LAW OF CRIMINAL PROCEDURE

By Chandra Tilake Edirisuriya-2017-07-28

Ever since Sri Lanka went under western domination a little over 500 years ago the westerners were dictating terms to us treating this country as their vassal state. Even though the Portuguese did not impose their laws on us so much, to make up for it their barbarity was unsurpassed. The Dutch introduced their laws into the country and what is prevalent today is an amalgam of Roman-Dutch Law and the English Law bequeathed to us by the British who ruled us during the last 150 years of the colonial era.

Though the then Ceylon received dominion status under the British Crown in 1948, real freedom began to manifest itself only after 1956, when Prime Minister S.W.R.D. Bandaranaike took over the Royal Air Force base at Katunayake and Trincomalee Royal Navy base, culminating in the promulgation of the First Republican Constitution of 1972 which severed all connections with the British Crown. However, almost the first ever change effected to the British-given law, for good reason, by the Administration of Justice Law No. 44 0f 1973, is an important area in the Law of Criminal Procedure, in abolishing the preliminary inquiry before a Magistrate's Court, on the recommendations, as elucidated below, of the Law Commission of Sri Lanka, established under the Law Commission Act No 3 of 1969, was reversed after the change of government in 1977.

The Law Commission of Sri Lanka is the main government institution which recommends legal reforms. The Department of Law Commission is constituted to extend administrative and research support. The vision of the Law Commission is to promote reform of the law for good governance. Its mission is to discharge duties and functions imposed under the Law Commission Act for the purpose of promoting the reform of the law. As regards its role, its main objective is to promote the reform of the law. The following functions are performed by the Law Commission for the purpose of such promotion: viz the codification of law; the elimination of anomalies; to take and keep under review the law, both substantive and procedural, with a view to its systematic development and reform; the repeal of obsolete and unnecessary enactments; the simplification and modernization of the law; to receive and consider any proposals for the reform of the law; to prepare and submit to the Minister, from time to time, programmes for the examination of different branches of the law with a view to reform; to obtain such information as to the legal systems of other countries; to keep under constant review the exercise by bodies, other than Parliament, of the power to legislate by subsidiary legislation with a view to ensuring that they conform to well established principles and to the rule of law; to formulate programmes for rationalizing and simplifying legal procedures including procedures of an administrative character connected with litigation; and to formulate programmes for the codification of the law in Sinhala, Tamil and English.

Law Commission

Prof. G.L. Peiris, in his landmark thesis 'Criminal Procedure in Sri Lanka', examines the reasons adduced by the Law Commission, by a Memorandum submitted to the Minister of Justice on 16 September 1970, for the abolition of the preliminary inquiry conducted by a Magistrate's Court into cases which appear not to be triable summarily by a Magistrate's Court, but triable by a higher Court, in the following terms:

The main objectives of the non-summary inquiry, which was regarded by the previous law, the Criminal Procedure Code Ordinance No. 15 of 1898, as an indispensable element in the prosecution of indictable offences, were that the accused should be given notice of the case for the prosecution; and that there should be a judicial review of the evidence available to the prosecution, in order that an accused should not be put on trial unless there is sufficient evidence to establish a prima facie case against him.

The preliminary inquiry by a Magistrate has been described as 'judicial sieve' which protects the accused against improper prosecution and the strain of undergoing a trial which may involve him in considerable expense. The accused was given the opportunity, at such an inquiry, of testing and possibly breaking down the evidence led for the prosecution. Again, the accused by the end of the inquiry, knew well the case which was being presented against him. He would not be taken by surprise at the trial.

The crucial question in this regard was whether these two objectives were of such overwhelming weight that the perpetuation of the earlier system was justified. It had been pointed out that the evidence led at the inquiry by the prosecution was the very evidence which appeared in the statements recorded by the Police in the course of their investigations. If these statements were given to the accused direct without being led in evidence at the preliminary inquiry in the form of depositions, the accused would be furnished with the same information. If the accused was given these statements well ahead of the trial, this would clearly serve as sufficient notice to him of the case for the prosecution.

The Law Commission of Sri Lanka concluded that such a course was unobjectionable. It would serve the purpose of the depositions taken at the preliminary inquiry, just as well. Indeed, the innovation was seen to entail greater advantage to all concerned. Witnesses need not attend the Magistrate's Court on one or more occasions; they need not give evidence both at the inquiry and at the trial; and they would be saved the ordeal of giving evidence of a repulsive nature more than once. The need to give evidence both at the inquiry and at the trial involved unnecessary expense to everyone, unjustifiable delay, inconvenience and a waste of effort. Magistrates can devote their time to hearing summary trials and thereby avoid the delays that occurred previously.

