IN THE COURT OF APPEAL OF THE DEMOCRATIC

SOCIALIST ~UBLIC OF SRI LANKA.

CA Application No.151/13

HC Kalutara 108/09

Democratic Socialist Republic of

Sri Lanka.

Complainant
Vs.

Harold Rex Jansen

Accused

And now between

Harold Rex Jansen

56/8B, Sri Sumangala Road,

Kalutara North.
Vs.

Hon. Attorney General

Attorney General's Department.
Colombo 12.
Respondent. I
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Before
Counsel
:- AW.A. Salam, J. & Malini Gunaratna J
Shanaka Ranasinghe PC with Madhewe
J Wijayasiriwardhana ancl= Priyasala Padmasiri for the accused-
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petitioner and Yasantha Kodagoda DSG for the respondent.
Argued on: 26.11.2013

i Decided on: 26.02.2014

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I1 This is an application made in reVISIOn. The background to the

application briefly is that the accused-petitioner was indicted in
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the High Court under section 357 and 365 (b) (2) (b) of the Penal
Code. The trial proceeded without a jury. At the close of the case
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i for the prosecution, the accused-petitioner moved under Section
t 200( 1) of the Code of Criminal Procedure Act, for his acquittal.
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I This application of the accused-petitioner was refused by the

1 learned High Court Judge who then proceeded to call for the
defence, as he is eI?powered in Law. It is this decision that is
impugned in these proceedings.
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!4 The grounds for impugning the decision, as they transpire in the
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I application, inter alia are as follows ...

I] 1. The failure to assign reasons for the refusal of the application made
under Section 200(1) of the Code of Criminal Procedure Act.

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2. The failure to appreciate the evidence of the alleged victim that no
act of sexual gratification was committed on her by the accused-
petitioner.
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I 3. The failure to consider that the mother of the victim of the alleged
i sexual abuse was not called to testify on the charge of abduction.
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 4. Faflure to prove the charge of abduction.
5. Failure to consider the contradictions among the witnesses for the
prosecution. _>_
6. Non-appreciation of the failure to prove the commission of the
offences the accused-petitioner was charged with.

Section 200 (1) of the Code of Criminal Procedure Act enacts that
when the case for the prosecution is closed, if the Judge (i) wholly
discredits the evidence on the part of prosecution or (ii) is of
opinion that such evidence fails to establish the commission of the
offence charged against the accused in the indictment or (iii) 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. (Emphasis added)

Section 200(1) of the Code of Criminal Procedure Act, focuses on

two types of occurrences, when the case for the prosecution is
closed. Initially, it places emphasis on the acquittal of the accused
at the close of the prosecution case without calling for the defence.
The circumstances, under which a High Court Judge is
empowered to acquit an accused, under 200(1) may be classified
as follows ....
1. When the evidence adduced by the prosecution is wholly discredited
by the Judge or
2. When such evidence fails to establish the commission of the
offence/offences in the indictment or
3. When the evidence adduced, does not point to the commission of any
other offence/offences of which the accused might be convicted.

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No lengthy discussion is necessary as to the manner in which an
order' of acquittal has to be entered. Nevertheless, in passing it
may not be inappropriate to observe that an order of acquittal
under Section 200(1) should necessarily accompany the reasons
that prompted the exoneration of the accused from the
charge / charges or any other charges he might otherwise be
convicted. The rationale behind the obligation to set out the
reasons for the acquittal of the accused without calling for the
defence is that the acquittal constitutes the fmal decision in the
case which is appealable at the instance of the State or an
aggrieved party.

On the contrary, a decision to call for the defence under Section

200( 1) warrants different consideration. In terms of section 200( 1),
when the Judge considers that there are grounds to proceed
with the trial from the stage where the prosecution has closed the
case, he shall call upon the accused for his defence.

Section 200 of the Code of Criminal Procedure Act (with the

omission of Sub-Section (2) which is inapplicable to the instant
application) reads as follows ....

