030-SLLR-SLLR-2007-V-1-ABEYAGUNAWARDANE-v.-SAMOON-AND-OTHERS.pdf
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ABEYAGUNAWARDANE
vSAMOON AND OTHERS
COURT OF APPEALIMAM, J.
SARATH DE ABREW, J.
CAPHC 34/2007 (REV.)
HC COLOMBO 2006/04NOVEMBER 9, 2007
Evidence (Special Provisions) Act 14 of 1995 – Section 4(1) (a) (b) (c) and (d) -Section 7 (1) (a) — Requirements to be satisfied before admission of videoevidence? – Is it mandatory to comply with Section 7 where the document is inthe possession of the adverse party? – Do the provisions of Act 14 of 1995override the provisions in any other law – Poisons Opium and Dangerous DrugsOrdinance Act 13 of 1984?
An Application was made to lead evidence of a video recording. The High Courtmade order directing the petitioner to satisfy Court of compliance with therequirements of Section 4 (1), (b) (c) and (d) of Ad 14 of 1995. After inquiry, theHigh Court made order refusing the application to lead video evidence. Thepetitioner moved in revision.
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Held:
After the Evidence (Special Provisions) Act 14 of 1995 came intooperation admission of video recordings is governed solely under theprovisions of the said amendment.
In accordance with Section 2 it is clear that the provisions of theamending Act 14 of 1995 overrides both the Evidence Ordinance orany other written Law. Therefore Section 4 (1) (a) – (d) have to becomplied with.
It is apparent that
Evidence led by both prosecution and defence prove that therewas no contemporaneous recording of the raid.
Evidence clearly establishes that whatever recording that wasmade was not kept in safe custody at all material times.
No sufficient precautions were taken to prevent the possibility ofsuch recording being altered or tampered with.
It is clearly seen that provisions of Section 4 (1) (a) – (d) of Act No. 14 of 1995have not been complied with – the video cassette is not admissible in evidence.
Cases referred to:
Abeygunawardane v Samoon and others – CA 212/2000 CAM23.1.2007 (where the same petitioner was directed to make a freshapplication with regard to leading of evidence of the video tape).
Wijepala v Attorney-General- 2001 – 1 Sri LR 46
Ov Abubucker-54 NLR 546
Karunaratne v Q- 69 NLR 10
Faiz Musthapha PC with Gaston Jayakody, Amarasiri Panditharatne and Ms. T.Machado for 2nd accused-petitioner.
Shavindra Fernando DSG with Chetiya Goonasekera SSC for the 3rdcomplainant-respondent.
November 21,2007IMAM, J.
The 2nd accused-petitioner (hereinafter referred to as the 01"Petitioner" has tendered a Revision Application 34/2007), and aLeave to Appeal Application (39/2007) respectively seeking to setaside the Order of the learned High Court Judge of Colombo dated28.02.2007 as prayed for in paragraph (a) of the Prayer to the Petitionin Revision Application No. 34/2007 and paragraph (c) of the Prayerto the Petition in the Leave to Appeal Application No. 39/2007
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respectively. The "petitioner” further seeks to lead in evidence theVideo recording marked as “2V1 A" as prayed for in paragraph (b) – ofthe Prayer to the Petition of the Revision application (No. 34/2007)10
and paragraph (d) of Prayer to the Petition of the Leave to appealApplication (No. 39/2007) respectively. One order is made in respectof the aforesaid 2 applications as a matter of convenience, for theparties are the same, the subject matter the same, and theApplications similar.
