SARAVANATHAN AND OTHERS
COURT OF APPEAL.
T. D. G. DE ALWIS. j. AND DHEERARATNE. J.
H. C. A. 43/83.
MARCH 17. 18 AND 19. 1986.
Habeas Corpus-Reference to Magistrate for inquiry-Adversary system-Burden andstandard of proof.
The petitioner s application for a writ of habeas corpus to the Court of Appeal wasreferred to the Magistrate. Colombo for inquiry and report. The main question waswhether the corpus (husband of petitioner) had been taken away by the 1 st respondent,the 0.1.C. of the Police Station, Kotahena. The inquiry at the Magistrate's Courtresolved itself into adversarial proceedings where the parties represented by Counselled evidence. The Magistrate however controlled the proceedings and did his ownquestioning and even called a witness. By way of burden and standard of proof, theMagistrate proceeded on the basis that the burden of proof was on the petitioner. Thestandard of proof he applied was the balance of probability.
Ol At a judicial inquiry where there are competing interests of parties, justice andfairness would demand that the parties be permitted to be represented by counsel andthat the parties be permitted to call witnesses to support their respective cases. Theadversary system has come to stay in our legal system and in the absence of any othermore prudent procedure will continue to hold sway in our legal arena. It is quite naturalthat a habeas corpus inquiry should resolve itself into an adversarial proceeding with theMagistrate himself actively participating as he did.
The burden of proof must lie fairly and squarely on the party (the petitioner) whomakes the assertion which is denied as here, that the corpus was taken into custody bythe 1 st respondent.
An ordinary citizen making a serious allegation of the corpus being taken into illegalcustody which would amount to a crime must prove the allegation beyond reasonabledoubt.
Cases referred to:
Re Dellows Will Trust –  1 All E.R. 771.
Hornalv. Neuberger Products Ltd. - 1 O.B.D. 247, 258.
Regina v. Governor of Brixton Prison Ex parte Ashan and Others –  2 Q.B.D.222.
Samaranayake v. Kariawasan –  69 N.L.R. 1.
APPLICATION (or a Writ of Habeas Corpus.
Nimal Senanayake, P.C. with Thilak Balasooriya. Ms. A. B. Dissanayake and Mrs. S.Wickramasinghe for petitioner.
Hector Yapa. D.S.C. with Ft. Arsakutaratne, S.C. for the 1st and 3rd respondents.
Cdr. adv. vult.
May 14. 1986.
This is an application for a writ of Habeas Corpus filed by the petitioneragainst the 1 st respondent, officer-in-charge of Kotahena PoliceStation, and the 3rd respondent, the Inspector-General of Policeseeking inter alia, for an order on them, to produce the 2ndrespondent Ananda Sunil, the husband of the petitioner, before thiscourt.
The petitioner in her pleadings filed on 26.08.1983 alleged that on27.07.1983 about 10 p.m. at a time when a curfew was inoperation, the 1st respondent along with two other police officersentered her house No. A 2/1, Newham's Square Housing Scheme,breaking the front door, and forcibly removed her husband AnandaSunil. She filed affidavits of E. P. Hemasiri and T. S. Pichchi both livingin another flat of the same housing scheme, who claimed to be eyewitnesses, and also an affidavit from Hilda Abeyaratne who hadaccompanied her on 28.07.1983 to the Kotahena Police Station, andthereafter to the .Fort Police Station where the applicant had made acomplaint. The applicant also alleged that her husband was the chieforganiser of the Sri Lanka Freedom Party for Kochchikade, and■ although no grounds for his arrest were stated by those who took himto custody, he had been so taken on account of his affiliations withthat political party.
This court made an interim order on 31.08.1 986, directing the 1 stand 3rd respondents to produce the corpus. On 05.09.1983,Learned Deputy Solicitor-General appeared for the 1st and 3rdrespondents and brought to the notice of court, that 1st and 3rdrespondents are unable to comply with the interim order, as thecorpus had not been taken into Police custody on 27.07.1 983, or anytime thereafter. Time was given for those respondents to file theiraffidavits.
