005-SLLR-SLLR-2006-V-1-EDIRIWEERA-vs.-THE-ATTONEY-GENERAL.pdf
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Ediriweera vs Attorney General (Abrew, J.)
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EDIRIWEERAVSTHE ATTORNEY GENERALCOURT OF APPEALBALAPATABENDI, J.
WIJERATNE, J. ANDDE ABREW, J.
C.A(PHC)25/2005
H.C. COLOMBO NO.955/2002
JYLY 13 AND 20TH, 2002
Penal Code, sections 32, and 380 – Robbery -Convicted – Bail pending appealreferred by High Court – Criminal Procedure Code, section 404-Bail Act, No. 30of 1997-Jurisdiction of the Court of Appeal to grant bail- Exceptionalcircumstances? – Could the order of the High Court be revised?
The accused -appellant – petitioner was convicted of the offence of robbery ofgold and sentenced to a term of 10 years R. I. and a fine. The application forbail made to the High Court was refused. The accused appellant thereaftermoved the Court Appeal for bail. The exceptional circumstances urged were(a) that the petitioner is suffering from a rare blood condition where he must betreated in a hospital where such facilities are available. (2) disruption of hisstudies (3) that appeal would take time.
HELD
BALAPATABENDI, J. WIJEYARATNE, J. AND ABREW, J.
(1) It is a settled principle that the release of a person on bail pendingappeal to the Court of Appeal will only be granted in exceptional circumstances.
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Per Abrew, J.
“If the High Court Judge’s order is correct, that there are no exceptionalcircumstances the order cannot be revised. Revisionary powers should beexercised where a miscarriage of justice has occurred due to a fundamentalrule of procedure being violated, but only when a strong case is made outamounting to a positive miscarriage of justice."
Balapatabendi, J. and Wijeyaratne, J.
It is to be noted that the respondent has not denied the fact that theaccused appellant needs specialised treatment as stated in theMedical Certificate and such treatment could not be given by the PrisonsAuthorities in the Prisons Hospital or in a hospital.
In the Court of Appeal it will take at least more than one year for thisappeal to be taken up – so that the final determination of the appealmay take many years and it could be considered as a long delay todetermine the appeal.
Important points of law namely – common intention and actus reus notbeen applied in evaluating the evidence by the High Court, the positiontaken up in the judgment that the 2nd accused appellant was caughtred handed is questionable.
(V) The father of the accused appellant had been a cancer patient whenthis application was filed and had been recommended by ProfessorSilva, to allow the accused appellant to see his father on humanitariangrounds.
The matters above could be considered as exceptional circumstances.Abrew, J dissenting :
“There is no evidence before Court that the petitioner’s healthcondition cannot be treated either at the prison hospital or at anyhospital in Sri Lanka.
Delay in preparation of the appeal brief and the delay in taking up theargument – considering the facts of this case-do not come under thecategory of exceptional circumstances.
APPLICATION for bail pending appeal.
Cases referred to:
Q vs Rupasinghe Perera – 62 N LR 238
K vs Keerala – 48NLR 202
Q vs Cornelis Silva – 74NLR 113
Salahudeen vs Attorney General – 77NLR 262.
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Ediriweera vs Attorney General
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Jayantha Silva vs Attorney General – (1997) 3 Sri LR 117
Ramuthamotheram Pillai vs Attorney General – SC 141/75
Vanik Incorporation LTd. vs Jayasekera – (1997) 2 Sri LR 365
Q vs Uyanage – 65 NLR 289 at 291
King vs Mathuratta – 54 NLR 493
KamaI Addaraarachchi vs Attorney General (2000)3 Sri LR 393
R vs Cooray – 51 NLR362
Harbajan Singh vs State of Punjab – (1977) Cr LR 1424
Dr. Ranjith Fernando for accused appellant petitioner.
Yasantha Kodagoda, Senior State Counsel for Attorney General.
Cur.adv.vuit.
August 2, 2005
SISIRA DE ABREW, J. – (Dissenting)
The accused appellant – petitioner (petitioner) was convicted of the offenseof robbery of gold valued at Rs. 2,928,720. and sentenced to a term of 10years rigorous imprisonment on 30.03.2004 by the learned High Court ofColombo. In addition to the above sentence a fine of Rs.5000 was alsoimposed in default of which a term of 2 years imprisonment was imposed.Being aggrieved by the said conviction and sentence the petitioner preferredan appeal to this court. After the conviction the petitioner made anapplication for bail pending appeal, which application was refused by thelearned High Court Judge on 31.01.2005. Being aggrieved by the saidorder the petitioner preferred the present application for bail to this court.
