WEERAWARDANE v. STATE

038-SLLR-SLLR-2000-V-2-WEERAWARDANE-v.-STATE.pdf


WEERAWARDANE
v.STATE
COURT OF APPEALHECTOR YAPA, J.
KULATILAKE, J.
CA. No. 52/98
H. C. NEGOMBO 55/96
21st OCTOBER. 1999
Penal Code S.296, S.300 – Murder and attempted murder – Trial withoutJury – Convicted on the plea – Life imprisonment and four years rigorousimprisonment – Legality of such sentence? – Code ofCriminal Procedure ActS.S.1%1,197, 205 – Amendment Act, No. 11 of1988, S.S. 3, 4 – JudicatureAct No. 2 of 1978. S.ll – Amendment Act No. 37 of 1979.
The Accused – Appellant was indicted on two counts viz: Murder ofone R and the attempted murder of one N. He elected to be triedwithout a jury. When the indictment was readover and explained hepleaded guilty to both counts. The High Court Judge after havingaccepted the plea, postponed the case for the purpose of sentencing.Thereafter the High Court Judge convicted the accused and sentencedhim to a term of life imprisonment on the 1st count and to a term of fouryears rigorous imprisonment on the 2nd count; the sentences to runconcurrently.
(
It was contended in appeal that the High Court Judge had erred in notfollowing the provisions of S.197 and S.205 of the Criminal ProcedureCode.
Held :
S.205 of the Criminal Procedure Code is applicable to caseswhere there is a trial by jury, whereas S. 197 is applicable tocases where there is a trial by a Judge of the High Court withouta jury.
As Act No. 11 of 1988 was in operation the High Court Judgehad to follow the procedure in Cap. XV111 Part B which provides for
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trial by Judge of the High Court without a jury, and shouldnecessarily have had to decide the question whether he shouldaccept the said plea tendered, in terms of S.197 bearing in mindthat when the legislature enacted S.197. it did not envisage asituation where a High Court Judge is called upon to consider aplea of guilt tendered by an accused person for murder in termsof S.197.
Although the High Court Judge had very correctly given his mindto S.205. he had failed to appreciate the effect and the wisdomenshrined in the said proviso and more particularly the guidance hecould have had from it when deciding the issue before him. viz:whether he should accept the plea tendered.
It would appear that the High Court Judge decided not to be guidedby S.205 – This is a grave error.
Per Yapa J..
“The High Court Judge should have known that in view of theproviso to S.205. as a matter of practice courts never accept a pleaof guilt in a charge of murder. Besides it is always advisable for aHigh Court Judge not to accept a plea of guilt in a murder chargefor the reason that the evidence led at the trial may not disclose anoffence of murder but some lesser offence.
“It is clear that before Act 11 of 1988, came into operation S. 11 ofthe Judicature Act and in terms of S. 161 of the Code the trial of anaccused person indicted for murder/attempted murder, had to bein the High Court by a Jury before a Judge. In the circumstancesif an accused person tendered a plea of guilt to a charge of murderthe High Court Jadge had to give effect to the proviso to S.205 of theCode.
Under the Administration of Justice Law similar provision wasmade in S.204(2) of the said Law. Further S.220 of the old Codecontained a similar provision.
Therefore prior to Act No. 11 of 1988 when an accused personpleaded guilty to a charge of murder, the trial Judge had noalternative but to refuse to receive the plea and cause the trial toproceed in like manner as if the accused person had pleaded notguilty.
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The change that was brought by Act No. 11 of 1988 is that in-thecase of certain offences, the accused person is given a choice todecide whether he opted to be tried by a jury before a Judge or triedby a Judge alone.
APPEAL from the Judgment of the High Court of Negombo.
Dr. Ranjith Fernando with Ms. Anoja Jayaratne and Ms. Sandamal’i
Munasinghe for Accused Appellant.
Yasantha Kodagoda, S. S. C. for Attorney General.
Cur. adv. vulii
October 21, 1999.
HECTOR YAPA, J.The accused-appellant in this case was indicted in theHigh Court of Negombo under two counts. In the first count hfewas charged with having committed the murder of KankariiArachchi Appuhamilage Suwamalatha Rajani on 26.12.1993',an offence punishable under Sec tion 296 of the Penal Code: Inthe 2n<1 count the accused-appellant was charged with havingcommitted the attempted murder of Patikiri Arachchige RosliriNona an offence punishable under Section 300 of the PenalCode.