The facts pertaining to the aforesaid applications are as follows:
The petitioner tendered a Revision Application (P5) bearing No.212/2006 in another division of this Court consequent to anInterlocutory Order made by the learned High Court Judge of Colombodated 16.10.2006 having refused an Application by the 'Petitioner' to 20admit as evidence a Video recording. Subsequently their Lordships S.Sriskandarajah, J. and W.L.R. Silva, J. in CA 212/2006 (P5) and CA212/2006 on 23.01.20070) directed the learned High Court Judge ofColombo to permit the Defence to make a fresh Application with regardto the leading of evidence of the Video tape (2VIA) in the relevant HighCourt, and to support such Application with relevant evidence. Theaforesaid Lordships observed that the Honourable Attorney-Generalwas at liberty to take any objections at the relevant time, and that thelearned High Court Judge was entitled to make an order with regardto the Admission and Reception of Evidence. Accordingly, the *peti- 30tioner1 made a fresh Application for the Admission of the afore-mentioned Video evidence on 08.02.2007. On evaluating the Sub-missions of the learned President's Counsel for the 'petitioner1 thelearned High Court Judge directed the 'petitioner1 to lead evidence tosatisfy Court that the requirements of section 4(1 )(a) (b) (c) and (d) ofthe Evidence (Special Provisions) Act No. 14 of 1995 have beencomplied with before an Order is made. On 28.02.2007 the learnedHigh Court Judge delivered his order refusing the leading of the saidVideo as Evidence, as the learned High Court Judge held that the'petitioner1 had failed to establish the compliance of section 4(1 )(a)(b)(c)40
and (d) of the Evidence (Special Provisions) Act No. 14 of 1995.
Hence the 'petitioner' has filed this Revision Application beforethis Court claiming to be aggrieved by the aforesaid Order of thelearned High Court Judge of Colombo dated 28.02.2007. The 3rdrespondent avers that the Application of the 'petitioner' cannot
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succeed for reasons specifically adduced in his Written Submissions.The petitioner was indicted by the Attorney-General along with the 1 stand 3rd accused on charges of abetting the 1st accused in thecommission of trafficking of approximately 1.290 kilograms of heroin,an offence punishable under the Poisons, Opium and DangerousDrugs (Amendment) Act No. 13 of 1984. The indictment consisted ofsix counts.The 1st and 2nd counts in the indictment related to thepossession and trafficking by the 1st accused of 1.290 kilograms ofheroin respectively, the 3rd count was as mentioned before againstthe 2nd accused for abetting the 1st accused in the trafficking of 1,290kilograms of heroin. Count 4 was against the 1st and 3rd accused ofpossession of 1.290 kilograms of heroin.Count 5 was against the 1 staccused of trafficking in 7,796 kilograms of heroin, and count 6 wasagainst the 3rd accused of abetting the 1 st accused in trafficking in
290 kilograms of heroin. The total quantity of heroin was 23kilograms, which was considered to be the biggest haul detected inrecent years. According to the Government Analyst the quantity ofpure heroin was 9.086 kilograms. The detection was made at theWard Place residence of the 1st and 3rd accused, the street valuehaul of which was nearly Rs. 450 lakhs. The petitioner is a tri-shawdriver indicted for abetting the 1st accused in the trafficking of heroin,as more fully set out in the indictment.
The case for the Prosecution
The case for the prosecution is that on information received aparty of policemen led by IP Priyantha Liyanage, PS RajithaManappriya and others, positioned themselves at approximately 7a.m. on 28.11.2003 outside the Ward Place residence of the 1st and3rd accused. At about 10.00 a.m. they observed a 3 wheeler (Trishaw)driven by the petitioner being parked outside the small gate of theaforesaid premises, after which the petitioner went towards the smallgate with 2 black polythene bags (referred to as "tulip bags")consequent to which the 1st accused came out, took the 2 bags fromthe 'petitioner' and went into the house, while the ‘petitioner1 remainedoutside. A short while later the 1st accused came out towards thepetitioner carrying a polythene bag. They were both apprehended bythe police and the polythene bag was found to contain 1.290kilograms of heroin which constitutes the 1st, 2nd and 3rd charges.On the house being searched by the Police, 7.796 kilograms of heroinwas found in a suitcase under the bed in the master bedroom, which
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constitutes the subject matter of the other charges. The prosecution isof the view that the video cassette recording cannot be marked asevidence and the relevant statute has been discussed in detail in thecourse of this Order.
