JAMES SILVA v. THE REPUBLIC OF SRI LANKA

028-SLLR-SLLR-1980-V-2-JAMES-SILVA-v.-THE-REPUBLIC-OF-SRI-LANKA.pdf


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JAMES SILVA v. THE REPUBLIC OF SR) LANKA
COURT OF APPEALRANASINGHE, J. & RODRIGO, J.
C.A. (S.C.) 5/78; D.C. COLOMBO B/494 (BRIBERY)
JUNE 2 & 6,1980
Criminal Law – Charge – Misdirection by judge – Presumption of innocence -Burden of proof.
The trial judge stated “I had considered the defence of the accused and I holdthat it is untenable and false in the light of the evidence led by the prosecution.’’
Held:
There is a serious misdirection in law. It is a grave error for a trial judge to directhimself that he must examine the tenability and truthfulness of the evidence of theaccused in the light of the evidence led by the prosecution. To examine theevidence of the accused in the light of the prosecution witnesses is to reverse thepresumption of innocence.
Cases referred to:
Rajakaruna v. Attorney-General. SC minutes of 27.2.1976; SC 31/76; D.C.Colombo 292/B
Jayasena v. The Queen 72 NLR 313 (PC)
Rex v. Chandrasekera 44 NLR 97.
APPEAL from the Order of the District Court of GalleJacoiyn Seneviratne for the Accused-Appellant.
D. P. Kumarasinghe, State Counsel for the State.
Cur adv vult.
30th June, 1980.
RODRIGO, J.
Mudiyanselage Seelawathi Wijesekera (Seelawathi) was the plaintiffin divorce action No. 416/D in the District Court of Mount Lavinia. ithad been filed on 30th April, 1975. Summons had been issuedreturnable for 27.6.1975. The defendant was not residing within thejurisdiction of Mount Lavinia District Court. His address had beenstated as at Panadura. Summons had been sent by registered post.This was anticipating the Administration of Justice Law No. 25 of1975 which came into operation only on 1st January 1976. Under theCivil Procedure Code then in operation at the time the action wasinstituted the summons had to be sent in the first instance through aprocess server. Be that how it may. On 27.6.75 there had been noreturn to summons. So the Court ordered await of the return of
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summons and re-issue of summons for 22.8.75. In the meantime, on30.6.75 the summons had been returned undelivered. When the casewas called on 22.8.75 the Court, finding the summons returnedundelivered, ordered its service through a process server returnablefor 24.10.75.
Seelawathi’s Attorney-at-Law (Attorney) had written to her in earlyAugust, to meet him. She had come and met him. This was a fewdays before 22.8.75. On this occasion she had been told that shehad not furnished the correct address of her husband and thesummons had been returned undelivered. She had maintained thatthe address was correct and that her husband was still at thataddress. She had added that the process server was playing the fooland left the place. A week later she had come again to see herAttorney and asked him how the summons could be served.Whereupon the Attorney had told her that a special process serverwould have to be engaged. The Attorney had been informed by herthat her husband leaves home early morning and comes back homelate in the evening. Thus informed, the Attorney had told Seelawathithat she might have to spend a whole day lying in wait for herhusband with a special process server and a matron. The Attorneyhad made a rough calculation in his mind and thought that thisjourney up and down might cost Seelawathi about Rs. 50/- and toldher to find Rs. 60/- and come and see him again.
According to her, she came on 27.8.75 and met the Attorney in hisoffice. This, however, is denied by the Attorney and the Attorney’sposition is that she came on 26.8.75 to his bungalow in the afternoon.Any way Seelawathi had come again on 27.8.75 and met herAttorney in the Court premises. She also met on this occasion theaccused who was a process server of the District Court of MountLavinia. Whatever had been discussed on this day between her onthe one side and her Attorney and the accused, the Process server,on the other, the nett result was that in the afternoon of 27.8.75,officers of the Bribery Commissioner’s Department arrested theaccused and had him eventually prosecuted for soliciting andaccepting Rs. 50/- from Seelawathi to serve summons in the divorcecase on her husband. The indictment was laid under Section 19 ofthe Bribery Act as amended. The indictment, of course, was wordedtechnically. He was tried and convicted and sentenced. This is hisappeal.
