Giving false evidence at PCoI -- Ravi K can be a suspect: Chief Magistrate clarifies

By Shehan Chamika Silva

Colombo Chief Magistrate Ranga Dissanayake today clarified his order on Ravi Karunanayake being named as a suspect, observing that the order does not say he cannot be a suspect in the inquiry but questions the process by which he was named a suspect.

He said this when a motion was taken into consideration in the magisterial inquiry on former minister Mr. Karunanayake in connection with giving false testimony at the Presidential Commission of Inquiry (PCoI) on August 2 last year.

The Magistrate previously made an order on October 8 directing certain individuals and the Global Transportation & Logistic Ltd (GTL) to provide details requested by the prosecution on or before October 22. In this order the Magistrate had also observed the way in which Mr. Karunanayake had been named a suspect and that it was not legally correct.

Filing a motion at the outset of the inquiry, President's Counsel Shavendra Fernando, who appeared for GTL, which has connections to former Mr. Karunayake, requested Court to allow two more weeks to comply with the October 8 order directing GTL to provide details of bank statements, vouchers, fund transactions, decisions of directors, etc., between January 2015 and August 2017.

However, when the Chief Magistrate asked why time was needed, the defense counsel said they needed more time to obtain more legal advice because the prosecution's request for the details contained some confidential matters as well. The defense counsel said these details covered a period of more than two years and that was the reason for requesting for more time.

The Chief Magistrate observed that the court could not consider the need for more time on an order already given. He said if a party did not agree with the order, there is legal provision to file a revision application in the High Court and seek relief against the order.

Senior State Counsel Lakmini Girihagama who appeared for the Attorney General objected to the granting of two more weeks to provide the details. She said GTL was requesting for more time after nine days of the order though it was aware about the details even prior to the order being given.

SSC Girihagama said if GTL were to request more time, their motion should have contained comprehensive reasons to be considered as reasonable grounds to grant such time, because this could be an attempt to delay the investigation of the prosecution.

After considering the submissions made by both parties, the Magistrate granted GTL a week's time till October 29, to provide the details to the CID.

He said if the party subject to the order did not comply with it, the prosecution could file legal action under Section 185 of the Penal Code for disobeying court orders.

Amid heated arguments between SSC Girihagama and PC Fernando in connection with Mr. Karunanayake being named a suspect in the inquiry, the Magistrate intervened saying his previous order looked into the legal provisions set out in the Criminal Procedure Code to explain that Mr. Karunanayake could not be named a suspect considering the way in which this inquiry was being conducted.

"I did not mention that Mr. Karunanayake cannot be a suspect in this inquiry but during this inquiry, as per the law, he cannot be named as a suspect," the Magistrate said.

He said after the inquiry the prosecution couldn decide whether to institute proper legal action against him by making him an accused in a court case.

The CID had earlier initiated this magisterial inquiry on the Attorney General's directive to begin criminal action against Mr. Karunanayake, Steve Samuels (Aloysius’ personal assistant), Kasun Palisena and B.J.R. Sinnaih (Chief Finance Officer of Global Transportation & Logistics Pvt. Ltd) for giving false evidence at the PCoI inquiry.

Earlier, the Magistrate acceding to the prosecution's request had directed several mobile service providers to provide the required details on the mobile numbers that the CID required to proceed with the inquiry, and also allowed the prosecution to obtain bank statements of GTL, which is linked to Mr. Karunanayake. The Secretary GTL was also directed to provide documents relating to details of its Directors and their decisions.

AG files indictment in Special HC against Ali Roshan, six others

By Shehan Chamika Silva

The Attorney General has filed indictments in Colombo Special High Court against S.N. Roshan alias Ali Roshan and six others over illegal possession of four elephants during 2012-2015 without a valid license.

The prosecution filed the indictments based on 24 counts over the alleged offences under the Fauna and Flora Ordinance and Penal Code.

Other suspects are, H. Nishantha Dhammika, K. Chandana Kumara, G. A. Sashika Chanuka, P. G. Jayalath, H. Priyangika Sanjeewani, and Upali Padmasiri.

Death affirmed Duminda and two others

1st Accused Acquitted of all charges

Family, lawyers and Journos present left with no clarity in judgement

  

By Hafeel Farisz

In what was one of the most looked forward to Judgments in recent times, a five-judge bench of the Supreme Court headed by Chief Justice Priyasath Depp unanimously affirmed the death sentence imposed on Duminda Silva and two others whilst acquitting the first accused of all charges.

