LAW OF CRIMINAL PROCEDURE Trials by High Court

By Chandra Tilake Edirisuriya-2017-12-15

The Code of Criminal Procedure Act No. 15 of 1979 in Chapter XVIII deals, generally, with trials by High Court. On by whom trials before the High Court are to be conducted Section 193 lays down that in every trial before the High Court the prosecution shall be conducted by the Attorney General, the Solicitor General, a State Counsel or by some pleader generally or specifically authorized by the Attorney General in that behalf.

On the provision that the Attorney General may withdraw a prosecution and enter nolle prosequi, Section 194 lays down that (1) at any stage of the trial before the High Court under this Code before the return of the verdict the Attorney General may, if he thinks fit, inform the Court that he will not further prosecute the accused upon the indictment or any charge therein, and thereupon all proceedings on such indictment or charge as the case may be against the accused shall be stayed and he shall be discharged of and from the same; (2) the information under this Section may either be oral or in writing under the hand of the Attorney General; and (3) the prosecuting Counsel may with the consent of the presiding Judge at any stage of the trial before the return of the verdict withdraw the indictment or any charge

therein and thereupon all proceedings on such indictment or charge as the case may be against the accused shall be stayed and he shall be discharged of and from the same.

On the duty of the Judge upon receipt of the indictment, Section 195 lays down that upon the indictment being received in the High Court, the Judge of the High Court presiding at the sessions of the High Court holden in the judicial zone where at the trial is to be held shall (a) cause the accused to appear or to be brought before him; (b) cause a copy of the indictment with its annexes to be served on each of the accused who will be tried upon that indictment; (c) inform the accused of the date of the trial; (d) subject to the provisions of Section 403 direct the accused to execute a bond to appear in Court for his trial or by warrant addressed to the superintendent of any prison authorize the detention of the accused pending his trial; (e) cause the accused to be finger-printed and
forward the prints to the Registrar of Finger Prints for examination and report to the prosecuting State Counsel; (e e) if the indictment relates to an offence triable by a jury inquire from the accused whether or not he elects to be tried by a jury; (f) where trial is to be by a jury direct the accused to elect from which of the respective panel of jurors the jury shall be taken for his trial and inform him that he shall be bound by and may be tried according to the election so made; and (g) where the accused on being asked by Court so requests, assign an Attorney-at-Law for his defence.
The Code next deals with a trial by a Judge of the High Court without a jury.

Commencement of Trial

Under the title 'Commencement of Trial' on arraignment of the accused Section 196 lays down that when the Court is ready to commence the trial the accused shall appear or be brought before it and the indictment shall be read and explained to him and he shall be asked whether he is guilty or not guilty of the offence charged.

On the plea of guilty Section 197 lays down that if the accused pleads guilty and it appears to the satisfaction of the Judge that he rightly comprehends the effect of his plea, the plea shall be recorded on the indictment and he may be convicted thereon.

On refusal to plead or plea of not guilty Section 198 lays down that if the accused does not plead or if he pleads not guilty, he shall be tried.

On the requirement for the Counsel to open his case and call witnesses, Section 199 lays down that (1) the trial shall commence by the prosecuting Counsel stating his case to the Court; it has to be mentioned that the prosecution is duty bound to address Court; (2) the witnesses for the prosecution shall then be examined; this consists of examination-in-chief, cross-examination and re-examination; (3) all statements of the accused recorded in the course of the inquiry in the Magistrate's Court, if there had been one, shall be put in and read in evidence before the close of the case for the prosecution;(4) it shall be lawful for the Court to call any witnesses not called by the prosecution if the interests of justice so require but such witnesses should be tendered for cross-examination by the prosecuting Counsel and by the accused; and (5) the accused shall be permitted to cross-examine all witnesses called for the prosecution.

On the provision that the Court may acquit without calling for defence or call for defence Section 200 lays down that (1) when the case for the prosecution is closed, if the Judge wholly discredits the evidence on the part of the prosecution or is of opinion that such evidence fails to establish the commission of the offence charged against the accused in the indictment or of any other offence of which he might be convicted on such indictment, he shall record a verdict of acquittal; if however the Judge considers that there are grounds for proceeding with the trial he shall call upon the accused for his defence; and (2) if the accused or his pleader announces his intention to adduce evidence, the prosecuting Counsel may address the Court a second time in support of his case for the purpose of summing up the evidence against the accused.

On the provision that the accused may make his defence Section 201 lays down that (1) if the accused or his pleader announces his intention to adduce evidence, the accused or his pleader may enter upon his defence and may examine his witnesses (if any) and the accused or his pleader may sum up his case; and (2) the prosecuting Counsel will be entitled to cross-examine all the witnesses called by the defence to testify on oath or affirmation.

