PADMASIRI
VS
ATTORNEY GENERAL

COURT OF APPEAL
RANJITH SILVA.J
SISIRA DE ABREW.J
CA 155/2000
HC CHILAW 38/98
SEPTEMBER 17, 2007

Penal Code Sections 296, 241 (3), 241 (3) (b) 279, 286 (f) - Trial In absentia - Sentences - Later arrested and produced before Courl -Applicationfor trial de novo - Refusal -Appeal against refusal ? -Legality? Recording of Allocutus - Exceptional Circumstances?

The accused - appellant was tried in absentia, convicted and sentenced to death on 28.1.2000. Later the accused was arrested and produced before Court and the application made under Section 241(3) b was refused by the trial Judge. The accused lodged an appeal on 20.12.2003 against the order refusing to set aside the conviction/sentence on 6.1.2003 and combined with an appeal against the judgment and sentence pronounced on 28.11.2000. The respondent contended that the appeal is not properly constituted and has been filed out of time.

Held:

(1) When a person who was tried in absentia is brought before the High Court and if the application to set aside the judgment is not allowed, it is not necessary to record an allocutus from the accused before the sentence is ordered to be carried out.
Furthermore it is not necessary to pronounce the sentence of death.

Held further:

(2) The High Court has rejected the explanation of the appellant and refused to vacate the conviction and sentence . There had been no application for revision and the appellant had the opportunity of moving in revision . Discretionary power of this Court Invoking revisionary jurisdiction as sought as an alternative by the accused should not be used In a situation of this sort.

Held further:

The petition of appeal is out of time and not properly constituted. There is no right of appeal against the order made on 6 . 1.2002 under Section 241 (3) because Section 331 gives only the forum jurisdiction .

APPEAL from an order of the High Court of Chilaw.

CASE REFERRED TO:

Martin vs. Wijewardane 1989 2 Sri LR 409

Dr. Jayampathy Wickramaratne PC with Gaston Jayakody for accused - appellant.

Dappula de Uvera DSG for respondent.

cur. adv. vult.

September 17, 2007
RANJITH SILVA. J

Mutukuda Arachchige Samantha Padmasiri who Is the accused -appellant was charged In the High Court of Chilaw for committing the murder of Polwatta Galappaththige Dharmasiri on or about 10.10.94 at lhala Thabbowa an offence punishable under section 296 of the Penal Code. The accused - appellant appeared in the High Court of Chilaw on 01.09.98 and thereafter absented himself and never appeared in the High Court to face the trial. The trial proceeded against him in absentia. It has been recorded by the learned High Court judge, according to the journal entry dated 14.09.99, that the accused was reported to have left the Island. After numerous attempts by Court to secure the arrest of the accused, the learned High Court judge fixed the case for trial in absentia under section 241 of the Criminal Procedure Act. Thereafter the matter proceeded to trial and the accused was convicted and sentenced to death on 28.1.2000. According to the journal entry the judgment has been pronounced and the sentence has been ordered. The accused was arrested by the Police and later produced in the High Court on 13.11.2002 and an application was made on behalf of the accused under section 241 (3) (b) to have the said conviction and sentence vacated and the case fixed for trial. After inquiry the learned High Court judge by her order dated 06.01.2003, refused to set aside the conviction and the sentence and to act under section 241 (3) (b). Aggrieved by the said order the accused had lodged an appeal on 20.01.2003, against the said order refusing to set aside the conviction and sentence passed on the accused made on 06.01.2003, combined with an appeal against the judgment and sentence pronounced on 28.11.2000.

When this matter came up for argume