Attorney General gets favourable opinion on case dismissal |24 November 2004

The opinion, which was delivered by appeals court president Ramodibedi and justices of appeal Perera and Renaud recently, indicated that the judge stepped outside his jurisdiction when he acquitted the woman.

The opinion from the appeals court will not have any bearing on the actual case, meaning that the woman’s acquittal still stands.

In a case that concluded in October 2003, Justice Karunakaran ruled that the woman’s right to a fair trial was being hampered because the evidence against her – namely cannabis resin – had been stolen from the court’s registry, leaving defence lawyers without the means to challenge the evidence and present their case.

In the first half of the trial, prosecution lawyers used an expert witness to identify the alleged drugs. The woman’s defence attorney did not object or cross examine the witness, and the evidence was stolen before the defence had an opportunity to produce one of its own experts.

During what was scheduled to be a mention in court, Justice Karunakaran then ruled to acquit the woman, saying that without the adequate facilities to make a proper defence her constitutional rights were being infringed.

In its stated opinion, however, the Court of Appeal said that matters in which a question of constitutionality arise should be immediately adjourned and referred to the Constitutional Court. The judge “had no colour of authority to determine the so called constitutional issue in question,” the opinion read.

The appeals court also stated that the Supreme Court judge “flouted the principle of natural justice” since he did not invite submissions from either the prosecution or defence counsels in making such a ruling.

In another drug trafficking case presided over by Justice Karunakaran earlier this month, he ruled again to acquit a pair of defendants because of the evidence involved in the case had been stolen in the same incident.

In the judge’s ruling in this case, he said the matter did not need to be referred to the Constitutional Court, because there was not a doubt that constitutional rights were being violated.

Justice Karunakaran said in his ruling that although the Supreme Court “has no power to provide any constitutional remedy for such contravention,” it did have “the power to choose its right course of action.”