035-SLLR-SLLR-1981-1-IN-RE-AMARASINGHE-ATTORNEY-AT-LAW.pdf
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IN RE AMARASINGHEATTORNEY-AT-LAW
SUPREME COURT,
WEERARATNE, J., SHARVANANDA, J. ANDVICTOR PERERA, J.,
S. C. RULE NO. 3/81,
NOVEMBER 3, 1981.
Attorney-at-law — Malpractice or deceit — 42(2) of Judicature Act — Removal of pagefrom record when acting as judicial officer — Was record falsified ? – Doctrine of nuncpro tunc — Standard of proof.
It was clear that the respondent had not falsified the record but only amplified itand that he had acted honestly.
The writing of a page on one date and attributing it to another date is not a falsifi-cation or malpractice, or deceit where there was no dishonesty. Such action is justifiedby the doctrine of nunc pro tunc. This doctrine applies to acts done after the time whenthey should be done with a retrospective effect. Nunc pro tunc is an entry made now ofsomething actually previously done to have effect of a former date, not to supplyomitted action, but to supply omission in record of action really had, but omittedthrough inadvertence.
Both malpractice or deceit import an element of dishonesty which was absent in thiscase. There was no material to show dishonesty. The standard of proof required isproof beyond reasonable doubt.
Cases referred to:
Sinnatangam v. Sinnen (1895) 1 NLR 220.
In the Matter of an Attorney I L.R. 41 Cal. 113.
13) Bhandari v. Advocates Committee 1956 3 All. E. R. 742.
In the matter of a Rule under s. 42(2) of the Judicature Act.
A Mampitiya with N. Jacolyn Seneviratne, N. Devendra, G. G. Mendis and Gamin!Iriyagolla for Respondent.
S. N. de Silva, Deputy Solicitor-General with S. Marsoof, State Counsel for Attorney-General.
George Candappa with Everard Ratnayake for the Bar Association of Sri Lanka.
Cur. adv. vult.
December 11,1981.
WEERARATNE, J.
This is a proceeding by way of a Rule under Section 42(2) of theJudicature Act No. 2 of 1978 for the suspension or removal fromoffice, of the Respondent – an Attorney-at-Law who, at the rele-vant times held judicial office, on the ground that he has beenguilty of conduct which makes him liable to be dealt with underthe provisions of the said Act.
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This Rule sets out that the Respondent, when functioning asthe District Judge and Magistrate of Homagama on the 12thFebruary 198.1, in respect of the accused in case No. 43866 M.C.Homagama, when the latter appeared for sentence on a verdictof guilty being entered against him, imposed a sentence of sixmonths rigorous imprisonment after a plea in mitigation .byMr. P. Gunawardena, his Attorney-at-Law. Then after the Courtadjourned for the day Mr. U. Senaratne, Attorney-at-Law met theRespondent in Chambers and the Respondent varied the sentencealready imposed to one year's imprisonment, suspended for fiveyears, and a fine of Rs. 500/-, by making an alteration in theJournal Entry of that date. On the 17th February 1981, theSupreme Court called for the record of the case by telegram andon the Respondent making an order that the record be sent, it wasprepared for despatch to the Supreme Court. On that same day,after the proceedings were adjourned, the record was brought tothe Respondent's residence by the Interpreter, accompanied bythe Binder attached to the said Court, in a Motor Car driven byMr. U. Senaratne, Attorney-at-Law, whereupon the Respondentcaused the page of the said record which contained the JournalEntry of 12th February 1981 to be removed, and substituted in itsplace, a fresh page purporting to contain the Journal Entry of12th February 1981.
It is stated that by such act he has thereby sought to representto the Supreme Court that the entry made by him on the 17thFebruary 1981 at his residence was a Journal Entry made in Courton the 12th February 1981, thus causing the said record to befalsified and forwarded to the Supreme Court, and that he is there-by guilty of malpractice or deceit within the meaning of Section42(2) of the Judicature Act.
There is, annexed to the Rule inter alia, the record in M.C.Homagama case No. 43866, a page of the original case recordcontained in the Journal Entry-of 3.2.81 and 12.2.81, and a letterdated 25.2.81 sent by the Respondent to the Chairman of theJudicial Service Commission.
The Respondent appeared before us to show cause and submit-ted an affidavit sworn by him which substantially sets out thefacts revelant to his defence. Senior Counsel for the Respondentat the very outset, stated that the recitals of the facts in the Ruleare substantially admitted by the Respondent in the affidavitfiled before the Court, and in his letter of resignation dated
to the Judicial Service Commission. Counsel submittedthat the gravamen of the charge is that the Respondent had
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removed a page from the record containing the Journal Entry ofthe 12th February 1981 and substituted in its place, a fresh pagepurporting to contain the Journal Entry of 12th February 1981,but which Journal Entry was in fact made on the 17th February1981 and that he thereby falsified the record. Counsel submittedthat the removal of the page and the substitution of another areadmitted in the affidavit and letter of resignation, but that theallegation of falsification of the record is denied. Counsel statedthat the substituted page and the page extracted, both contain thealtered sentence which the Respondent imposed on the accused inthe Homagama case No. 43866.
