it was an admission noprejudice had been caused. Further, on the direction of the Court the evidencerelating to this fact had been properly led by the prosecution through a witness,when the accused was defended by Counsel. This is a procedural error curableunder section 436 of the Code of Criminal Procedure Act.
In this case there were no grounds for a conclusion of bias or possibility of bias.
Cases referred to:
Abdul Sameem v. The Bribery Commissioner [1991 ] 1 Sri L.R. 76.
Premaratne v. The Republic of Sri Lanka T7 N.L.R. 522.
The King v. Essen Justices (Sizer and Others) Ex parte Perkins (1927) 2 KB473.
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[1994} 2 Sri LR.
The King v. Sussex Justices Ex parte McCarthy {1924} 1 KB 256.
5 Metropolitan Properties Co. (F.G.C.) Ltd.v. Lannon and Others [1969] 1 QB577.
6. R. v. Cambourne Justices Ex parte Pearce [ 1955] 1 QB41.
APPLICATION in Revision of the Order of the High Court of Colombo.
Ranjith Abeysuriya P.C. with S. Hewamanna, P. Liyanage, J. C. Waliammuna andWimal Jayasurtya for accused.
Upawansa Yapa AdditionalS.G. with Palitha Fernando S.S.C. for A.G.
Cur. adv. vult.
August 29,1994.
HECTOR YAPA, J.
The accused-petitioner in this case was indicted in the High Courtof Colombo, with having committed criminal defamation, bypublishing in the Ftavaya newspaper of 07.06.92, an Article under thecaption of “aoocfand offence punishable
under Section 480 of the Penal Code. The said publication states thatthe Horana Co-operative Housing Society, in which IndradasaHettiarachchi, the Minister of Coconut Industry and KaiutaraDistrict M.P. is the President, was involved in some dubious landtransactions and thereby made an imputation, that the saidIndradasa Hettiarachchi, is a corrupt or a dishonest person, so as toharm his reputation.
The trial in the High Court commenced on 25.10.93 before aJudge without a Jury. On that day the accused-petitioner wasrepresented by Counsel. The witness Indradasa Hettiarachchi gaveevidence and he was cross-examined by the defence Counsel.Evidence of this witness was concluded, and the trial was adjournedto 28.10.93. On 28.10.93 when the proceedings commenced theCounsel who appeared for the accused, informed Court that he hasnot received instructions to appear on behalf of the accused that day,and therefore he would not be representing him in Court. Thereuponthe learned High Court Judge recorded the submissions of theCounsel and permitted the application of the Counsel to withdrawfrom the case. At that stage another Counsel informed the Court, that
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Victor Ivan v. The Attorney-General (Hector Yapa, J.)
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he was appearing for the accused. Thereafter the evidence ofwitness D. B. M. Abeysinghe was led. At the conclusion of theevidence in chief of the said witness, the Counsel for the accusedinformed Court, that the accused himself intends to cross-examinethe witness, and therefore he wanted the permission of the Court, towithdraw from the case. The learned Judge inquired from theaccused, and the accused confirmed that he wanted to cross-examine the witness, and the assistance of the Counsel was notnecessary, and further that he was not opposed to the Counselwithdrawing from the case. Thereupon the Court permitted thedefence Counsel to withdraw from the case, and the accusedcommenced the cross-examination of the witness. The cross-examination of the witness was riot concluded on 28.10.93 and thecase was postponed to 15.12.93. When the trial commenced on
the Assigned Counsel who appeared for the accused,stated to Court that since he had not received any instructions fromthe accused, and as the accused was conducting his own defence,the Counsel wanted his appearance as Assigned Counsel revoked.Thereafter the accused himself informed Court that he did not requirethe assistance of the Assigned Counsel, and accordingly the Courtrevoked the.appointment of the Assigned Counsel.
Thereafter witness D. B. M Abeysinghe was called and furthercross-examined by the accused, and his evidence was concluded.Then the evidence of two other witnesses namely D. H.Athulathmudali and K. D. Perera was led by the prosecution, andtheir evidence was concluded. At this stage the State Counselinformed the Court, that he had later added the manager of thePeople's Bank Horana, as a witness, on the basis that he would beneeded,, to prove certain facts. But the accused had made astatement to say that he is not suggesting Indradasa Hettiarachchihad utilized the money for his personal use. At this stage when theCourt questioned the accused, whether he was accepting theposition that Hettiarachchi had not credited the money to one of hispersonal accounts, the accused stated that there was no suchallegation. Thereafter it was recorded that the accused and the State
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Counsel agreed, that the representative of the People's Bank,Horana, was not required as a witness and accordingly hewas released from attending Court. Then the evidence ofS. Samarasinghe of the C.I.D. was led, and the prosecution case wasclosed. When the defence was called from the accused, he informedthe Court that he intends giving evidence and calling witnesses. TheCourt then fixed further trial for 26.01.94 and issued notice on thedefence witnesses. When the case was taken up on 26.01.94 it hasbeen recorded that since the Counsel appearing for the accused wassick, further trial was postponed to 21.02.94.
