BANDA AND OTHERS v. ATTORNEY-GENERAL

022-SLLR-SLLR-1999-V-3-BANDA-AND-OTHERS-v.-ATTORNEY-GENERAL.pdf


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BANDA AND OTHERS
v.ATTORNEY-GENERAL
COURT OF APPEALJAYASURIYA, J„
KULATILAKE, J.
C.A. NO. 64-68/97.
H.C. MATARA NO. 93/95.
MARCH 24, 29, 1999.
Murder – Common intention – Plea of Alibi – Contradictions, discrepancies andomissions – Retrial – In what circumstances?
Held:
The learned trial Judge has used the term common intention only in onesolitary passage in his judgment. He has culpably failed to consider theacts of participation on the part of each one of those accused separatelyto analyse those acts and relate them to the principles of law relatingto common intention and having regard to their respective acts to determinewhether they were actuated by a common intention.
The trial Judge has not given his mind in regard to counts 6 and 7 andconsidered whether the accused were actuated by a common murderousintention to commit the offence set out in counts 6 and 7.
There is no burden whatsoever on an accused who puts forward a pleaof alibi and the burden is always on the prosecution to establish beyondreasonable doubt that the accused was not elsewhere but present at thetime of the commission of the criminal offence.
The right to mark omissions and proof of omissions is related to the rightof the Judge to use the Information Book to ensure that the interests ofjustice are satisfied. Omissions do not stand in the same position ascontradictions and discrepancies. The rule in regard to consistency andinconsistency is not strictly applicable to omissions. Judge who has thecare of the information ought to use this Book to elicit any material and
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prove any flagrant omissions between the testimony of the witness at thetrial and his Police statement in the discharge of his judicial duty andfunction.
The issue whether a retrial should be ordered or not would depend onwhether there is testimonially trustworthy and credible evidence givenbefore the High Court.
APPEAL from the judgment of the High Court of Matara.
Cases referred to:
K. v. Assappu – 50 NLR 324.
Punchi Banda v. O – 74 NLR 494.
K. v. Marshal – 51 NLR 157.
K. v. H. S. R. Fernando – 48 NLR 251.
Republic v. Damayanu – 73 NLR 61.
Yahonis v. State – 67 NLR 8.
Gunasiri v. State – [1990] 2 Sri LR. 265.
Punchi Banda v. State – 76 NLR 293 at307.
Mutukuttige Siriwardena v. A. G. – CA 70-97 – HC Kalutara No. 998/97.
O. v. Muthu Banda – 73 NLR 8.
Jagathsena v. Bandaranayake – [1984] 2 Sri L.R. 397.
Ranjith Abeysuriya, PC with Harshika de Silva for first, second, third accused-appellants.
Dr. Ranjith Fernando with S. Munasinghe for 4th accused-appellant.
No appearance for 5th accused-appellant.
Dappula de Livera for Attorney-General.
Cur. adv. vult.
March 29, 1999.
JAYASURIYA, J.
We have heard learned President's Counsel, learned counsel for thefourth accused-appellant and learned Senior State Counsel fully in thismatter.
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It is manifest that learned trial Judge has used the term commonintention only in one solitary passage in his judgment at page 181,He has culpably failed to consider the acts of participation on the partof each one of those accused separately, to analyse these acts andrelate them to the principles of law relating to common intention andhaving regard to their respective acts to determine whether they wereactuated by a common intention. Justice Dias in King v. Asappi/'• laiddown the principles that it is the bounden duty of the trial Judge toindulge in this process and that the same duty prevails even whenthe accused is tried without a Jury. Further, the trial Judge has notgiven his mind in regard to counts six and seven and consideredwhether the accused were actuated by a common murderous intentionto commit the offence set out in counts six and seven. Justice Sirimanein Punchi Banda v. Queerf® set aside the conviction in a situationwhere the trial Judge had not distinguished between the requiredcommon murderous intention and any other common intention enter-tained by the accused. This is an error made by the instant Judgewhen he failed to consider whether the accused were actuated bya common murderous intention. These non-directions and misdirectionsare in regard to vital aspects of the prosecution case and related tothe ingredients of the offence and therefore the findings, convictionsand sentences pronounced cannot be sustained.
