Gunawardena v. The Republic of Sri Lanka (Colin-Thome', J.)315
THE REPUBLIC OF SRI LANKA
COURT OF APPEAL
COLIN-THOME',J. (PRESIDENT) ATUKORALE, J. AND TAMBIAH, J.
C.A. NO. 35/80 – H. C. GAMPAHA 28/78
MAY 27,28 ANO 29. 1981
JUNE 22.214.171.124,10,11,15,18 AND 19.1961
Charge of murder – circumstantial evidence — evidence of behaviour of police dog -reference to provocation in the absence of evidence — compromise verdict — conjectureand suspicion.
Very convincing expert evidence should be placed before a Court which is invited toconclude that the mere behaviour of a police dog by itself renders the existence of anyrelevant fact in a criminal trial so highly probable or improbable as to justify the appli-cation of s.11(b) of the Evidence Ordinance. In every case it would be necessary forevidence to be received about the training, skill and habits of the particular dog and itshandler, and of the fact that each human being has a different scent or odour which isliable to be picked up by well trained dogs. The handler should be shown to be wellexperienced in regard to the characteristics of the particular dog in question. Howeverthere are two fundamental difficulties. The uniqueness of scent appears to be by nomeans so clearly established as, for instance, that of finger prints. Furthermore thereliability and aptitude of dogs for this type of work varies.
However an important clue may be discovered by an animal which would point tothe identity of the offender. But in such a case it is the positive evidence brought to lightrather than the manner of itsoiscovery that constitutes relevant and admissible evidenceof the offender’s guilt.
A warning by the Judge to the jury against bringing a compromise verdict is nulli-fied by the Judge himself speculatively suggesting to the Jury the possibility of provoca-tive incidents of which there is no evidence and which cannot be reasonably inferredfrom the evidence. The accused should be tried on the evidence and on the evidencealone.
In a case resting on circumstantial evidence the judge in addition to giving the usualdirection that the prosecution must prove the case beyond reasonable doubt must give afurther direction in express terms that they must not convict on circumstantial evi-dence unless they are satisfied that the facts proved are —
consistent with the guilt of the accused; and
exclude every possible explanation other than the guilt of the accused.
In a case of circumstantial evidence the facts given in evidence may, taken cumula-tively be sufficient to rebut the presumption of innocence, although each'fact, whentaken separately may be a circumstance of suspicion. Each piece of circumstantial evi-dence is not a link in a chain for if one link breaks the chain would fail. Circumstantialevidence is more like a rope composed of several cords. One strand of rope tray beinsufficient to sustain the weight but three stranded together may be quite sufficient.
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When no prima facie case has been made against an accused, he need not offerexplanation. It is open to the accused to rely safely on the presumption of innocenceon the infirmity of the evidence for the prosecution.
If the cumulative effect of the totality of the evidence is one of suspicion, howevergrave, it is an insufficient basis for conviction, and cannot take the place of positiveproof.
The Court of Appeal does not sit to retry cases thereby usurping the functions ofthe jury. If there has been no misdirection, no mistake of law or no misreception ofevidence, the verdict of the jury will not be upset on the ground that the verdict is unreasonable. This is however not an inflexible rule. If the Court thinks that verdict is, on thewhole, having regard to everything that took place in the Court of trial, unsatisfactory,then the Appeal Court will interfere.
Cases referred to:
(1) H. N. Gunawardena v. The Republic 78 NLR 209.
121 S. Rathinam v. The Queen 74 NLR 317,326.
(3) Kanapathipillai v. The Queen 57 NLR 397.
(41 R v. Haas (1962) 35 OLR 172.
Patterson v. Nixon (I960) S-C. (J) 42,49.
M. J. Fernando v. The Queen 54 NLR 255, 258.
Mancini v. The Director of Public- Prosecutions 1942 AC 1, 12.
Me Greei/y v. Director of Public Prosecutions (1973) 57 Cr. Ap. Reports424.
Ducsharm 1955 O. R. 824.
Hodge (193812 Lew. 227.228.
Plomp v. The Queen (1963) 11 – CLR 234,252.
Regina v. Enall 176 ER Nisi Privy 853.
The King v. Gunaratna 47 NLR 145, 149.
R. v. Burden (1820) 48 & Aid. 161, 162.
tsar Singh v. Emp. 7 SLR 109.
The Queen v. M. G. Sumanasena 66 NLR 350.