The case for the accused is that the heroin was introduced byofficers of the Narcotic Bureau at the instigation of Chief InspectorAmarajith the then Officer-in-Charge of the Narcotics Bureau who hadfallen out with the 1st accused. According to the defence witness SunilFonseka, a large consignment of heroin was seized by officers of theNarcotic Bureau from the residence of the 1st accused on 28.11.2003,amongst which officers namely IP Liyanage and PS RajithaManappriya were present. The position of the accused is that thePolice team waited near the Dewatagaha Mosque, until the three-wheeler driven by the 'petitioner1 arrived, consequent to which the'Petitioner1 was asked as to whether he was involved in distributingheroin. It was contended by the accused that the 'petitioner1 wasassaulted by several police officers who included PS Manappriya. The'petitioner1 complains that he was pushed at gun point onto the rearseat of the three wheeler, restrained by the police officers, that PSManappriya drove the three-wheeler, and that the other police officersfollowed in a police vehicle, until they arrived at the Ward Placeresidence of the 1st accused, where PS Manappriya drove the three-wheeler and parked it near the Main Gate as against the prosecutionversion that the three-wheeler was parked opposite the small gate.The defence states that at about 10.30 a.m. the main gate was openedto enable a car driven by the 3rd accused to enter the premises.Subsequently the three wheeler was driven towards the gate andstopped just outside it, when the police officers forcibly entered thehouse. The defence suggests that the heroin was introduced at themain hall into a bag, which was found in the premises. The position ofthe 1st accused is that this introduction was engineered by OICAmarajith with whom he had been associating very intimately whenthis officer was attached to the Katunayake airport, when the 1staccused used to travel abroad regularly on business. The OIC had asthe 1st accused claimed fallen out with him when the OIC haddemanded a sum of Rs. 2.5million from the 1st accused which he hadrefused to oblige, with the result that the OIC had become very hostiletowards the 1st accused. The position of the accused was that PSKarunatilake videoed the evidence at the residence.
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Relevance of the Video Evidence
The 'petitioner' contends that the video evidence is paramountin determining whether the prosecution's version or the accused'sversion, is true. The 'petitioner' contends that the following issueswhich are of a fundamental nature would be resolved by viewing thevideo.
Position in which the three wheeler was parked
IP Liyanage stated that the three wheeler was parkedopposite the small gate. He said that only the pavementwhich was about 15 feet was between the gate and thethree-wheeler.
On the contrary PS Manappriya stated that the three wheelerwas parked on the opposite side of the road, and that thedistance between the three wheeler and the residence of the1st accused was about 25 to 30 meters.
Sunil Fonseka the defence witness stated that the threewheeler was parked opposite the main gate.
The 2nd accused in his Dock Statement stated that the threewheeler was parked outside the main gate.
The 'petitioner' states that the video cassette was played beforecounsel on both sides by Mutual Agreement on 15.09.2006. Theviewing was however interrupted within five minutes as PowerSupply was inadvertently disconnected as the learned DeputySolicitor General accidently tripped on the connecting cord. The'petitioner* contends that during the five minutes the video wasviewed it displayed the three wheeler being parked at Ward Placeopposite the Main Gate of the residence of the 1st accused. This wasnot contested by the prosecution. The three wheeler was taken intocustody, and is listed as a production in this case.
Whether infact, the small gate was ever opened
The 'petitioner1 asserts that counsel appearing in the Trial Court
had been instructed that this gate had been locked from inside.
The 'petitioner1 avers that if the events in the residence had been
videoed as claimed by the defence, a view of the cassette would
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be of the utmost evidential value in determining whether the
prosecution version is true or not.
