1-SUNIL AND ANOTHER v. THE ATTONEY -GENERAL

019-SLLR-SLLR-1986-V-1-SUNIL-AND-ANOTHER-v.-THE-ATTONEY-GENERAL.pdf


Sn Lanka Law Reports
230
[1986] 1 Sn L R
SUNIL AND ANOTHER
v.
THE ATTORNEY-GENERAL
COURT OF APPEAL.
H. A. G. DE SILVA. J.. DHEERARATNE. J. AND RAMANATHAN. J.
C. A. 76-77/83 – HIGH COURT. GAMPAHA 10/81.
SEPTEMBER 10 AND 1 1. 1985.
Criminal Law – Rape and abduction, s. 364 and s. 357 of the Penal Code -Corroboration – Burden of proving absence of consent.
Corroboration is only required or afforded if the witness requiring corroboration isotherwise credible. If the evidence of the witness requiring corroboration is not crediblehis testimony should be rejected and the accused acquitted. Seeking corroboration of awitness' evidence should not be used as a process of inducing belief in such evidencewhere such evidence is not credible.
It is very dangerous to act on the uncorroborated testimony of a woman victim of a sexoffence but if her evidence is convincing such evidence could be acted on even m theabsence of corroboration.
The burden of proving absence of consent on the part of the complainant where thecharge is one of rape or abduction is always on the prosecution and never shifts
Cases referred to:
Director of Public Prosecutions v Hester j 1973) A C 296, 315 (H L). [1973/3AUER 1056.
Director of Public Prosecutions v. Kilbourne [1973] A C 729. 746 (H L I, [1973]1 All ER 440.
R. v. Manning [1969] 53 Criminal Appeal Reports 150. 153.
APPEAL from verdict of the jury in High Court trial
Dr. Colvin R. de Silva with Miss Saumya de Silva for the accused-appellantsD. P. Kumarasinghe. S.S.C. for the Attorney-General.
Cur. adv vult
CA
Sunil v. The Attorney-General
231
November8. 1985.
DHEERARATNE, J.
The accused-appellants were indicted in the High Court of Gampahafor the following offences alleged to have been committed on19.01.1978:-
That the 1st accused-appellant did commit rape onKudapathgamage Margret, an offence punishable undersection 364 of the Penal Code;
That in the course of the same transaction the 2ndaccused-appellant did abet the 1st accused-appellant in thecommission of the offence referred to in charge No. 1 ; andthat he did thereby commit an offence punishable undersection 364 read with section 102 of the Penal Code;
That both accused-appellants did in the course of the sametransaction abduct the said Margret in order that she may beforced or seduced to illicit intercourse; and that they didthereby commit an offence punishable under section 357 of thePenal Code.
By an unanimous verdict, the jury found the 1st accused-appellantguilty on the 1 st and 3rd charges and the 2nd accused-appellant guiltyon the 2nd and 3rd charges. The 1st accused-appellant wassentenced to a term of 12 .years rigorous imprisonment on charge No.
1 and to a term of 10 years rigorous imprisonment on the 3rd charge;both sentences to run concurrently. The 2nd accused-appellant wassentenced to a term of 1 2 years rigorous imprisonment on the 2ndcharge and to a term of 10 years rigorous imprisonment on the 3rdcharge; both sentences to run concurrently..
At the time of the alleged incident, 21 year-old Margret was living ina house at a place called lhalakaragahamunna in the Kadawata area,with her mother, two younger sisters and a daughter of her eldersister. They had come to live in this area few months prior to the dateof incident. The 1st accused-appellant was a total stranger toMargret, while Margret knew the 2nd accused-appellant by sight,having seen him previously on the road. On the day in question, about
p.m.. when Margret was inside her room with one of heryounger sisters, the two accused-appellants entered the room, armedwith knives. The accused-appellants forcibly put her on a bed. While
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the 2nd accused-appellant held her legs, tbe 1st accused-appellantcommitted rape on her. Before this incident the 2ndaccused-appellant chased away Margret's mother and other inmatesof the house, having threatened them. After the 1st accused-appellantraped her the 2nd accused-appellant, stating that the police mightcome, suggested that Margret should be taken to some other place.The two accused-appellants then led Margret along a jungle path andacross a paddy field to several houses seeking accommodation.Ultimately, Margret was taken into a shanty inhabited by somefemales. In this shanty, Margret was made to lie on a camp-cot.There, the 2nd accused-appellant attempted to rape her.