200. (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.
(Emphasis added)

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What needs to be addressed here is whether the Court is bound to
give reasons before it decides to call for the defence under Section
200( 1). Perhaps, there may be cases in which the High Court
Judges traditionally express their mind that the prosecution has
unfolded a prima-facie case or that there are grounds for
proceeding with the trial or similar words to that effect, prior to
their proceeding to call for the defence. On a strict interpretation of
the Section, we are disposed to think that at the end of the case for
the prosecution; suffice it to say that there are grounds for
proceedings with the trial or similar expression. In giving effect to
Section 200(1) of the Code, it must be borne in mind that when the
High Court Judge does not wholly discredit the evidence on the
part of the prosecution or is of opinion that such evidence
establishes the commission of the offence or of any other offence,
he. is entitled to call for the defence.

The expreSSIon "there are grounds for proceeding with the

trial" as used in Section 200(1) cannot certainly suggest or convey J
that the High Court Judge is obliged to give elaborate reasons for
his decision to call for the defence. The grounds for proceeding
with the trial at the close of the case for the prosecution means
nothing more than the High Court Judge CONSIDERING that
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there are grounds for proceeding with the trial. The ordinary r
meaning of the word 'CONSIDER' as it occurs in Section 200(1) r
would mean "to think about carefully", especially in order to make
a decision. Quite obviously, the Section does not make it obligatory
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on the part of the High Court Judge to give reasons as to why he

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 considers the case as disclosed by the prosecution merits further
trial. 'If elaborate reasons are required to be assigned before calling
the defence, then, every -'High Court criminal trial (without a jury)
ought to carry two Judgments, one at the close of the case for
prosecution and the other at the close of the defence, i.e under
Sections 200 and 203 respectively.

As regards the claim made by the accused-petitioner, the learned

President's Counsel relied heavily on the judgment in W M R B
Wijeratne and four others vs Hon. Attorney General, SC appeal No
TAB 1/2007 1 . This jUdgment had been pronounced consequent
upon an appeal being preferred against the conviction of the
accused on certain criminal charges before a Trial at Bar. In other
words, the ratio decidendi in the judgment deals with the
requirement to give sufficient reasons for the decision taken at the
end of the trial and during the trial which materially affect the
fmal outcome. Guided by the principles enunciated in the said
decision, it is hardly possible to state that the decision of a High
Court Judge to call for the defence would materially affect the
fmal outcome of a case.

The contention of the learned President's Counsel is that by reason

of the judgment in the case of Wijeratne, a High Court Judge is
bound to give his reasons for refusing an application to acquit an
accused pursuant upon an application made under Section 200(1).
The basis of his argument is that the decision to call for the

1 Bar Association Law Journal 2000 page 169

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defence constitutes a substantial question arising in the course of
the trial. We have given our anxious consideration to this
contention and our consIdered view is that the decision of the High
Court Judge to consider that there are grounds to proceed with the
trial is not a decision which materially affects the final outcome of
the case, in the sense expressed in the case of Wijeratna. It is only
a procedural step taken by Court towards the conclusion of the
trial.

At this stage, it is pertinent to observe that an accused whose

defence is called for by court may be at a distinct advantage as
regards the final outcome of the trial. For example after the
prosecution has unfolded a prima facie case, an accused by his
evidence (whether under oath or otherwise) or through the
evidence of his witness/witnesses might be capable of creating a
reasonable doubt on version of the case of the prosecution. It
might sometimes render the version of the accused probable thus

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placing the accused at an advantageous position. A classic
example would be a case where the defence of alibi is raised.
Therefore, it cannot always be said that the decision to call for the
defence would "materially affect the final outcome" to the
detriment of the accused. Hence, the judgment in the case of
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Wijeratna has no application to a decision taken under Section
200( 1) to call for the defence. f

As far as Section 200 is concerned, the High Court Judge can

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proceed to call for the defence when he considers that there are
grounds to proceed with the trial either on the charges preferred

