063-SLLR-SLLR-1995-2-GANGANANDA-V.-THE-STATE.pdf
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Gangananda v. The State
373
GANGANANDA
v.
THE STATE
COURT OF APPEAL.
DR. A. DE Z. GUNAWARDANA, J.
H. G. WEERASEKERA, J.
C.A. 60/92
HIGH COURT BADULLA 22/91JULY 21, 1993
Dock Statement – Accused indicted for Murder – Accused did not give Evidenceor call any witnesses on his behalf – Right to make a unsworn statement from theDock.
The Accused was indicted with having committed Murder. After trial, without ajury he was convicted of the charge. He did not give evidence or call any witnesson his behalf. The learned Trial Judge did not inform the accused that he canmake a statement from the Dock.
It was contended that the learned Trial Judge had erred in law in depriving theaccused of his Right to make an unsworn statement from the Dock.
Held:
The right of an accused to make an unsworn statement from the Dock aswas recognised under the English Law, had been consistently followed by ourCourts for a long time and it is in conformity with the legal provisions found in ourlaw even at present.
The Right of an accused to make a ‘Dock Statement' does not vary incontent or quality whether it is a trial before jury or not.
The ‘Dock Statement’ should be treated as evidence subject to two infirmitiesthat it had not been made under oath and has not been subject to crossexamination.
The admission of 'Dock Statements’ as evidence will not offend theprovisions of that section because it does not exclude the defence fromadducing, evidence, other than on 'oath or affirmation’.
S 201(2) of the Criminal Procedure Code is not applicable as the right tocross examination under that provision is given only in respect of witnesses whohave given evidence on oath or affirmation, that provision will have no applicationto Statements from the Dock which are always made not on oath or affirmation.
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APPEAL from the order of the High Court of Badulla.Cases referred to:
King v Vallayan Sittambaram – 20 NLR 257.
Queen v Buddharakkita Thero – 63 NLR 442.
Dr. Ranjith Fernando for accused-AppellantPalitha Fernando SC for AG
Cur. adv. vult.
July 21,1993.
DR. A. DE Z. GUNAWARDANA, J.
The accused in this case was indicted in the High Court of Badullawith having committed the murder of one R. M. Gunapala on6.1.1985, an offence punishable under Section 296 of the PenalCode. After trial, before the learned High'Court Judge of Badulla,without a jury, the accused was convicted of the said charge, andwas sentenced to death. This appeal is from the said conviction andsentence.
The case for the prosecution was that one Jamis Perera had cometo see the deceased with a bottle of kasippu (illicit liquor) at about7 p.m. They were talking inside one of the rooms in the house of thedeceased. The deceased’s mother was in the adjoining room whichwas used for cooking. What was happening inside the room wherethe deceased was visible from where the mother was. The deceasedand Jamis Perera were served with a meal by the mother. Soon afterthe deceased finished eating, the accused had come into the roomwhere the deceased was, with one Sudubanda. They were talkingtogether for sometime. When the mother was in the other room shehad heard the deceased shouting ‘I am stabbed’, and the deceasedran out of the room and fell in the compound. According to themother, she clearly saw the accused stab the deceased and runaway. There was a bottle lamp burning inside the room. The mother’sevidence was corroborated by the brother of the deceased. Thedoctor has testified that, the deceased had seven cut injuries.
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The accused did not give evidence or call any witnesses on hisbehalf.
The learned Counsel for the accused submitted that the learnedtrial Judge had erred in law, in depriving the accused of his right tomake an unsworn statement from the dock. In support of hiscontention that the accused had a right to make a dock statement,the learned Counsel cited the case of the King v. VallayanSittambaram(,). This is a full bench decision of the Supreme Court,where Bertram, C.J. has stated at page 266 that,
“There is nothing, however, in the fact that the law now allows theprisoner to give evidence, to take from him the right which hepreviously enjoyed of making an unsworn statement. There is noprovision on this subject one way or the other in the Code, and thisis, and this is, therefore, another point on which we may haverecourse to English procedure. The rules of English procedure areplain. The prisoner may still if he prefers it, make an unswornstatement from the dock, instead of giving evidence from thewitness box and on this analogy he has the same right in Ceylon.The action of the District Judge would, therefore, appear to be anirregularity, and an irregularity of such a nature as necessarily tocause a failure of justice, in that it necessarily prejudiced thedefence of the accused.”
In the same case, Shaw, J., in a separate judgment has alsopointed out that, “our code is silent as to whether or not it is open toan accused to make an unsworn statement at the trial.” But has goneon to refer to Section 6 of the Criminal Procedure Code of 1898, andhas stated as follows at page 274.