Seelawathi’s evidence in chief is that she met the process serverfor the first time on 26.8.75. That was in the office of her Attorney. TheAttorney then had sent for the accused and he was introduced toSeelawathi in the office. Then the accused had been told by the
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Attorney about the problem of serving summons in Seelawathi'scase. The accused thereafter had met her outside the room of theAttorney and is alleged to have told Seelawathi, “Mr. Samarakkodythat had been retained for the case, mentioned that Rs. 50/- will begiven. Has it been brought?” She said “No” and that on the followingmorning, that is on the 27th, it would be brought. What the accusedis alleged to have told Seelawathi outside the room is testified to bySeelawathi in direct speech. It form and phraseology triggers signalsof caution in my mind in regard to its truthfulness – here is a man whohas just emerged from the Attorney’s room after a discussion amongthem with regard to the problem of serving of summons. Seelawathiwas there inside the room all the time with the accused and with theAttorney. Could the accused then have referred to the Attorney inspeaking to Seelawathi as “Mr. Samarakkody that has been retainedfor the case.” Is it not more natural that he should have been referredto as “Mahattaya”? Then the words “He mentioned that Rs. 50/-would be given” – would not a natural conversation be in the form“Have you brought the Rs. 50/- that Mahattaya had mentioned?” It ispertinent to recall in this context that Seelawathi had said in herevidence later on that on 27.8.75 what she was going to tell theaccused was rehearsed by the Bribery officers to her before shecame with the Bribery officers into the Court premises on that day. Itis, therefore, very probable that what she was going to say inevidence was also rehearsed to her and that accounts for theartificiality of the actual words alleged to have been uttered by theaccused outside the room. Its incongruity is still more striking in theSinhala version of the alleged conversation. In fact, if the accusedhad uttered these words as alleged, he would not have beenconversing with Seelawathi but making a speech. When testedagainst her cross-examination, its incredibility is inescapable for, incross-examination she says, that she met the accused when herAttorney took her to the accused. This was on the 26th. She hadforgotten that she had said that in evidence-in-chief that she met theaccused in the Attorney's room. Then she continued that she hadaccompanied the accused to the record room. He looked up therecord of the case and found that the defendant was residing inPanadura. Then he had told her that he was not the process serverfor Panadura. Having said that he had gone with Seelawathi to seethe Attorney’s clerk. After that the accused had gone away. WhatSeelawathi and the accused had told the Attorney’s clerk is not inevidence. Seelawathie, however, stayed behind and met theAttorney. What Seelawathi had told the Attorney is also not inevidence. But the Attorney had asked her to come on the followingday. It must be remembered that the Attorney is denying all this, butstill, according to Seelawathi’s evidence, there is no mention of herAttorney having told her at this point of time anything about Rs. 50/-.