Credibility of IP Liyanage
The 'petitioner' contends that the parties are at issue, as towhether as claimed by the prosecution, the events initiallycommenced with the police intervening at the point when the 1staccused came out of the house towards the 2nd accused havingmoments earlier taken charge of the two 'tulip bags' which had beenhanded over to him by the 2nd accused. According to the prosecutionthey were both apprehended at this stage, and the bag which the 1staccused brought from within the house was taken over by IPLiyanage. This officer claims that this bag was retained by himthroughout the raid at the residence. It was suggested to him bydefence counsel that he had been handling gems which were foundin the residence of the 1st accused, and that the aforesaid bag wasnot in his hands as claimed by him, which suggestion was denied byhim. The petitioner's position is that the video would resolve this issue.IP Liyanage and PS Manappriya deny that any videoing took place,although PS Karunathileka admits having made a video recording atthe instance of OIC Amarajith, but states that the video recording wasmade subsequently at the Narcotics Bureau, and not during the raidat the residence of the 1st accused. Learned President's Counsel forthe 'petitioner1 does not accept this view of the aforementioned Policeofficers as on the occasion of viewing of the video by Counsel whichwas subsequently interrupted, Ward Place and the interior of thehouse were seen on the video which contradicts the view of the policeofficers.
Sequence of events leading to the order complained of
As IP Liyanage categorically denied that there was a videorecording of any sort, counsel for the petitioner made an applicationon 28.04.2006 for permission to produce a copy of a portion of thevideo which had come to the possession of the defence in order todiscredit the witness. The learned High Court Judge made orderrefusing the application on the following grounds.
That the prosecution case has not been concluded, and theapplication had been made in the midst of the prosecution case.
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Non-compliance with requirement of Notice in terms of theEvidence (Special Provisions) Act No. 14 of 1995.
PS Manappriya was the 2nd police witness called by theprosecution. On cross-examining him on 13.06.2006 DefenceCounsel put to him an entry in the RIB maintained by the NarcoticsBureau, which entry the witness identified as being in the handwritingof PS Karunatileka, which was in Sinhala and was to the effect that avideo cassette had been handed over by PS Karunatileka to ChiefInspector Balachandra, the then OIC of the Narcotics Bureau whichhad been underlined in red by OIC Balachandra.
On the basis of this evidence, defence Counsel cited the case ofWijepala v Attorney General1) and submitted that it was necessary forthe Court to call for the video tape, and make a copy available to thedefence for the purpose of cross-examination in the interests of a fairtrial. The State objected to the Application on the basis that the entryin the RIB had been after the service of the Indictment, and that thevideo tape was not a part of the prosecution case. The learned HighCourt Judge of Colombo made Order on 28.04.2006 disallowing theapplication of Defence Counsel on the following grounds.
The Defence had the knowledge of the contents of the videotape whereas the prosecution's position was that there was nosuch tape. That being so, the learned High Court Judge took theview that it was for the defence to produce the video tape and
That it was open to the defence to do so in the course of thecase for the defence.
After the closure of the prosecution case, the defence ledevidence inter-alia to establish that there was a video-recording of theraid at the residence of the 1 st defendant in the possession of theNarcotics Bureau. The 1st, 2nd and 3rd accused made the DockStatements that the raid at the house was video-recorded. Defencewitness Sunil Fonseka also gave evidence that the aforesaid raid wasvideo-recorded. The defence also called 3 police officers, namely thefollowing in this regard.
PS Ranjan testified that he had possession of the tape from
when he received it from OIC Balachandra until heproduced it in Court on 15.09.2006. The video was physically
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produced in evidence by PS Ranjan and marked as 2V1, butnot admitted in evidence.
OIC Balachandra stated that he received the tape form PSKarunatilleke on 28.11.2005 and placed it in an envelopewhich he sealed. PS Karunatilleke made the IB entry pertainingto the delivery of the tape, and he underlined it in red. Hehanded over the tape to PS Ranjan on 29.11.2005 to be keptin safe custody. The tape was identified by OIC Balachandra.
PS Karunatilleke's evidence was that he did a video recordingon the instructions of OIC Amarajith, but that the recording wasof the subsequent events at the Narcotics Bureau and not ofthe raid at the residence. He identified the particular tape byreason of an entry made by him on the video cassette itselfwhich contained references to the relevant IB Entry pertainingto the raid at Ward Place.