The learned High Court Judge refused the application for bail on theground that the petitioner had not established exceptional circumstances.It is necessary to consider whether the refusal of the application for bail bythe learned High Court Judge on the said basis was correct or not. Indeciding this question it is pertinent to consider whether the Bail Act, No.30 of 1997 (the Bail Act) had taken away the requirement to establishexceptional circumstances in grating bail pending appeal. In Queen /SRupasinghe Perera0) Basnayake CJ with Sansoni J and Sinnathamby Jagreeing remarked as follows “Bail is not granted by the Court of CriminalAppeal unless there are exceptional circumstances”. Same view wasexpressed in King Vs Keeraia(2) Queen l/s Cornells Silva131 SalahudeenVs Attorney General(4) Jayantha Silva Vs the Attorney General RamuThamotheram Pillai Vs Attorney General(4) (Considered by Gunasekara Jin Jayanthi Silva’s case.)
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Thus it is seen from the above judicial decisions, to release a convictedprisoner on bail there must be exceptional circumstances. Since the abovecases are decided prior to the enactment of the Bail Act, it is safe toconclude that the requirement to establish exceptional circumstances inan application for bail pending appeal existed even prior to the enactmentof the Bail Act.
Since I am dealing with the legality of the order of the learned HighCourt Judge it is necessary to consider the relevant provisions which vestedpower with the High Court. The relevant provision is section 333(3) of theCriminal Procedure Code which reads as follows. “When an appeal againsta conviction is lodged, the High Court may subject to subsection (4) admitthe appellant to bail pending the determination of the appeal be treated insuch manner as may be prescribed by rules made under the PrisonsOrdinance.” So when Court granted bail pending appeal under section333(3) of the Criminal Procedure Code, convicted prisoners were releasedon bail only in exceptional circumstances. It is now necessary to considerwhether the statutory provisions relating to granting of bail have undergoneany changes after the enactment of the Bail Act. The relevant provision ofthe Bail Act is section 20(2) which reads as follows.
“When an appeal against a conviction by a High Court is preferred, theHigh Court may subject to subsection (3) release the appellant on bailpending the determination of his appeal. An appellant who is not releasedon bail shall, pending the determination of the appeal be treated in suchmanner as may be prescribed by rules made under the Prisons Ordinance.”It is therefore seen that section 333(3) of the Criminal Procedure Codewas in terms identical with section 20(2) of the Bail Act. Thus, statutoryprovisions relating to granting of bail prior to and after the enactment ofthe Bail Act remain unchanged. Therefore requirement to establishexceptional circumstances to grant bail pending appeal should exist evenafter the enactment of the Bail Act. I therefore hold that the learned HighCourt Judge was correct when he concluded that there must be exceptionalcircumstances to release a convicted prisoner on bail.
If the learned High Court Judge’s order on this point is correct, should itbe revised? Revisionary powers should be exercised where a miscarriageof justice has occurred due to a fundamental rule of procedure beingviolated, but only when a strong case is made out amounting to a positivemiscarriage of justice. Vide Vanik Incorporation LtcF1 Vs Jayasekara.
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Ediriweera vs Attorney General (Abrew, J.)
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Applying the principle laid down in the above case to the issue inquestion, I hold that the question of revision of the said order of the learnedHigh Court Judge does not arise for consideration. On this ground alonepetition of the petitioner should be dismissed.
In the case of King Vs Keerala (Supra) Wijewardena J held that “thisCourt (the Court of Criminal Appeal) does not grant bail in the absence ofexceptional circumstances” In Queen Vs Rupasinghe Perera (Supra)Basnayake CJ with Sansoni J and Sinnathamby J agreeing remarked asfollows “Bail is not granted by the Court of Criminal Appeal unless thereare exceptional circumstances”. In Queen Vs Cornelis Silva (Supra) 113the accused had been convicted of the offence of attempted murder andsentenced to terms of four years rigorous imprisonment. The appellant’sapplication for bail pending appeal was refused on the ground that noexceptional circumstances had been established. In Salahudeen VsAttorney General (Supra) the accused had been sentenced to a term ofthree years rigorous imprisonment on a conviction for attempted culpablehomicide. Samarawickrama J refusing the appellant’s application for bailobserved as follows. “It is a settled principle that the release of a prisoneron bail pending an appeal to the Court of Criminal Appeal will only begranted in exceptional circumstances”. In Ramu Thamotheram PillaiMsAttorney General (Supra) (Considered by Gunasekara J in Jayanthi Silva’scase) the application for bail made on behalf of the appellant who wassentenced to a term of 7 years rigorous imprisonment was refused on theground that no exceptional circumstances had been established. In JayanthiSilva Vs the Attorney General(Supra) Gunasekara J held as follows. “Overthe years a principle has evolved through judicial decisions that bail pendingappeal from conviction by Supreme Court would only be granted inexceptional circumstances”. On a consideration of the above judicialdecisions, it seems to me that the release of a prisoner on bail pending anappeal to the Court of Appeal will only be granted in exceptionalcircumstances. This position remains unchanged even if the application ismade under Section 404 of the Criminal Procedure Code. I have earlierpointed out that the requirement to establish exceptional circumstancesto grant bail pending appeal exists even after the enactment of the BailAct, No.30 of 1997. For the above reasons, I hold that an application forbail pending appeal will be allowed only in exceptional circumstances. Itnow remains for me to consider whether the petitioner has establishedexceptional circumstances. The petitioner has submitted following grounds
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as exceptional circumstances, (a) The petitioner is suffering from a rareblood condition requiring regular and frequent medical treatment and hemust be treated in a hospital where such facilities are available, (b)Disruption of his studies; (c) Preparation of appeal brief would take time;and (d) The delay in taking up the appeal for argument.