The first respondent in his affidavit denied that he ever took intocustody the corpus. He averred that from 5.30 to 7.00 p.m. on27.07.1983 he was attending a conference at the Foreshore PoliceStation convened by Henry Silva, Superintendent of Police, ColomboNorth, at which conference instructions were given regarding hisduties during curfew hours. From the Foreshore Police Station, heaccompanied Ronald Gunasinghe, Assistant Superintendent of Police,on his rounds, and returned to the Grandpass Police Station, about
p.m. From the Grandpass Police Station, he again accompaniedRonald Gunasinghe to Nagalagam Street, in order to inquire into analleged offence of a triple murder and from there proceeded to theresidence of Henry Silva about 11.00 p.m. From Henry Silva'sresidence, the 1st respondent along with Ronald Gunasinghe,proceeded- to the Kotahena Police Station, reaching there about1 1.30 p.m. The 3rd respondent the Inspector-General of Police, filedan affidavit to say that he is satisfied that the corpus had not beendetained by any officer attached to the Kotahena Police Station. Withhis affidavit, he produced the affidavit of Detective Superintendent ofPolice, I. T. Kanagaratnam, who had investigated into the complaintmade by the applicant, and the affidavit of Ronald Gunasinghe.
On 07.09.1983, this court made order in terms of article 141 ofthe Constitution, directing the Chief Magistrate Colombo to inquireinto this matter and to forward his report. The primary question thelearned Chief Magistrate had to decide at this inquiry was, whether theallegation made’by the applicant that the 1st respondent with someother police officers did take the corpus into custody on 27.07.1 983.is true or not.
At the inquiry before the learned magistrate, counsel of considerableexperience appeared for the applicant, while the 1st and 3rdrespondents were represented by experienced State Counsel. Onbehalf of the applicant, besides the applicant herself, her father-in-lawJayanayaka. Hilda Abeyratne, Hemasiri, Pichchi, two naval officersChandraratne Perera and Ganegoda, a clerk from the office of theCommissioner, Motor Traffic, Kaviratne and a police officer D. M.Henry, were called as witnesses. On behalf of the 1st and 3rdrespondents, the 1st respondent, Henry Silva Superintendent ofPolice, and two officers of the Magistrate's Court Epa andWimalaratne were called as witnesses. The Learned Magistratehimself called Detective Superintendent of Police I. T. Kanagaratnamto give evidence.
The two alleged eye witnesses to the incident of taking'the corpusinto custody, Hemasiri and Pichchi completely retracted from whatthey had stated in their affidavits, and were treated as hostilewitnesses by counsel appearing for the petitioner. Consequently, onthe vital question as to whether the corpus was taken into custody bythe 1 st respondent, the only direct evidence came from the petitionerherself. Having carefully considered the voluminous evidence led atthe inquiry, the Learned Magistrate has reported to this court inter aliathat:-
the petitioner has given evidence without any sense ofresponsibility and that her evidence cannot be accepted;
the 1st respondent has given evidence without any sense ofresponsibility and his evidence too cannot be accepted.
One of the main complaints of learned counsel for the petitioner inthis court, is that the inquiry before the magistrate, took more the formof an adversary-proceeding, rather than an exercise directed to findingof facts. At a judicial inquiry where there are competing interests ofparties, justice and fairness would demand that the parties bepermitted to be represented by counsel, and that they also bepermitted to call witnesses to support their respective casesjn orderto prove or disprove the issues relevant to the inquiry. It is quite naturalthat such an inquiry should resolve itself to be an ordinary lis betweenparties. I can conceive of no other orderly method, which could beadopted in any court of justice, to ferret out the truth of any matter indispute. However, at this inquiry, the Learned Magistrate was no silentspectator, who permitted the lawyers appearing for the parties tosteer their respective cases in the directions they wanted. Hequestioned the witnesses and even called a witness himself. It iscommon knowledge, that even in proceedings before a Commissionof Inquiry, where the conduct of any party is being investigated.'legalrepresentation is permitted to such party with the right to call anyevidence and the investigation takes the nature of an adversaryproceeding. This adversary method, having its origins in the conceptof a duel and borrowed from England, has come to stay in our legalsystem and in the absence of any other more prudent procedure, willno doubt continue to hold its sway in our legal arena. Employment ofany other procedure, at a judicial inquiry, to my mind, may perhaps,expose a judge to the criticism that, instead of holding the scales ofjustice even, he is putting his interests in one of the pans.