In view of the aforesaid evidence. Counsel for the petitionermoved on 15.09.2006 that he be permitted to produce in Evidenceand exhibit the video tape, which Application was objected to by theState on the basis that the authenticity and the chain of evidencepertaining to proper custody of the tape had not been established. Thelearned High Court Judge, made order on 15.09.2006 refusing theapplication of the 'petitioner' on the following grounds.
Failure to give Notice to the prosecution in terms of section7(1)(a) of the Evidence (Special Provisions) Act No. 14of 1995.
That the witnesses had not admitted that the events at theWard Place residence had been videoed.
Subsequently Counsel on both sides agreed to view the video inthe presence of the Interpreter Mudaliyar which they did. Howeverafter the tape was run for 5.51 minutes the learned DSG accidentallytrod on the connecting-cord and the power supply was interrupted,without a resumption of the viewing. The said video during the periodof screening depicted Ward Place (including the traffic), the outsideview of the residence, the three-wheeler parked in front of the gate,some bags containing a powder, some currency notes displayed, anda travelling bag (P1) opened on the white coloured floor of the saidresidence.
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On 27.09.2006 the Defence served Notice on the Attorney-General in terms of section 7(i)(a) of the Evidence (SpecialProvisions) Act No. 14 of 1995 of the intention to produce the videoin evidence.
On 16.10.2006 Counsel for the 'petitioner1 made a two-foldapplication namely:
for the resumption of viewing the video and
to produce the video in evidence and in the event of theprosecution or the Court requiring the lapse of 45 days after theservice of the notice as contemplated by section 7(i)(a) of theEvidence (Special Provisions) Act No. 14 of 1995, theproceedings be adjourned to cover the prescribed period.
the State declined to recommence the viewing. The DSGadmitted the receipt of the notice and specifically stated that theprosecution was not insisting on the lapse of 45 days and thuswaived this requirement. The DSG however stated that withregard to the Application made by the Defence Counsel, if anapplication is made under section 165 of the EvidenceOrdinance, he would respond to such an Application.
The learned DSG however maintained that such an Applicationshould be made after the prosecution and the defence have closedtheir respective cases.
The learned High Court Judge on 16.10.2006 (P5) made orderrefusing this Application on the following grounds.
That the requirement of a 45 day Notice prior to the date fixedfor Trial as envisaged in section 7(1 )(a) of the Evidence(Special Provisions) Act No. 14 of 1995 was mandatory.
The Defence has failed to take steps to comply with thisrequirement despite the orders made by the learned High CourtJudge on 28.04.2006 and 15.09.2006.
That statutory requirements could not be waived by parties.
That the viewing of the video by the parties was based onagreement between them and the Court did not propose tomake an order on that account.
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The 'petitioner' being aggrieved by the said order lodged a Leaveto Appeal bearing No. CA 213/2006 and Revision Application bearingNo. CA 212/2006. When the matter came up for argument before theirLordships Sriskandarajah, J. and W.L.R. Silva, J. the DSG appearingfor the State conceded that it was not mandatory to comply with therequirement of Notice stipulated in section 7 of the Evidence (SpecialProvisions) Act No. 14 of 1995, where the document is in thepossession of the adverse party. It was held by Their Lordships in theaforementioned cases that The video tape was with the prosecution',and set aside the Order of the learned High Court Judge (P5). TheirLordships directed the Trial Judge to permit the defence to make afresh application with liberty to lead evidence if necessary and subjectto the right of the State to object to the Application.
Proceedings subsequent to the Orders in CA. 212/2006 andCA 213/2006. When proceedings were resumed before the learnedHigh Court Judge of Colombo, Counsel for the 'petitioner’ made anapplication to lead evidence of the video. The learned High CourtJudge made Order directing the 'petitioner' to satisfy the Court ofcompliance with the requirements of section 4(l)(a)(b)(c) and (d) (V1).
