In Kanapathipliai v The Queen (supra) it was held that veryconvincing expert evidence should be placed before the Courtwhich is invited to conclude that the mere behaviour of. a policedog by itself renders the existence of any relevant fact in a crimi-nal trial so "highly probable or improbable" as to justify theapplication of section 11 (b) of the Evidence Ordinance.
It is common knowledge today that dogs can be specially trai-ned to assist in the detection of crime and that for a long timehave been one of the best known instruments of crime detection.As Gratiaen J., stated in the above case:—
' t
"An important clue may be discovered by an animal whichwould point to the identity of the offender; but in such a case,it is the positive evidence brought to light rather than themanner of its discovery that constitutes relevant and admissi-ble evidence of the offender's guilt."
Cross on Evidence, 5th Edition, at page 55, stated that theredoes not appear to be any fully reported English case on the admi-ssibility of the evidence of the behaviour of tracker dogs. "If,
Gunawardena v. The Republic of Sri Lanka (Colin-ThomeJ.)327
after being taken to the scene of a crime, a dog picks up the scentand leads those in charge of him to the accused, a useful pieceof retrospectant circumstantial evidence may have been broughtinto existence." Such evidence, although disallowed in SouthAfrica on account of the danger of misunderstanding the dog'sbehaviour, has been received in Canada, Scotland, Ireland andNew Zealand. It would in every case be necessary for evidence tobe received about the training, skill and habits of the particulardog and its handler, and evidence of the fact that each humanbeing has a different scent or odour which is liable to be picked upby well trained dogs.
In the Canadian case of /?. v Haas4 the British Columbia Courtof Appeal held that evidence that an accused person had beentracked by dogs was in principle admissible and not excluded bythe hearsay rule. Wilson J. A., said that such evidence should beput before juries" with the utmost care and the fullest sort ofexplanation by the presiding judge." The handler should be shownto be well experienced in regard to the characteristics of the parti-cular dog in question. "He could give evidence as to the training ofthe dog and the behaviour of dogs generally in regard to thetracking of persons and he can simply state what happened on theoccasion in question."
As Lord Justice Clerk said in Patterson v Nixon?
"The value and significance (of such evidence) is bound to bea question of circumstances in each particular case, and theevidence given as to what the dog did, and as to its skill andreliability has to be weighed just like any other evidence."
However, there are two fundamental difficulties. The uni-queness bf scent appears to be by no means so clearly establishedas, for instance, that of finger prints. Furthermore, the reliabilityand aptitude of dogs for this type of work varies.
On the question of motive there was no evidence that the rela-tionship between the appellant and the deceased had deterioratedat any stage. There was no evidence that she threatened him withexposure or abused him on the 15th. On the other hand, there wasevidence that he had carefully preserved two letters she had writ-ten to him and kept them in a file in his kit-box. There was noattempt by him to destroy these letters.
Attention was drawn to the fact that he did not speak to herin the bus. He had been identified by the driver and the conductor
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and addressed as "Ralahamy" by them. It was not likely in thatsituation that he would have openly associated with his mistressin the bus. Similarly, the fact that he may have at the scene with-held information that he knew the deceased may have been forthe same reason. We agree with the submission of Counsel for theappellant that the motive for killing the deceased had not beeneven remotely established. From the mere fact that she came toGalenbindunuwewa it cannot be assumed without supporting evi-dence that she embarrassed the appellant to such as extent that hekilled her.
The failure fully and fairly to deal with important points infavour of the appellant resulted in non directions amounting toserious misdirections. At the end of his charge the trial Judge cau-tioned the jury against bringing a compromise verdict. Havingcautioned the jury more than once on these lines, the Judgenullified the effect of this direction by directing the jury asfollows: —
"Now take the accused's case. He was a Sergeant who hadbeen paying money to this woman; who probably was carryingthis millstone round his neck for some long time; and shecomes to see him at Galenbindunuwewa. Then probably theydecide to go and talk things over in the tank bed; and then sheprovokes him; and he did this under great provocation.
There was not a tittle of evidence to support the above direc-tion. In M. J. Fernando v The Queen6 (Per L. M. D. de Silva, J;,)it was held that the jury should not be directed in a way whichopens for them the door to conjecture. This is necessary not onlyin order that the case for the defence may not be prejudiced butalso in the interests of the prosecution. In the instant case this isprecisely what the trial Judge did and in spite of his earlier andsubsequent directions not to bring a compromise verdict, that wasprecisely what the jury brought. The trial Judge by suggesting anunsustainable element of evidence rendered the verdict foundedon that element unreasonable and unsustainable.