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In fact her position in cross-examination was that her Attorney, afterhe had told her that it might cost her about Rs. 50/- to get thesummons served when she met him in answer to a letter from himabout a week before the 26th, had thereafter not told her anythingabout Rs. 50/-. So that as far as the cross-examination goes, there isnothing in the conduct of the accused on the 26th to suggest even afaint suspicion of any angling on the part of the accused for a bribe.On the contrary, his conduct indicates that he had washed his handsaltogether of any interest in the service of the summons in the divorcecase. This finding is strengthened when one considers the Attorney’sevidence which was not challenged. His version in cross-examinationwas that he met Seelawathi on the 26th at his residence in theafternoon and he had not met the accused on the 26th at all. He,however, said that he had introduced Seelawathi to the accused inthe lawyer’s chambers prior to the 26th and told him about theproblem relating to the service of summons in the divorce case butnever had he mentioned to him anything about Rs. 50/-. The accusedhimself in giving evidence admitted his being introduced toSeelawathi by the Attorney and that the Attorney mentioned to himabout the summons to be served in Seelawathi’s case. But he couldnot say whether it was on the 26th. He, however, did not speak tomeeting Seelawathi in the Attorney’s office, far less of any mention ofRs. 50/-. It is thus seen that the very birth of this story of solicitation istainted with a contradiction and an inconsistency. Therefore, whathappened on 26.8.75, if anything happened at all, does not bring theaccused within the shadow of the charge against him. I
I will now examine the events of 27.8.75. Seelawathi hadcontacted the Bribery Commissioner’s officers on the 27th morning.What provoked her to do that is not clear from the evidence of theevents of the 26th. Any way, Seelawathi had come to Court with awoman officer of the Bribery Commissioner’s Department. That wasaround 10 a.m. on the 27th. Seelawathi’s evidence-in-chief is that assoon as they entered the Court premises, the accused called her andsaid that the gentleman, meaning the Attorney, was waiting for herand asked her why she was late. Then she was taken, accompaniedby Biso Menike, the woman Police Officer, to the Attorney who was inthe Court-house. But in cross-examination her position was that shedid not meet the accused before she met the Attorney. This accordswith the Attorney’s evidence that he was with the accused in theCourt-house when Seelawathi came to him with Biso Menike. Theaccused, however, supports Seelawathi’s version in evidence-in-chiefwhen he said that he told Seelawathi that the Attorney was waiting forher. But the point is that Seelawathi says one thing in her evidence-in-chief and yet another thing in her cross-examination which iscontradictory. The accused had met the Attorney in the morning
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before he met Seelawathi and suggested to the Attorney thatsummons might be served on the defendant at the Colomboaddress. This is the Attorney’s evidence. The Attorney had furthertestified that he had toid the accused then that he wanted to takeinstructions first on that matter. Seelawathi too speaks of the accusedmentioning the service of summons on the defendant in Colombo.She said the accused took out a piece of paper from his pocket andreferred to it and mentioned a Colombo address at which summonscould be served on her husband. She had, however, not examined orlooked at the piece of paper. But according to Seelawathi thisconversation had taken place in her presence between the Attorneyand the accused. Another matter that evokes surprise is that whenthe accused met the Attorney with Seelawathi he had asked theAttorney what the case was. This is Seelawathi’s evidence. If that isso, the events that Seelawathi had said had happened on the 26th isincomprehensible. The Attorney tells Seelawathi that her file hadbeen removed by her brother which she denies. The Attorney askedher for the number of the case. This is all according to Seelawathi’sevidence. This conduct of the Attorney does not make sense, if, asSeelawathi says, all of them met together on the previous day, in theAttorney’s room and had discussed this matter, but it does makesense if as the Attorney says he did not meet Seelawathi on the 26thwith the accused. When Seelawathi was asked if it is true that herhusband is in Colpetty she had hesitatingly said “Yes.” The Attorneyapparently learns all this for the first time on the 27th which thensupports the Attorney's evidence that he did not meet Seelawathi onthe 26th with the accused. The Attorney in this situation, that is, nothaving the case file, not knowing the number of the case, asked theaccused to bring the record to him to enable him to peruse theentries and, as he says, to take necessary action after going homeas the assistance of his clerk was needed. With this request to theaccused, he parted company, with Seelawathi and Biso Menikegoing one way to find a bench to sit on and, the accused going backto his office. Seelawathi had been asked by the Attorney to wait. Thatis why they looked for a bench to sit on. When the accused was onhis way back to the office after parting company, Seelawathi hadrequested the accused to serve the summons. He had then himselfasked them to wait. He had come back, however, after about 5minutes but only to tell Seelawathi that her waiting was useless. Inthe course of the morning, Seelawathi admits having told theaccused that she must get back to work in the afternoon. What sheexpected or requested him to do before noon is not in evidence.Whatever he was doing in the morning in connection withSeelawathi’s case was at the request of the Attorney. The Attorneyhad only asked him to bring the file. Why Seelawathi was asked bythe Attorney to wait is not clear. Perhaps it was to enable her to know