What is treated as even more important than these considerations was that the time-consuming inquiry which in practice delayed the hearing of the trial by months and sometimes by years, would no longer be necessary. The guilt or innocence of the accused would be finally determined at a single judicial hearing in far less time than earlier.

Trial Judge and jury

A relevant consideration in this regard is that 'The more effective deterrent to crime is certainty and swiftness of punishment'. It is important to remember that every day's delay in the hearing of a witness' evidence at the trial affects his recollection of the facts and must necessarily impair the impression he makes on the trial Judge and the jury. Such delays may help an accused because they weaken the case for the prosecution, but they cannot assist the cause of justice. "Injustice is done not only where an innocent accused is convicted, but also when a guilty accused is acquitted. The desirable objective in devising a system of criminal procedure is, therefore, to avoid either situation," states the Memorandum of the Law Commission.

There are many cases in which an accused wishes to plead guilty to a charge at the earliest possible opportunity. There are others where he wishes to plead guilty to a lesser offence, as in the case of homicide where the prosecution will accept such a plea. In such cases, under the earlier system, nothing could be done to dispose of the case until the non-summary inquiry had been concluded, and a mass of evidence recorded which, in the circumstances, would turn out to be quite unnecessary, as there would be no trial except for a plea by the accused as soon as he had been arraigned. The prosecution could not, under the earlier procedure, omit to lead every single piece of evidence which it intended to rely on if the accused should plead 'not guilty'.

Duplication of evidence was seen at its worst in these cases.

If there was only a slip or omission in recording a necessary item of evidence, on the part of the Magistrate, or if the charge had not been correctly framed at the inquiry, the case often went back for further inquiry, and further delay ensued. The average accused is a man of very modest means. However, if he could possibly afford it, he retained a lawyer to appear for him throughout the inquiry. It often happened that, as a result of the inquiry being prolonged, the accused was left with little or no money to retain a lawyer at the trial. This was a particularly undesirable feature of the earlier procedure, as it meant that the accused was not able to retain a lawyer when he most needed one and, under the prevailing system, he may not necessarily be provided with a lawyer at the expense of the State. Undoubtedly, it would cost an accused person much less if he could avoid retaining a lawyer until his case came to trial, and this is the position under the new system of a direct committal for trial.

Non-summary inquiry

Furthermore, there was no absolute guarantee that the procedure of holding a non-summary inquiry provided a safeguard against rash or speculative prosecutions. It was the professed object of the earlier system to save an innocent man from the ordeal of a trial and from the expense which it involved, if this could be avoided. But this purpose was not invariably achieved. All that a Magistrate decided at the end of an inquiry was whether or not a prima facie case had been made out by the prosecution. He was not required, nor indeed entitled to place himself in the position of a trial Judge or juror and decide upon the veracity of a witness.

It was not his task to decide whether the evidence led by the defence at the preliminary inquiry should be preferred to that offered by the prosecution, nor did it fall within the purview of the Magistrate to decide whether a plea of self-defence or a similar plea, put forward as a ground of exoneration, should be accepted. In the result, many prosecutions which failed in the Court of Trial passed through the magisterial sieve instead of being discontinued at the inquiry stage. So long as there was 'a probable presumption of guilt' arising from the evidence led by the prosecution – which means in practice that a Judge or jury 'may' accept it – the case was committed for trial at a higher Court.

As regards this unsatisfactory position which obtained under the previous law, under the Administration of Justice Law No. 44 0f 1973 (AJL), it was the duty of the Director of Public Prosecutions (or a subordinate officer) before he signs an indictment to consider with the greatest care whether the evidence available to the prosecution is sufficient to establish the guilt of the accused beyond all reasonable doubt. He must observe the established conventions touching the duty of a prosecutor. "He is a representative of the State and a Minister of Justice assisting in its administration. He has the sole authority to decide whether a suspected criminal offence should be the subject of a prosecution, and whether the evidence is sufficient to justify a man being put on trial".

The Law Commission reached the conclusion that the launching of a prosecution under the system of direct committals (of the kind which prevails under the present law), may result in less reckless or speculative prosecutions than under the previous system. It sometimes happened under the earlier procedure that the Police initiated a prosecution in every case where there was some evidence in support of the charge, regardless of the final result.

The Law Commission commented: "It is unthinkable that the accused should be put on trial in any case on an indictment unless he is given a copy of all the statements of the prosecution witnesses which have been recorded by the Police, and so given notice of the case to be presented against him". This safeguard was enshrined in the provisions of the AJL.

