022-SLLR-SLLR-2008-V-1-THE-ATTORNEY-GENERAL-v.-SEGULEBBE-LATHEEF-AND-ANOTHER.pdf
SC Trie Attorney-General v Segulebbe Latheef and Another225
THE ATTORNEY-GENERALv
SEGULEBBE LATHEEF AND ANOTHERSUPREME COURT.
J.A.N. DE SILVA, J.
BALAPATABENDI, J., ANDRATNAYAKE, J.
S.C. APPEAL NO. 79A/2007, 24/2008 AND 25/200823 JULY 2008 AND 19 AUGUST 2008
Constitution Article 13(3), Article 138 – Right of a person charged with an offenceto be heard, in person or by an Attorney-at-Law – Fair trial – Section 196(ee) ofthe Code of Criminal Procedure Act, No. 15 of 1979 as amended by Act No. 11of 1988 – Section 161, Section 236, Section 436 – Obligation on the trial Judgeto inquire from the accused whether he is to be tried by a jury? – Illegality orirregularity? – Judicature Act – No. 2 of 1978 – Section 11.
The Supreme Court granted special leave to appeal on the following question oflaw in case No. SC/79/2007.
"Did the Court of Appeal err in law by holding that section 195(ee) of the Codeof Criminal Procedure Act, No. 15 of 1979 as amended by Act, No. 11 of 1988envisages a mandatory statutory obligation and failure to comply with the saidsection 195(ee) vitiates the conviction."
Subsequent to the granting of leave in No. SC/79/2007, in other separate casesViz; SC/24/2008 and SC/25/2008 the Attorney-General raised the same questionof law and the Supreme Court granted leave. All these cases were taken uptogether for argument.
In all these cases the accused-appellants raised the preliminary objection that thetrial judges failed to inform the accused of the right to be tried by a jury in termsof the law and such failure is fatal to the conviction as it was a violation of a legalright afforded to them.
Held:
The Constitution by Article 13(3) expressly guarantees the right of a personcharged with an offence to be heard by person or by an Attomey-at-law at afair trial by a competent Court.
226Sri Lanka Law Reports[2008] 1 Sri L.R
Per J.A.N. de Silva, J.
"The right of an accused person to a fair trial is recognized in all the criminaljustice systems in the civilized world. Its denial is generally proof enough thatjustice is denied."
Like the concept of fairness, a fair trial is also not capable of a clear definition.The right to a fair trial amongst other things includes the following:-
The equality of all persons before the court.
A fair and public hearing by a competent independent and impartialcourt/tribunal established by law.
Presumption of innocence until guilt is proven according to law.
The right of an accused person to be informed or promptly and indetail in a language he understands of the nature and cause of thecharge against him.
The right of an accused to have time and facilities for preparation for the trial.
The right to have a counsel and to communicate with him.
The right of an accused to be tried without much delay.
The right of an accused to be tried in his presence and to defendhimself or through counsel.
The accused has a right to be informed of his rights.
If the accused is in indigent circumstances to provide legal assistancewithout any charge from the accused.
The right of an accused to examine or have examined the witnessesagainst him and to obtain the evidence and examination of witnesseson his behalf under the same conditions as witnesses against him.
If the accused cannot understand or speak the language in whichproceedings are conducted to have the assistance of an interpreter.
The right of an accused not to be compelled to testify against himselfor to confess guilty.
Section 195(ee) of the Code of Criminal Procedure Act, No. 15 of 1979 asamended by Act, No. 11 of 1988 imposed a duty on the trial judge to inquirefrom the accused at the time of serving the indictment whether or not theaccused elects to be tried by a jury. It is left to the discretion of the accusedto decide as to who should try him. The judge must also inform that theaccused has a legal right to that effect.
Non observance of this procedure is an illegality and not a mere irregularity.Case referred to:
(1) Attorney-General v Thennakoon Arachchige Sunil Ratnasiri (CA 134/70C.A.M.19.07.1999).
APPEAL from the judgment of the Court of Appeal.
The Attorney-General v Segulebbe Latheef and Another
sc(J.A.N. de Silva, J.)227
Sarath Jayamanne D.S.G. with Gihan Kulatunga, S.S.C. for the Attorney-General.
Ranjith Abeysuriya, P.C. with Miss. Thanuja Rodrigo for the respondents in S.C.Appeals in 79A/2007 and 25/2008.
Cur.adv.vult.
September 12, 2008J.A.N. de Silva, J.