Wallace (1931) 23 Cr. Ap. R. 32.
Aladesuru v. The Queen [19561 AC 49.
Curly v. U. S. 81 US App. D. C. 389.
Gardire Appu v. The King 52 NLR 344.
M. Nandaratne v. The Republics. C. 61-63/77.
H. C. Avissawella: S. C. Minutes of26.7.1978.
Ebert Silva v. The King 52 NLR 505 (P.C.)
The Queen v. Kularatne 71 NLR 529,532.
Frederick Barnes (1942) 28 Cr. Ap. R. 141, 142.
Peers Singho v. The Queen 52 NLR 173.
Dr. Colvin R. de Silva with N. V. de Silva for the accused-appellantAnanda Amaranath. Senior State Counsel, for die Attorney-General.
Cur adv vult
Gunawardena </. The Republic of Sri Lanka (Colin-Thome', J.)317
COLIN THOME. J.
This case has had an abnormally chequered history. The appellantwas charged with having committed murder by causing the deathof M. G. Somawathie alias Soma Perera on 15.5.1973, at Galen-bindunuwewa, an offence punishable under section 296 of thePenal Code.
The appellant has had three trials on the same charge and hasbeen through three appeals. The first trial was held from 10th-October to the 25th October, 1974, in the High Court of Kandy.At the conclusion of this trial he was found guilty of the charge byan unanimous verdict of the jury and was convicted and sentencedto death. In appeal a retrial was ordered as the trial Judge hadm sdirected the jury on circumstantial evidence and the deduc-tions to be drawn from the failure of the accused to testify: SeeH. N. Gunawardena v The Republic.1
At the re-trial, also held in the High Court of Kandy betweenthe 6th July and 13th July, 1976, before a different Judge, aftera few of the main prosecution witnesses had given evidence coun-sel for the appellant applied to the Judge to direct the jury toreturn a verdict of not guilty, on the basis that the evidence ledso far as well as the rest of the evidence did not disclose that theappellant committed the offence. After hearing the submissions ofdefence counsel and State counsel the trial JudgeJield that therev/as no evidence upon which the jury could find the appellantcuilty. Before a verdict was made and an order of acquittal was(mered in the indictment the Court adjourned to enable theAttorney-General to move in revision if he decided to contest theorder.
The learned Attorney-General made an application for revi-vor of the order of the trial Judge and the Supreme Court, con-sist ng of a Bench of five Judges, while' regretting the hardshipraised to the appellant, directed a second re-trial as the trial Judge~ c i prematurely discharged the accused before the conclusion of;h prosecution case which he had no power to do. Supreme Court,Ji plication No. 503/76— H. C. Kandy No. 67/74— decided on: 9.1976. In the course of the judgment the Supreme Court. onsidered S.. Rathinam v. The Queen2 where it was held that intne history of the Court of Criminal Appeal in this country anreused person has never been tried on a third occasion under theproviso to section 5(2) of the Court of Criminal Appeal Ordi-nance. In the instant case the second trial was abortive.
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The third trial, conducted in the High Court of Gampaha,lasted one month and eight days, from the 3rd July to the 11thAugust, 1978. At the conclusion of this complicated case on cir-cumstantial evidence after 45 witnesses had given evidence thejury retired at 12.45 p jn., and returned with their verdict only 35minutes later. They held that the appellant was guilty of culpablehomicide not amounting to murder on the basis of grave andsudden provocation. In the meanwhile the appellant had spentone year and two months in the death cell and a further threeyears in the remand jail making a total of four years and twomonths in jail. The learned trial Judge took these matters intoaccount and after convicting the appellant sentenced him to fouryears rigorous imprisonment.
The appellant was a Police Sergeant at the Galenbindunu-wewa Police Station at the time of the incident. The deceased andhe had become lovers around 1968. In 1968 he was stationed atMahawela, in .the Matale District, and had gone to the deceased'shouse in Mahawela to investigate a complaint of burglary made bythe deceased's husband James. After this initial meeting theappellant and the deceased carried on a clandestine affair and shebecame his mistress and thereafter had sexual relations with himboth in Mahawela and Kandy. They used to-exchange letters andover a period of about a year, at irregular intervals the appeilanthad sent her small sums of money by postal order. There werenine postal orders for Rs. 5/- each and 4 of Rs. 10/- each. The lastpostal order was dated 7. 2. 1973.