Margret's mother Pmmawathie. had meanwhile left to make acomplaint to the Kadawata police. On her way to the police station,Premawathie stopped an oncoming police jeep. In this jeep was thepolice sergeant Seneviratne, to whom Premawathie complained thattwo youths had entered her house and were keeping her daughterMargret without allowing her to escape. She also told sergeantSeneviratne that she does not know whether Margret had been evenkilled by that time. Sergeant Seneviratne then proceeded to the houseof Premawathie and finding that Margret had been taken away fromthe house, made inquiries from the neighbourhood. In con sequence ofthe information received, sergeant Seneviratne went towards theshanty where Margret was said to have been taken. When he wasapproaching the shanty, he overheard threatening words being usedat Margret. Thereafter, sergeant Seneviratne entered the shanty andfound Margret seated on a camp-cot. The 1st accused-appellant waskeeping his head on her lap, the 2nd accused-appellant was seated ona chair and with him was a knife. On a nearby table was another knife,which sergeant Seneviratne took.charge of. It was about 3.38 p.m.when the two accused-appellants were taken into custody.
Margret was taken to the police station and after her statement wasrecorded and the investigations were over; she was admitted to thehospital. She was examined by the judicial medical officer at 10.30a.m. on 20.01.1978. On examination of Margret. it wes found thatshe had a laceration on her hymen which was a scar of an old injuryThere was also a contusion on the vagina which was a recent one.This contusion was consistent with Margret's story that she wasraped forcibly. There were no other injuries on her.
CA
Sunil v. The Attorney-General (Dheeraratne. J.)
233
In her evidence Margret stated that few months before this incident,she was deflowered by her fiance, who later married her sometimesoon after this incident.
At the trial, besides Margret, her mother Premawathie, the judicialmedical officer and the police officers who investigated the allegedoffences gave evidence. The prosecution also called one Abraham, aneighbour of Premawathie who was subsequently treated as a hostilewitness by the prosecution. The accused-appellants gave noevidence. However, suggestions were made under cross-examinationthat Margret was a consenting party to the act of intercourse.
'Learned counsel for the accused-appellants assailed the learnedtrial Judge's summing-up to the jury on several grounds. Firstly, it wascontended that the learned trial Judge failed to direct the jury, that,before proceeding to find corroboration of the complainant'sevidence, they must find her evidence creditworthy. Learned Counselfor the accused-appellants carried his argument further by stronglyurging that the jury may have understood the requirement ofcorroboration, as a process of inducing belief in the complainant’stestimony, which could otherwise be uncreditworthy. To strengthenhis argument, learned Counsel for the accused-appellants relied onthe following passage in the judgment of Lord Morris of Borth-Y-Gest,in the case of Director of Public Prosecutions v. Hester (1):
"The essence of corroborative evidence is that one creditworthywitness confirms what another creditworthy witness has said. Anyrisk of the conviction of an innocent person is lessened if convictionis based upon the testimony of more than one acceptable witness.Corroborative evidence in the sense of some other materialevidence in support implicating the accused furnishes a safeguardwhich makes a conclusion more sure than it would be without suchevidence. But to rule it out on the basis that there is some mutualitybetween that which confirms and that which is confirmed would beto rule it out because of its essential nature and indeed because ofits virtue. The purpose of corroborating is not to give validity orcredence to evidence which is deficient or suspect or incredible butonly to confirm and support that which as evidence is sufficient andsatisfactory and credible; and corroborative evidence will only fill itsrole if it itself is completely credible evidence."
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The requirement that the evidence of a complainant in a sexualoffence should be found creditworthy is too obvious a fact to bestressed; for this requirement of creditworthiness is equally applicableto a complainant’s evidence in respect of any criminal charge, if thatcharge is to be brought home. I would expect the stamp ofcreditworthiness to be borne by every witness for any court exercisingcriminal jurisdiction or a jury to act upon that testimony. I am inclinedto think, that in Hester's case (supra), this requirement came to behighlighted because, there, the court was called upon to decide anintricate problem which arose in the field of corroboration. That is,whether the sworn testimony of a 1 2 year-old girl, a complainant in asexual offence, could be said to have been corroborated by the soleunsworn testimony c- -• year-old girl, which by law, (proviso tosection 38 (1) of the Children and Young Persons Act 1933) in turnneeded corroboration; and, whether it could be said that thisrequirement of law was sufficiently met, by contending that thesecond girl's testimony is corroborated by the testimony of. the firstgirl. It was in this context of the proposition of "mutual corroboration"that Lord Morris of Borth-Y-Gest was constrained to make thoseobservations which were cited to us. Although our attention was notinvited, I find that this aspect of the judgment in Hester's case (supra).has been more lucidly dealt with by Lord Hailsham in the case ofDirector of Public Prosecutions v. Kilbourne in the following words:
"In addition to the valuable direction to the jury, this summing-upappears to me to contain a proposition which is central to the natureof corroboration but which does not appear to date to have beenemphasised in any reported English decision until the opinion
delivered in D.P.P. v. Hesterby Lord Morris of
Borth-Y-Gest although it is implicit in them all. Corroboration is onlyrequired or afforded if the witness requiring corroboration or giving itis otherwise credible. If his evidence is not credible, a witness'stestimony should be rejected and the accused acquitted, even ifthere could be found evidence capable of being corroboration inother testimony. Corroboration can only be afforded to or by awitness who is otherwise to be believed. If a witness’s testimonyfalls of his own inanition the question of his needing, or beingcapable of giving corroboration does not arise."
