JURY TRIAL OPTION IN SRI LANKA.

 

LEGAL PROVISIONS AND DECIDED JUDGEMENTS ON JURY TRIAL OPTION IN SRI LANKA.

Duncan Abeynayaka – LLB, Attorney At Law

 

CRIMINAL PROCEDURE CODE, No 15 of 1979

Section 195. 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 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;

[4,11 of 1988]

(ee) 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 panels 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;

(g) where the accused on being asked by court so requests, assign an attorney-at-law for his defence.

 

Section 161. Subject to the provisions of this code or any other law, all prosecutions on indictment instituted in the High Court shall be tried by a Judge of that Court:

Provided that in any case where at least one of the offences falls within the list of offences set out in the Second Schedule to the judicature Act, No 2 of 1978, trial shall be by a jury, before a Judge, if and only if, the accused elects to be tried by a jury.

 

JUDICATURE ACT, No 2 of 1978

Section 11

(1) Trial in the High Court shall be by jury before a judge of the High Court where-

(a) at least one of the charges is for an offence referred to in the Second Schedule hereto; or

(b) the Attorney-General in any other case so determines in accordance with the law for the time being.

(2) All other trials shall be before a Judge of the High Court sitting alone without a jury.

 

Second Schedule

1. Offences punishable under sections 296, 297, 300 and 364 of the Penal Code.

2. Offences punishable under section 4 (2), and section 4 (2) read with section 6 ( I ) of the Offensive Weapons Act.

|5,37 of 1979 ]

3. Abetment and conspiracy for the abetment or commission of the offences described in item I above and conspiracy for the commission of the offences described in item 2 above.

 

DECIDED JUDGEMENTS

01. Wijesena Silva and others V. Attorney General [l998] 3 Sri L R 309

Court Of Appeal

De silva J

ISMAIL, J.

1. Court is required to inquire from the accused whether or not he elects to be tried by a Jury. This is a duty imposed on the trial judge upon receipt of indictment. This duty implies no discretion but a mandatory obligation on the part of the High Court judge.

This is a recognition of the basic right of an accused person to be tried by his peers. Per de Silva, J.

“It can never be said that if an accused is defended by a counsel the Trial Judge is relieved of his statutory obligations. The right to be tried by a jury is not given to the counsel but to the accused person.

 

02. Nimal Bandara V. The State [1996] 1Sri L R 214

Court Of Appeal

DR. GUNAWARDANA, J. (P/CA.)

J. A. N. DE SILVA, J.

(1) That the amendment to section 195 of the Criminal Procedure Act by introducing sub -section (ee) was necessitated, as a result of the introduction of new section 161 in place of the original section 161. Per Gunawardana, J, "it is to be noted that by virtue of the new section 161 of the Criminal Procedure Code, whilst trials before the High Courts are to be before the High Court Judge, a right has been given to an accused under the Proviso to that section, to elect to be tried by a jury in the specified offences.

This is a recognition of the basic right of an accused person to be tried by his peers. Thus it is important that, the accused should be given the opportunity to exercise the right whether to be tried by a Jury or not. In this case, because the learned Trial Judge has failed to follow the procedure laid down in section 195(ee), the accused had been denied that right.

Thus in our view the failure of the learned Trial Judge to comply with the provisions of section 195 subsection (ee) and subsection (f) is a fatal irregularity which vitiates the conviction.

 

03. Rajah and another V. Republic of Sri Lanka [1996] 2 Sri L R 403

Court Of Appeal

Dr. GUNAWARDANA, J. (P/CA)

J. A. N. DE SILVA, J

(1) Failure of learned Trial Judge to comply with the provisions of sections 195(ee) and (f) is a fatal irregularity which vitiates the conviction.

(2) Accused should be given the opportunity to exercise the right whether to be tried by a jury or not. This is a recognition of the basic right of an accused person being tried by his peers.5

(3) In view of the Amendment No. 11 of 1988 at a Trial before the High Court, the Court is required to inquire from the accused whether or, not he elects to be tried by a jury.

 

04. THE ATTORNEY-GENERAL v SEGULEBBE LATHEEF AND ANOTHER  2008] 1 SriL.R  225

SUPREME COURT.

J.A.N. DE SILVA, J.

BALAPATABENDI, J„ AND

RATNAYAKE, J.

(3) Section 195(ee) of the Code of Criminal Procedure Act, No. 15 of 1979 as amended by Act, No. 11 of 1988 imposed a duty on the trial judge to inquire from the accused at the time of serving the indictment whether or not the accused elects to be tried by a jury. It is left to the discretion of the accused to decide as to who should try him. The judge must also inform that the accused has a legal right to that effect.

Non observance of this procedure is an illegality and not a mere irregularity.

“This amendment necessitated an introduction of a further amendment i.e. section 195 (ee) imposing a duty on the trial judge to inquire from the accused at the time of serving the indictment whether or not the accused elects to be tried by a jury. This is in recognition of the basic right of an accused to be tried by his peers. It is left to the discretion of the accused to decide as to who should try him.”

“As pointed out earlier for nearly two hundred long years the jury system has been in existence in Sri Lanka with whatever the faults it had. I do not make an endeavour to discuss the merits and the demerits of the jury system. As long as it is in the statute book that the accused can elect to be tried by a jury, the trial judge has an obligation not only to inquire from him whether he is to be tried by a jury, judge must also inform that the accused has a legal right to that effect. Non observance of this procedure is an illegality and not a mere irregularity.”