CHAMINDA SRINIMAL V THE ATTORNEY GENERAL

CHAMINDA SRINIMAL
V
THE ATTORNEY GENERAL

COURT OF APPEAL
ROHINI MARASINGHE,J
SARATH DE ABREW, J
CA NO. 144/2002
H.C. KANDY CASE NO. 1687/1996
SEPTEMBER 1st, 2009

Judicature Act-Section 48-Empowering a succeeding trial judge to continue a partly heard case where his predecessor suffers a disability -Evidence Ordinance-Section 33-Evidence in a former judicial proceeding when relevant-Code of Criminal Procedure Act-Section 283 (1) -Judgment shall be written by the Judge who heard the case.

At the conclusion of the trial the learned High Court Judge delivered judgment convicting the Appellant for committing murder under Section 296 of the Penal Code and acquitting him on the other charges of causing hurt under Section 314 of the Penal Code. Being aggrieved by the above conviction and sentence, the Appellant had preferred this appeal to the Court of Appeal.

At the hearing of the Appeal, the Appellant did not seek to challenge the conviction and sentence on the merits of the evidence presented at the trial but sought to formulate a legal argument to the effect that the procedure followed at the trial was not in compliance with Section 283 (1) of the Code of Criminal Procedure Act.

The learned Counsel for the Appellant contended that a substantial part of the evidence in the case had been led before Hon Udalagama and not before Hon. Sisira de Abrew and hence submitted that it should be construed that if was Hon Udalagama who heard the case in terms of Section 283(1) of the Code of Criminal Procedure Act He further submitted that even though both parties agreed to adopt evidence led in the case and proceed with the trial, a question of law arises for consideration, whether such an adoption is good in law in cases where the sentence that will be imposed is capital punishment The learned Counsel submitted that the rationale that emerges from the proviso to Section 205 of the Code of Criminal Procedure Act is that the legislature requires a High Court Judge to examine the evidence against the accused before committing him guilty for an offence of murder notwithstanding the fact that ho had pleaded guilty to such offence.

The learned Counsel for the Appellant contended that -

(1) It is not safe to adopt evidence in cases where capital punishment can be imposed. The fact that the Counsel for the accused gave his consent for such adoption will not safeguard the rights of the accused.

(2) In a murder case, if a High Court Judge delivers judgment adopting the evidence recorded before another judge this would tantamount to the learned judge reading the non-summary brief and delivering the judgment on the evidence recorded at the non-summary inquiry.

The learned Counsel for the Appellant submitted that the adoption of evidence in the present case is contrary to the provisions of the Code of Criminal Procedure Act and invited the Court to set a said the conviction and sentence.

Held.

(1) The Appellant has given his consent through his counsel for the adoption of evidence, even though he had the right to demand that the witness be re-summoned Having consented, the Appellant is now estopped from raising this issue as a ground of appeal.

(2) It is the duty of the counsel representing an accused person to safeguard his rights at the proper time and at the proper forum in harmony with the provisions of the Judicature Act and the Code of Criminal Procedure Act and not to complain at the appellate stage.

(3) The learned trial Judge who heard the latter part of the evidence in the trial was legally entitled to act on the evidence led at the trial before his predecessor and also to act on the evidence led at the non-summary inquiry and led at the trial under Section 33 of the Evidence Ordinance.

(4) In the backdrop of compelling eyewitness evidence and strong circumstantial evidence which connect the accused to the crime beyond reasonable dou

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