As Viscount Simon Observed in Mancini v Director of Pub-lic Prosecutions1
"Taking , for example, a case in which no evidence has beengiven which would raise the issue of provocation, it is not theduty of the judge to invite the jury to speculate as to provo-cative incidents, of which there is no evidence and which can-not be reasonably inferred from the evidence. The duty of the
Gunawardena v. The Republic of Sri Lanka (ColinThomeJ.)329
jury to give the accused the benefit of the doubt is a dutywhich they should discharge having regard to the materialbefore them, for it is on the evidence, and the evidence alone,that the prisoner is being tried, and it would lead to confusionand possible injustice if either judge or jury went outside it."
Judging by the verdict of the jury the passage referred to inthe Judge's charge had the effect of inviting them to speculate asto a provocative incident which was not supported by the evidence.We hold that there was a grave misdirection in this passage.
It was submitted by learned Senior State Counsel that theHouse of Lords in Me Greevy v Director of Public Prosecutions8page 424 adopted the decision in the Canadian case of Ducsharm9that there was a distinction between the rule regarding circumstan-tial evidence and the rule as to reasonable doubt and that a Judgeshould separate his direction as to the one from his direction asto the other. Learned State Counsel went further and made thenovel submission that Me Greevy v D. P. P. (supra) has decidedthat in a case of circumstantial evidence the burden of proof onthe prosecution has been made lighter than it was before.
The House of Lords in this case considered the dictum inHodge10 where Alderson, B.( said in summing-up to the jury thatthe case was made up of circumstances entirely and that, beforethey could find the prisoner guilty they must be satisfied, "notonly that those circumstances were consistent with his havingcommitted the act, but they must also be satisfied that the factswere such as to be inconsistent with any other rational conclusionthan that the person was the guilty person." This dictum whichcame to be known as the "rule” in Hodge's case has been followedin most countries in the Commonwealth, including Sri Lanka, fordecades.
Lord Morris observed that
'The singular fact remains that here in the home of thecommon law Hodge's case has not been given very special pro-minence; references to it are scant and do not suggest that itenshrines guidance of such compulsive power as to amount toa rule of law which if not faithfully followed will stamp asumming-up as defective. I think that this is consistent withthe view that Hodge's case was reported not because it laiddown a new rule of law burit was thought to furnisha helpful example _• -w* in v.-Liu.. d<e jury could be direc-ted ~: -it evidence was circumstantial."
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I n the Australian case of Ptomp v The Queen1' Menzies J., saidthat the customary direction was not something separate and dis-tinct from the direction that the prosecution must prove its casebeyond reasonable doubt. The giving of the particular directionstemmed from the more general requirement that proof must beestablished beyond reasonable doubt.
The House of Lords in Me Greevy v D. P. P. (supra) held thatin cases of wholly circumstantial evidence no duty rests upon theJudge, in addition to giving the usual direction that the prose-cution must prove the case beyond reasonable doubt, to give afurther direction in express terms that this means that they mustnot convict on circumstantial evidence unless they are satisfiedthat the facts proved are
consistent with the guilty of the defendant; and
exclude every possible explanation other than the guiltof the defendant.
This case did not overrule the earlier decisions or imply thatthere is now a greater or lesser burden of proof on the prosecutionin a case of circumstantial evidence. This authority merely statesthat a Judge who in addition to the usual direction about proofbeyond reasonable doubt gives a further direction to the juryas in Hodge's case, errs in redundancy, as the particular direc-tion stems from the general requirement and basic necessity thatproof must be established beyond reasonable doubt.
Learned Senior State Counsel submitted that the jury's verdictwas reasonable taking into account the totality of the evidence.
Baron Pollock observed in Regina v ExalP2 .—
"It has been said that circumstantial evidence is to be consi-dered as a chain, and each piece of evidence is a link in thechain, but that is not so, for then, if any one link broke, thechain would fall. It is more like the case of a rope composedof several cords. One strand of the rope may be insufficientto sustain the weight, but three stranded together may bequite of sufficient strength."
This is also the law in Sri Lanka. In a case of circumstantialevidence the facts given in evidence may, taken cumulatively, besufficient to rebut the presumption of innocence, although eachfact, when taken separately, may be a circumstance of suspicion;See The King v Gunaratna.13
Gunawardena v. The Republic of Sri Lanka (Colin-ThomeJ.)331
Learned Senior State Counsel also submitted Liiat ccr^;r. ..of the circumstantial evidence in the case called for an explanationfrom the appellant, who remained silent at the trial and did nottestify.
