CA orders discharge of accused | Daily News


 

Guilty plea without client’s knowledge:

CA orders discharge of accused

The Court of Appeal has set aside an order made by the Homagama High Court and Kesbewa Magistrate’s Court over a motor accident following a situation where an Attorney-at-Law who had appeared for the accused had pleaded guilty without the instructions of his client.

Accordingly, the Court of Appeal two-judge-Bench comprising Kumuduni Wickremasinghe and Devika Abayratne ordered the discharge of the accused from charges levelled against him.

Kitnan Rajendran of Hatton is the accused of the motor accident that had taken place in Piliyandala-Colombo bus route on July 7, 2019.

The said accident was a collision of a lorry with a motorbike and due to the accident the motorcyclist was severely injured and succumbed to his injuries while being taken to the hospital.

The charge sheet in the Magistrate’s Court contained five counts as follows: culpable homicide not amounting to murder, failure to avoid an accident, reckless driving, driving under the influence of liquor and driving a vehicle which is not roadworthy.

The accused pleaded not guilty for each and every count and the case was fixed for trial. When the case was fixed for trial, the Attorney-at-Law on behalf of the accused pleaded guilty for the aforementioned charges. The accused alleged that the Attorney-at-Law appeared for him had pleaded guilty without the instructions of the accused. Also the accused submitted that he is a native Tamil Language speaker and was unable to understand the discussion in Sinhala between the Magistrate and the Attorney-at-Law. Soon after the particular incident the accused has filed an Affidavit with the instructions of another Attorney-at-Law stating that the plea of guilty was without the knowledge of the accused.

However, the Kesbewa Additional Magistrate rejected the application and proceeded to convict the accused and sentenced by his order dated 29.07.2019. Being aggrieved by the said order of the Additional Magistrate, the accused filed a revision application in the Provincial High Court of Homagama and the High Court Judge of Homagama refused to issue notice to the Respondents by his order dated 04.09.201 9. Being aggrieved by the said order the accused filed this revision application before the Court of Appeal.

The Court of Appeal observed that in terms of Section 182 (2) of the Criminal Procedure Code, the Magistrate should read the Charge to the Accused and ask him whether he has any cause to show as to why he should not be convicted. In response to it, if the accused makes a statement which amounts to an unqualified admission that he is guilty of the offence which he is accused of, his statement shall be recorded then and there in the same words used by him. Thereafter, the Magistrate shall record a verdict of guilt and pass the sentence upon him according to law and shall record such sentence in light of Section 183.

“When considering the above mentioned sections, it is evident that the Magistrate should record what the accused had stated in his own words. Specially, a plea of guilt should come from the mouth of the accused person and not the Attorney-at–Law,” the Court of Appeal observed.

The Court of Appeal further observed that the accused promptly took actions to submit an affidavit stating that such plea of guilty was without his knowledge.

Accordingly, the Court of Appeal ordered to set aside orders of the Homagama High Court dated 04.09.2019 and the order of the Additional Magistrate of Kesbewa dated 02.07.2019. The accused was ordered to be discharged. The Court of Appeal Registrar was directed to send copies of the orders to the relevant High Court and the Magistrate’s Court with the case record.

Counsel Ashan Nanayakkara and Subhani Abeysekere instructed by Anil Bandara appeared for the Accused. Senior State Counsel Maheshika Silva appeared for the respondents.

 


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