The ‘petitioner1 filed a list of witnesses comprising of 05 policeofficers. On 22,02.2007 the ’petitioner's learned Counsel led theevidence of Shimran Shyam, the 10 year old daughter of the 1st and3rd accused. In evidence she stated that she remembered the day,when her father and mother were taken away by some persons. Shesaid that on that day her mother and household servants were madeto sit at a table in the main hall, on which occasion some personsvideoed the house. Upon the conclusion of evidence Counsel for the'petitioner1 stated that as the witnesses had testified with regard to avideo recording he was not calling any further evidence in that regard,and moved to mark the video in evidence.The DSG objected andmade submissions. Learned President's Counsel who appeared forthe 'petitioner1 in this Court stated that PC Pradeep was called as awitness in the High Court, where he testified that at approximately11.30 a.m. on 21.02.2007 a person whose voice he later identified asthat of PS Ranjan, telephoned him and asked him to give evidence infavour of the accused. Learned President's Counsel admitted that PCPradeep made no reference to any of the accused, was not tenderedfor cross-examination, and that although the learned High Court
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Judge did not come to a finding was highly influenced by thisallegation. The learned High Court Judge made Order on 28.2.2007,refusing to lead the video evidence. The present Revision and Leaveto Appeal Application are to set aside the aforesaid orders of thelearned High Court Judge dated 28.2.2007. The learned President'sCounsel referring to the claim with regard to the video cassetteaccepted in his Written Submissions that the recording had been inthe custody of the Narcotics Bureau from the time the recording waseffected until it was produced. Learned President's Counsel cited (1)Queen v Aboobuckeffl, where the recording of a speech made at apublic meeting was held to be admissible, provided there wasevidence that the recording had been correctly done, and that themachine was functioning properly. (2) Karunaratne v The Queerj0),where it was held that a tape recording of a telephone conversationcould have been admitted subject to the same qualifications.
I have considered the application of the petitioner, the evidenceled in this case, the Written Submissions tendered by both sides, theprovisions of the prevailing Evidence (Special Provisions) Act No. 14of 1995 and connected matters. Learned President's Counsel for thepetitioner state that the accused were in possession of parts of thevideo. Learned President's Counsel did not state the manner in whichthe accused obtained the aforesaid possession. The learned HighCourt Judge directed the 'petitioner* to lead evidence to satisfy Courtthat the requirements of section 4(1)(a)(b)(c) and (d) of the Evidence(Special Provisions) Act No. 14 of 1995 have been complied withbefore making any order. After the aforesaid Act became law,admissibility of video recordings is governed solely under theprovisions of the said amendment. In accordance with section 2 of thesaid Act it is clear that the provisions of the Amendment Act No. 14 of1955 override both the Evidence Ordinance or any other Written Law.Hence for such video evidence to be led the provisions of section4(1)(a)-(d) have to be satisfied. Section 4(1 )(b) reads as follows:
"The recording or reproduction was not altered or tampered within any manner whatsoever during or after the making of suchrecording or reproduction or that it was kept in safe custody at allmaterial times, during or after the making of such recording orreproduction and that sufficient precautions were taken to prevent thepossibility of such recording or reproduction being altered or tampered
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with, during the period in which it was in such custody.” The aforesaidprovision makes it manifestly clear that a contemporaneous recordingcould only be admitted as evidence, only if the requirements of section4(1 )(d) are satisfied. The prosecution avers that no contemporaneousrecording by video took place at the time of the raid, although thedefence claims that such a recording took place. The prosecutionemphasizes the fact that the raid took place at the Ward Placeresidence of the 1st and 3rd accused. Besides the possibility that thevideo may have been tampered with editing and altering of any videois possible which can completely distort the true picture using moderntechnology techniques. P.S. Karunathilaka in his evidence stated thathe placed a piece of paper for identification at the time he handedover the cassette as testified by him when he handed over the videoto the Narcotics Bureau. He however said that the piece of papercould not be found by him as it was not there, when the envelopecontaining the cassette was opened in Court. P.S. Karunathilaka alsodescribed the manner in which the video cassette lay for two years ina dark room, which dark room was not padlocked, nor the envelopethat contained the video cassette sealed, as in the case of otherproductions, and accessible to many others, before he was instructedto hand over the video cassette to Chief Inspector Balachandra.