On 21.02.94 when the proceedings commenced, the Counsel forthe accused made several submissions. The main submission hemade was that, an admission had been obtained on 15.12.93 by theCounsel for the prosecution from the accused, who was undefended,in violation of Section 420 of the Code of Criminal Procedure Act.When this objection was raised the State Counsel moved forsummons on the Manager of the People’s Bank, Horana. Thisapplication was allowed by the Court. In view of the objection raisedby the Counsel for the accused, further hearing of the case waspostponed to 15.03.94. When the case was taken up on 15.03.94 theCounsel for the accused repeated his earlier submission that anadmission had been obtained in violation of Section 420 of the Codeof Criminal Procedure Act and thereby caused prejudice to theaccused, so as to vitiate the proceedings. Therefore the learnedCounsel moved that further proceedings be stopped, and the trial beheld afresh before another Judge. Having heard the submissions ofthe defence Counsel, and the State Counsel, the learned High CourtJudge made order, refusing the application to permit the case to beheard afresh before another Judge, as there was no valid reason forit. Further the learned Judge stated in her order, that in view of thesubmission made by the defence Counsel, the Court was directingthe prosecution to lead evidence to prove the alleged admission, sothat no prejudice would be caused to the accused. Therefore theState Counsel was permitted to lead the evidence of T. De Munidasaof the People’s Bank, Horana, and the witness was cross-examined
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by the defence Counsel. Thereafter the prosecution case wasclosed, and the Court called for a defence from the accused.Then the Counsel for the accused moved for a date to leadevidence land the Court directed notice on the defence witnesses for30.03.94.
Thereafter the accused petitioner on 23.05.94 filed this applicationin revision, stating that the alleged admission obtained from him on
was in violation of the provisions of section 420 of the Codeof Criminal Procedure Act, and also it violated an accused person'sright to silence in a criminal trial. The application further stated thatthis violation has resulted in a miscarriage of justice and therebyvitiated the entire proceedings. Therefore the accused-petitioner inhis application prayed for, to stay further proceedings in the case, toset aside the order of the learned High Court Judge to proceed withthe trial, and to order a fresh trial before another Judge of the HighCourt.
At the hearing of this application it was submitted by the learnedCounsel for the accused-petitioner, that the admission obtained inviolation of section 420 of the Code of Criminal Procedure Act, hascaused prejudice to the accused-petitioner, and further that this hasresulted in the violation of the accused's right to silence, in a criminaltrial. Therefore the learned Counsel contended that the entireproceedings are vitiated.
Section 420 of the Code of Criminal Procedure Act reads asfollows:
"It shall not be necessary in any summary prosecution or trial onindictment for either party to lead proof of any fact which isadmitted by the opposite party or to prove any documents theauthenticity and terms of which are not in dispute and copies ofany documents may by agreement of the parties be accepted asequivalent to the originals.
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Such admissions may be made before or during the trial. Suchadmissions shall be sufficient proof of the fact or facts admittedwithout other evidence;
Provided however that this section shall not apply unless theaccused person was represented by an attorney-at-law at the timethe admission was made;
Provided further that where such admissions have been madebefore the trial, they shall be in writing, signed by the accused andattested as to their accuracy and the identity and signature of theaccused by an attorney-at-law.”
The section has clearly provided that where an admission is madeby an accused person he must be represented by an attorney-at-law.This requirement is a safeguard against obtaining an admissionprejudicial to an accused person without legal advice. In the presentcase, it is necessary to see whether an admission in fact has beenobtained in the first instance, and secondly what prejudice it hascaused to the accused-petitioner. The alleged admission relates tothe accused-petitioner's statement that he was not stating orsuggesting that Indradasa Hettiarachchi did utilize the money for hispersonal use. When the Court questioned the accused-petitionerwhether he was accepting the position that Hettiarachchi had notcredited this money to any of his personal accounts, the answer hegave was that there was no such allegation. Thereafter it has beenrecorded that the accused-petitioner and the State Counsel agreedthat the representative of the People's Bank Horana was notnecessary as a witness. The crucial question here is whether in factthe accused-petitioner has made an admission prejudicial to him,when he was undefended by Counsel. The allegation made againstthe accused petitioner is that, he defamed Indradasa Hettiarachchiby making a publication in the Ravaya newspaper. When oneexamines the contents of the published article there is no allegationthat the Minister of Coconut Industry, Indradasa Hettiarachchi utilizedany money for his personal use, or credited any money to any of his
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personal accounts. Further it is not a part of the allegation, ascontained in the indictment. Therefore when the accused-petitionerwas questioned by the Court, in the manner referred to above, hisanswer quite rightly, was that there was no such allegation. In thelight of this answer, it is difficult to conclude that the accused-petitioner has made an admission, but on the contrary, what he hassaid was that, he had made no such allegation, in the article he haspublished.