Counsel submitted that the essence of the charge is whether theRespondent has falsified the record, and that the facts containedin the affidavit and in the letter of resignation aforesaid clearlyreveals that he had- no intention of falsifying the record, in whichevent there could be no malpractice or deceit within the meaningof Section 42(2) of the Judicature Act No. 2 of 1978.
In the circumstances, it would be necessary to set out in somedetail, the relevant facts pleaded in the affidavit and in the letterof resignation. The petitioner stated that on the 20th January1981, the first date of trial, the accused was charged on twocounts of criminal breach of trust and retention of stolen propertyvalued at Rs. 12,000/- and that the prosecution conducted by thepolice as well as the defence, represented by Mr. U. Senaratne,Attorney-at-Law, wished to compound the case having the chargealtered to one of criminal misappropriation. The Respondentstates that he indicated to the parties that following his normalpolicy in the matter of sentence, if the accused admits his guilt,and if he had no previous convictions, he would impose a suspen-ded sentence on him. The accused pleaded guilty on both countsand the case was put off for identification and sentence. Then onthe 12th February 1981, the case came up before the Respondenton the roll of calling cases and, although Attorney-at-Law Mr.P. Gunawardene appeared for the accused, he did not advert tothe circumstances in which the plea of guilt was tendered, and theRespondent sentenced the accused to six months rigorousimprisonment on each count. On this day itself, when the Respon-dent was in Chambers, Mr. U. Senaratne, having explained hisabsence from Court earlier, stating that he was held up in anotherCourt, and had asked Mr. P. Gunawardene to look after the case,reminded the Respondent of the circumstances in which his clienthad tendered his plea. Then, since the accused was a young manwith no previous convictions, and as the complainant admittedthat he had recovered the property in full, the Respondent states
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that he varied the sentence to one year's imprisonment on eachcount, the sentences to run concurrently, and suspended thepunishment for five years and imposed a fine of Rs. 500/-.
On the 17th February 1981 when the Respondent received atelegram from the Supreme Court calling for the record of thiscase, he made order that it should be despatched. It then occurred. to him .that the Supreme Court may have called for the record torevise the sentence and examine the propriety of his order and hethought it better that a reviewing Court should be in full posse-ssion of all the facts that led him to vary the order. As his car wasnot available, he sent word to the Interpreter of the Court to bringthe record to his bungalow, if it had not been despatched earlier.Later, both the Interpreter and the Binder attached to the Courtcame to his residence. He then had the folio which contained theEntry of that date taken out and wrote out a fresh page containingfurther details of all that transpired on the 12th February 1981and inserted this folio in the record which was despatched.
The Respondent states that what he recorded on that new pagewas in amplification and not in suppression of the scanty order hehad made which would have been of little assistance to a reviewingCourt. He retained in his custody, the folio which he had removed.The Respondent states that when he learnt that the JudicialService Commission was investigating this matter, he submittedhis resignation together with the original folio, since it wasembarrassing to him to continue in the circumstances as a Judge.The Respondent, in denying that he has falsified the record statesthat he had not prepared a new document containing false infor-mation, and that the information supplied in the new document istruthful and is in accordance with the information available in theoriginal folio on the material points. He further states that he had,at no time made a false statement of an existing fact and that henever had an intention to practise a deceit or any malpractice.
What is attributed to the Respondent in the Rule as involving afalsification or deceit is the act of causing the Journal Entry of12th February 1981 and the substitution of a fresh page purpor-ting to contain the Journal Entry of 12th February 1981 and rep-resenting thereby that the entry made on 17th February 1981 athis residence was a Journal Entry made to Court on 12th February. 1981. An examination of the record reveals that the Judicial Actsof the Respondent on 20.1.81, 3.2.81 as well as 12.2.81, up to thepoint when he imposed a sentence of six months rigorous impri-sonment for each charge to run concurrent^ bear no irregularity.In regard to what is recorded under the word "Later”, on 12.2.81,
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where the Respondent refers to the Attorney-at-Law Mr. Sena-ratne drawing his attention to the assurance given by the Respon-dent that a suspended sentence would be imposed in the event ofthe accused tendering a plea of guilt, provided he had no previousconvictions, cannot also be found fault with even though he variedthe sentence to fall in line with the earlier assurance given by him.A close scrutiny of the record, which is a production in the case,in the Journal Entry (in Sinhala) of the 12th February 1981 showsan alteration from six months rigorous imprisonment for eachcount to run concurrently to one year's rigorous imprisonment oneach count to run concurrently "sentence suspended for fiveyears. Impose a fine of Rs. 500/- on the accused." In this connec-tion, Counsel submitted that the Respondent sought to do justiceby the accused in regard to whom he had already given an assu-rance of a suspended sentence in the event of his having no pre-vious convictions. A perusal of the substituted page and theextracted page does reveal that the substituted page was written inamplification and not in suppression of the scanty order which theRespondent made on the 12th February 1981. The Respondenthas given in his affidavit, the reason for amplifying the said order.
