ILANGATILAKA AND OTHERS v. THE REPUBLIC OF SRI LANKA

004-SLLR-SLLR-1984-2-ILANGATILAKA-AND-OTHERS-v.-THE-REPUBLIC-OF-SRI-LANKA.pdf


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Sri Lanka Law Reports
[1984] 2 Sri LR.
ILANGATILAKA AND OTHERSv.
THE REPUBLIC OF SRI LANKA
SUPREME COURT.
COLIN-THOME. J„ ABDUL CADER. J. AND RODRIGO. J.
S C APPEALS 59/82 AND 62/82 – H.C. COLOMBO 3169.
MARCH 21, 1984.
Criminal law – Evidence Ordinance, sections 114(b) and 133 – Accompliceevidence – Corroboration – Failure of accused to explain his conduct – When mayadverse inference be drawn ?
The 2nd and 3rd accused-appellants along with the 1 st accused were indicted beforethe High Court on two counts of housebreaking and theft punishable under sections443 and 369 respectively of the Penal Code. All three accused were convicted on bothcounts and sentenced to imprisonment. The only independent evidence for theprosecution was given by one Abdeen. The other two witnesses for the prosecutionwere accomplices. The Court of Appeal dismissed the appeals of the 2nd and 3rdaccused-appellants but granted them leave to appeal to the Supreme Court on thefollowing groundsi-ll) Whether those items of evidence of witness A. Abdeen relating to the 2nd and 3rdaccused-appellants amount to corroboration ;
(b) If so. whether such corroboration is of such a high probative value as to justify theconviction of the 2nd and 3rd accused-appellants upon the charges framed againstthem.
Held –
While it is legal to convict upon the uncorroborated evidence of an accomplice it isa rule of practice which has become virtually equivalent to a rule of law to regard it asdangerous to so convict. What is required is some additional evidence rendering itprobable that the story of the accomplice is true and that it is reasonably safe to actupon it
The corroboration must proceed from an independent source, and it must beweighed as to its probative value. It must confirm in some material particular not onlythat the crime has been committed but also that the accused committed it. Thecorroboration need not extend to the whole story nor need it be by direct evidence thatthe accused committed the crime ; it is sufficient if the evidence is merelycircumstantial
The evidence of Abdeen coupled with the circumstances in which the crime wascommitted and the failure of the 2nd and 3rd accused to give an explanation constitute■ndependent corroboration on material particulars both as to the identity of the accusedu.".1 ifpi' connection with the crime
Ilangatilaka v. The Republic of Sri Lanka
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Where a strong prima facie case has beer 'race out against an accused and whenit is in his own power to offer evidence, if such exists, in explanation of such suspiciouscircumstances which would show them to be fallacious and explicable consistently withhis innocence it would justify the conclusion that he refrains from doing so only from th .•conviction that the evidence so suppressed or not adduced would operate adversely uhis interests
Cases referred to :
Rv Atwood and Robbins. <1787) 1 Leach 464 , 168ER 334
Rv Stubbs. f1855) Dears 555
In Re Meumer, (1894) 2 QB 415.
P Saravanamuttu v R. A de Mel, (1948) 49 N.L.R 529, 560
Rex v. Baskerville, [1916] 2 KB 658 : (1916 – 17] AllE.R. 38
The Queen v. Liyanage. (1965) 67 N.L.R. 193. 212, 213.
The Queen v. Jayasmghe, (1965) 69 N.L.R 314, 325.
Rv. Lord Cochrane and others, (1814) Gurney's Reports 479.
APPEAL from an Order of the Court of Appeal.
Ranjith Abeysuriya with V. C. Ratnayake and P Abeykoon for the 2ndaccused-appellant.
J. C. Boange for the 3rd accused-appellant.
Rohan Jayatilake. D.S.G., for the Attorney-General.
Cur adv vult
April 5. 1984.
COLIN-THOME, J.
The 2nd and 3rd accused-appellants along with the 1 st accused wereindicted before the High Court on two counts
That between the 5th of March and 31st March. 1975, theydid commit housebreaking by night by entering the WekandeStores of the Sri Lanka State Trading (General) Corporation, anoffence punishable under section 443 of the Penal Code
That in the course of the same transaction, they did committheft of pistons and piston rings valued at Rs 62,500 whichwere in the possession of the Head Store Keeper S.L.D.E.Samarasekera of the Sri Lanka State Trading (General)Corporation, an offence punishable under section 369 of thePenal Code.
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[1984] 2 Sri LR.
After the trial without a Jury the learned High Court Judge convictedall three accused on both counts and imposed sentences of one yearon each count on the 1 st accused, 2 years on each count on the 2ndaccused and 3 years on each count on the 3rd accused ; all sentenceswere to run concurrently.