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against him or when he considers that the accused might be
convicted for any other offence. As such, when the High Court
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Judge proceeds to call for the defence, it is unsafe for a higher

court to interfere with such a decision as the decision of the High
Court to call for the defence involves the credibility of the evidence
adduced before him on the charges preferred in the indictment or
any other offence that may have been disclosed in evidence.
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I The other matter that needs consideration is whether the accused-
petitioner is without any remedy at the end of the trial, even if his
present application is refused. There cannot be any controversy on
this question, as a right of appeal is available to the accused in
such a situation. The learned President's Counsel was heard to say
that his client does not want to take the risk of being convicted
without sufficient evidence and in which event he will be
incarcerated pending his appeal against the conviction. We are not
inclined to endorse. this argument as being the correct position of
the law because no Judge is ever expected to c?nvict an accused
unless such a conviction warrants on the evidence placed before
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him.

The learned Deputy Solicitor General adverted us to three

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important judgments of which one has been decided by this court
and the other two by the Supreme Court. The Attorney General vs
Heeraluge Neil Gunawardena (S.CS03j76) decided jointly by
Samarawickrama ACJ, Rajaratnam J, Wijeysundara J,
Vythalingam J and Thiththawala J. on 14 September 1976 is a
landmark judgment on this issue. The law that has been discussed

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in this judgment pertaints to Section 212 (2) of the Administration
of Justice Law No 25 of 1973 which corresponds to Section 200(1)
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of the Code of Criminal Procedure Act. By this judgment a

divisional bench of the Supreme Court clearly laid down the
guidelines towards the correct application of the law relating to the
return of a verdict of "not guilty" (by the jury) when the judge
considers at the close of the case for the prosecution that there is
no evidence that the accused committed the offence. For purpose
of clarity section 212 (2) of the Administration of Justice Law is
reproduced below .... I
"When the case for the prosecution is closed, if the judge considers
that there is no evidence that the accused committed the offence
he shall direct the jury to return a verdict of "not guilty."
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In the case of the Attorney General

Gunawardena the learned High Court Judge considered that there
vs Heeraluge Neil
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was no evidence that the accused committed the offence and !
accordingly he was. of the view that the jury should return a
verdict of not guilty. Incidentally, the decision has been taken by
the learned High Court judge prior to the closure of the case of the
prosecution. The Honourable Attorney General having challenged
the findings of the Learned High Court Judge, the Supreme Court
observed as follow .....
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" .......... The court will not exercise its powers of revision in regard to
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proceedings of the High Court, save in very exceptional
circumstances. In particular, this court will not entertain an
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application which will have the effect of interrupting the t

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proceedings of the trial in a High Court. For example, no application
will be entertained by this court at the instance of either the
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prosecution or the defence in respect of an order made by the High

Court as to the admission or rejection of evidence. Generally, in
respect of all mat!~rs which take place during the course of a trial,
the parties, should await the final verdict as an acquittal or
conviction, as the case may be, may render unnecessary an
application for the intervention by this court".

The case of Sinha Tissa Migara Ranatunga and the finding of the
Court of Appeal and the Supreme Court with regard to the proper
interpretation of Section 200 (1) can be usefully referred to at this
point. Sinha Tissa Migara Ranatunga who was the editor of The
Sunday Time newspaper was indicted before the High Court for
the commission of offences under sections 479 and 480 of the
Penal Code. When the case for the prosecution was closed, an
application was made on behalf of the accused seeking an order of
acquittal. The Learned High Court Judge made a lengthy order
giving reasons which led to the refusal of the application and
setting out the reasons for his fmding that there were grounds to
proceed with the' trial. The accused-petitioner invoked the
revisionary jurisdiction of the Court of Appeal in application No
CA 381/96.
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His Lordship D.P.S Gunasekara J with Ismail J agreemg, held I
inter alia that a trial judge is not obliged to make an elaborate
order setting out his reasons for holding that there are grounds to
proceed with the trial when a submission of no case to answer is
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made on behalf of an accused in terms of section 200 (1) of the
Code of Criminal Procedure Act.

