SENARATHNE

Vs.

OFFICER-IN-CHARGE, POLICE STATION, KEBITHIGOLLAWA AND ANOTHER

COURT OF APPEAL
GOONERATNE, J.
P. FERNANDO, J.
CA/BA/23/2018
MC/BR/67/18
FEBRUARY 2, 2019

Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, sections 2, 8(1)(a), 10(1)(a)-Threat and intimidation of a witness-Reference to "any person", "such person"

A person known to the petitioner had sexually assaulted the 10-year-old daughter of the complainant. The petitioner had come to the complainant's house and threatened him with death and harm to his children, compelling him to withdraw the complaint made to the police. Upon a complaint being made regarding this threat, the petitioner was produced before the Magistrate's Court under section 8(1) of the Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, and was remanded. Such a suspect can be enlarged on bail only by the Court of Appeal under exceptional circumstances in terms of section 10(1) of the Act. The petitioner moved the Court of Appeal to release him on bail.

The contention of the petitioner was that "any person" referred to in section 8(1)(a) of the Act refers to the person against whom the complaint had been made and "such person" refers to a person against whom the victim refrains from lodging a complaint or testifying at any judicial or quasi-judicial proceedings.

Held:

1. A plain reading of section 8 of the Act demonstrates that the petitioner falls into the category of "any person" defined in the section. In making its determination, the court has to give due consideration to the objects of the Act provided in section 2.

2. If the contention of the petitioner is accepted, any offender can circumvent the provisions of the Act by threatening or intimidating

victims and witnesses through third parties. The court will not interpret section 8(1) so narrowly as to defeat the intention of the legislature.

APPLICATION for bail under section 10(l)(a) of the Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015.

Amila Palliyage for the Petitioner.

Nayomi Wickramasekara, S.S.C., for the Respondent.

cur. adv. vult.

March 12, 2019

P. FERNANDO, J.

1. The suspect Petitioner (Petitioner) had been produced before Kebithigollawa Magistrate's Court on 16.08.2018 by Officer-in-Charge of the Kebithigollawa police station, alleging that he had committed an offence punishable under Section 8(1)(a) of the Assistance to and Protection of Victims of Crime and Witnesses Act (hereinafter sometimes referred to as the Act). Taking the facts reported by the police into consideration, learned Magistrate had remanded the Petitioner.

2. In terms of Section 10(1) of the Act, such suspect can be enlarged on bail only by the Court of Appeal under exceptional circumstances. Therefore the Petitioner has made this application for bail to be considered by this Court.

3. We considered the petition with documents filed, statement of objections filed by the Respondent, submissions made by the counsel for both parties at the inquiry and the written submissions filed.

4. Facts elicited by the report filed in the Magistrate's Court by O.I.C Kebithigollawa police in brief are;

Petitioner had come to Complainant Karunaratne's house with one Janith to saw timber. On 09.08.2018, when nobody was at home, Janith had come and sexually assaulted the 10-year-old daughter of Karunaratne. Karunaratne had made a complaint to the police.

On 12.08.2018 at about 12.15 in the night, Petitioner had tapped on the door. When Karunaratne opened the door, Petitioner had threatened him to withdraw the complaint and if not he would kill Karunaratne. Petitioner had further threatened that he would not let Karunaratne's children go on the road. On 13.08.2018 morning around 06.00 Petitioner had come again and threatened Karunaratne saying that if he is remanded, he woul