The next complaint of learned counsel for the petitioner concernsthe burden of proof. The Learned Magistrate took the view that theburden of proving the allegations lay on the petitioner; and thestandard of proof necessary, was the balance of probabilities. Learnedcounsel for the petitioner contends that both these propositions areerroneous, because, to borrow his own words, the writ of HabeasCorpus was developed put of the policy of the courts to safeguard thesubject, and in such proceedings the question of burden of proof doesnot assume the same significance that it would in adversaryproceedings. I think, I have already adverted to the matrix of hisargument, but. I wish to make my own observations on the twinaspects of burden of proof, on whom it lies and the standard of proofnecessary.
The basis for the application for this writ, is the petitioner'sassertion, which is denied by the 1st and 3rd respondents, that thecorpus was taken into custody. The burden of proof, therefore, mustlie fairly and squarely on the party who makes this assertion. However,the burden of proof in every Habeas Corpus application, will not liewith the petitioner, for, this may shift according to circumstances. Forinstance, had the 1 st and 3rd resppndents admitted that the corpuswas in fact taken into their custody, then, the burden of proving thatsuch act was lawful, would without doubt, rest with theserespondents.
The question of the standard of proof, in the absence of any decidedauthority, undoubtedly, troubled the Learned Magistrate, and he tookthe yardstick most favourable to the petitioner, in that she must proveher case on a balance of probabilities. Perhaps, it may not be irrelevanthere, to quote the words of Dr. C. G. Weeramantry from his book "TheLaw in Crisis" (1975). At page 102 he says:
"Nor do the laws which specify how a matter may be proved,afford us any conclusive guide. Lawyers cannot possibly quantify thedegree of proof they require of an evidentiary matter and havehence no alternative but to resort to vague verbal formulas such asproof 'by a preponderance of probability' in civil cases and proof'beyond reasonable doubt' in criminal case – and indeed a thirdtype-'proof by clear, strong and cogent evidence' favoured by theAmericans and appearing to lie mid-way between the two. Recentdevelopments in the Law of Evidence have shown how blurred theboundaries between these two formulas can become and that thedegree of proof to carry conviction to the judicial mind cannot be amatter of mere verbal formulation."
Learned Deputy Solicitor-General does not contend that thepetitioner should prove her case beyond reasonable doubt, but, hesubmits that in circumstances of the serious allegation made, a higherdegree of proof than mere balance probabilities should be required. Hesubmitted two authorities on this matter. In the first. Re Dellow's WillTrust (1) it was held that-
"The standard of proof in a civil case did not reach the very highstandard required by the criminal law. but more serious theallegation, the more cogent was the evidence required to overcomethe unlikelihood of what is alleged and thus to prove it"
In the second case, Hornal v. Neuberger Products Ltd. (2) Denning, L.J. said:
"The more serious the allegation the higher the degree ofprobability that is required; but.it need not. in a civil case, reach avery high standard required by the criminal law."
Both these authorities are unrelated to writs of Habeas Corpus.However, my own investigation in this direction of the requiredstandard of proof in Habeas Corpus matters, has led me to the case ofRegina v. Governor of Brixton Prison Ex parte Ashan and Others (3).This is a case where burden of proof fell on the executive to prove thevalidity of certain detention orders. The head-note reads:
"Held granting the applications (Ashworth, J. dissenting) that,since the court was inquiring into a claim by the executive to detainin custody a British subject and the applicants had alleged that acondition precedent to the validity of the notice of refusal had notbeen performed, the onus .was on the executive to negative thechallenge and prove beyond reasonable doubt, that the conditionprecedent has been performed. Accordingly, since the executivehad not dischargd the onus, the applicants should be released."
At page 230 Lord Parker, C. J. said:
"The real question, as I see it, is as to the proper approach of thiscourt. Do I ask myself the question, have the applicants satisfied methat they had. on February 10, been here for more than 24 hours? Ifthat is-the proper question, my answer is: No, their evidence is sounsatisfactory that I could not find affirmatively that they were herefor more than 24 hours. In other words I, like the immigrationofficer, am not satisfied they have been here for more than 24, hours. Or is the proper question: has the respondent, through the.
immigration officers and the police, satisfied me that the applicantshad not been here for more than 24 hours? If so, I for my part couldnot find beyond doubt, because this would, I think, be the standardof proof, that they had been here for less than 24 hours. True, theyhad told somewhat differing stories, and two are said to haveconfessed, but with the language difficulties involved and the knownnatural propensity of men such as these to say whatsoever theythink will suit their case, I could not be sure that they had been herefor less than 24 hours. Lies do not prove the converse, and the onlypositive evidence in this case was as to the state of their clothing.There was, however, no forensic evidence as to the nature of thewet, whether it was sea water or what, and some were said to havebeen smartly dressed."