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what steps the Attorney proposed to take after perusing the file. Ihave already said that nothing had transpired in the evidence of theevents of the 26th to justify any finding to incriminate the accused, forthe conduct of the accused on that day does not incriminate him. Butthen according to Seelawathi the events took a dramatic turn at thispoint of time. Seelawathi says that the accused came and said that“There is no point in your waiting”. Then Seelawathi promptly, aspromptly could be, had said “I have brought the Rs. 50/- that wasrequired yesterday for the service of summons." Whereupon theaccused had said “Then give it and go”. In my view, the phraseologyof this statement of Seelawathi apart from the version given by BisoMenike and the accused is remarkable for its suddenness and lackof natural conversational style. It must be remembered that theofficers of the Bribery Commissioner’s Department had rehearsed toSeelawathi what she was expected to say on the morning of the 27th.That is Seelawathi’s evidence. She had met the Bribery officers onlyon the morning of the 27th. Whether she had said what she now saysin evidence she said on the 27th at that point of time to the accusedin that form is problematic for, if, in fact, she had used those wordsthe accused might have thought that something was wrong with heras people do not make speeches when conversing. If the Rs. 50/-had been solicited on the previous day she had merely to say, in myview, that she had brought the Rs. 50/-. Its purpose is already knownbut let me assume that in fact this lengthy statement was made atthat time for the benefit of the Bribery officers. The Bribery officerBiso Menike does not mention the accused coming to them andtelling them that there was no point in waiting. According to her,Seelawathi on seeing the accused coming out of the office startedaddressing the accused and said “Sir, summons must be sent. Canyou do it Sir? For that, I have brought the Rs. 50/- today that youasked for yesterday.” to which the accused replied “Ah, you havebrought the money?” Seelawathi said “Yes”. The accused had thensaid “Then give it”. Examining this evidence without reference to thatof the accused what strikes me is that Biso Menike had suppressedfrom Court that the accused had told Seelawathi that there was nopoint in waiting. It is already in evidence that Seelawathi had saidthat she had to get back by noon. It is a fair inference that theaccused suggested that Seelawathi might go away without wastingher time any longer, from the words he is alleged to have uttered.Unless what Seelawathi said at this time could be connected with theevents of the 26th, it is difficult to believe that the accusedunderstood what Seelawathi was saying in the manner testified to byher. When Seelawathi asked “Can you do it?” what sense, does itmake in the light of Seelawathi’s own evidence that the accused hadalready said that he cannot serve summons at Panadura. It is truethat the accused had mentioned the possibility of the service of
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summons at Colpetty but the Attorney had not approved of it, as hewanted to see the case file before he decided on that. Biso Menikehad an interest in the prosecution, being a Bribery officer, that is, inbringing home the charge. Therefore, this alleged conversation hasto be tested in the light of the version of the accused. The accusedhad testified that the Attorney had asked him, after he spoke toSeelawathi and the accused, to send him the file. The accusedthereafter had gone back to the office to attend to his work. Whetherhe looked for the file is not in evidence. He has not spoken toSeelawathi when he went back to the office. After about 5 minutesSeelawathi came to the door of the office and beckoned him to comeout, and when he came out she had said that she had to go back towork for the afternoon session. She had added after a while that shehad brought the money that “the gentleman” asked her to bring. Thishe understood to mean that Seelawathi was referring to what theAttorney might have asked her to bring. Thereupon, he had said“Then give it and go”. Then she has said that the Attorney was in theCourtroom and that she could not go in there and added “You give itto him”. She presently took the note from Biso Menike and gave it tohim. He kept it in his hands and went inside the office and startedattending to his work when S.l. Jayasinghe came in and startedinvestigating.
