JAYASOORIY A AND OTHERS vs ATTORNEY GENERAL

JAYASOORIY A AND OTHERS
vs
ATTORNEY GENERAL

COURT OF APPEAL
ROHINI MARASINGHE. J
SARATH DE ABREW, J
CA 152/2002/HC
PHC (WP) GAMPAHA 20/2001
FEBRUARY 25, 2009
MARCH 30, 2009

Penal Code - Section 296 - Murder - Offensive Weapons Act - Section 4 (2) - 15 of 1979 - amended by 11 of 1988 - Section 195 (ee)- Section 351, Section 465A - Failure to offer to accused option to be tried by a jury - Statutory duty - Fatal? - Evidence Ordinance - Section 35 - Section 114 (d) - Relevancy - Constitution Art 13 (3) - Code of Criminal Procedure - Section 351 - retrial?

The 2nd accused-appellant along with two others were indicted and convicted under Section 296 and causing injuries to ten others - punishable under the provisions of the Offensive Weapons Act.

It was contended that, the trial Judge failed to comply with Section 195 (ee) of the Code of Criminal Procedure Act and the failure to offer the accused the option to be tried by a jury is fatal.

It was contended by the respondent that, there is no statutory provision which imposes a duty upon a trial Court to record every such detail, and the presumption in Section 114 (d) Evidence Ordinance should operate in favour of the respondent.

It was further contended that, the failure to aver such a fundamental defect as a ground of appeal in the petition of appeal would lead to the conclusion that the jury option was in fact offered, and that the entry as to a non-jury trial in the official file maintained by the prosecuting State Counsel is relevant under Section 35 of the Evidence Ordinance and further the Court of Appeal in the interest of justice could act under  Section 351 of the Criminal Procedure Code.

Held:

(1) It is settled law that failure to offer the jury option to an accused person under Section 195 (ee) is a fundamental breach which cannot be cured under Section 465 (A) 

Per Sarath de Abrew. J

"Every trial judge has, an obligation and responsibility to maintain a proper and accurate record of what transpires before him in every trial .. ... the appellate Court should always be guided by what transpires in the case record and not on some extrinsic material of which the trial judge had no control whatsoever."

(2) Fundamental defect cannot be cured by invoking the presumption under Section 114(d). It would have been desirable that the petition of appeal pleaded the fundamental breach as a failure to offer the jury option, it would not necessarily debar an appellant from raising such an important question of law at the hearing, if it has occasioned a substantial miscarriage if justice.

Per Sarath de Abrew. J

"To ensure a fair trial, the legislature in its wisdom from time to time has promulgated several fundamental concepts and statutory duties into our criminal law, the offering of the jury option is one such concept".

(3) The file maintained by the State Counsel is not part of the case record and is not in the custody and control of Court - and is not by itself satisfactory proof that the jury option has in fact been offered.

APPEAL from a judgment of the High Court of Gampaha.

Case referred to:-

A.G. vs. Segulebbe Latiff - SC 794/2007 - SCM 12.9.2008

Aravinda Athurupane for 2nd accused-appellant

Buwaneka Aluvihare - DSG for Attorney General

June 19, 2009

SARATH DE ABREW, J.

The 2nd Accused -Appellant (hereinafter sometimes referred to as the Appellant) along with two other accused were indicted in the High Court of Gampaha and convicted of the following offences:

(a) On or about 10th May 1996 at Gampaha committing. the murder of one Peiris Subasinghe punishable under  Section 296 of the Penal Code.

(b) Committing the murder of one K. Kaushalya Hapugoda punishable under section 296 of the Penal Code.

(c) Causing injuries to ten others (10 other counts) witha hand grenade punishable under section 4(2) of the . offensive Weapons Act.

At the conclusion of the trial the 2n

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