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Court of Appeal Orders Re-issuance Notice on Chaminda Hettiarachchi alias “Navy Sampath.

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By S. S. Selvanayagam

The Court of Appeal fixed the appeal filed against the High Court Order in the Former MP Raviraj murder case to be mentioned for April 4 yesterday, and directed to re-issue notice on Chaminda Hettiarachchi, alias Navy Sampath.

The Bench comprised Justices Deepali Wijesundera (Acting President/CA) and Achala Wengappuli.

Court had already granted Leave to Appeal to the Petition filed by the wife of deceased MP Nadarajah Raviraj, against the order of the Colombo High Court in her husband Raviraj’s murder case, on 2 August 2018.

Appellant Sasikala Raviraj seeks the Court of Appeal to set aside the High Court verdict of acquittal of the Accused.

She filed her Appeal on the questions of law, lamenting that the High Court Judge has directed that the trial be by a Special Jury, including in respect of charges relating to the PTA and the Judge’s charge to the jury.

She states her spouse Raviraj was an elected MP from Jaffna District, representing Ilankai Thamil Arasu Kadchi, when he was assassinated on 10 November 2006.

She states as borne out by the proceedings, when the case was taken up prior to trial, the Counsel for the 2nd to 4th Accused made application for the trial by a Sinhala-speaking jury.

She asserts that the indictment in the instant case included charges relating to offences specified in the Prevention of Terrorism Act, and that Counsel for the aggrieved Party objected to the said application. She states that her Counsel objected to a jury trial on her instructions, on the basis that the PTA is, in the circumstances, ‘lex specialis’ (law governing a specific subject matter) and by virtue of the PTA as well as the maxim ‘generalia specialis non derogant’ (the provisions of a general statute must yield to those of a special one. Also known as the rule of implied exception), which has been consistently applied by Sri Lankan courts.

She underlines that it is the procedure specified by the PTA which would override any other procedure stipulated by the regular Criminal Code. In this case, that requires that the trial by a Judge without a jury as specified in PTA, she points out.

She bemoans that the High Court Judge made order on 27 October 2016, overruling the appellant’s objection, and allowing a trial by a special jury. On 23 December 2016, after addresses to the jury by the Attorney General, Counsel for the aggrieved Party, Counsel for the Accused and the Attorney General, the High Court Judge charged the jury in terms of the Code of Criminal Procedure, she states.

In the course of this charge, he charged the jury to provide a verdict in respect of all charges in the indictment, including those relating to PTA, she states.

After the jury’s deliberations, on 24 December 2016, the jury returned a verdict of Not Guilty in respect of all the Accused, for all charges in the indictment, and thereafter the Judge discharged the Accused, she states.

She contends the evidence presented against all Accused at the trial was sufficient to convict them of all offences.

She raises following questions of law inter alia:

Has the Judge erred/misdirected himself and the jury in law, by ordering a trial by jury where the indictment contains a charge of the commission of offences under PTA?

Has he erred/misdirected himself and the jury in law, by failing to consider/fully appreciate that the charges under the PTA must be tried before a Judge and cannot be tried before a jury? Has he erred/misdirected himself and the jury in law, by failing to consider/fully appreciate that where charges under the PTA are joined in an indictment with charges triable by a jury, the PTA is the special law for the purpose of the legal maxim ‘generalia specialis non derogant’? This maxim suggests that courts prefer specific provisions over provisions of general application, where the provisions are in conflict.

She seeks the Court of Appeal to set aside the order of the High Court Judge and the verdict of acquittal.

She asks the Court to find the Accused guilty of all charges, and to order a re-trial of the Accused for all or several of the offences.

Appellant cited Palani Sami Suresh, Chandana Kumara, Gamini Seneviratne, Pradeep Chaminda, Sivakanthan Vivekananthan and Fabian Roiston Tusen as Accused-Respondents, as well as the Attorney General in her appeal. M.A. Sumanthiran PC with Niran Anketell instructed by Moahan Balendra appeared for the Appellant. Anuja Premaratne appeared for the acquitted Accused-Respondent Navy Officers Gamini Seneviratne and Pradeep Chaminda. Deputy Solicitor General Rohantha Abeysuriya appeared for the Attorney General.

Courtesy:Daily FT

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