The Queen V. (1) M. E. A. Fernando, (2) Carolis

[IN THE COURT OF CRIMINAL APPEAL]

1959 Present: Basnayake, C.J. (President), T. S. Fernando, J.,
And Sinnetamby, T.

THE QUEEN v. M. E. A. FERNANDO

APPEAL No. 123 OF 1959, WITH APPLICATION No. 154

S. C.19-M..C. Panadura, 54733

...........................................................................................................................................

1959 Present: Basnayake, C.J. (President), T. S. Fernando, J.,
and Sinnetamby, .I.

THE QUEEN v. P. H. CAROLIS

APPEAL No. 124 OF 1959, WITH APPLICATION No. 155

S. C.16-M. C. Dambulla, 9172

    Murder-Sentence of death-Legality-Penal Codes. 296-Effect of Regulation of October 2, 1959, made under s. 5 of the Public Security Ordinance-Suspension of Capital Punishment Act, No. 20 of 1958-Suspension of Capital Punishment (Repeal) Act, No. 25 of 1959-Interpretation Ordinances. 6-Difference between the expressions retrospective "and" retroactive"

By the Regulation made under section 5 of the Public Security Ordinance and published in the Gazette on October 2, 1959-

"During the continuance in force of this Regulation the operation of the Suspension of Capital Act, No. 20 of 1958, shall be suspended."

Held, that the Regulation cannot be construed as being retroactive. "It must be construed as applying only to offences of murder committed after it came into operation and the suspension of the Suspension of Capital Punishment Act operates as a suspension only as respects those who committed murder while the Regulation was in force and are also tried and convicted during that time. In the case of offences of murder committed before the date of the Regulation the punishment is as prescribed in the Suspension of Capital Punishment Act as the Regulation did not have the effect of suspending the Act in respect of offences committed before it came into operation."

Accordingly, a Person who committed the offence of murder on October 61958, and was convicted on October 16, 1959, cannot be sentenced to death.

APPEALS against convictions in two trials before the Supreme Court.

Colvin R. de Silva, with M. L. de Silva and J. N. David (assign), for Accused-Appellant in Appeal No. 123.

G. E. Chitty, Q.C., with E. B. Vannitamby, R. Ranasingham, Tissa Dias Bandaranayake, and Lucian Jayetileke (assigned), for Accused- Appellant in Appeal No. 124.

V. T. Thamotherem, Senior Crown Counsel, for the Crown.

Cur. adv. vult

December 21, 1959. BASNAYAKE, C.J.-

The appeals in the above mentioned cases were heard together in the sense that learned counsel for the respective appellants in the two cases were permitted to address us one after the other and learned counsel for the Crown was heard in reply to both. This course was adopted on the ground of convenience as the sole question argued in both appeals is the legality of the sentence of death passed on the appellants.

On 27th December 1958 the appellant in the first appeal committed the offence of murder for which he was indicted on 18th March 1959 and convicted or 9th October 1959. In the second appeal the appellant committed the same offence on 6th December 1958 and was indicted on 16th June 1959 and convicted on 16th October 1959. The trial of the first case commenced on 2nd October and that of the second on 12th October 1959. At the time the offences were committed the Suspension of Capital Punishment Act, No. 20 of 1958, which came into force on 9th May 1958 was in operation. Sections 2 and 3 of that Act read:

"2. During the continuance in force of this Act-

(a) capital punishment shall not be imposed under section 296 of the Penal Code for the commission of murder and under section 299 of the Penal Code for the abetment of suicide, and

b) sections 296 and 299 of the Penal Code shall have effect as if for the word' death' occurring in each of those sections, there were substituted the words' rigorous imprisonment for life '.

"3. Th

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