The Supreme Court recently ruled that when a High Court finds an accused guilty of a charge but makes an error by failing to convict the accused, the Court of Appeal has the power to correct that error, even if the appeal was initiated by the accused. This power is derived from the Constitution, allowing …
Regardless of Who Initiated the Appeal, the CA Has the Power to Correct Mistakes of HC Judgment
The Supreme Court recently ruled that when a High Court finds an accused guilty of a charge but makes an error by failing to convict the accused, the Court of Appeal has the power to correct that error, even if the appeal was initiated by the accused. This power is derived from the Constitution, allowing appellate courts to rectify judicial oversights.
The case involved an accused who, along with two others, was indicted in the High Court on several counts related to the possession and trafficking of heroin. The accused was charged with possessing of heroin and aiding and abetting the trafficking of the same. During the High Court trial, the judge found the accused guilty of both charges but made a mistake by failing to formally convict them on the possession charge, instead convicting the accused only for aiding and abetting.
Following the trial, the accused appealed the conviction on aiding and abetting. In the Court of Appeal, the Attorney General’s Department argued that the High Court had overlooked convicting the accused on the possession charge, despite finding the accused guilty beyond a reasonable doubt. The Court of Appeal, after considering these submissions, dismissed the appeal of the accused and corrected the oversight by convicting the accused on the possession charge as well.
The accused then appealed to the Supreme Court, arguing that according to the case of Upul De Silva v. Attorney General [1999] 2 Sri L.R. 324, the appellate courts could only consider appeals against convictions and not against acquittals unless the prosecution had appealed the acquittal. The accused contended that because there was no appeal against the acquittal on the possession charge, the Court of Appeal acted unlawfully in convicting them on that charge.
However, the Supreme Court distinguished the current case from the Upul De Silva case. In Upul De Silva v. Attorney General. In the present case, there was no acquittal or formal conviction on the possession charge, but merely an oversight by the High Court judge, who had found the accused guilty beyond a reasonable doubt but failed to record a formal conviction. The Supreme Court clarified that in such instances, both the Court of Appeal and the Supreme Court have the power to correct these errors and convict the accused appropriately.
“…Unlike in Upul De Silva V. AG, in the instant case, there was neither an acquittal nor a conviction explicitly ordered by the learned Judges of the High Court against the 3rd accused on count No.4. Instead, there was merely an omission to record the conviction/acquittal. Therefore, the principles established in the case of Upul De Silva are not applicable to the present matter, as there is no formal finding of either an acquittal or a conviction in the case at hand….”
“…Article 139 (1) of the Constitution provides that, the Court of Appeal may in the exercise of its jurisdiction, affirm, reverse, correct or modify any order, judgment, decree or sentence according to law or it may give directions to such Court of First Instance, tribunal or other institution or order a new trial or further hearing upon such terms as the Court of Appeal shall think fit. The aforementioned provision empowers the Court of Appeal to act as it did in instant case as it was clearly an omission on the part of the learned High Court Judge. Further, even in an instance where the accused has been acquitted, Article 139 of the Constitution would empower the Court of Appeal in correcting any such error on acquittal….” – Justice K. Priyantha Fernando
When Acquittal is Not Challenged by the State
“…In the case of Upul De Silva V. AG (supra), the accused was indicted in the High Court with the offence of criminal breach of trust and offence of using forged documents but was acquitted on both charges and instead was convicted for criminal misappropriation. On an appeal by the accused, the Court of Appeal was of the view that the evidence that was adduced during the trial made out a sufficient case for criminal breach of trust and ordered a retrial while setting aside the conviction and sentence. It was held that, where the Court of Appeal acting under Section 335(2)(a) of the Code of Criminal Procedure Act orders a retrial upon a determination of an appeal against a conviction, such retrial must be strictly limited to the offence upon which the accused had been convicted by the trial Court, and against which he had preferred an appeal and none other. The Supreme Court referred to the case of Andra Pradesh V. Thadi Narayanan [1962] AIR 240 which held that, when an order of conviction is challenged by the convicted person, but the order of acquittal was not challenged by the state, it is only the order of conviction that was to be considered by the Appellate Court and not the order of acquittal…”- Justice K. Priyantha Fernando
Case No.: SC Appeal 119/2023 [Decided on 17.12.2024]
Before: P. Padman Surasena, J Achala Wengappuli, J K. Priyantha Fernando, J