In the same case, at page 241 Blain, J. observed:
"I say at once that if the burden of proof is upon the Crown, it isnot discharged to my satisfaction so that, as a notional juryman, Icould feel sure that at the time of examination these applicants hadnot been more than 24 hours ashore."
Could it be argued that the case which I have just referred to, is anexceptional case, where, when the liberty of a subject is involved, aheavier burden of proof is cast on the executive? I think not. I wouldexpect an ordinary citizen making a serious allegation, which if truewould amount to a crime, to prove that allegation too beyondreasonable doubt.
In assessing the evidence of the applicant, the learned magistrate,quite correctly,''made an adequate allowance due to a lady who hadundergone a traumatic experience of her husband disappearing underthe most mysterious circumstances. Yet, for the ample reasons givenby the learned Magistrate, he found her evidence unreliable and givenwithout any sense of responsibility. Learned counsel for the petitioner,most helpfully, led us through the reasons adduced by the learnedMagistrate with reference to the voluminous evidence given in thecase, which I think, need not be recounted here. However, exceptingfor a solitary instance of wrong inference drawn by the learnedMagistrate with regard to the contents of a contradiction marked 1 R 1,we find that the conclusions reached and inferences drawn by him arecorrect. We find no reason to interfere with the finding of the learnedMagistrate that the petitioner's evidence is unreliable.
However, the matter does not rest there, for, learned counsel forthe petitioner contends that the learned Magistrate's conclusion thathe is unable to give credence to the story that the 1 st respondent wasat the relevant time of the alleged abductionvof the corpus, carrying oninvestigations with Ronald Gunasinghe on a triple murder atNagalagam Street, coupled with the fact that Ronald Gunasinghe wasnot called to give evidence, should have led the learned Magistrate todraw an inference that the evidence of the applicant is probably true.Learned counsel for the petitioner, drew our attention to the case ofSamaranayake v. Kariawasan (4) to support this proposition. In thatcase, the issue was whether one Soma Withanachchi as an agent of asuccessful candidate at an election, did make false statements aboutthe conduct of an unsuccessful candidate, regarding the acceptanceof a bribe by the unsuccessful candidate. The fact that suchstatements were made, was admitted. The question then waswhether such statements were true. The evidence of the unsuccessfulcandidate was disbelieved on several matters. Soma Withanachchigave evidence to say that the unsuccessful candidate accepted a bribefrom her, which evidence was disbelieved. It was therefore held thatthe corrupt practice of making a false statement regarding the conductof the unsuccessful candidate had been proved beyond reasonabledoubt. I do not think that the principle-applied, according to thecircumstances of that case, has any application here. I would echo thewords of Lord Parker, C.J. in Regina v. Governor Brixton Prison Exparte Ashan and Others (supra), that "lies do not prove the converse".
Another matter to which learned counsel for the applicant drew ourattention, was the assessment by the learned Magistrate of theevidence of Pichchi and Hemasiri, who completely went back on theiraffidavits. A police officer dressed in plain clothes, who admitted thathe was from the Kotahena Police Station, and who was unable to givea truthful account of his presence in the precincts of the court, wasseen speaking to those two witnesses. The conduct of this policeofficer, to say the least,' is reprehensible. It is reasonable to conclude,from the conduct of this police officer and the conduct of the two
witnesses, that those witnesses had been subjected to someinfluence by the interested party. However, it appears to me that onthe nature of the evidence given by the two witnesses, which wasfound-to be utterly unreliable, no one assessing their evidencejudicially, can come to the conclusion, that what they had deposed toin their affidavits is the truthful version.
For these reasons I would dismiss the^application of the petitionerwithout costs.
T. D. G. DE ALWIS. J. – I agree.
2-KODDIPPILIGE SEETHA v. SARAVANATHAN AND OTHERS