004-SLLR-SLLR-2007-V-1-LT.-COMMANDER-RUWAN-PATHIRANA-v.-COMMODORE-DHARMASIRIWARDENA-OTHERS.pdf
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LT. COMMANDER RUWAN PATHIRANAv
COMMODORE DHARMASIRIWARDENE & OTHERS
COURT OF APPEALSRIPAVAN, J.
SISIRA DE ABREW, J.
CA 1419/2005JANUARY 25, 2007FEBRUARY 2, 15, 21,2007
Writ of certiorari – Navy Act – Section 70, section 122 – Court Marshal -Conviction – Suppression of Material Facts – Fatal? – Criminal ProcedureCode – Section 180 – Charge Sheet defective – Both accused charged insame proceedings – Penal Code – Section 156 – Section 157 – Jurisdictionaldefect – Cured by Consent and acquiescence? – Judicial review? – Scope?
The petitioner and another were charged under section 70 of the Navy Actbefore a Court Martial. Both were found guilty and convicted.
The petitioner sought to quash the conviction of forfeiture of seniority by threemonths.lt was contended that the charge sheet was defective as it offendssection 180 of the Criminal Procedure Code. It was also contended that, theevidence led was insufficent to convict the petitioner and he only exercised hisright of private defence. The respondent contended that, the petition should bedismissed in limine as the petitioner has suppressed material facts.
Held:
The petitioner before filling this application has appealed to HerExcellency the President to set aside the punishment – but thepetitioner has failed to disclose this fact in his petition – it is fatal.
Since the petitioner by this application seeks to quash both theconviction and the sentence, the fact that he submitted an appealto Her Excellency the President seeking to set aside the sentencebecomes a material fact.
CA
Lt. Cmdr. Ruwan Pathirana v Commodore Dharmasiriwardene
& others (Sisira de Abrew, J.)
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Held further
Offence described in section 70 of the Navy Act is an offence whichone person cannot commit alone. There is evidence to support thatthe petitioner too was involved in the fight between him and theother officer. Members of the two opposing factions charged withaffray may be tried together.
In any event the petitioner is precluded from raising any objectionto the charge sheet since such objection was not raised before theCourt Martial.
"In an application for a writ of certiorari in respect of a conviction orsentence entered by a Court Martial the defence of review is not the same asin an appeal from a conviction of a Criminal Court – judicial review will lie byway of certiorari only in respect of the legality of the conviction or sentence.The merit of the finding will not be subject to review by Certiorari.
APPLICATION for a Writ of Certiorari.
Cases referred to:
Alphonso Appuhamy v Hettiarachchi -11 NLR 131
Laub v AG – 1995 – 2 Sri LR 88
Collettes v Commissioner of Labour – 1989 2 Sri LR 6
Sarath Hulangamuwa v Siriwardane – 1986 1 Sri LR 275
Blanca Diamonds (Pvt) Ltd. v Wilfred Van Els – 1997 1 Sri LR 360
Jaysinghe v The National Institute of Fisheries – 2002 1 Sri LR 277
Velaiden v Zoysa – 14 NLR 140
Hewavithama v Appuhamy – 30 NLR 33
Weerasinghe v Mohamadu Ismail- 33 NLR 245
Nagalingam v Luxman de Mel- 78 NLR 232
Richard Perera v Commodore A.H.A. de Silva – CA 1133/87-CAM19.12.1997
Rienzie Arsakularathne PC with Wasantha Batagoda for petitionerYasantha Kodagoda DSG for respondents
Cur.adv.vult.
April 5, 2007
SISIRA DE ABREW, J.
The petitioner who joined the Sri Lanka Navy on 15.6.1987 asCadet Officer presently holds the rank of Lieutenant Commander.
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The petitioner and Commander Thilakarathne who was also anofficer of the Sri Lanka Navy were charged under section 70 of theNavy Act before a Court Martial. The charge sheet contained thefollowing charges against both the petitioner and Thilakarathne.
against Thilakarathne (1st accused) for quarrelling withthe petitioner, the 2nd accused, an offence punishableunder section 70 of the Navy Act.
against the petitioner (2nd accused) for quarrelling with icThilakarathne, the 1st accused, an offence punishableunder section 70 of the Navy Act.
The Court Martial commenced its proceedings on 4.7.2005and concluded on 5.7.2005. The Court Martial, on 5.7.2005, foundthe 1 st accused (Thilakarathne) guilty of the first charge and the2nd accused (the petitioner) of the 2nd charge and imposed thefollowing punishments.
In respect of Thilakarathne – Forfeiture of seniority by oneyear.
In respect of the petitioner – Forfeiture of seniority by 20three months.