Further as submitted by the learned Additional Solicitor-General,one has to find out what the value that can be attached to thisstatement, and what bearing it has on the case. As he pointed out itis to be noted that on 25.10.93 on the first trial date, when theaccused petitioner was defended by Counsel, two admissions havebeen made and recorded under Section 420 of the Code of CriminalProcedure Act. First it was admitted that on 07.06.92, M. K. VictorIvan (accused-petitioner) was the chief editor and the publisher ofthe Ravaya newspaper and secondly it was admitted that on the saiddate (07.06.92) there appeared the impugned article in the Ravayanewspaper under the caption of "eojtf *£>9 etwc^cD*.Therefore it is clear from the said two admissions that, the accused-petitioner has accepted the publication of the alleged defamatoryarticle, and what was left to be proved by the prosecution was that bysuch a publication the accused-petitioner intended to harm thereputation of Indradasa Hettiarachchi. Thus having admitted thepublication, it was only open to the accused petitioner to defendhimself, by proving that his conduct fell within any of the exceptedsituations provided in section 479 of the Penal Code. Therefore whenone examines this alleged admission, it appears that though theprosecution thought that there was an admission obtained from theaccused-petitioner, as a matter of fact, it was not so. Further, even ifone were to accept for the sake of argument, that there was in fact anadmission obtained, it is clear that there has been no prejudicecaused to the accused-petitioner. It is also to be noted that on thedirection of the Court, now the evidence relating to this fact has beenproperly led by the prosecution, through a witness, when theaccused petitioner was defended by Counsel.
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In the several cases cited by the learned Counsel, it must beobserved that in those cases there have been violations offundamental principles of Criminal Procedure, which were held tobe fatal irregularities, vitiating the trials or the proceedings. Asfor example, in the case of Abdul Sameem v. The BriberyCommissioner 0> it was held that the failure to frame a charge asrequired by Section 182 (i) of the Code of Criminal Procedure Act,was a violation of a fundamental principle, and was not a defectcurable under section 436 of the said Act. Also in the case ofPremaratne v. The Republic of Sri Lenka 81 it was held that the failureto conform to the imperative provisions of section 296 (1) of theCriminal Procedure Code, of informing the undefended accused ofthe right to give evidence on his own behalf, and if the accusedelects to give evidence, to refer him to the prosecution evidence, is afatal irregularity which vitiated the trial. What is important in all thecases cited by the learned Counsel was that, there was a failure toadhere to a fundamental principle of Criminal Procedure, which wasnot curable. The facts in the present case, are different and the casescited have no application.
It is to be noted that our law provides for admissions to berecorded from accused persons, which is an exception to theaccused's right to silence. In the present case what appears to havehappened is that the prosecution has overlooked the fact that, on thatoccasion, when the alleged admission was recorded, the accused-petitioner was not represented by an attorney-at-law. This in our viewis a procedural error, which is curable under section 436 of the Codeof Criminal Procedure Act No. 15 of 1979, and in any event noprejudice has been caused to the accused-petitioner.
Another submission made by the learned Counsel for theaccused-petitioner was that, as the learned trial Judge hasquestioned and obtained the alleged admission from the accused-petitioner on 15.12.93 at the instance of the prosecution, it created lsituation where by, the accused-petitioner would not have theconfidence of a fair trial. In other words the learned Counsel was
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raising the question of bias or the possibility of bias. In support of thissubmission, the learned Counsel cited several cases. One such casewas The King v. Essen Justices (Sizer and Others) Ex parte Perkins wwhere the order of the Justices was set aside by holding, that the factthat the Justice’s clerk, being formerly a solicitor for a party indispute, would have created in the mind of the applicant, thereasonable impression that justice was not being done. Another casecited was The King v. Sussex Justices Ex parte McCarthy w wherethe conviction was quashed by holding that it was improper forthe acting clerk, having regard to his firm's relation to the case,to be present with the justices when they were considering theirdecision.
In the two cases referred to above, and in the other cases cited bythe learned Counsel, there were certain grounds or circumstanceswhere there was a real likelihood of bias on the part of the Judge. AsLord Denning M.R. stated in Metropolitan Properties Co. (F.G.C.) Ltd.v. Lahnon and Others m, "A man may be disqualified from sitting in aJudicial capacity if he has a direct pecuniary interest in thesubject-matter or if he is biased in favour of one side or against theother’.
A line however must be drawn between genuine and fancifulcases. The Court of Appeal in England has protested againstthe tendency to impeach judicial decisions, “Upon flimsiest pretextsof bias and against the erroneous impression that it is moreimportant that justice should appear to be done than it shouldin fact be done’, Slade, J. in R. v. Camboume/in reference JusticesEx parte Pearce m.
In this case we see no such grounds of bias or possibility of bias.It must also be noted that in this application for revision, the question^f bias has not been taken up. Further more, the defence Counselwhen making submissions before the learned High Court Judge on15:03.94 in regard to the alleged admission complained of, stated
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that, there was no doubt what so ever in regard to the impartiality olthe learned trial Judge.
In view of the above reasons, we see no basis to interfere with theOrder made by the learned High Court Judge on March 15, 1994,and accordingly the application is dismissed.
OR. A. DE Z. GUNAWARDANA, J. -1 agree.