Falsify means "to render false." Consequently a new documentcontaining false information is correctly described as a false docu-ment, and the act of preparing such a document is called the falsi-fication of the document
Counsel submitted that in any event the writing of the page on17th February 1981, but attributing it to 12th February 1981 wasnot a falsification, malpractice, or a deceit in that such a writingon the 17th February 1981, and attributing it to 12th February1981, was justified under the well-known doctrine of nunc protunc. He referred to Black's Law Dictionary at page 1218 whichdefines it as a phrase applied to acts allowed to be done after thetime when they should be done, with a retroactive effect i.e., withthe same effect as if regularly done. Nunc pro tunc is an entrymade now of something actually previously done to have effect ofa former date, not to supply omitted action, but to supply omis-sion in record of action really had, but omitted through inadver-tence.
In the case of *Sinnatangam v. Sinnen 1 NLR 220^) whereafter a Revision Application the case was called for by theSupreme Court and after the perusal of the record, the SupremeCourt sent the case back for an explanation by the Magistrate, andin forwarding it again to the Supreme Court the Magistrate had
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made certain alterations in the original Journal Entries, whichcharges were alluded to by Withers, J. in his judgment, Bonser,
C. J. remarks (at page 222) —
"… Certainly there are interpolations in the record indifferent coloured ink.The Magistrate should be called upon foran explanation as to whether h'e did make any alterations in therecord, for if he did, that act, his act, was quite irregular. If hedid make any alteration, he should have a note in the margininitialled by him to show when the alterations or addition wasmade."
It will be observed that even in a case such as the one detailedabove, the Supreme Court was not prepared to call the alterationof the record anything more than an irregularity. In the presentmatter the Respondent in his affidavit has stated that by inadver-tence he has failed in the course of his judicial functions to auth-enticate the substituted page as having been made on 17th Feb-ruary 1981. Both malpractice or deceit import an element ofdishonesty.
The question does arise as to what standard of proof is requiredin a case of this nature. *ln the Matter of an Attorney I.L.R. 41Calcutta 113(2) Jenkins, C. J. stated:—
"It is a strange story that the Attorney tells; even a strongcase of suspicion is not enough to justify disciplinary actionespecially when there is a positive sworn denial and repudiationof the misconduct imputed. Moreover there is a more than baredenial; There is an explanation of the transaction by the Attor-ney and it is an old rule that where this is so, an adverse ordershould not be made on a summary proceeding unless theAttorney's story is highly incredible."
In the case of*Bhandari v. Advocates Committee (1956) 3 AER742(3) with regard to the onus of proof Lord Tucker said:—
"We agree that in every allegation of professional miscon-duct, involving an element of deceit or moral turpitude a highstandard of proof is called for, and we cannot envisage any bodyof professional men sitting in judgment on a colleague whowould be content to condemn on a mere balance of probabili-ties."
"This seems to their Lordships an adequate description ofthe duty of a tribunal such as the Advocates Committee, and
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there is no reason to think that either the Committee or the
Supreme Court applied any lower standard of proof.”
Counsel for the State in the course of his submissions, madea detailed analysis of the recitals in the Rule and in answer to theCourt, frankly conceded that there was no material to show thatthe Respondent had a dishonest motive having regard to the expla-nation given by him in his affidavit to the effect that he acted. honestly.
Counsel appearing on behalf of the Bar Association submittedthat the Respondent is on trial as an Attorney-at-Law, not as aJudicial Officer. He stated that the question is whether he is afit and proper person to be kept on the Roll. Counsel submittedthat at the most, the conduct of the Respondent amounted to alapse of judicial standards. He further stated that whatever wasdone, should have been in Court or in Chambers. He submittedthat the action of the Respondent does not amount to conduct ofa nature which warrants his being dealt with under Section 42 ofthe Judicature Act.
On a consideration of the material placed before us and havingheard the submissions of Learned Counsel, we are satisfied thatthe Respondent must be absolved from an intent to commit amalpractice or deceit by falsifying a Record.
The Rule is accordingly discharged.
Before we part with this matter, we must state that it is unfor-tunate that the Respondent acted in the manner he admits he haddone. The correct course he should have followed in order to put. the record straight is’ to have amended it in open Court or inChambers, and as stated by Bonser, C. J. in a similar matter, to .have initialled and dated it, without resorting to the course headopted.
SHARVANANDA, J.- I agree.
VICTOR PERERA, J. – I agree.
Rule discharged.