Somawathie alias Soma Perera was born in the village ofBamunudeniya in the Matale District. She was given in marriage byher parents at the age of 16 to one James and she bore him threechildren. She was a good looking woman but her marriage toJames did not last long. After a time she left him and became aservant in various houses and did not visit her parental homeoften.
Mrs. A. A. Hulathuwa, a school teacher, said that Soma Pererawas her employee from 6,6.1971 to 13.2.1972. Soma Perera'slast employers were Seemon Singhoand his wife Irene Ranasinghe.
According to Irene Ranasinghe the deceased was not in anyfinancial difficulty and when she left her house on 13.5.1953 sheborrowed Rs. 5/- from her. The deceased had been employed forabout one year under her. She had been ill and she said she wouldget well and come back. That was the last time Mrs. Ranasinghesaw her.
Gunawardena v. The Republic of Sri Lanka (Colin-Thome', J.)319
The appellant was married. At the time of the incident he livedwith his wife and children in the married officers quarters close tothe Police Station. After the insurgency in 1971 the Police Stationand living quarters of 28 to 30 police officers were surrounded bya 6 foot high barbed wire fence and two sentries patrolled thecompound day and night. The fence had about seven strands ofbarbed wire. There was a gap in the fence which was between thesinglemen's barracks and P. C.Tennekoon's quarters. This gap wasalso between two culverts on the road opposite the Station.
On the 13th May, 1973, the deceased left Colombo. It is notknown where she spent the 13th night. She spent the 14th nightwith Seelawathie at Matale. Then she took a bus from Kandy at
p.m. on the 15th and travelled to Kekirawa. By a coincidence,or by arrangement, the appellant also got into the same bus atKekirawa at 7 p.m. bound for Galenbindunuwewa. The appellantwas returning to his station after giving evidence in two Courtcases at Kegalle.
The bus arrived at Galenbindunuwewa at 8.15 p.m., accordingto the log-sheet P61 maintained by the driver Piyasena. He hadentered the time in the log-sheet shortly after the bus arrived atthe bus stand and the passengers had left the bus. This vital docu-ment was one of the few contemporaneous records of time produ-ced in this case where time was such a crucial issue. For some inex-plicable reason this document surfaced for the first time duringthe third trial, in the middle of the cross-examination of W. K. A.Wijesundera Depot Inspector, C. T. B., Rambukkana, when he wasbeing needled by defence counsel on the time of arrival at Galen-bindunuwewa. He boarded a bus at Kandy bounded for Kekirawaon 15.5.1973 at about 2 p.m. The deceased boarded the same busand sat in the same row. He remembered her because of an inci-dent that occurred in the bus. Her umbrella was missing and therewas a commotion. The deceased searched the parcels of everypassenger for her umbrella. This incident revealed that the decea-sed was a daring sort of woman.
At Kekirawa at about 7 p.m. Wijesundara saw the appellantboard the bus and he sat immediately behind the driver's seat.He did not speak to the deceased. Eventually the bus arrived atGalenbindunuwewa at about 8.15 p.m. At the earlier trial hesaid that the bus arrived at 8.30 p.m. claiming that he checkedthe time from his watch. The deceased had a suitcase and she waswearing a green nylex saree and a short sleeved white jacket. Hesaw the deceased and the appellant leave the bus and proceedalong the Sippukkulama road. He was unable to say whether they
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went together or one behind the other. On the following day heheard that the body of a woman was lying on the bed of the tankat Galenbindunuwewa. He went there at about 9. a.m. and identi-fied the body as that of the woman who travelled in the bus withhim the previous afternoon.
The case for the prosecution rested wholly and substantiallyon strands of circumstantial evidence. According to the prosecu-tion the appellant had a strong motive for killing the deceased.She had embarrassed him, a married man, by arriving at Galen-bindunuwewa on the 15th May. He murdered her at the spotwhereafter body was found by strangling her between 8.30 p.m.and 9 p.m. on the 15th. Thereafter he scattered her clothing andother particles to simulate a sexual assault on her and robbery.
In order to establish the charge the prosecution relied on asmall group of witnesses who testified to the movements of theappellant and the deceased prior to her death and to the move-ments and conduct of the appellant after her death. The case forthe prosecution was that when the witness Punchi Banda Senevi-ratne alias Korossagolle met the appellant on the road opposite thePolice Station on the 15th between 8.30 p.m. and 9 p.m., thedeceased had already been murdered. The prosecution leantheavily on the medical evidence for corroborating this thesis.