In addition, there is a serious grave misdirection entertained by thetrial Judge in regard to the fourth accused-appellant and the sixthaccused at the trial in regard to the plea of alibi preferred. The learnedtrial Judge has stated thus in Sinhala: sxs 8cS §£© 0©aJ. ®g Q£Sto §q0tda:»8g ©god SetoeS 000×3 ©o®e4 S3 SS Sc» 60 ®§e) to oo§<5t S0®0g0®g) e»ri>@c3ti ms. Clearly this statement presupposes and assumesthat there is a burden of proof on the sixth accused-appellant toestablish his pleas of alibi and prove affirmatively that he was else-where and not at the scene of the crime at the time of commissionof the offence. This is clearly a misdirection on the law. In King v.Marshal and in King v. H. $. R. Fernandd[4) the principle was laiddown that there is no burden whatsoever on an accused person whoputs forward a plea of alibi and the burden is always on the prosecutionto establish beyond reasonable doubt that the accused was not else-where but present at the time of the commission of the criminal offence.
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There is a cursus curiae which has firmly laid down this principle.See the decisions in Republic v. Damayani/5)-, Yahonis v. State<6);Gunasiri v. Stated-, Punchi Banda v. State*81 and MuthukuttigeSiriwardena v. A. G.(9> per Justice Ameer Ismail.
In the circumstances in view of these grave misdirections and non-directions we set aside the findings, conviction and sentence imposedon all the four accused-appellants, excluding the finding, convictionand sentence imposed on the fifth accused-appellant who was notpresent at the hearing of this argument and who was also notrepresented at the hearing of this argument by counsel. The learnedtrial Judge has found her guilty of perjury and imposed a convictionand sentence on her.
In this state of the appeal, both President's Counsel and learnedcounsel for the fourth accused-appellant strenuously urged that theCourt ought not to order a retrial in respect of their respective clients.But, learned Senior State Counsel contended that the evidence ofwitness Andrayas who was believed at the trial was creditworthy andentitled to testimonial trustworthiness notwithstanding the severalomissions proved in relation to the evidence given by witness Andrayasat the non-summary Magisterial inquiry.
The issue whether we ought to order retrial or not would dependon whether there is testimonially trustworthy and credible evidencegiven before the High Court by witness Andrayas. The learned HighCourt Judge in his judgment has referred to this issue and given hisanxious consideration to the omissions which were proved to assailthe trustworthiness of witness Andrayas, only in regard to the testimonyhe has adduced in the Magistrate's Court. Learned trial Judge hasstated thus : ©octaSQxd qQsjOeood o®o©o©® SO ®gooa> SetoCoo)®® 0 gcdesoeraflO® ffloxi So otfio. Learned High Court Judge has referred to witnessAndrayas' evidence before the learned Magistrate and to the omissionsproved and has stated in Sinhala a reason for such omissions. Whenwe perused the non-summary record of his evidence we observedthat this evidence runs into just nine lines of evidence. This circum-
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stance strengthens and supports the trial Judge's surmise. The issueis – on an evaluation of his evidence could we hold that his evidenceis totally unworthy of credit and not entitled to any testimonial trust-worthiness? Having regard to the omission proved, in evaluating thetestimony of a witness, a Court would be guided by principles ofcommon sense and by certain tests of credibility that are employedto assess credibility. When one goes through proceedings, it is evidentthat the learned defence counsel had closely looked at the statementmade by Andrayas to the Police and also looked at the inquestevidence Andrayas had given before the Magistrate and had attemptedto mark contradictions in relation to that statement and the inquestevidence. Vide pages 126 and 129 of the record, where there is aspecific reference to contradictions marked 5VI and 5V2. Thesecontradictions certainly do not cause any dent whatsoever on thetestimonial trustworthiness of witness Andrayas. Thus, after the afore-said attempt failed the resulting position in regard to the Policestatement and inquest evidence is that the test of inconsistency andconsistency echoes in favour of the witness' credibility. Besides, thereare no contradictions and inconsistencies in his evidence per se orinter se. It has been brought to our notice that Andrayas had madestatement to the Police though he was