All three accused appealed to the Court of Appeal. During thecourse of the argument in the Court of Appeal learned State Counselsubmitted that he was restricting the case to the events of 31.3.75and hence he had no objection to the appeal of the 1 st appellant beingallowed, as there was no corroboration of the evidence of the twoaccomplices in the case against him regarding the housebreaking andtheft on 5.3.75. Furthermore, Samarasekera, Head Store Keeper, hadstated at the trial that the goods were imported from India on 10thMarch, 1975, so that they could not have been stolen on the 5thMarch. Samarasekera, however, gave this evidence from memorywithout reference to documents. The accomplices did not implicatethe 1 st accused-appellant in the second housebreaking and theft on31.3.75. The Court of Appeal allowed the appeal of the 1 st accusedappellant, quashed his conviction and acquitted him. The Court ofAppeal dismissed the appeals of the 2nd and 3rd accused-appellantsand thereafter ex mero metu granted the 2nd and 3rdaccused-appellants leave to appeal to the Supreme Court on thefollowing grounds
Whether those items of evidence of witness A. Abdeen relatingto the 2nd and 3rd accused-appellants amount tocorroboration ;
If so, whether such corroboration is of such a high probativevalue as to justify the conviction of the 2nd and 3rd accusedappellants upon the charges framed against them.
At the time of the alleged offence the 1st and 2ndaccused-appellants were security officers and the 3rdaccused-appellant was a security guard attached to the WekandeStores belonging to the State Trading Corporation. According to thewitness Bernard, a security guard attached to the Wekande Stores,on 5.3.75 the 3rd accused-appellant suggested that they stealpistons from the store at Wekande by detaching a locked sliding doorfrom its groove and causing an opening. The other accused-appellantsand Bernard agreed to this suggestion and they abetted the 3rd
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accused-appellant in removing 10 boxes containing pistons from thestore. They also helped to put the 'oo'- back in position. The 3rdaccused-appellant then took these boxes to Mahatun outside the gateand Mahatun removed them in a taxi to his house in KelaniyaSubsequently, the 3rd accused-appellant gave Bernard a sum of Rs.2,000. According to Mahatun he sold the 10 boxes of pistons for R-15,000 and gave Rs. 12,000 to the 3rd accused-appellant. Similar,on 31.3.75, sometime after 10 p.m., Bernard together with the 2ndand 3rd accused-appellants once aoain broke into the store atWekande in the same manner as they had done previously andremoved 15 boxes of pistons and 18 or 19 boxes o' piston rings fromthe store. Mahatun removed these boxes by taxi to his house atKelaniya.
On 1.4.75 the Store Keeper Samarasekera discovered the theft ofthe pistons and piston rings which had been imported from India. TheState Trading Corporation was the sole importer of this brand ofpistons and piston rings valued at Rs. 62.500. Subsequently, on8.4.75 Sub-Inspector Oorloff of the Slave Island Police recovered the15 boxes of pistons and 18 boxes of piston rings from Mahatun’shouse at Kelaniya.
The learned Trial Judge had correctly regarded both Mahatun andBernard as accomplices and looked for corroboration from the witnessAbdeen and other circumstances in the case. Abdeen, a driverattached to the State Trading Corporation, was regarded as anindependent witness. According to him he knocked off duty at 12.30a.m. on the night of 31st March – 1st April, 1975. The 2ndaccused-appellant was on duty at the Stores on the 31st night alongwith Bernard from 10 p.m. to 6 a.m. Abdeen saw Bernard that nightgoing towards the store. He saw the 2nd accused appellant also go inthat direction. The 3rd accused-appellant was on the premises thatsame night, although the 3rd accused-appellant was not on duty untilthe following morning. Furthermore, the 3rd accused-appellant madehis presence felt by ordering Abdeen to go to the canteen andthreatened Abdeen if he did not obey this direction.
Learned Counsel for the accused-appellants submitted that as bothMahatun and Bernard were self-confessed accomplices they could notcorroborate each other. Corroboration had to proceed from anindependent source. Abdeen was the only independent witness forthe prosecution ; the totality of his evidence was of negligible probativevalue.
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Under section 133 of the Evidence Ordinance :
"An accomplice shall be a competent witness against an accused*person, and a conviction is not illegal merely because it proceedsupon the uncorroborated testimony of an accomplice."
This is read with section 114 (b) of the Evidence Ordinance :
"The Court may presume that an accomplice is unworthy ofcredit, unless he is corroborated in material particulars
These statutory provisions have adopted the common law ofEngland relating to accomplices. There is no doubt that theuncorroborated evidence of an accomplice is admissible in law : See Ftv. Atwood and Robbins (1). But it has long been a rule of practice atcommon law for a judge to warn a jury that it is extremely dangerousto convict a prisoner on the uncorroborated testimony of anaccomplice or accomplices, and, in the discretion of the judge, toadvise them not to convict upon such evidence ; the judge shouldpoint out to the jury that it is within their legal province to convict uponsuch unconfirmed evidence : Reg. v. Stubbs (2), In re Meunier (3).This rule of practice has become virtually equivalent to a rule of law.
The rule of practice as to corroborative evidence has arisen inconsequence of the danger of convicting a person upon theunconfirmed testimony of one who is admittedly a criminal who hascast his erstwhile associates and friends to the wolves in order to savehis own skin. What is required is some additional evidence rendering itprobable that +he story of the accomplice is true and that it isreasonably safe to act upon it.