The evidence of P.S. Karunathilaka in my view clearlyestablishes that the requirements as set out in section 4(1 )(d) of theaforesaid Evidence (Special Provisions) Act No. 14 of 1995 were notcomplied with. Section 4(2) of the aforesaid Act makes it clear that thevideo cassette could be admissible in evidence only if the conditionsset out in section 4(1) are satisfied. However the question remains asa how parts of the cassette got into the possession of the accused.The learned High Court Judge interpreted section 7 of the aforesaidAct, and observed that although the requirement of 45 days noticewas brought to the attention of the defence by the learned High CourtJudge as early as 28.4.2006, the accused had not complied with theaforesaid requirement. Despite an opportunity being granted by thelearned High Court Judge by his Order dated 8.2.2007 to leadevidence to satisfy Court that there was compliance with section4(1 )(a) to (d) of the Evidence (Special Provisions) Act No. 14 of 1995,the 2nd accused ('petitioner') nor the 1st and 3rd accused did not availthemselves of the opportunity much to their detriment.
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The right of the accused to a fair trial is enshringed in ourConstitution. It is an established principle that all the parties areentitled to a fair trial as a constitutional right. However in applying sucha right to the production of the video cassette, the relevant question tobe considered is as to whether the video cassette passes the test ofauthenticity, and whether it was altered or tampered with, as stipulatedby the Evidence (Special Provisions) Act No. 14 of 1995. In my viewthe video cassette produced by PS Karunatilaka does not satisfy therequirements of section 4(1 )(d) of the aforesaid Act, as
the video cassette was not contained in a sealed envelope,
the piece of paper which PS Karunathilaka attached to thevideo cassette initially to enable him to identify the videocassette was missing,
the video cassette was kept in a dark room which was unlockedfor a period 2 years, during which period there was time fortampering with the video-cassette as it was left exposed,
numerous persons used to come and go to the dark room,
there was no evidence that there was a proper sealing of the
envelope that contained the video-cassette in the presence ofother officers etc, and thus there was no contem-
poraneous, which could be led as Evidence. However thissituation cannot be construed as a violation of the provisions ofthe Right to a fair Trial guaranteed to an accused, as envisagedby the Constitution.
The conduct of Chief Inspector Balachandra is questionablenamely.
Why did he not seal the video cassette in the presence of PSKarunatilaka?
Why did he wait until the following day to handover theenvelope not sealed in the presence of any one else to PCRanjan?
What happened to the piece of paper placed by PSKarunathilaka inside the cassette?
Why didn't he record anything in the envelope?
No plausible explanation has been given as to how the petitionercame to be in possession of parts of the video cassette.
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During the Trial the prosecution led the evidence of it's mainwitness IP Priyantha Liyanage who was the Officer in Charge of theraid.
This witness in cross examination specifically denied anyvideoing of the raid inside the residence of the 1 st and 3rd accused.Although Counsel who appeared for the 2nd accused (petitioner)stated that the accused were in possession of parts of the video, therewas no evidence led as to the manner in which parts of the video wereobtained. The prosecution also called PS Rajitha Manamppriya whoparticipated in the raid with I.P. Liyanage and was attached to thePolice Narcotics Bureau at the time of the raid. During crossexamination of this witness Counsel for the 2nd accused's (petitioner)attention was drawn to certain notes made by PS Karunathilaka andCl Balachandra. The said notes indicate that a CD pertaining to thecase was handed over by PS Karunathilaka to Cl Balachandra on thesaid date. However this witness denied that any videoing was doneby any of the officers of the Narcotics Bureau.