The petitioner, by this application, seeks to quash the decisionof the Court Martial relating to his conviction.
Learned DSG who appeared for the respondents submittedthat the petition of petitioner should be dismissed as he hassuppressed material facts from this Court. This matter must beconsidered first because the petition of the petitioner can bedismissed if this objection is upheld. Learned DSG submitted thatthe petitioner before filing the present application in this Court, had,by 1R7, appealed to Her Excellency the President to set aside the 3Cpunishment, but the petitioner had failed to disclose this fact in hispetition. The learned DSG, therefore, contended that the petition ofthe petitioner should be dismissed on the ground of suppression ofmaterial facts. Learned President's Counsel who appeared for thepetitioner contended that the petitioner, acting under section 122 ofthe Navy Act, had appealed to Her Excellency the President only toget the sentence imposed on him set aside, but the petitioner, bythis application, seeks a writ of certiorari to get his conviction
Lt. Cmdr. Ruwan Pathirana v Commodore Dharmasitiwardene
CA& others (Sisira de Abrew, J.)
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quashed. He therefore contended that the failure to aver thecontents of 1R7 could not amount to suppression of material facts.I now advert to these contentions. It is true that the petitioner by1R7 dated 14.7.2005, made an appeal to Her Excellency thePresident seeking to set aside the sentence and this fact was notaverred in his petition. The petitioner, by 1R7, only sought to setaside the sentence imposed on him and not the conviction. In factsection 122 of the Navy Act deals with revision of sentencesimposed by a Court Martial or by a Navel officer exercising judicialpowers under the Navy Act and it does not deal with quashing ofconvictions imposed by a Court Martial or by a Naval officerexercising judicial powers under the Navy Act. Although the learnedPresident's Counsel contended that the petitioner, by thisapplication, only seeks to quash the conviction of the petitioner, thepetitioner in these proceedings seeks to quash the findings of theCourt Martial contained in P8. P8 contains both conviction and thesentence. (Vide paragraph 60 of the petition) Even if the petitionerargues that the findings of the Court Martial means only theconviction, I have to state here that once the conviction is quashed,automatically the sentence too will get quashed because thesentence has no effect and cannot be implemented once theconviction is quashed. I am, therefore, unable to agree with thecontention of the learned President's Counsel that the petitioner, inthese proceedings, only seeks to quash his conviction. Since thepetitioner, by this application, seeks to quash both conviction andthe sentence the fact that he submitted an appeal to her Excellencythe President seeking to set aside the sentence becomes amaterial fact. Learned President's Counsel contended that in anyevent the petitioner was not guilty of suppression of material factssince the petitioner has disclosed this fact in a further petition dated8.2.2006. But on 29.3.2006 learned President's Counsel informedCourt that he was not supporting the further petition dated 8.2.2006and would rely on the original petition dated 19.10.2005. ThereforeCourt is unable to consider the said further petition and as such Iam unable to agree with the said contention of the learnedPresident's Counsel. Did the petitioner disclose the facts set out in1R7 dated 14.7.2006 in his petition dated 19.10.2005? The answeris no. Thus the petitioner has failed to disclose the contents of 1R7in his petition. For these reason I hold that the petitioner is guilty of
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suppression of material facts and the petitioner's conduct lackeduberrima tides.
In Alponso Appuhamy v HettiarachchP) Pathirana, J. held 80thus: “When an application for a prerogative writ or an injunction ismade, it is the duty of the petitioner to place before the Court,before it issues notice in the first instance, a full and truthfuldisclosure of all the material facts; the petitioner must act withuberrima tides."
In Laub v A.GS2> Ismail, J. held as follows: "The petitioner hasnot acted with uberrima tides, he has suppressed material facts. -this application could be dismissed in limine."
In Collettes Ltd. v Commissioner of Labourt3) Gunawardene, J.held thus: "It is essential, that when a party invokes the writ 90jurisdiction or applies for an injunction, all facts must be clearly,fairly and fully pleaded before the Court so that the Court would bemade aware of all the relevant matters." Same sentiments wereexpressed in the following cases as well.
In Sarath Hulangamuwa v SiriwardeneM Siva Selliah, J.remarked as follows: “Certiorari being a discretionary remedy willnot be granted where there was – want of Uberrima tides in thatthere was a non-disclosure of the material facts that the petitionerhad a residence in Dehiwela far away from Visakha Vidyalaya andthat his child had since gained admission to Bishop's College, iooColombo.”