The Five Judge bench walked into room 502 at 2.48 PM, after which portions of the judgment were read out to a packed court house. The Appellants and their families, journalists and lawyers present were left making guesswork following the reading of the judgment having to untangle the nuances of it. The Lawyers of the Accused also remained committal only towards the essence of the judgment which affirmed the death sentence on the trio and the acquittal of the 1st Accused Police Constable Thushara De Mel.  However, in the judgment read out by the Chief Justice in what could be his final judgment before he retires, the 4 accused were acquitted of the charge of Joint Possession of Firearms and another charge.  The Judgment in full was not provided to those present. 

Justice Depp in arriving at the conclusion held that the Supreme Court justices believed the evidence of the 3 prosecution witness. They held that the most pertinent question before the court was the question of Unlawful Assembly an offence found in section 146 of the Penal Code for which they found the trio guilty of. " They prosecution proved the element of Unlawful Assembly beyond reasonable doubt" Justice Depp said.

Following the reading of the Judgment the Justices made their way to the Chambers a few minutes before 3 PM , resulting in families of the Appellants making their way to the Defense Lawyers to seek clarity. The team of Defense Counsel which included Presidents Counsels Anil Silva, Anura Meddegoda Shavindra Fernando, Shanaka Ranasinghe, and Anuja Premarathne informed the Appellants of the affirmation of the death sentence but were left with little choice in providing the nuances of judgment. The wife of Chaminda Ravi Jayanath alias ‘Dematagoda Chaminda began wailing as soon as she heard of the affirmation within the court house itself.

Deputy Solicitor General Thusith Mudalige who prosecuted at the Trial at Bar led the Attorney Generals team during the Appeal. 

The Colombo High Court, on September 8 2016,  sentenced to death four persons, including former MP Duminda Silva, for the murder of Baratha Lakshman on October 8, 2011, in a shoot-out in Mulleriyava.

 The accused were charged on 17 counts including committing and conspiring to commit murder of four individuals, inflicting gunshot injuries, unlawful assembly and criminal intimidation. The accused had been charged under Sections 296, 140, 146, 147, 486 and 300 of the Penal Code. They were further charged under the Offences of Firearms Act.

TThe Supreme Court reserved Judgment on  July 25th having heard arguments from the Appellants and the Respondent- Attorney General. Both parties filed written submissions thereafter following which the Judgment was delivered yesterday.  

Contempt of Court action filed against SLMC over non-registration of Saitm grad.

By Shehan Chamika Silva

Considering the Contempt of Court action filed against Sri Lanka Medical Council (SLMC) for disobeying the Supreme Court judgment, which affirmed the previous Court of Appeal decision allowing registration of a Saitm graduate as a medical practitioner under the SLMC, the Court of appeal today issued summons on the members of the Sri Lanka Medical Council to appear before Court on November 16, 2018.

A Saitm graduate (as a petitioner) initially instituted an action against SLMC on June 14, 2016 seeking a writ order from Court of Appeal to quash the SLMC's decision to refuse petitioner's registration under section 29(2) of the Medical Ordinance.

Then, on January 31, 2017, the Court of Appeal delivering an order decided to direct the SLMC to make the registration.

However, SLMC subsequently instituted a special leave to appeal before the Supreme Court in which certain medical students and GMOA have also appeared as intervening parties.

This special leave to appeal was allowed for the argument based on six questions of law by the Supreme Court.

Later, on September 21, 2018 (last month) the Supreme Court gave its judgement affirming the previous Court of Appeal order.

The petitioner in the Contempt of Court action alleged that following the Supreme Court recent order, her continuous attempts to provisionally register with SLMC were unsuccessful to date as SLMC has willfully neglected to register her without complying with the court order.

Therefore, the petitioner has sought from Court to take necessary actions against SLMC and its members over committing an offence fell under article 105(3) of the Constitution (Contempt of Court).

President's Counsel Romesh de Silva with Senior Counsel Sugath Caldera, Counsel Shanaka Cooray and Counsel Niran Ankatel appeared for the petitioner.

CA dismisses Bail application of Aloysius and Palisena

By Shehan Chamika Silva

The Court of Appeal today dismissed the revision bail application of Aloysius and Palisena stating that petitioners had failed to satisfy the Court to invoke revisionary powers of the Court under the Criminal Code Procedure.

The Bench comprising Justice Shiran Gunaratne and Prithi Padman Surasena (President) delivered this ruling considering the revision bail application filed on behalf of the two suspects.
The Court observed that petitioners (Arjun Aloysius and Kasun Palisena) had failed to satisfy the Court to invoke its revisionary powers set out in Section 164 of the Code of Criminal Procedure by proving any ground of illegality or impropriety of the previous Magistrate's order.