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Agaipst the judgment of His Lordship DPS Gunasekara J in the
case 'of Sinha Tissa Migara Ranatunga Vs Honourable Attorney
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General, the accused-petitioner made an application to the

Supreme Court in SC SPL.LA 336/96 for special leave to appeal.
His Lordship the Chief Justice G.P.S De Silva with S.W.B
Wadugodapitiya, J and S. Ananda Kumarasamy J concurnng
refused the application for leave to appeal in a considered
judgment where His Lordship the Chief Justice inter alia stated as
follows ........ .

The principles which guide the court in entertaining applications in

revision in respect of criminal proceedings pending before the High
Court were lucidity and cogently set out by a bench of five judges of
the Supreme Court in the case of the Attorney General vs Heeraluge
Neil Gunawardena (SC application 503/76- SC minutes of 14.9.76).

In Sinha Tissa Migara Ranatunga the Hon Chief Justice re-echoed

the well established principles of Law as stated in the case of
Attorney General vs Heeraluge Neil Gunawardena (supra) in the following
manner...

" .......... We are not disposed to exercise our powers in revision to

give, by a side wind, an appeal in a matter where there is no right of
appeal. .... We wish to state that this court will not exercise its
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powers of revision in regard to proceedings of a High Court, save in
very exceptional circumstances. In particular, this court will not
entertain an application which will have the effect of interrupting
the proceedings of a trial in the High Court......... Generally, in
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respect of all matters which take place during the course of a trial
the parties should await the final verdict as an acquittal or a
conviction, as the case may be, may render unnecessary an I
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application for the intervention by this court".

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Unlike in a usual crim~ trial, in this particular instance we are
bound to advert to the Provisions of Section 163 A of the
Evidence Ordinance as amended by Section 4 of Act No 32 of
1999. The amendment permits the admissibility of a video
recorded interview with a child in proceedings relating to child
abuse at a preliminary interview which is conducted between an
adult and a child who is not the accused in such proceeding.

As has been expressly laid down by this Section such a video

recording relating to any matter in issue in those proceedings are
permitted to be led in evidence notwithstanding the Provisions of
any other law with the leave of the court and be given in evidence
unless it is otherwise excluded.

As far as the present case is concerned, such a video recording has

already been led in evidence and it is left to the High Court Judge
to decide on the relevance and credibility of such evidence. Quite
remarkably, the video recording is led in evidence constitutes the
evidence in chief, in so far as such evidence is admissible in law.

In terms of Subsection 5 of Section 163 where a child witness, in

the course of his direct oral testimony before court, contradicts,
either expressly or by necessary implication, any statement
previously made by him and disclosed by the video recording, it
shall be lawful for the presiding Judge, if he considers it safe and
just in all the circumstances of the case, to act upon such
previous statement as disclosed by the video recording, if such
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 prevl~us statement IS corroborated In material particulars by
evidence from an independent source.

Taking all these matters into consideration, we are of the view that
this is not a fit case which calls for the exercise of the powers of
this Court to revise or set aside the impugned decision of the High
Court. The application of the accused-petitioner if allowed would
unnecessarily have the most undesirable effect of interfering with
the course of justice, the learned High Court judge has chosen to
adopt in the case before him.

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At the conclusion of the trial, if the accused-petitioner is aggrieved
by the final decision, he is not without any remedy. He has the
statutory right of appeal and also is entitled to bail pending
appeal, if he is legally entitled to such an interim relief. The
decision of the Learned High Court Judge to call for the defence
cannot be said to have been prejudged the case of the accused.

Having analyzed every aspect of the application and regard being

had to the principles enunciated in the decision of this Court and
the Supreme Court as cited above, we feel that the facts and
~ circumstances which had led to the filing of the revision
application are so compelling that we are not disposed to exercise
the discretionary powers in favour of the accused-petitioner. As
such the accused-petitioner is compelled to await the final
outcome of the case in the High Court. Hence, we see no reason to f
justify the grant of relief to the accused-petitioner. For reasons

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II briefly outlined, we have no option but to refuse the application of

1 the accused-petitioner.
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Taking into consideration the circumstances peculiar to the
revision application, we make no order as to costs.

A W A SALAM,J MALINI GUNARATNA, J

NR/-

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