In Blanca Diamonds (Pvt) Ltd. v Wilfred Van E/s<5) Jayasuriya,
J. noted thus: "When a party is seeking discretionary relief fromCourt upon an application for a Writ of Certiorari, he enters into acontractual obligation with the Court when he files an application inthe Registry and in terms of that contractual obligation he isrequired to disclose uberimma tides and disclose all material factsfully and frankly to Court. The petitioner company has been remissin its duty/obligation to Court and has failed to comply with thatcontractual obligation to Court."110
In Jaysinghe v The National Institute of Fisheries and NauticalEngineering (NIFNE) and others<6> Yapa, J. made the followingobservations: "All the documents on which the respondents relied
Lt. Cmdr. Ruwan Pathirana v Commodore Dharmasiriwardene
CA& others (Sisira de Abrew, J.)29
to support their preliminary objection to the application, except one,were produced by the respondents. The petitioner suppressedthose documents and the fact that he had made an application tothe Court of Appeal seeking relief in the same matter and therebymisled the Court. The petitioner's conduct lacked uberrima tides.The application has to be rejected in limine on this ground as well.This is a principle which applies to cases coming up before theCourt in writ cases as well as in injunction applications and even inadmiralty cases. In such cases relief will be refused in liminewithout hearing the case on the merits even where the decision isalleged to have been made without jurisdiction. The same principleapplies to applications under Article 126 (2)."
When an application for prerogative writ is made it is the dutyof the party, seeking relief, to place a full and truthful disclosure ofall material facts before Court and if he does not do so he cannotobtain any relief from Court and he may be deprived of any reliefhe may have already obtained. Any party who misleads Court,misrepresents facts to Court, suppresses material facts from Courtor utters falsehood in Court will not be entitled to obtain redressfrom Court and an application made by such party will be dismissedin limine without considering the merits of such application.
As I pointed out earlier the petitioner is guilty of suppression ofmaterial facts and as such he is not entitled to obtain any relief fromthis Court. The petition of the petitioner can be dismissed on thisground alone. Learned President’s Counsel next contended thatthe charge sheet is defective as it offends the provisions of section180 of the Criminal Procedure Code (CPC) since both accusedwere charged in the same proceedings and that as a result of thisincorrect procedure, the petitioner's evidence had been accepted toconvict Thilakarathne but the petitioners evidence had beenrejected in order to find him guilty. He brought illustration 'd' ofsection 180 of the CPC to the notice of Court. It was his contentionthat the petitioner and Thilakarathne should have been chargedseparately. In order to appreciate the contention of the learnedPresident's Counsel it is necessary to consider section 70 of theNavy Act which reads as follows.
“Every peron subject to naval law who quarrels or fights withany other person, whether such other person is or is not a person
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subject to naval law or uses reproachful or provoking speeches orgestures tending to make any quarrel or disturbance, shall be guiltyof a naval offence and shall be punished with simple or rigorousimprisonment for a term not exceeding six months or any lesssevere punishment in the scale of punishments.”
The above section contemplates a situation where personssubject to the Naval Law quarrelling and fighting with others. Thissituation, somewhat is similar to the situation discussed in section156 of the Penal Code which reads as follows:160
"When two or more persons, by fighting in a public placedisturb the public peace, they are said to "commit an affray".
Section 180 of the CPC and illustration'd' to the said sectionreads as follows.
"When more persons than one are accused of jointlycommitting the same offence or of different offences committed inthe same transaction or when one person is accused of committingany offence and another of abetment of or attempt to commit suchoffence, they may be charged and tried together or separately asthe Court thinks fit; and the provisions contained in the former part i70of this Chapter shall apply to all such charges."
Illustration 'd' to section 180 of the CPC – “A and B areaccused of being members of opposing factions in a riot. Theyshould be indicted and tried separately."
In order to consider whether there is merit in the contention ofthe learned President's Counsel it is necessary to consider certainjudicial decisions. In the case of Velaiden v ZoysaW Middleton, J.observed thus: "A breach of the rule of law that two accusedmembers of opposing factions in a riot, or two persons accused ofgiving false evidence in the same proceeding, must be indicted and isotried separately is not a mere irregularity which can be cured bysection 425 of the Criminal Procedure Code. It is an illegality whichinvalidates the proceedings."
The question whether two persons charged under section 157of the Penal Code could be tried together was later considered bya bench of three judges in Hewavitharana v Appuhamy. <8> In thatcase the appellant and another person were convicted of
Lt. Cmdr. Ruwan Pathirana v Commodore Dharmasiriwardene
CA<8 others (Sisira de Abrew, J.)31_
committing an affray under section 157 of the Penal Code. Theywere tried together. It was contended on behalf of the appellant thatthe conviction was bad on the ground that they were tried together.Lord Fisher C.J. with whom Drieberg, J. and Jayawardene, J.agreeing held thus, “two persons who are charged with committingan affray may be tried together in the same proceedings."Illustration'd' in the present CPC is in terms identical with theillustration'd' in the old CPC. Lord Fisher, CJ in the above caseremarked as follows: “In my opinion the words in illustration (d) insection 184 of the Criminal Procedure Code preclude theapplication of the illustration to a case such as the present."
