SAMARAKOON BANDARA

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
WICKREMASINGHE, J.
FERNANDO, J.
CA/PHC/APN/127/18
PHC ANURADHAPURA 67/2006
MC/ANURADHAPURA/1117/03
MAY 16, 2019

Transfer of cases-Demeanour or deportment of witness-Judicature Act, No. 2 of 1978, section 48-Fair trial-Re-summoning a witness

The judge before whom evidence of several witnesses for the prosecution was led, was transferred to another court. The defence made an application before the succeeding judge to transfer the case to his predecessor which was refused.

Held:

1. Per section 48 of the Judicature Act, as amended, the succeeding judge has the discretion to continue with the case subject to the proviso of that section. The proviso which allows the accused to demand that witnesses be re-summoned and re-heard is to safeguard the right of the accused to a fair trial in a criminal case. It gives the opportunity to the succeeding judge to see the demeanour of the witnesses whose evidence has already been concluded.

2. It is up to the petitioner to make an application to resummon the witnesses if he so wishes in terms of the proviso to section 48.

3. When deciding to continue with the case as per section 48, the Judge need not give reasons for his decision.

Cases referred to:

1. Herath Mudiyanselage Ariyaratne v. The Republic of Sri Lanka (CA/307/2006, CA Minutes of 17.07.2013)
2. Vilma Dissanayake and others v. Leslie Dharmaratne [2008] 2 Sri LR at 184

APPLICATION for Revision from the Judgment of the High Court of Anuradhapura.

Saliya Peiris, P.C., with Pulasthi Hewamanne for the Accused-Petitioner.

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

cur. adv. vult.

July 2, 2019

P. FERNANDO, J.

The Petitioner and his wife were indicted in the High Court of Anuradhapura with 1st and 2nd counts on offences punishable under sections 308(a)2 and 298 of the Penal Code respectively. Evidence of prosecution witnesses Nos. 01 and 02 had been led before the learned High Court Judge Mr. R.M.P.S.K. Ratnayake and thereafter witnesses Nos. 05, 06, 03, 24, 25, 26, 11, 14 were led before the learned High Court Judge Mr. Manjula Thilakaratne. When the matter was called for trial on 11.06.2018, it was the learned High Court Judge Mr. K. Weeraman who presided, as Mr. Thilakaratne had gone on transfer to another Court. On that day the case was re-fixed for 25.09.2018 for want of witnesses.

Thereafter, the case was called on 25.09.2018 for trial and the prosecution moved for summons on witness No. 24. According to the proceedings on record, the defence counsel has requested Court to send the case to be heard by Mr. Thilakaratne the learned High Court Judge, as evidence of more witnesses were recorded before him. At that stage, the learned High Court Judge has questioned the defence counsel as to whether Mr. Thilakaratne had recorded any demeanour or deportment of any witnesses, where the defence counsel answered in the negative. Hence, the learned High Court Judge refused the application by the defence to send the case back to his predecessor Mr. Thilakaratne. Being aggrieved by the said order, the Petitioner filed the instant application to get it revised.

I have taken into consideration, the petition with the documents filed including the proceedings in the High Court, oral submissions made by the counsel in support of the same and the written submissions filed on behalf of the Petitioner and the Respondent.

Counsel for the Petitioner submitted that the learned High Court Judge erred when he refused to send the case to his predecessor as Mr.

Thilakaratne HCJ has heard the evidence of main witnesses for the prosecution. It is further submitted that the Judge who heard the case should decide the case. The practice of the Court had been to send the case to His Lordship the Chief Justice to appoint the Judge who heard the case to hear and conclude, counsel submitted. The contention of the Petitioner is