injured on the day of theincident itself at 8.00 o'clock in the night. The incident had taken placeat about 8.30 in the morning. Further, he had given evidence at theinquest held on the very same day before Magistrate who inquiredinto this violent death. Thus, it is in evidence that witness Andrayashad made his statement at the earliest opportunity which presenteditself and therefore the test of spontaneity and contemporaneity is inhis favour. By proving omissions is another method of assailing thetestimonial trustworthiness of a witness. This right accrued as a resultof the judicial decision pronounced by Justice Alles in Queen v. MuthuBandaf'0) particularly at page 11. Justice Alles related the right to markomissions and proof of omissions to the right of the Judge to usethe Information Book to ensure that the interests of justice are satisfied.Omissions do not stand in the same position as contradictions anddiscrepancies. Thus, the rule in regard to consistency and inconsist-ency is not strictly applicable to omissions. His Lordship remarked
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that the Judge who has the use of the Information Book, ought touse this book to elicit any material and prove any flagrant omissionsbetween the testimony of the witness at the trial and his policestatement in the discharge of his judicial duty and function in termsof section 122 (3) of the Criminal Procedure Code. When the aforesaidomissions were marked before High Court Judge of Matara, we oughtto presume that the High Court Judge would have used the InformationBook to assist him at that trial and possibly to evaluate the omissionswhich have been marked since there were no material contradictionsand discrepancies marked by the defence in regard to the Policestatement and the inquest evidence given by witness Andrayas. Thelearned trial Judge has arrived at the conclusion that these omissionsare referable to the reason that the witness was not examined adequatelyat the non-summary inquiry.
The learned trial Judge, who no doubt had the benefit of observingwitness Andrayas particularaly in regard to his manner of givingevidence, his inflection, the delivery and the conduct of the witness,both under examination in chief and under cross-examination, wouldnecessarily have had that all important factor of demeanour anddeportment to assist him. This Court has only the typescript recordand does not have that benefit. Having had that benefit the learnedtrial Judge having observed the demeanour of the witness has arrivedat the favourable findings in regard to Andrayas' demeanour anddeportment and observed thus: 0t£©ea ©Ora) e© 9 oOcteOeoeod o@g> aj©fl@0g© oa»®teJGd gdgcaxJ axSkdoa o®@ gSoOsoxA nod® oqs> SO ©goo) «S0® qgs»©@ffl 00£ (SSotSd ®g oSMi end® Sod®q> o®o ®6fiQ oeoxoS ©tSS. osxxio0od §§© ©sooeft ®g cams tsa» ex3a) ex3®ffl6to0d o@b ©god otfiO® erg©0§©tS@O ©so®.
Thus, as Justice Collin Thome in Jagathsena v. Bandaranayak&u)observed the all important factor in the evaluation of evidence, thisoperates in favour of the testimonial trustworthiness of witness Andrayas.Then, Justice Collin Thome was dealing with a situation where therewere contradictions in the testimony of that witness. Further, therewas no impugnment of the fact that witness Andrayas was present
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at the scene of the incident. In these attendant circumstances, it ismanifest that he had means of knowledge in regard to what he hastestified. Thus, test of “means of knowledge” also echoes in his favour.In the circumstances, we are unable to accept the submission thatthere is no acceptable evidence placed against the first, second, thirdand fourth accused-appellants before the High Court. However, wewish to emphasise that the sixth accused at the trial who was thefourth accused-appellant in the appeal had given evidence setting upa plea of alibi and his evidence has not been seriously impugnedor assailed by the prosecution. In the circumstances, we think it wouldbe an injustice to order a retrial against him. Therefore, we proceedto acquit the fourth accused-appellant. We direct that the first, secondand third accused-appellants be retried again before another HighCourt Judge. The appeal of the fourth accused-appellant is allowed.The appeals of the first, second and third accused-appellants are partlyallowed. The appeal of the fifth accused-appellant is dismissed.
KULATILAKE, J. – I agree.
Appeal of fourth accused-appellant allowed.
Appeal of first, second and third accused-appellants partly allowed.Appeal of fifth accused-appellant dismissed.