Considering the arguments placed before Court over the question of law under the Public Property Act (PPA), the Court also held that the current stage of the magisterial inquiry is premature to consider on charges under the PPA since still there were no specific chargers levelled against suspects in a High Court. Therefore, the ingredients to prove illegally of PPA being brought to the inquiry can be considered on a trial stage.

Thereby, the Court refused to issue notices on Attorney General as the respondent of the application and decided to dismiss the application based on the reasons set out in the judgement.

Senior Additional Solicitor General Yasantha Kodagoda and Senior Deputy Solicitor General Haripriya Jayasundara appeared for the AG in this petition, while President's Counsel Gamini Marapana and President's Counsel Kalinga Indatissa appeared on behalf of the petitioners.

Earlier, the Fort Magistrate remanded the suspects considering the allegations levelled against them under the Public Property Act. And later, the suspects went to the High Court as the magistrate could not release them on bail as per the PPA, where one who misappropriated public property causing more than Rs. 25, 000 damage to the State has no bail relief unless exceptional circumstances or by a high court judge.

However, Colombo High Court also refused to grant bail on suspects rejecting the suspects’ petitions. 

As a result, the suspects filed a revision bail petition in Court of Appeal to revise the bail order of the Magistrate and the decision of the High Court.

Fort Magistrate refused to release Rs. 1 bn of PTL's RTGS account

-AG responds to previous defense allegation in a confidential document with a sealed envelope 

-Defence object to the procedure of tendering 

-Magistrate to decide whether to accept that document

By Shehan Chamika Silva

Colombo Fort Magistrate Lanka Jayaratne todayrejected to release Rs. One billion belonging to Perpetual Treasuries Ltd in the Central Bank's RTGS system exiting since prior to the controversial bond scam.

The defense earlier demanded by the amount to be released for the expenses of the company considering the fact that it was belonging to PTL and exited in the CBSL system prior to the bond auction on February 27, 2015.

However, after having a comprehensive observation perusing certain independent reports from the CBSL, the magistrate stated that the real amount belonged to PTL prior to this period was around 855 million and that it cannot be released for the purpose of company expenses as this RTGS account is not a general bank account as it was incorporated for a different purpose of the primary dealers.

In the meantime, at the onset of the inquiry, Senior Additional Solicitor General Yasantha Kodagoda appearing for the prosecution, tendered a further report with a sealed envelope which according to him contained the observations of the Attorney General regarding the allegation levelled against two senior officers of the AG's Department over threatening an Attorney at Law of WM Mendis & Company.

The SASG was of the view that it was for the consideration of the Court to peruse the observations of the AG firstly and decide whether that document could be made available and attached to the main B report.

At this point, defense counsel raised serious objection to the procedure in which this confidential document was tendered.

President's Counsel Wasantha Navaratne Bandara appearing for the rights of the lawyer who alleged to have been threatened by the two officers of the AG's Department was of the view that such tendering of document is not lawful as the Attorney General cannot go beyond and practice what is not stated in the Criminal Procedure Court over producing such documents. 

Subsequently, the magistrate questioned the SASG on the questions raised by the defense as to whether it can be done lawfully. 

SASG Kodagoda explained that there were many instances where the AG had submitted documents in a confidential manner before even the Supreme Court considering the nature of the containment of those documents. He was of the view that there was a practice in the court as such and the procedure would only demand from court to peruse them and decide by itself whether the document can be made available to the public.

However, considering the legal submissions made by the parties the Magistrate decided to further look into the legal aspect of the matter and deliver an order on it whether such confidential sealed document be accepted by the Court. Thereby, the sealed envelope was returned to the prosecution till the order on it be delivered.

On the earlier occasion, some serious allegations levelled against the Attorney General's Department and the Criminal Investigation Department by the defense counsel over forcefully recording statements from three individuals of WM Mendis & Company by force. The allegations were also against two senior officers of the Attorney General's Department who said have threatened a defense counsel based on those statements.

Meanwhile, Perpetual Treasuries Ltd owner Arjun Aloysius and its CEO Kasun Palisena were also ordered to be re-remanded till October the magistrate over the magisterial inquiry in which they were accused of abetting and conspiring with Arjuna Mahendran to misappropriate public funds worth Rs. 688 million during the Bond auction held on February 27, 2015.

Perpetual Treasuries Ltd defacto owner Arjun Aloysius, its CEO Kasun Palisena were also re-remanded by the Fort Magistrate till October 25 over the parallel magisterial inquiry conducted relating to the Bond scam on deleting phone call data from Perpetual Treasuries Ltd voice recording system and fabricating evidence to the Bond Commission.