Learned counsel for the petitioner produced medical certificate P6 insupport of ground (a) above. But P6 does not state that the petitioner’shealth condition cannot be treated in a hospital in Sri Lanka. There is noevidence before this court that the petitioner’s health condition cannot betreated either at the prison hospital or at any hospital in Sri Lanka. Thereforeground (a) above does not come under exceptional circumstances. Withregard to ground (b) above, learned counsel for the petitioner has submitteda diploma certificate marked P7. The petitioner completed his diploma inMay 2000. The petitioner was convicted on 30.03.2004. There is no evidenceto suggest that the petitioner has engaged in any studies after his diplomain May 2000. Therefore ground (b) above does not fall within the categoryof exceptional circumstances.
Ground nos (c) and (d) above are the delay in preparation of the appealbrief and the delay in taking up the appeal for argument.
In Queen Vs Rupasinghe Perera (supra) the main ground urged in supportof the application (bail pending appeal) was that the hearing of the appellant’sappeal was likely to be delayed as the preparation of the transcript ofshort hand notes of the proceedings was likely to take more than usualtime owing to the length of the trial in the course of which over 100 witnesseswere examined and more than 400 exhibits were produced. BasnayakeCJ remarked as follows ‘The applicant has not satisfied court that this is acase in which we should take the exceptional and unusual course of grantingbail”. The application for bail in that case was refused.
When the principles laid down in the above case are applied to thefacts of this case ground nos (c) and (d) do not come under category ofexceptional circumstances.
The other ground urged by the counsel for the petitioner may be set outas follows, (a) The subject matter of the robbery was fully recovered; (b)There is no claimant for the subject matter of the charge (items of gold);
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Ediriweera vs Attorney General (Balapatabendi, J.)
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(d) The petitioner was convicted on the basis of common intention ; Thepetitioner is prepared to furnish two sureties of very high professional"standing.
These grounds, in my view, are not exceptional grounds to release theprisoner on bail.
For the above reasons, I hold that the petitioner has not adducedexceptional circumstances to grant bail. I therefore refuse the applicationfor bail and dismiss the petition of the petitioner.
Application dismissedJAGATH BALAPATABENDI, J.
The 1 st accused and the 2nd accused – appellant had been found guiltyfor a charge of robbery under section 380 of the Penal Code read withsection 32, and they were sentenced to 10 years R, I in addition to a fineof Rs.5000.
The application made by the 2nd accused – appellant for bail pendingthe appeal, had been refused by the learned High Court Judge on 13.01.2005.
This application was made by the 2nd accused – appellant on the26.01.2005 under section 404 of the Criminal Procedure Act, against theorder of the learned High Court Judge, praying that the accused – appellantbe enlarged on bail pending the appeal, on the grounds averred in thepetition. The grounds averred as exceptional circumstances before thelearned High Court Judge were refused on the following reasons
No documents were tendered in support of:
the accused -appellant pursuing his studies,
the incarceration of the accused – appellant would disrupt hiseducation
the ill – health of the accused – appellant.
No material placed to satisfy Court that there would be long delay forthe appeal to be heard.
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The chances of succeeding in the appeal would be very remote as theaccused appellant was caught ‘red – handed’.
Section 2 of the Bail Act No. 30 of 1997 states as follows
“Subject to the exception as hereinafter provided for in this Act, the
guiding principle in the implementation of the provisions of this Act
shall be, that the grant of bail shall be regarded as the rule and the
refusal to grant bail as the exception.”.
In the case Queen Vs. LiyanagefB> it was observed by Sansoni J. that“Even if our discretion to grant bail is unfettered it must still be judiciallyexercised". It proceeded to state further at page 293 as follows: “But it isnot to be thought that the grant of bail should be the rule and refusal of bailshould be the exception where serious non – bailable offences of this sortare concerned, bail is in such cases granted only in rare instances and forstrong and special reasons, as for instance, where the prosecution casein prima- facie weak”.