On 13.06.2006 Counsel for the 2nd accused (petitioner) madean application for the production of the video. At this stage noreference was made to the earlier submission that the accused werein possession of parts of the video. However a reference was madethat the Counsel had received instruction that certain officers of theNarcotics Bureau are clearly seen in the video now in the custody ofthe Narcotics Bureau. The prosecution expressed surprise as to howthe accused was making submissions as to what was in the cassettewhich was not a part of the prosecution case, and which theprosecution was not even aware of. The learned High Court Judgereferred to the evidence of the prosecution, where it was stated thatthey did not video the raid. The learned High Court Judge held thatas the accused appeared to have a good understanding of the video,if the video is to be produced it should be done in accordance with theprovisions of the Evidence Ordinance, and during the case of thedefence.
Cl Balachandra who was called by the defence, in his evidencestated that he took the production (cassette) from PS Karunatilake,and according to his recollection he placed some seals, and handedit over for safe-keeping to the person in charge of the room where theIBE's are kept. Witness said that there was a cassette with a plastic
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cover with a marking "RIB 1104/2107. During his evidence althoughthe cassette was not marked as a production a marking !'2V1A" wasgiven only to show that the aforesaid cassette was a given to Court bythis witness. Under cross-examination Cl Balachandra accepted thathe did not take part in the raid, and that he did not know what thecassette contained. The next witness called by the Defence PSKarunathilake, in his evidence stated that he handed over to ClBalachandra what he videoed at the Narcotics Bureau pertaining tothe raid of 23 kilograms of heroin at a residence at Ward Place. Hevery specifically stated that he never videoed any part of the raid noranything outside the Narcotics Bureau.
On an analysis of the raid it is evident that IP Priyantha Liyanageled the raid and PS Rajitha Manamppriya also partook in the raid, ifany video cassette was found in the raid the officers who partook inthe raid could have marked it as a production and sealed it. Howeverin this case PS Karunathilaka who did not take part in the raid butstated in evidence on being called by the defence that he videoed thePolice Narcotics Bureau consequent to the raid, and handed over thevideo cassette to Cl Balachandra who was also called by the Defenceas a witness, PS Karunathileke and Cl Balachandra did not partake inthe raid. Hence there is no evidence by the Prosecution witnessesthat a videoing took place during the raid. On the contrary theprosecution witnesses denied that any videoing took place during theraid.
Apparently consequent to the raid PS Karunatilleke videoed atthe Police Narcotics Bureau consequent to the raid, which is said tobe contained in the video cassette marked as "2V1A". The 2ndaccused (petitioner) however seeks to mark a video cassette which isnot a production in this case. From a perusal of the evidence, theprevalent Law namely the Evidence (Special Provisions) Act No. 14 of1995, and related matters it is my view that;
The evidence led by the both the prosecution and defenceprove that there was no contemporaneous recording of theraid.
The evidence clearly establishes that whatever recording thatwas made (filming of the Productions at the Police NarcoticsBureau) was not kept in safe custody at all material times.
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Insufficient precautions were taken to prevent the possibility ofsuch recordings being altered or tampered with. (Counsel forthe accused have admitted that they were in possession ofsuch recording or part thereof).
Hence it is manifestly well established that the Provisions ofsection 4(1 )(a)-(d) of the Evidence (Special Provisions) Act No. 14 of1995 have not been compiled with , and thus it is my view that themarking of the video cassette is not admissible under section 4(2) ofthe aforesaid Act.
For the aforesaid reasons I do not permit the 2nd accused-petitioner to lead in evidence the said video recording marked as■2V1A‘. I uphold the Order dated 28.02.2007 made by the learnedHigh Court Judge of Colombo which is in conformity with the legalprovisions, and as such I hold that the learned High Court Judgedid not misdirect himself on the law and facts in the aforesaidorders.
Hence for the aforesaid reasons, I dismiss both 34/2007(Revision) and 39/2007 (Leave to Appeal) Applications of the 2ndaccused-petitioner without costs. The learned High Court Judge ishereby directed to proceed with the case.
SARATH DE ABREW, J.I agree.
Application dismissed.