An especially cogent consideration was that the hardship previously caused to the accused who may have been on remand from the commencement of the investigation until the termination of the trial, would be considerably relieved by the reduction of the interval between arrest and trial, for there was no doubt that the intervening preliminary inquiry by a Magistrate which was previously indispensable, was often spread out over many months.

A possible objection to the new procedure is that a witness, who had made a statement to the Police during the investigation, may with impunity offer a contradictory version at the trial. But this is a risk which could not have been averted even under the earlier system, and instances were not wanting where such behaviour on the part of the witness had brought a trial, conducted under the Criminal Procedure Code, to an abrupt termination.

Similarly, it may happen that the Police officer, through dishonesty or carelessness, records the statement of a witness inaccurately and leaves the record in that condition; or an accused may be dishonest enough to persuade a prosecution witness to contradict his written statement. Such action can undermine the entire foundation upon which the trial rests. Indeed, these are situations which may arise at any time in any case. "No perfect precaution is possible against fools and knaves who choose to foul the pure spring of justice".

For these reasons the Law Commission recommended the abolition of non-summary proceedings in a Magistrates' Courts, and this recommendation had been given effect in the provisions of the AJL.

Criminal Courts Commission

The Criminal Procedure Code Ordinance No. 15 of 1898 adopted the magisterial inquiry as an essential preliminary to criminal proceedings in the context of grave offences. The scope of the preliminary inquiry was commented on by the Criminal Courts Commission in the following terms: "The nature of such an inquiry held by a Magistrate has changed considerably since the amendments made to Chapter XVI of the Criminal Procedure Code Ordinance No. 15 of 1898, in the year 1938. It should no longer be any part of a Magistrate's functions to 'work up' a case. His proper function is to ascertain in a judicial manner whether the prosecution has produced evidence upon which the accused ought to be sent for trial. We therefore think that a Magistrate, having judicially sifted and weighed the evidence led before him, should decide whether there is such evidence given by witnesses entitled to a reasonable degree of credit that, if it be contradicted at the trial, a judge or a reasonable-minded jury may convict upon it. It is not the Magistrate's function to decide whether the accused committed the offence or not. But 'if, from the slender nature of the evidence, the unworthiness of the witnesses, or the conclusive proof of innocence produced on the part of the accused', the Magistrate thinks that a prima facie case is not made out against the accused, he should discharge the accused.

However, the Criminal Procedure Code Ordinance No. 15 of 1898 did not envisage that the decision made by a Magistrate at the conclusion of the inquiry, should be final. Thus, the Attorney General was given power, under the earlier law, to order committal or a fresh inquiry when he was of opinion that the accused had been wrongly discharged by the Magistrate.

Conversely, where the accused had been committed for trial, the Attorney General was empowered by the provisions of the Criminal Procedure Code Ordinance No. 15 of 1898, to quash the commitment and to issue appropriate instructions to the Magistrate.

The position under the AJL was that no comparable powers need be exercised by the Attorney General, in relation to decisions already made by a Magistrate, as the entire responsibility for determining whether an accused person should be indicted or not, devolves directly on the DPP who acts in the name, and under the supervision, of the Attorney General.

The Law Commission recommended that trial on indictment should be restricted, as far as possible, to cases of a serious nature and that all other cases should be tried summarily by a Magistrate. By cases of a serious nature, the Law Commission meant those cases where an offence had been committed and the circumstances were such that a heavy penalty was likely to be inflicted; other cases were those in which the same offences had been committed, but there were extenuating circumstances which called for the infliction of a relatively light penalty.

The Law Commission observed: "It will rest with the Attorney General and the Police, acting in consultation with each other, to decide whether a particular case, in the light of all the circumstances disclosed by the investigation, should be tried on indictment or summarily by a Magistrate. It is a matter of common experience that many cases of housebreaking, theft and mischief – to mention only a few offences – can appropriately and conveniently be tried summarily by a Magistrate, because the circumstances are not complicated and the commission of the offence has not been attended with grave consequences. They were being so tried daily in Magistrate's Courts. But, as they will also be triable on indictment, it will be for the Attorney General and the Police who will know best all the circumstances of the particular case to decide whether a plaint should be filed in a Magistrate's Court in order that a summary trial may be held, or whether an indictment should be presented in the District Court or even in the High Court.

The AJL provided that a Magistrate's Court has jurisdiction to hear and determine prosecutions for any offence in respect of which the maximum punishment prescribed is not in excess of seven years' imprisonment or a fine of seven thousand rupees, but that the punishment actually imposed by a Magistrate's Court can only be imprisonment for a term not exceeding eighteen months or fine not exceeding one thousand rupees.