CA
Sunil The Attorney-General (Dheeraratne. J.)
235
Here again. Lord Hailsham was dealing with a similar problem:
"Whether and in what circumstances, the sworn evidence of achild victim as to an offence charged, can be corroborated by theadmissible but uncorroborated evidence of another child victim as tosimilar misconduct of the accused on a different occasion."
In the instance case, it is true that the learned trial Judge has notstated, at the point he dealt with the necessity to seek corroboration,that the evidence of the complainant should be first found credible.However, at the commencement of his summing-up and thereafter, atseveral points, he has paused to impress upon the jury the necessityto find the evidence of the complainant to be creditworthy. I find thatthe learned trial Judge has adequately directed the jury on thequestion of credibility of the complainant's evidence. The learned trialJudge has neither intended to direct the jury, nor could it be said, thatthe jury understood the judge, to mean that seeking corroboration ofthe complainant's evidence should be used as a process of inducingbelief of the complainant's evidence if they were to find thecomplainant's evidence incredible. I. must confess that, this is a readypitfall, a jury consisting of layman, as it does, may easily walk into, ifnot properly cautioned. ! do not think that the criticism made by thelearned counsel for the accused-appellants of the learned trial Judge'ssumming-up on this matter is well founded.
The learned Counsel for the accused-appellants next submitted thatthe learned trial Judge presented the case to the jury on the basis thatthey should not look for corroboration of the evidence of thecomplainant. Our attention was drawn to the following passage in thelearned trial Judge's summing-up:
"As I stated earlier this is a sexual offence, therefore if there is anycorroborative evidence it is very safe. One could easily fabricate asexual offence. Similarly it is very difficult to escape a charge likethis. I have explained to you that it is very dangerous to act on theuncorroborated testimony of the complainant. I gave that warning.You should bear that warning in your mind at all times. But, inaddition to that I would like to tell you that if you believe that thestory of the complainant has been proved, then you can bring yourverdict on that accepted evidence. In that event the question ofcorroboration does not arise. If such a situation has arisen leavingaside my warning you can totally accept the evidence of thecomplainant. In such an event you have the right and freedom to acton her evidence."
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I think it is perfectly legitimate for a judge, in a case of this nature, todirect a jury that if they find the evidence of the complainant soconvincing, they could act on that evidence alone, even in the absenceof her evidence being corroborated. I find that this proposition hasbeen succinctly expressed by Salmon. L. J. in the case of Rex v.Manning (3):
"What the judge has to do is to use clear and simple language thatwill without any doubt convey to the jury that in cases of allegedsexual offences it is really dangerous to convict on the evidence ofthe woman or girl alone. This is dangerous because humanexperience has shown that in these courts girls and women dosometimes tell an entirely false story which is very easy to fabricate,but extremely difficult to refute. Such stories are fabricated for allsorts of reasons, which I need not now innumerate, and sometimesfor no' reason at all. The judge should then go on to tell the jury that,bearing that warning well in mind they have to look at the particularfacts of the particular case and if, having given full weight to thewarning, they come to the conclusion that in the particular case thewoman or girl without any real doubt is speaking the truth, then thefact that there is no corroboration matters not at all; they areentitled to convict."
I am satisfied that the learned trial Judge in the instant casecorrectly directed the jury, having first warned them of the danger ofconvicting the accused on the uncorroborated evidence of thecomplainant, that they could even convict the accused on the soletestimony of the complainant, if they are convinced that she wasspeaking the truth. I am not inclined to agree with the submission ofthe learned Counsel for the appellants that the case was presented tothe jury on the basis that they should not look for corroboration.
Finally, the learned Counsel for the accused-appellants submittedthat an unwarranted burden was placed by the learned trial Judge onthe accused-appellants of proving the absence of consent on the partof the complainant in the commission of the alleged acts. Much wasmade of the following words of the learned trial Judge's summing-up:
"Defence by cross-examination and by making suggestionssuggested that she was a willing party to this. If you hold that thissuggestion of the defence is reasonable, then you can find theaccused not guilty."
CA
Sunil v. The Attorney-General (Dheeraratne, J.j
237
In this instance, the learned trial Judge was placing before the jurythe mere suggestion made by the defence that the complainant was aconsenting party to the acts committed by the accused; and itappears to me. that these words used by the learned trial Judge wereinappropriate and not quite happy. But. I find that the learned trialJudge has taken pains to exhort the jury adequately that the burden ofproving the case, particularly, the ingredient of absence of consent onthe part of the complainant,'was on prosecution and the prosecutionalone, and that this burden never shifted to the accused. By thewords, the learned Counsel for the accused-appellants rightlycomplained of. I do not think that the jury understood the judge ashaving shifted the burden to the accused at any stage.
For the reasons stated above, I would dismiss the appeal and affirmthe convictions and the sentences passed on the accused-appellants.
H. A. G. DE SILVA, J. – I agree.
RAMANATHAN, J. – I agree.
Appeal dismissed.