This case was taken up for trial on 24.09.1998 aridwhen the indictment was read over and explained to theaccused-appellant, he pleaded guilty to both counts in theindictment namely, the charge of murder and attemptedmurder. When the accused-appellant pleaded guilty to thesaid charges, in the indictment, the learned High Court.Judge proceeded to read and explain the two charges to the,accused-appellant for the second time. Thereafter when theaccused-appellant was questioned as to whether he was guiltyor not guilty to the said charges in the indictment, he pleaded;
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guilty. Thereupon the High Court Judge convicted theaccused-appellant on the plea tendered and sentenced him toa term of life imprisonment on the lsl count and to a term of4 years rigorous imprisonment on the 2nd count. He furtherordered the sentences to run concurrently. It is difficult tounderstand why the learned High Court Judge afterhaving accepted the plea tendered by the accused-appellantto the charge of murder set out in count No. 1 decided tosentence him to a term of life imprisonment when the onlypunishment permitted by law is death. The accused-appellant has appealed against the said conviction and thesentence.
At the hearing of this appeal it was submitted by thelearned Counsel for the accused-appellant that the learnedMai Judge has erred in law by accepting and entering a pleaof guilt to a charge of murder. In support of this submission,learned Counsel referred us to the provisions of Sections205 and 197 of the Code of Criminal Procedure Act No. 15 of.1979,. Counsel contended that the learned High Court Judgeshould have been guided by these two sections on thisquestion. Section 205 of the Code of Criminal ProcedureAct provides as follows: – If the accused pleads guilty and itappears to the satisfaction of the Judge that he rightlycomprehends the effect of his plea, the plea shall berecorded on the indictment and he may be convictedthereon:
Provided that when the indictment so pleaded to isone of murder the Judge may refuse to receive the plea andcause the trial to proceed in like manner as if the accusedpferson had pleaded not guilty.
Section 197 of the Code of Criminal Procedure Actprovides as follows:-
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If the accused pleads guilty and it appears tothe satisfaction of the Judge that he rightly comprehendsthe effect of his plea, the plea shall be recorded on theindictment and he may be convicted thereon.
It should be mentioned here that Section 205 of Codeof Criminal Procedure Act is applicable to .cases where thereis a trial by jury, whereas, Section 197 is applicable tocases where there is a trial by a Judge of the High Courtwithout a jury.
It is important to remember that, before the Code ofCriminal Procedure (Amendment) Act, No. 11 of 1988. cameinto being. Section 11 of the Judicature Act, No. 2 of 1978,provided for jury trials in the case of more seriousoffences. Section 11 of the Judicature Act provides asfollows: –
11.(1) Trial in the High Court shall be by jury before a
Judge of the High Court where-
at least one of the charges is for an offencereferred to in the Second Schedule hereto; or
The Attorney-General in any other case sodetermines in accordance with the law for thetime being.
All other trials shall be before a Judge of theHigh Court sitting alone without a jury.
Items 1 – 4 of the second schedule to the JudicatureAct referred to various offences which have to be tried by a jurybefore a Judge of the High Court. Item No. 2 in the secondschedule specifically refers to offences punishable underSections 296, 297, 300 and 364 of the Penal Code. In addition
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section 161 of the Code of Criminal Procedure Act provides asfollows: –
161. Subject to the provisions of this Code and anyother written law in every case where at leastone of the offences falls within the list ofoffences set out in the Second Schedule to theJudicature Act, No. 2 of 1978, or in any casewhere the Attorney-General having regard tothe nature and circumstances of the offencedetermines that the trial should be held inthe High Court by a jury, trial shall be onindictment in the High Court by a jury. In everyother case and whether there was a preliminaryinquiry under this Chapter or not. trial shallbe on indictment in the High Court withouta jury.
It may be noted that the second schedule to theJudicature Act was amended by Judicature (Amendment)Act, No. 37 of 1979. However item No. 2 of the secondschedule remained intact except that it was renumberedas item I. (vide Section 5 of the said Judicature (Amendment)Act.)