There is also a rule of common sense that one accomplice cannotcorroborate another accomplice. Tainted evidence is not made betterby being double in quantity. Corroborative evidence against some ofthe accused cannot be used to accept the evidence of the accompliceas regards the other accused. It will suffice if the accomplice iscorroborated on one or more material particulars as regards each ofthe accused persons he implicates. The corroboration need notextend to the whole story : See P. Saravanamuttu v. R. A. de Mel (4).
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llangatilaka v. The Republic of Sri Lanka fCohn-Thome, J.j
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The best exposition of the nature and extent of corroboration yet tobe found is in Rex v. Baskerville (5). Lord Reading, C.J. giving thejudgment of a very strong Court of Criminal Appeal, said :
"We hold that evidence in corroboration must be independenttestimony which affects the accused by connecting or tending toconnect him with the crime. In other words, it must be evidencewhich implicates him, that is which confirms in some materialparticular not only the evidence that the crime has beencommitted but also that the prisoner committed it. . . . Thenature of the corroboration will necessarily vary according to theparticular circumstances of the offence charged. It would be inhigh degree dangerous to attempt to formulate the kind ofevidence which would be regarded as corroboration, except tosay that corroborative evidence is evidence which shows or tendsto show that the story of the accomplice that the accusedcommitted the crime is true, not merely that the crime has beencommitted, but that it was committed by the accused.
The corroboration need not be by direct evidence that theaccused committed the crime ; it is sufficient if it is merelycircumstancial evidence of his connection with the crime."
This decision of the Court of Criminal Appeal in England has beenfollowed in several decisions in India and Sri Lanka : See R. v. Liyanage(6) and R. v. Jayasinghe (7) where Sansoni, C.J. observed that:
"Corroboration like all evidencehad to be weighed. It
may be legally admissible for the purpose of corroboration, but itsprobative value as corroboration may be very slight or even nil."
It now remains to examine the facts against each appellantseparately in the light of the above dicta. The 2nd accused-appellantwas a security officer attached to the State Trading Corporation. Hewas on duty on 31.3.1975 from 10 p.m. to 6 a.m. at Wekande,when a store on the premises he was guarding was broken into and alarge quantity of motor spare parts in boxes were removed from thestore and taken out of the premises, and subsequently traced to thehouse of Mahatun at Kelaniya. In order to break into the store severalpersons had to lift a heavy sliding door, derail it, and move it to a sideto effect an opening. One of the conspirators then entered the storeand removed as many as thirty three boxes containing motor spareparts (18 boxes of pistons and 15 boxes of piston rings). Thereafter,
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the sliding door had to be replaced in its original position. According toMahatun the motor spare parts were then taken in a taxi to his housein Kelaniya. All these events which would have taken some time tookplace while the 2nd accused-appellant was on guard duty on thepremises. It is inconceivable that this large quantity of motor sparescould have been stolen, undetected by the 2nd accused-appellant,while he was on duty on the premises. According to Abdeen his dutyperiod on 31.3.75 ended at 12.30 a.m. when he handed over thevehicle in his charge to the Corporation. The persons on duty at thattime were the 2nd accused-appellant and Bernard. He saw Bernardgoing towards the store. The 2nd accused-appellant also went thatway. Abdeen also noticed a taxi halted by the gate when he wasleaving the premises.
Abdeen saw the 3rd accused-appellant on the premises late atnight, although the 3rd accused-appellant was not on duty until thefollowing morning. The unauthorised presence of the 3rdaccused-appellant on the premises would have been observed by the2nd accused-appellant. The 3rd accused-appellant acted in a strangemanner. He ordered Abdeen to remain in the kitchen of the canteenwithout leaving the premises and threatened him if he did not do so.There was no one else in the canteen at the time.
The 2nd and 3rd accused-appellants did not give evidence at thetrial. The 2nd accused-appellant did not offer any explanation how thestore was broken into and 33 boxes of spare parts removed from thepremises when he was on security guard duty. Similarly, the 3rdaccused-appellant offered no explanation to his unauthorisedpresence on the premises late at night on the 31st and why hedirected Abdeen to go to the canteen when no one was there.
The irresistible evidence in this case justifies the application of thedictum of Lord Ellenborough in R. v. Lord Cochrane and Others (8):"No person accused of crime is bound to offer any explanation ofhis conduct or of circumstances of suspicion which attach to him ;but, nevertheless, if he refuses to do so, where a strong prima faciecase has been made out, and when it is in his own power to offerevidence, if such exist, in explanation of such suspiciouscircumstances which would show them to be fallacious andexplicable consistently with his innocence, it is a reasonable andjustifiable conclusion that he refrains from doing so only from theconviction that the evidence so suppressed or not adduced wouldoperate adversely to his interest."
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In the circumstances of this case I hold that there was independentcorroboration on material particulars both as to the identity of theaccused and their connection with the crime.
The appeals of the 2nd and 3rd accused-appellants are dismissed.Their convictions and sentences are affirmed.
ABDUL CADER, J. – I agree.
RODRIGO, J. – I agree.
Appeals dismissed.
Convictions of 2nd and 3rd accused affirmed.