On the 29th of September my lord the Chief Justice sitting with twoother judges of the Supreme Court granted special leave to appeal onthe following questions of taw in case number SC/79/2007.
"Did the Court of Appeal err in law by holding that section 195(ee)of the Code of Criminal Procedure Act, No. 15 of 1979 as amendedby Act, No. 11 of 1988 envisages a mandatory statutory obligationand failure to comply with the said section 195(ee) vitiates theconviction".
Subsequent to the granting of leave in case No. SC/79/2007, in twoother separate cases viz SC/24/2008 and SC/25/2008 the Hon.Attorney-General raised the same question of law and the SupremeCourt granted leave. Hence all three cases are taken up together andwill be disposed of in this judgment.
In all these cases, in the course of hearing of the appeals in theCourt of Appeal the accused appellants raised preliminary objectionsthat the trial judge failed to inform the accused of the right to be triedby a jury in terms of the law and such a failure is fatal to the convictionas it was a violation of a legal right afforded to them. The Court ofAppeal having referred to several decisions of the Court of Appeal,upheld this objection.
At the commencement of the argument the learned DeputySolicitor-General conceded the fact that the relevant court records donot reflect any where that the jury option had been given to theaccused. His contention was that since the accused were representedby counsel at the trial no substantial prejudice had been caused to theaccused, the proviso to Article 138 of the Constitution and section 436of the Code of Criminal Procedure should apply to cure the defect.
The learned Deputy Solicitor-General further submitted that even ifsection 195(ee) is considered to be a mandatory requirement the
228Sri Lanka Law Reports[2008] 1 Sri L.R
failure to comply with the same does not deprive the High Court Judgeof jurisdiction to hear and determine the case as this is a technicaldefect of a procedural nature. In support of this contention he reliedupon a judgment of Justice F.N.D. Jayasuriya in AG v ThennakoonArachchige Sunil Ratnasirp).
Our Constitution does not expressly recognize the right of accessto legal advice and assistance to an accused person under arrest.
However, the Constitution by Article 13(3) expressly guaranteesthe right of a person charged with an offence to be heard by personor by an Attorney-at-law at a "fair trial" by a competent court. This rightis recognised obviously for the reason that a criminal trial (subject toan appeal) is the final stage of a proceeding at the end of which aperson may have to suffer penalties of one sort or another if foundguilty.
The right of an accused person to a fair trial is recognized in all thecriminal justice systems in the civilized world. Its denial is generallyproof enough that justice is denied. The right to a fair trial was formallyrecognised in International law in 1948 in the United NationsDeclaration of Human Rights. Since 1948 the right to a fair trial hasbeen incorporated into many national, regional and internationalinstruments.
Like the concept of fairness, a fair trial is also not capable of a cleardefinition, but there are certain aspects or qualities of a fair trial thatcould be easily identified.
The right to a fair trial amongst other things includes the foiiowing:-
The equality of all persons before the court.
A fair and public hearing by a competent, independent andimpartial court/tribunal established by law.
Presumption of innocence until guilt is proven according tolaw.
The right of an accused person to be informed or promptlyand in detail in a language he understands of the nature andcause of the charge against him.
The right of an accused to have time and facilities for preparationfor the trial.
The right to have a counsel and to communicate with him.
The right of an accused to be tried without much delay.
The Attorney-General v Segulebbe Latheef and AnotherSC(J.A.N. de Silva, J.)±
The right of an accused to be tried in his presence and todefend himself or through counsel.
The accused has a right to be informed of his rights.
If the accused is in indigent circumstances to provide legalassistance without any charge from the accused.
The right of an accused to examine or have examined thewitnesses against him and to obtain the evidence andexamination of witnesses on his behalf under the sameconditions as witnesses against him.
If the accused cannot understand or speak the language inwhich proceedings are conducted to have the assistance of aninterpreter.
The right of an accused not to be compelled to testify againsthimself or to confess guilty.
Apart from the rights mentioned above there is another remarkableright given to the accused in most jurisdictions. That is the right totrial by jury. Some writers say this system was derived from the Celtictradition based on the Roman Law. There are others who haveexpressed the view that the jury system may be traced as a gradualand natural sequence from the modes of trial in use amongst theAnglo-Saxon and Anglo-Normans that is before and after theconquest. Greek and Roman history show that trial by jury flourishedwhen the people regained and re-asserted liberties. In England KingJohn was compelled to grant the great Charter known as Magna Carta.One of the clauses of which was "that no freeman was to beimprisoned, outlawed, punished or molested except by the judgment ofhis equals or by the law of the land."