“Section 6 of the Code, however, provides that, as regards mattersof criminal procedure for which no special provision is made, thelaw relating to criminal procedure for the time being in force inEngland shall be applied, so far as the same shall not conflict orbe inconsistent with the Code and can be made auxiliary thereto.
In England it has always been open for an accused to make anunsworn statement at the trial, should he desire to do so, and this
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right still exists, notwithstanding the right of an accused to giveevidence on oath under the provisions of the Criminal EvidenceAct, 1898."
In the case of the Queen v. M. Buddharakkita Thero<2), Basnayake,C.J., has stated that, “The right of an accused person to make anunsworn statement from the dock is recognised in our law. (King v.Vallayan).” (Supra)
It is pertinent to point out here that the Code of Criminal ProcedureAct. No. 15 of 1979, in Section 7 provides that,
“As regards matters of criminal procedure for which specialprovisions may not have been made by this Code or by any otherlaw for the time being in force, such procedure as the justice of thecase may require and as is not inconsistent with this Code may befollowed.”
In addition Section 100 of the Evidence Ordinance provides that,
“Whenever in a judicial proceeding a question of evidence arisesnot provided for by this ordinance or by any other law in force inSri Lanka, such question shall be determined in accordance withthe English Law of Evidence for the time being.”
Thus it is seen that, the right of an accused person to make anunsworn statement from the dock, as was recognised under theEnglish Law, had been consistently followed by our Courts for a longtime, and it is in conformity with the legal provisions found in our law,even at present.
However, the learned Trial Judge has misdirected himself onseveral questions of law in regard to that right. Firstly, he has statedthat although it was explained to the accused that the accused hadan opportunity to call evidence or to give evidence, the accused didnot do so. According to the learned trial Judge, the accused did notdo so, because the learned trial Judge did not mention to theaccused, any thing about making a statement from the dock. Thelearned trial Judge has stated that he did not inform the accused that
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he can make a statement from the dock, because in his view,although the accused may have a conventional right to make astatement from the dock in a Jury trial, there is no provision under theEvidence Ordinance giving such a right to an accused person, in atrial before a Judge only. It must be pointed out here that, the right ofan accused to make an unsworn statement from the dock, does notvary in content or quality, whether it is a trial before a Jury or not. Infact, the case of King v. Vallayan Sittambaram, (Supra) which wehave referred to earlier, was a case before a District Judge, where thesaid right was specifically upheld, by a full bench of the SupremeCourt.
Secondly the learned trial Judge has stated that although in someinstances a statement made by an accused person from the dockhas been described as evidence, there is no provision in theEvidence Ordinance or in the Criminal Procedure Code, whichenables the Court to consider such a statement as evidence.
As pointed out earlier the right of an accused person to make anunsworn statement from the dock is now well established under ourlaw. Basnayake, C.J. dealing with this right in the case of the Queenv. M. Buddharakkita Thero (Supra), which we have referred to earlier,has stated as follows, at page 442.
“That right would be of no value unless such a statement is treatedas evidence on behalf of the accused subject however to theinfirmity which attaches to statements that are unsworn and havenot been tested by cross-examination.”
Thirdly the learned trial Judge has stated that, whilst under Section138 of the Evidence Ordinance, the evidence of a witness consist ofthree parts, namely, evidence-in-chief, cross-examination and re-examination, the provisions of Section 201(2) of the CriminalProcedure Code, enables the prosecuting Counsel to cross-examineall the witnesses called by the defence. The learned trial Judge hasconcluded that, since a statement from the dock is not made underoath and not subject to cross-examination, it is not possible toconsider such a statement as evidence. For these reasons he hasjustified the course of action he had taken. He has further pointed out
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that there was no application on behalf of the accused to make astatement from the dock. As evident from the passage quoted abovesuch a statement should be treated as evidence subject to the twoinfirmities, that it had not been made under oath, and has not beensubject of cross-examination. In addition, it is pertinent to note herethat, the right given to a prosecuting Counsel under Section 201(2) ofthe Criminal Procedure Code is, “to cross-examine all the witnessescalled by the defence to testify on oath or affirmation”, (emphasis ismine). As the right to cross-examination, under that provision, isgiven only in respect of witnesses who have given evidence on, “oathor affirmation”, that provision will have no application to statementsfrom the dock, which always are made, not on oath or affirmation.Furthermore, the admission of dock statements, as evidence, will notoffend the provisions of that Section, because it does not exclude thedefence from adducing evidence, other than on “oath or affirmation”.
In view of the above wrong decisions on the question of law, graveprejudice had been caused to the defence and we are of the viewthat the verdict and the sentence of the learned trial Judge should beset aside. Accordingly, we quash the conviction and sentence of theaccused, and order that a re-trial be held in this case as early aspossible.
L. H. G. WEERASEKERA, J. – I agree.
Appeal allowed.
Retrial ordered.