Witnesses in rebuttal

On when the prosecuting Counsel is entitled to call witnesses in rebuttal, Section 202 lays down that if any evidence is adduced on behalf of the accused the prosecuting Counsel, may with the leave of the Judge, call witnesses in rebuttal. If the prosecution is taken by surprise, for instance, if the defence of alibi is taken, witnesses in rebuttal may be called.

On the requirement for the Judge to pass judgment Section 203 lays down that when the cases for the prosecution and the defence are concluded, the Judge shall forthwith or within ten days of the conclusion of the trial record a verdict of acquittal or conviction giving his reasons therefor and if the verdict is one of conviction pass sentence on the accused according to law.

Under the head trial by jury before the High Court and sub-head commencement of trial on arraignment of the accused Section 204 lays down that when the Court is ready to commence the trial the accused shall appear or be brought before it and the indictment shall be read and explained to him and he shall be asked whether he is guilty or not guilty of the offence charged. In Samaranayake v Grenier (1957) 58 NLR 424 Sansoni J quoted with approval the statement that "Arraignment is the bringing of a prisoner to the bar of the Court to answer the matter charged against him in the indictment. The arraignment of a prisoner consists of three parts, (1) calling him to the bar and, by holding up his hand or otherwise, making it appear that he is the party indicated. Holding up the hand is a mere ceremony, and is frequently dispensed with, it only being necessary for the prisoner to admit that he is the person specified in the indictment; (2) reading the indictment to him distinctly, so that he may fully understand the charge; and (3) demanding whether he is guilty or not guilty".
On the provision that the plea of guilty may be recorded and the accused convicted thereon, Section 205 lays down that if the accused pleads guilty and it appears to the satisfaction of the Judge that he rightly comprehends the effect of the plea, the plea shall be recorded on the indictment and he may be convicted thereon: Provided that the indictment so pleaded to is one of murder the Judge may refuse to receive the plea and cause the trial to proceed in like manner as if the accused person had pleaded not guilty.

On the refusal to plead Section 206 lays down that if the accused does not plead or if he pleads not guilty or if in the circumstances set out in the proviso to Section 205, the Judge refuses to receive the plea jurors shall be chosen to try the case as hereinafter provided.

Accused pleads not guilty

On when the accused pleads not guilty or is willing to plead guilty to a lesser offence Section 207 lays down that if the accused pleads not guilty but states that he is willing to plead guilty to a lesser offence for which he might have been convicted on that indictment and the prosecuting Counsel is willing to accept such plea, the Judge may if he thinks that the interests of justice will be satisfied by so doing, order such plea of guilty to be recorded and may pass judgment thereon accordingly, and thereupon the accused shall be discharged of the offence laid in the indictment and such discharge shall amount to an acquittal.

Our law makes no special provision for the acceptance of the plea of guilty in regard to a lesser offence, after the jurors have been sworn, says Prof. G.L. Peiris in his work 'Criminal Procedure in Sri Lanla'. Nevertheless, he says, in the case of Dias Appuhamy (1955) 58 NLR 49, Basnayake ACJ delivering the judgment of the Court of Criminal Appeal, stated: "It has been the practice for a considerable length of time to accept a plea of guilty to a lesser offence when tendered in the course of a trial even after the accused has been placed in charge of the jury".

Prof. Peiris goes on to say that the appropriate procedure in this situation was laid down in the case of Sittampalam (1951) 52 NLR 374. This may be summarized as follows: (i)if the prosecution is not prepared to accept the plea of guilty in respect of the lesser offence, the case against the accused should proceed on the whole indictment; (ii) if, on the other hand, prosecution intimates its willingness to accept the plea, the presiding Judge must himself decide whether it would be in the interests of justice for the Court to accept the plea; (iii) if the presiding Judge notwithstanding the prosecution's willingness to accept the plea, decides that it should not be accepted by the Court, the case against the accused must proceed on the whole indictment; (iv) if on the other hand, the Judge considers that the plea may properly be accepted by the Court, he should invite the jury in whose charge the accused has been given after they were empanelled to try the case, to state whether they would accept the plea, and the Judge may inform the jury at this stage of the reasons why acceptance of the plea is recommended by him; and (v) if the jury state that they are willing to return a verdict on that basis, the unqualified admission of guilt of the accused should, if this has not already been done, be recorded in the presence of the Judge and jury, and this admission becomes additional evidence on which the jury may act. The jury should then be directed to pronounce a verdict accordingly.