In the case of Salahudeen vs. Attorney General(4)it was stated that “Itis settled principle that the release of a prisoner on bail pending an appealto the Court of Criminal Appeal will only be granted in exceptionalcircumstances.”
In Ramu Thamotherampillai vs. Attorney General Vythelingam.Jaffirmed the principle that the Court would require the appellant to showthe existence of exceptional circumstances to warrant the grant of bailpending appeal”.
As aforesaid the Sri Lanka Courts have consistently held that bail pendingappeal would not be granted unless there were ‘exceptional circumstances’shown to exist
Eg. King Vs Mathuratta® KingVs Keerala{2) Queen Vs Coranelis Silvaf7'1In the case of Kamal AddarachchiVs Attorney Genera, the Court tookinto consideration that the preparation of the appeal briefs and hearing ofthe appeal would take a considerable period of time, and it was treated asan ‘exceptional circumstance’ to grant bail.
In Rex Vs Cooray bail was granted on the ground of ill-health, that theaccused – appellant was not likely to abscond and the complexity of the
Ediriweera vs Attorney General (Balapatabendi, J.)
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case. So that, it is clear the existence of exceptional circumstances woulddepend on the facts and circumstances of each case.
In the case of Harbhagan Singh Vs. State ofPunja&'2) it was held thatthe factors which the Appellate Court is to consider in an application forbail pending appeal were (a) whether a prima facie ground exists forsubstantial grounds for believing that the convicts committed the offencesin question, or (c) whether the circumstances are such as likely to delaythe decision of the appeal for an unreasonable time. It would afford scantsatisfaction to the accused if after serving their full dr substantial portionof their jail sentence their appeal succeeds and they are merely acquittedof the charge. This factor cannot be ignored and should be one of theconsiderations for granting bail.
Now I would like to deal with the grounds averred by the accused -appellant, in his application for bail pending appeal.
(a) The accused – appellant had alleged that he is suffering from a rare-blood condition and getting treatment for ‘vasculties and atopy’ fromDr. Chandima de Mel, a Consultant Physician, and he needs to be followedup at a specialized medical facility. (Vide the medical certificate dated04.09.2004)
It is to be noted upto date the respondent has not denied the fact thatthe accused-appellant needs specialized treatment as stated in the medicalcertificate, and such treatment could not be given by the Prison authoritiesin the Prison Hospital or in a hospital.
The other point to be noted is from our experience in the Court of Appealwe note that it will at least take more than one year for this appeal to betaken – up, and at present we hear the appeals lodged in 2001,2002 and2003; further at present we have fixed appeals up to March, 2006.
So that, the final determination of this appeal may take many years,and it could be considered as a “long delay1’ to determine this appeal.
The learned High Court Judge had mentioned in his order the fact thatthe chances of succeeding the appeal were remote as the accused-appellanthad been caught ‘red-handed’
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The above paragraph reveals, the 1 st accused took the parcel of goldfrom the witness Lenus de Mel which fact the 1 st accused as well as the2nd accused – appellant had admitted.
Did the 2nd accused-appellant share the common intention of the actdone by the 1st accused under Section 32 as charged ? And whetherthere had been only a actus-reus of the 1st accused without the mens-rea. These important points of law had not been applied on evaluation ofthe evidence by the learned High Court Judge. The position taken up in thejudgment that the 2nd accused – appellant was caught red-handed isquestionable.
Further, I would like to advert our minds to the fact that the accused -appellant was only 21 years of age when the offence was committed withthe principal offender the 1 st accused. The father of the accused – appellanthad been a cancer patient when this application was filed. VideXUe letterby the Prof. H. J. De Silva, dated 22.03.2005 where he had recommendedto allow the accused-appellant to visit his father a cancer patient onhumanitarian grounds.
Thus, the reasons mentioned above could be considered as ‘exceptionalcircumstances’ to release the accused-appellant on bail pending theappeal.
The accused-appellant is released on bail in a sum of Rs. 75,000 incash with two sureties namely – Professor S. B. Hettiarachchi andEdiriweera Weerawardena, In addition, I direct the mother of theaccused-appellant namely Induruwage Dona Chandarani Jayanthi
On the point, I would like to refer to the page 33 of the judgment, whichcontains as follows:-
CAPathmasiri and another vs Baby and another (Somawansa, J.)35
Gunatillake Ediriweera to stand as a surety, on a surety bond in a sum ofRs.100,000. Also the accused-appellant is directed to report to the O. I. C.of Panadura Police last Saturday of every month, till the appeal isdetermined.
WIJEYARATNE, J. -1 agreeApplication allowed;
Bail granted by majority decision.
Application allowed