The body of the deceased was discovered by Jamaldeen Moha-med on the following day, the 16th May, at 7.30 a.m. on the tankbed. According to the sketch the body was found at point 16.Police driver Sirisena's quarters were opposite this spot about 140yards away. The appellant's quarters were about 40 yards north ofSirisena's quarters. Mohamed was a herdsman and that morningwhen he took his herd of cattle to graze on the tank bed he dis-covered the body. The body was tied to a nithul tree. There wasa suitcase close to the body and it was opened. He informedP. C. Tennekoon about this discovery. Later others came to seethe body including S. I. Rodrigo and the appellant. The appellantexamined the articles in the suitcase. He also examined an earringbox in the suitcase and took a receipt from it. The appellant askedhim whether he could read Tamil as the receipt was in Tamil.He read the name “Soma Perera" on it. The name of the shop atMatale was also on the receipt. Thereafter, the appellant put thereceipt into his pocket. P. C. Tennekoon was present at that time.In his statements to P. C. Palamure at the Galenbindunuwewapolice Station on the 16th May and to the C.I.D. on the 13th.June, he made no mention of the fact that the Police Sergeantput the receipt into his pocket.
Gunawardena v. The Republic of Sri Lanka (Colin Theme', J.)321
(His Lordship then proceeded to examine the evidence ofseveral witnesses and continued).
The main submissions of learned Counsel for the appellantwere:—
That the time of killing had not been precisely established;It had been assumed without any evidentiary basis that thedeceased was already murdered between 8.30 p.m. and9. p.m. on the 15th when Korossagolle met the appellanton the road;
That the circumstantial evidence fell far'short of establi-shing the charge beyond reasonable doubt and the verdictof the jury was based on sheer conjecture and was unrea-sonable, and, in any event, could not be supported havingregard to the evidence;
The motive for killing the deceased had not been evenremotely established;
The appellant's defence was glossed over in the chargeto the jury and not fully emphasized. There was no properanalysis of the evidence by the trial Judge and the juryhad no assistance from him how to approach the unsatis-factory and ambiguous evidence of the medical witnesses;
There was fabrication of evidence by some of the policeofficers who were witnesses in the case;
The jury yvas confused and in spite of the Judge directingthem not to bring a compromise verdict, that was the veryverdict they brought;
The trial Judge directed the jury in a way which openedfor the them the door to conjecture; There was not atittle of evidence of grave and sudden provocation.
The case for the prosecution was that the appellant and thedeceased alighted from the bus at about 8.15 p.m. on the 15th andwalked one behind the other at a normal pace from the bus standto the main entrance of the police station. The distance from thebus stand to the junction, according to Wijesundera, was about220 yards. The distance from the junction to the main entranceto the police station was about 230 yards, making a total of about
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450 yards. The appellant and the deceased parted company, atthe main entrance after presumably a 5 to 10 minute walk fromthe bus stand. Sometime later, it is not known how many minuteslater, one can only assume it was about 8.30 p.m., the deceasedwas seen by Udabage and Charlis Baas walking alone slowly on theroad opposite the barracks, in the meanwhile, according to theprosecution, the appellant had gone to the police station and madeinquiries about letters and then gone to his quarters, which wereabout 260 yards from the police station, and changed into khakishorts and a white shirt. After that he met the deceased againsomewhere on the road outside the police station shortly afterUdabage and Charlis Baas met her. He may have gone to the roadthrough the gap in the barbed wire fence. It was located betweenthe singleman's barracks and P. C. Tennekoon's quarters. Therewas not an iota of evidence that any police officer or any of thesentries who patrolled the compound or anyone else on the roadsaw the appellant meet the deceased in this manner. The prosecu-tion then surmised that the appellant took the deceased throughthe gaps in the fence round the paddy field opposite Police DriverSrisena's quarters and then took her to the tank bed presumablyarriving there at about 8.35 p.m. The prosecution theorized thatthe appellant lured her there pretending to want to make love toher. Then he knocked her unconscious with a fist blow on the eyeand strangled her. After having done so he set the stage to simulaterape and robbery.
The distance between appellant's quarters via the gaps in thefence and where the body was found was about 280 yards. Thewatch and two exercise books were found about 66 yards northof the body and the deceased's handkerchief was found about 500yards south of the body.