In Weerasinghev Mohamadu IsmaiW this question was againconsidered by a bench of three judges. Lord Macdonell CJ withwhom Garvin SPJ, Dalton J agreeing held thus: "Members of twoopposing factions charged with affray may be tried together."
According to section 70 of the Navy Act if a person subject tonaval law quarrels or fights with any other person he shall be guiltyof a naval offence, It is therefore seen the above offence describedin section 70 of the Navy Act, is an offence which one personcannot commit alone. I have to express the same opinion withregard to the offence described in section 156 of the Penal Code.Illustration 'd‘ to section 180 of the CPC contemplates a situationwhere the accused persons, charged, were members of a riot. Inthe present case there was no evidence of a riot. Thereforeillustration'd' to section 180 of the CPC has no application to thepresent case. In the present case there is evidence to support thatthe petitioner too was involved in the fight between him andThilakarathne. In section 180 of the CPC there are limbs. One limbcan be set out as follows: "When more persons than one areaccused of jointly committing the same offence, they may becharged and tried together or separately as the Court thinks fit."Thus the petitioner and Thilakarathne could be charged and triedtogether.
For the above reasons I hold that the charge sheet is notdefective and I therefore reject the argument of the learnedPresident's Counsel. In any event the petitioner is now precludedfrom raising any objection to the charge sheet since such objectionwas not raised before the Court Martial. This view is supported by
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the judgment of Justice Sharvananda (as he then was) in the caseof Nagalingam v Luxman de MelM0> His Lordship remarked thus:"Further the petitioner, having participated in the proceedingwithout any objection and having taken the chance of the finaloutcome of the proceedings, is precluded from raising any 230objection to the jurisdiction of the Commissioner of Labour to makea valid order after the zero hour. The jurisdictional defect, if any, hasbeen cured by the petitioner's consent and acquiescence."
Learned President's Counsel next contended that thepetitioner’s evidence has been accepted to convict Thilekaratneand the petitioner's evidence has been rejected in order to find himguilty. He further contended that the evidence led before the CourtMartial was insufficient to convict the petitioner of the charge withwhich he had been charged and that he only exercised the right ofprivate defence. He further contended that according to the 240evidence, the petitioner was only holding the shoulders ofThilakarathne. I now advert to these contentions.
According to Colomboge, on the day of the incident when hewas passing the place where the petitioner and Thilakarathne weretalking to each other in a somewhat loud voice, he looked back andthen saw both of them engaging in a scuffle. LieutenantCommander Obeysekara whose attention was attracted on hearinga rumpus saw both the petitioner and Thilakarathne engaging in ascuffle. When he requested stop the fight, they did not stop it andas such he had to make big effort to separate them. Dr. Jayasinghe 250attached to the Navy, examined Thilakarathne on the same day andobserved the following injuries on Thilakarathne. (a) Laceratedwound on the nasal bone and (b) scratch marks near the left eyeand the neck. According to Dr. Jayasinghe, Thilakarathne wasbleeding from his nose. It is therefore seen that apart from theevidence of Thilakarathne and the petitioner, there is sufficientevidence to sustain the conviction of the petitioner. In the light ofthe above evidence, I am unable to agree with the contention of thelearned President's Counsel.
Learned President's Counsel also submitted that the Judge 260Advocate had failed put forward the entire case of the petitioner tothe members of the Court Martial. We have considered thesumming up of the Judge Advocate and are satisfied that the Judge
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Bank of Ceylon v Wamakutasuriya
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Advocate had put forward the case of the petitioner to the membersof the Court Martial. In this connection I would like to consider ajudgment of Justice S.N. Silva (as he then was) in the case ofRichard Perera v Commodore A.H.A De Silva and others. HisLordship remarked thus: "In an application for a writ of certiorari inrespect of a conviction or sentence entered by a Court Martial, thedegree of review is not the same as in an appeal from a conviction 270of criminal Court. Judicial review will lie by way of certiorari only inrespect of the legality of the conviction or sentence. The merit of thefinding will not be subject to review by way of certiorari."
For the reasons set out in my judgment, I see no reason tointerfere with the decision of the Court Martial convicting thepetitioner and dismiss the petitioner's application.
SRIPAVAN, J. – I agree.
Application dismissed.