Therefore it is clear that before the Code of CriminalProcedure (Amendment) Act, No. 11 of 1988. came intooperation, Section 11 of the Judicature Act and in terms ofSection 161 of the Code of Criminal Procedure Act, the trial ofan accused person indicted for murder or attempted murder,had to be in the High Court by a jury before a Judge. In thecircumstances if an accused person tendered a plea of guilt toa charge of murder, the High Court Judge had to give effect tothe proviso to Section 205 of the Code of Criminal Procedure
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Act which states as follows:- “Provided that when theindictment so pleaded to is one of murder the Judge mayrefuse to receive the plea and cause the trial to proceed in likemanner as if the accused person had pleaded not guilty.”Under the Administration of Justice Law, No. 44 of 1973similar provision had been made in terms of Section 204 (2)of the said law. Further Section 220 of the Old CriminalProcedure Code contained a similar provision. Thereforethere can be no controversy in respect of this matter that,prior to the Code of Criminal Procedure (Amendment) Act,No. 11 of .1988, came into operation, when an accusedperson pleaded guilty to a charge of murder, the trial Judgehad no alternative but to refuse to receive the plea and causethe trial to proceed in like manner as if the accused personhad pleaded not guilty. This position is made very clearwhen one reads the Sinhala version of Section 205 of theCode of Criminal Procedure Act. Raison d’etre for thisprovision seems to be that a conviction for murdernecessarily entails capital punishment. Vide Section 296 ofthe Penal Code.
On this matter the change that was brought about bythe Code of Criminal Procedure (Amendment) Act, No. 11 of1988 relates to the amendments that were made toSections 161 and 195 of the Code of Criminal ProcedureAct No. 15 of 1979. Sections 3 and 4 of the said Code ofCriminal Procedure (Amendment) Act provide as follows:-
Section 161 of the principal enactment is herebyrepealed and the following section substitutedtherefor: –
161. Subject to the provisions of this Code or any otherlaw, all prosecutions on indictment instituted in
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the High Court shall be tried by a Judge of thatCourt:
Provided that in any case where at least one ofthe offences falls within the list of offences setout in the Second Schedule to the JudicatureAct, No. 2 of 1978, trial shall be by a jury, before aJudge, if and only if, the accused elects to be triedby ajuiy.
4. Section 195 of the principal enactment is herebyamended by the insertion immediately afterparagraph (e) of that Section, of the followingparagraph:-
“(ee) if the indictment relates to an offence triableby a jury, inquire from the accused whether or nothe elects to be tried by a jury;”
The major change that has been brought aboutby Sections 3 and 4 of the Code of Criminal Procedure(Amendment) Act has been to declare that all prosecutions onindictment instituted in the High Court shall be tried by aJudge of that Court subject to the qualification that where atleast one of the offences falls within the list of offences set outin the second schedule to the Judicature Act, the trial shall beby jury before a Judge, if and only if, the accused elects to betried by a jury. Therefore it would appear that in the case ofoffences referred to in the second schedule to the JudicatureAct, the accused person is given a choice to decide whether heopts to be tried by a jury before a judge or tried by a Judgealone.
In the present case after the indictment was served onthe accused-appellant on 29.08.1996, and a Counsel was
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assigned to appear on his behalf, he elected to be tried withouta jury. Therefore in the absence of any provision beingmade similar to the proviso to Section 205 of the Code ofCriminal Procedure Act, at the time when the Code of CriminalProcedure (Amendment) Act, No. 11 of 1988, was enacted, theHigh Court Judge had to follow the procedure provided inChapter XVIII, part B which provides for trial by Judge of theHigh Court without a jury. Thus when the accused-appellanton 24.09.1998 which was the date fixed for trial, pleaded guiltyto both counts in the Indictment namely the charges of murderand attempted murder, the trial Judge necessarily had todecide the question whether he should accept the said pleatendered by the accused-appellant in terms of Section 197, ofthe Code of Criminal Procedure Act, bearing in mind that,when the legislature enacted Section 197, it did not envisagea situation where a High Court Judge is called upon toconsider a plea of guilt tendered by an accused person formurder in terms of the said provision i. e. Section 197. Howeverin doing so. as happened in this case, learned High CourtJudge very correctly gave his mind to Section 205 of theCode of Criminal Procedure Act, but unfortunately failed toappreciate the effect and the wisdom enshrined in the saidproviso, and more particularly the guidance he could have hadfrom it, when deciding the issue before him, namely whetherhe should accept the plea tendered by the accused-appellantin terms of Section 197 of the Code of Criminal ProcedureAct. It would appear from the order of the learned High CourtJudge that he decided not to be guided by Section 205 of theCode of Criminal Procedure Act, for the reason that provisionhas not been made to cater for a situation where a pleahas been tendered by an accused person indicted for murder,at a trial before a High Court Judge without a jury. Therefore
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in our view it was erroneous for the High Court Judgeafter having very correctly made the observation that provisionhas not been made to provide for a situation where a pleaof guilt is tendered by an accused person for a charge ofmurder before a High Court Judge sitting without a jury,to have ignored completely the principle enshrined inthe proviso to Section 205 of the Code of Criminal ProcedureAct.