According to the medical evidence the deceased was a wellnourished woman who could have resisted an attack and raisedcries which could have been heard at the police barracks but nocries were heard there. According to Dr. Amarasekera, it wouldhave taken about 10 minutes to strangle the deceased. Theonerous burden on the prosecution, therefore, was to establishbeyond reasonable doubt that the appellant in bright moonlightand with the lights of the police station falling on the road and onthe paddy field opposite the barracks had boldly taken a woman,not his wife, to the tank bed without being seen by police officers,sentries and people passing along the road.
Korossagolle is the solitary witness who brings the appellantoutside the premises of the police station after he had gone there
Gunawardena v. The Republic of Sri Lanka (Co/in-Ttiome', J.j 323
earlier at about 8.25 p.m. Korossagolle in all probability met theappellant on the road at about 8.50 p.m. as the appellant had toreturn to his quarters change his clothes and go past Tennekoon'squarters at 9 p.m. to the police station. Korossagolle saw the appe-llant coming along the road from the direction of the 20 acrecolony. There was nothing suspicious about his conduct andappearance. He walked normally, he was not excited, he did nottry to hide or avoid Korossagolle, and he did not appear to betired like some person soon after a very strenuous physical andemotional ordeal. There was no evidence that there were blood-stains on his clothes. He did not come across the paddy fieldsfrom the direction where the corpse was later found nor was heseen trying to creep through the gap in the barbed wire fence in agreat hurry to get to the police station to establish an alibi.
If Udabage and Charlis Baas met the deceased at about 8.30p.m. then the appellant and the deceased would have reached thetank bed at about 8.35 p.m. the earliest or even later.
According to the prosecution, the appellant had to kill thedeceased, then set the scene to simulate a sexual assault androbbery and then rush back to his quarters to change his clothesand hurry to the police station to establish his alibi, and to makehis 'In-Entry' at 9.05 p.m. He had to do all this in, at most, a brief15 or 20 minutes. The appellant had to cover considerable dis-tances to achieve this object. If he murdered the deceased at P16then he had to go south to P14, which was 500 yards away todrop the handkerchief. He had then to come bick the same dis-tance of 500 yards and then go to P18, which was 66 yards northof point P16 and then came back 66 yards to return to his quartersvia the gaps at P37 and P36, and change into his black trousers andwhite shirt. It is incredible that a man who had been through sucha traumatic experience would not have revealed signs of stress andstrain when he met Korossagolle. All these circumstances in favourof the appellant had not been adequately stressed to the jury bythe trial Judge in his charge. In fact, Korossagolle went on to saythat after he met the appellant, the appellant proceeded in thedirection of the police station and not in the direction of his housethrough the gap in the fence. An important defect in Korossa-golle's evidence is that he did not mention in his statement to thepolice that he saw the appellant wearing khaki shorts and a whiteshirt when he met him on the road. He was the only witness tospeak to this significant detail. It was a police touch suggestedthe defence. This aspect of the defence was not referred to in thecharge to the jury.
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Assuming that Korossagolle did meet the appellant on the roadbetween 8.30 and 9 p.m. there was no conclusive evidence that thedeceased was dead at that time. She may well have been killedlater, perhaps at 11 p.m. on the 15th or at 2 a.m. on the 16th, orlater. The assumption that when Korossagolle met the appellant thedeceased was already dead had no basis. The attention of the jurywas not drawn to this crucial aspect of the case by the Judge inhis charge.
Several unsatisfactory features of the medical evidence werenot adequately analysed in the charge to the jury. According toDr. Ratnavadivel's postmortem report, the deceased would havedied between about 24— 36 hours before the postmortem exami-nation began at 11 a.m. on the 17th. This would mean, that shewould have died between 11 p.m. on the 15th and 11 a.m. on the16th and if that was so, the prosecution case would have collap-sed ab initio. At the police conference which Dr. Ratnavadivelatten-ded on the 23rd June, 1973, he did not change his opinion aboutthe time of death, but 1V2 years later when he gave evidence atthe first trial in the High Court of Kandy he'took the defencecompletely by surprise when he stated for the first time that thedeceased may have been killed between 8.30 p.m. and 11 p.m.on the 15th. At the 3rd trial he made a further change and statedthat she may have been killed between 8.30 p.m. on the 15thand 2 a.m. on the 16th. Professor Amarasekara, who had examinedthe body several weeks later, stated categorically that when onegoes beyond the 24 hour limit, it is difficult to fix the time of deathprecisely; but towards the tail-end of his -evidence abandoningwhat he said earlier he stated that death would have occurred at orabout 8.30 p.m. on the 15th. The impact on the jury of thisaltered opinion coming at the tail-end of the Professor's evidencemust have been incalculable. The attention of the jury was notcarefully drawn to the very unsatisfactory discrepancies and thegroping uncertainty in the evidence of the medical witnesses onthe vital issue of the time of death. The two doctors, however,agreed that taking into account the totality of the injuries of thedeceased coupled with the fact that seminal stains were found onthe torn under skirt of the deceased they could not rule out thepossibility that a sexual assault was attempted on the deceased.