In France the jury system of trial in criminal cases was establishedin 1791 and it was retained in the Code of Napoleon promulgated in1905.
In Germany, in the year 1798 the jury system was introduced in theprovinces of Rine and Bavaria and extended to the whole country in1849. In Belgium it was introduced in 1830 when the country wasseparated from Holland. In Denmark juries are compulsory in criminalcases. The system of trial by jury prevails in Spain only in criminalcases. In the USA too, English principles have been adopted with rarevariation and trial by jury is now part of the constitution in most ofstates.
230Sri Lanka Law Reports[2008] 1 Sri L.R
When the British established their empire in the east theyintroduced the English Criminal Justice System to the colonies. Thejury trials were framed on the English model. When Sri Lanka cameunder British rule the then Governor Frederick North through theCharter of Justice of 1801 established a Supreme Court of Judicaturecomposed of a Chief Justice and a Puisne Justice. The SupremeCourt was given criminal jurisdiction over serious crimes. Criminaljurisdiction of lesser offences was exercised by magistrates,justices of peace and fiscal counts.
In Sri Lanka (Ceylon as it was known then) trial by jury or jurysystem was introduced during the time of Governor ThomasMaitland by a Charter of Justice in 1810. This was done mainly toget the assistance of local inhabitants to the Supreme CourtJudges who were alien to the native society.
Generally a trial before the Supreme Court was preceded by anon summary proceeding or a preliminary inquiry in theMagistrate's Court. This system prevailed in Sri Lanka until theindependence and thereafter under the Criminal Procedure Code.Section 216 of the old Criminal Procedure Code reads thus:
"All trials before the Supreme Court shall be by jury or acommissioner of assize, provided always that the ChiefJustice may in his discretion order that any trial shall bea trial at bar and thereupon the said trial shall be in heldin Colombo by jury before three judges."
With the introduction of Administration of Justice Law No. 44 of1973 there was a change in the court structure and there came intoexistence a new court called the “High Court" for each zone (section116). The original jurisdiction so far exercised by the Supreme Courtwas transferred to the High Court; Section 193 states thus:
"Subject to the provisions of the taw all trials before the High
Court shall be by jury before a judge."
The Code of Criminal Procedure Act was enacted in 1979. Therewas no substantial change in the system until an amendment tosection 161 was introduced in 1988. The new section reads as follows.
"Subject to the provisions of this code or any other law allprosecution on indictment in the High Court shall be tried
The Attorney-General 1/ Segulebbe Latheef and Another
SC(J.A.N. de Silva, J.)231_
by a judge of that court provided that in any case at leastone of the offences falls within the list of offences setoutin the Second Schedule to the Judicature Act, No. 2 of1978 trial shall be by jury before a judge, if and only if theaccused elects to be tried by a jury".
Section 11 of the Judicature Act, No. 2 of 1978 was alsoamended by the Judicature (Amendment) Act, No. 16 of 1989 to fallin line with the amendment to the Code of Criminal Procedure Actamendment in 1988.
*
Mr. Ranjith Abeysuriya P.C. (who appeared for the accused waskind enough to point out that both these amendments have beenbrought into operation on the same day i.e. on the 28th ofNovember 1991).
This amendment necessitated an introduction of a furtheramendment i.e. section 195 (ee) imposing a duty on the trial judge toinquire from the accused at the time of serving the indictment whetheror not the accused elects to be tried by a jury. This is in recognition ofthe basic right of an accused to be tried by his peers. It is left to thediscretion of the accused to decide as to who should try him.
As pointed out earlier for nearly two hundred long years the jurysystem has been in existence in Sri Lanka with whatever the faultsit had. I do not make an endeavour to discuss the merits and thedemerits of the jury system. As long as it is in the statute book thatthe accused can elect to be tried by a jury, the trial judge has anobligation not only to inquire from him whether he is to be tried bya jury, judge must also inform that the accused has a legal right tothat effect. Non observance of this procedure is an illegality and nota mere irregularity.
For the above reasons all three State appeals are dismissed. Idirect that the case records of all three cases to be sent back to theoriginal High Courts to comply with law and conclude the trials early.
BALAPATABENDI, J. -I agree.
RATNAYAKE, J.-l agree
Appeals dismissed.
Cases sent back to the High Courts.