Even if the learned High Court Judge decided to actunder Section 197 of the Code of Criminal Procedure Act,the Court has to be satisfied that “he (accused-appellant)
' rightly comprehends the effect of his plea”. In deciding so. HighCourt Judge should have been mindful of the Proviso toSection 205, of the Code of Criminal Procedure Act. FurtherHigh Court Judge should have known that, in view of theproviso to Section 205, as a matter of practice Courts neveraccepted a plea of guilt in a charge of murder. Besides it isalways advisable for a High Court Judge not to accept aplea of guilt in a murder charge, for the reason that theevidence led at the trial may not disclose an offence of murderbut some lesser offence. In this case the Court shouldhave also acted on the premise that the legislature couldnever have intended preferential treatment being given to amurder suspect who opted to be tried by a jury andnot when such a suspect opted to be tried without a jury.It is to be noted that even in the case of a trial by jury, theaccused is required to plead guilty or not guilty to theindictment before the jury is empanelled in terms ofSection 204 of the Code of Criminal Procedure Act. Thus itwould appear absurd to have a situation where a plea formurder can be accepted only when there is to be a tried by a
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Judge without a juiy but not when there is a trial by jury.However in both situations the plea is tendered before theHigh Court Judge only.
It is also pertinent to mention here that the sentencepassed by the learned High Court Judge on the accused-appellant after he pleaded guilty to the charge of murderclearly indicates that the High Court Judge has entertained adoubt in his own mind with regard to the question whetherthe accused-appellant had rightly comprehended the effect ofhis plea in terms of Section 197 of the Code of CriminalProcedure Act. Otherwise one cannot understand thereason as to why the High Court Judge decided to impose aterm of life imprisonment on the accused-appellant withoutsentencing him to death as required by law. Further it isseen that the High Court Judge after having accepted theplea tendered by the accused-appellant has decided topostpone the case for 28.09.1998 for the purpose ofsentencing the accused-appellant. This postponement forsentencing was unnecessary unless the High Court Judgethought there were mitigatory circumstances in favour ofthe accused-appellant. This position finds further supportfrom the submissions that were made by the assignedCounsel in mitigation of the sentence, showing circumstanceswhich were capable of reducing the charge of murder to alesser offence.
Finally it must be mentioned here that the assignedCounsel in this case has failed to provide the necessarylegal aid to the accused-appellant. In fact the learnedHigh Court Judge has observed that the assigned Counselremained silent at the stage when the accused-appellantpleaded guilty to the charges in the indictment. In thecircumstances it would appear as contended by learned
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Counsel for the accused-appellant, that he (accused-appellant) was virtually unrepresented and undefended.Therefore doubt arises as to whether the accused-appellantin fact had a fair trial.
For the aforesaid reasons, we are of the view that thelearned High Court Judge was in serious error when hedecided to accept the plea tendered by the accused-appellantfor the offence of murder. In fact in this case, we are of theconsidered view that the learned High Court Judge shouldhave refused to receive the plea tendered by the accused-appellant and proceeded with the case as if he has pleadednot guilty. Therefore we set aside the comiction and thesentences imposed on the accused-appellant and order afresh trial against him on the same indictment.
KULATILAKA, J.- I agree.
Appeartiliowed. Conuicton set aside. Fresh trial ordered.