As long ago as 1820 Abbot C. J., observed in R v Burdett-14See also Cross on Evidence (5th Edition) at pg 53:
"No person is to be required to explain or contradict untilenough has been proved to warrant a reasonable and justconclusion against him, in the absence of explanation orcontradiction; but when such proof has been given, and thenature of the case is such as to admit of explanation or contra-diction, if the conclusion to which the prima facie case tendsto be true, and the accused offers no explanation or contradic-tion, can human reason do otherwise than adopt the conclu-sion to which the proof tends ?"
The law of Sri Lanka is the same. See R v Gunaratna (supra)and tsar Singh v Emp)5 where it was held that in a case based on circumstantial evidence when no prima facie case has been madeagainst the accused, it is open to the accused to rely safely on thepresumption of innocence or on the infirmity of the evidence forthe prosecution.
In The Queen v i/l. G. Sumanasena'c it was held that in acriminal case suspicious circumstances do not establish guilt. Nordoes the proof of any number of suspicious circumstances relievethe prosecution of its burden of proving the case against theaccused beyond reasonable doubt and compel the accused to giveor call evidence. See also Wallace.17
In other words, if the cumulative effect of the totality of theevidence is one of suspicion, however grave, it is an insufficientbasis for conviction, and cannot take the place of positive proof.
It was also submitted by Sepior State Counsel that an appealis not by way of a rehearing, citing Afadesuru v The Queen)6 Inthis case the Privy Council held that under the Nigerian Ordinancein a proper case the Court of Appeal would give leave to appeal orreview the evidence if a prima facie case was shown that the ver-dict appealed from was one which no reasonable tribunal couldhave arrived at.
In Curly v L/.S.19 it was observed that;
"The functions of the jury include the determination of the
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credibility of witnesses, the weighing of the evidence, and thedrawing of justifiable inferences from proven facts. It is thefunction of the Judge to deny the jury any opportunity tooperate beyond its province; the jury may not be permitted toconjecture merely, or to conclude upon speculation or frompassion, prejudice or sympathy. The critical point in this boun-dary is the existence or non-existence of reasonable doubt asto guilt. If the evidence is such that a reasonable juryman mustnecessarily have such a doubt, the Judge must require acquit-tal, because no other result is permissible within the fixedhounds of jury consideration. But if a reasonable mind mightfairly have a reasonable doubt or might fairly not have one,*119 case is for the jury, and the decision for the jurors tocake."
11 Gardiris Appu v The King20 it was laid down that:
The Court of Appeal does not sit to retry cases, therebyusurping the functions of the jury. If there has been no mis-ci ection, no mistake of law, or no misreception of evidence,tn ? verdict of the jury as a rule will not be upset on the groundthat the verdict is 'unreasonable.' This, however, is not an in-flexible rule to be applied indiscriminately. Each cate must bed&vded on its peculiar facts and circumstances. See alsoM. Nandaratne v The Republic21 and Ebert Siiva v TheKing.72 (P.C.)
In The Queen v Kularatne22 which was a case based on circumst.intial evidence the Court of Criminal Appeal observed thatit was the function of this Court of Appeal to examine theevidence —
"not for the purpose of considering whether that evidenceraises a reasonable doubt in our minds (which we must guardagainst doing) but to consider the submissions made for theappellants, whether there have been misdirections on the evi-dence, and whether the verdict is unreasonable or cannot besupported having regard to the evidence."
The words — "It is unreasonable or cannot be supportedhaving regard to the evidence" — have been interpreted to mean —"if the Court thinks that the verdict is, on the whole, havingregard to everything that took place in the Court of trial, unsatisfactory:" Frederick BarnesSee also Peeris Singho v. TheCueen.2s
Gunawardena v The Republic of Sri Lanka fColin-Thome', J ]< .
The Courts have, however, interfered where the case agair stthe appellant was not proved with the certainty, which’is necessaryin order to justify a verdict of guilty: Wallace (supra). In this caseit was held that the Court will quash a conviction founded onmere suspicion. The Chief Justice remarked:
"Suffice it to say that we are not concerned hen. / ith sus-picion, however grave, or with theories, however :enious."
In the instant case, in view of the several grave non-directionson the evidence amounting to misdirections, and misdirection perse and as the case against the appellant was not proved with thecertainty which was necessary in order to justify the verdict ofguilty, we hold that the verdict of the jury was unsafe, unsatisfac-tory and unreasonable and cannot be supported having regard tothe evidence. The jury had substituted suspicion for inference,reversed the burden of proof and used intuition instead of reason.
We allow the appeal. We set aside the verdict, quash the con-viction and sentence and acquit the appellant.
ATUKORALE, J.,I agree.
TAMBIAH, J.,I agree.
Conviction and sentencequashed and accused acquitted.