ADVERSE IMPACT ON CRIMINAL CASES BEING HEARD BEFORE SEVERAL SUCCEEDING JUDGES WITHOUT RESUMMONING WITNESSES

 

ATTORNEY GENERAL VS SIRIWARDANE AND 6 OTHERS

Sri Lanka Law Reports 2009 - Volume 2 , Page  337

 

COURT OF APPEAL
RANJITH SILVA, J.
SALAM, J.
CA 46/03 (REV)
HC NO. 51/99 (AVIS)
AUGUST 26, 2009
SEPTEMBER 23, 2009

Section 48 of the Judicature Act 

"In the case of death, sickness, resignation, removal from office, absence from Sri Lanka, or other disability of any judge before whom any action, prosecution, proceeding or matter, whether on any inquiry  preliminary to committal for trial or otherwise, has been instituted or is pending, such action, prosecution, proceeding or matter may be  continued before the successor of such judge who shall have power to act on the evidence already recorded by his predecessor, or partly recorded by his predecessor and partly recorded by him or, if he thinks fit, to re-summon the witness and commence the proceedings afresh:
 

Provided that where any criminal prosecution, proceeding or matter except on an inquiry preliminary to committal for trial) is continued before the successor of any such judge, the accused may demand that the witnesses be re-summoned and re-heard. 

"Revision - Acquittal on failure to prove charge - Code of Criminal Procedure Act 15 of 1979 - Section 203, Section 364 - Reasons for acquittal not in existence when order was made? Irregular? Delay in Seeking relief? Functions - Duties of Attorney General? Constitution - Article 77 - Article 138 - Judicature Act 2 of 1978 - Section 48 Powers of the Court of Appeal - Duty of a succeeding Judge - Evidence Ordinance - Section 27, Section 114

The Attorney General moved in Revision to set aside the judgment acquitting the seven accused respondents who were indicted on five counts including robbery causing hurt and being members of an unlawful assembly. They were acquitted on the purported failure to prove the charges beyond a reasonable doubt. The respondents contended that there was a long delay and that the application for revision is not properly constituted.

Held

Per Abdus Salam, J.

"In regard to the power of Revision suffice it is for this purpose to state, for the moment that, we are not trammeled by technicalities touching upon rules and procedure or above all, whether we are set in motion by a party or taken cognizance of by us on our own."

 (1) The judgment dated 10.10.2002 has been attached to the record only on 23.10.2002. This clearly indicates that the impugned judgment was not available on the day the accused were so acquitted and it is a manifest violation of Section 203.

(2) It is evident that the trial Judge rather in an abrupt and in an unusual manner had embarked upon assigned reasons for the failure of the prosecution to prove the case beyond a reasonable doubt before discussing anything else. The judgment in question does not even make reference to the charges in the indictment preferred against the accused respondents.

Per Abdus Salam, J.

"The point now remains to be cleared as to how the Court could have given reasons for the acquittal if there was no such judgment even if the Court had given reasons without a judgment, there is no guarantee that the very reasons given at the time of pronouncing the judgment could possibly have been embodied in the judgment or whether the impugned judgment contains different and or additional reasons".

(3) In regard to delay - with respect to the inherent nature of the functions attached to the office of the Attorney General who discharges his duties through the officers of the Attorney General's Department, characterized by especially a systematic and methodical way and orderliness, the delay that has occasioned cannot be considered as same as in the case of a private incident.

"It is settled in our constitutional law that in matters which concern the public at large the Attorney General is the guardian of the public interest. Although he is a member of the government of the day, it is his duty to represent the public interest with complete objections and detachment. He must act independently of any external pressure from whether quarter it may come as the question of the public interest the Attorney General has a special duty in regard to the enforcement of the law." - Lord Denning.

(4) In the instant case whole of the prosecution case was heard by one Judge and the defence by his successor. Despite the parties agreeing to adopt the proceedings, the succeeding Judge could have insisted on the witness being resummoned provided it was thought to be fit - Section 48 Judicature Act. 

The legislature in its own wisdom has thought that the Judge who succeeds the one who heard part of a case is the appropriate authority to be conferred the discretion. The duty of the Judge to make up his mind with regard to the three alternative courses in Section 48 cannot always be entrusted or surrendered to the parties to decide.

(5) Notwithstanding the proposition of law that an appellate Court should be slow in setting aside an acquittal on a question of fact and the prosecution has a heavy burden to discharge to achieve that end unquestionably this matter can be treated as one that falls into the exception as there had been a palpable misdirection, by the Judge as the analysis of the evidence and the testimony in relation to the identification parade and the law applicable to are demonstrably wrong on the very face of the record resulting in actual prejudice and serious miscarriage of justice.

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