Sub-Inspector Rodrigo claimed that the appellant came to thepolice station at about 7.57 p.m. on the 15th. His evidence wasdestroyed by the production of the log sheet P61 which revealedthat the bus bringing the appellant and the deceased arrived at8.15 p.m. The trial Judge directed the jury that ultimately StateCounsel had to jettison the evidence of Rodrigo on that point and
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Rodrigo may have been making a mistake. In our view, the Judgeshould have gone further and reminded the jury that the positionof the defence was that this evidence had the hallmarks of a fabrication and that when P. C. Wijesekera stated that the appellantcame to the police station at 9.15 p.m. or 9.20 p.m. that nighthe was similarly fabricating evidence to widen the interval of timebetween the appellant's first and second arrival in the ChargeRoom to give him a bigger margin of time for strangling the decea-sed. If Tennekoon's evidence was true that the appellant went pasthis quarters at 9 p.m. in the direction of the police station then itis manifest that Wijesekera was giving false evidence.
The Judge failed to direct the jury that J. Mohamed had madeno mention in both his statements to the police that the appellanthad put the receipt found in the earring box into his pocket. TheJudge in his charge mentioned Tennekoon's failure to informRodrigo at the scene that the appellant had in his possession areceipt which was a clue to the identity of the deceased. Theomission of Tennekoon, a police officer, and a trained observer,to do so affected his creditworthiness. This was not fully urged inthe charge.
The trial Judge when dealing with the entry made by the appe-llant at 9.05 p.m. omitted to point out to the jury that this wri-ting had not been forwarded to the Examiner of QuestionedDocuments for an expert opinion whether the writing revealedsigns of excitement. This was the only item of evidence the prose-cution relied on to show that the appellant was excited becausehe had shortly before that committed the offence. The lay juryhad to decide this important issue without the guidance of anexpert.
The prosecution suggested with regard to the deceased's hand-kerchief that the appellant dropped it at P14 with the two keysand a five cents coin attached to it on the following day when heaccompanied the handler of the dog. This again was another the-ory put forward by the prosecution which was not supported byan iota of evidence. If the object, as suggested by the prosecution,of the appellant was to scatter the articles of the deceased in orderto simulate rape and robbery, it is inconceivable that he wouldnot have scattered the handkerchief together with the other arti-cles of the deceased on the same night. If is incredible that hewould have preserved the deceased's handkerchief overnight anddropped it in broad daylight in the presence of police officers anda crowd of inquisitive spectators. The prosecution claimed thatRodrigo searched the scene on the 16th and did not find this
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handkerchief. It was, however, not put to Rodrigo at the trialthat he searched the area around P14 500 yards away from thebody. This aspect of the evidence was not fully and fairly put tothe jury by the Judge.
Evidence was led at the trial that on the 16th the appellantaccompanied the police who was the handler of the dog. Evidencewas led that the dog went to the compound of Edirisinghe Baas'shed and from there went to the bund of the tank and returned toEdirisinghe Baas' compound. The handler of the dog was notcalled to explain the behaviour of the animal. The trial Judge afterhaving permitted evidence of the dog's behaviour later directed thejury to ignore this evidence in view of Gratiaen J's obiter dictumin Kanapathipillai v The Queen3 at 398, that it may be safer forthe present to leave such evidence out.
There was evidence that the appellant openly accompanied thehandler and the dog to Edirisinghe Baas' carpentry shed. Therewas no evidence that he tried to avoid going with the handler andthe dog. There was also no evidence that after the dog was giventhe scent of the blouse that tied the hands of the deceased that itled the handler to the appellant. These were all matters fromwhich inferences could have been drawn favourable to the appe-llant.
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:—
"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.