Since the events of the 26th and the events of the 27th till the lastfive minutes when the note changed hands, do not lend themselves,in my view, to an inference of incriminating conduct on the part of theaccused, the prosecution had to establish beyond reasonable doubtthat the note that was suddenly sprung on the accused after a longwait on the morning of the 27th, was both bait and trap. It must benoted that neither Seelawathi nor Biso Menike had said that theaccused demanded or solicited this money at any time in the courseof that morning though he had ample opportunity of doing so andparticularly, a suitable opportunity arose when he met them as theywere walking into the Court-house. If it had been arranged on the26th, as Seelawathi says it was, it is incomprehensible that theaccused never asked for it. On the contrary, the accused had askedthem to go away without wasting time. The Attorney had discountedthe story of Seelawathi that she met the accused in the Attorney’soffice on the 26th with the Attorney. If, in fact, the Attorney met theaccused and Seelawathi on the 26th in his office, it would not, castany slur or throw any suspicion of any kind on the Attorney. He had,therefore, no comprehensible reason to deny this story. Tested in thislight, Seelawathi appears to be a woman capable of manufacturingstories. She appears to have had ungrounded hostility towardsprocess servers, for it must be recalled, that when in early Augustshe was told by her Attorney that summons had been returned
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undelivered, her reaction was to say that the fiscal officers wereplaying the fool, quite ignorant of the fact that summons had beensent by post. With Seelawathi’s credibility thus impaired and BisoMenike’s evidence tainted with suppression of evidence in that shedid not mention that the accused had asked them to go away withoutwaiting, there remains the accused’s explanation of how the notecame to be in his hands. The accused presumably made a promptstatement to S.I., Jayasinghe. His evidence has not beencontradicted. To disbelieve the accused, we have to hold that hemanufactured this evidence in next to no time given to him by S.l.Jayasinghe for him to make a statement. The explanation of hisconduct promptly given, is quite consistent with the circumstancesthat preceded the handing over of the note and the circumstancesimmediately attending the handing over of the note. His explanationis credible when regard is had to Seelawathi’s own evidence that shehad told the accused earlier that she had to be at her workplace inthe afternoon. It is also not contradicted that the Attorney was in theCourtroom at the time. It is also not controverted that they werewaiting there because the Attorney had asked them to wait.Following the principles enunciated in judgments – see Sirimane, J.in Rajakaruna v. Attorney-General (unreported)(,), the prosecutionevidence must be tested in the light of that of the defence. Theaccused's evidence of events leading to the receipt of the Rs. 50/-note has not been exposed to be inconsistent with provedcircumstances.
The reasoning of the trial Judge does not persuade us to take adifferent view. The evidence of Seelawathi has not been examinedcritically. He calls her “the poor woman” meaning a woman infinancial difficulties whom her Attorney was seeking to exploit tobenefit the process server, the accused. To quote the learned trialJudge,
“Indeed, on the evidence of Seelawathi and Mr. Samarakkody itwould appear that Mr. Samarakkody had wanted Seelawathi tobring Rs. 50/- as a bribe to be given to the accused if summonswas to be served on Seelawathi’s husband. I regret I have tocome to this conclusion but the evidence in this case isoverwhelming. Mr. Samarakkody had leant himself in thismanner to help the accused at the expense of a poor womanwho was his client.”
This comes at the heel of the passage immediately next precedingwhich reads,
“I must state that although Mr. Samarakkody had askedSeelawathi to bring this money, the accused had solicited it
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from her on the 26th, being well aware of the fact thatMr. Samarakkody had asked her to bring this Rs. 50/- for theservice of summons on her husband.”
The inference drawn by the trial Judge in the first paragraph quotedis not a necessary or fair inference from the fact that Mr.Samarakkody had asked Seelawathi to bring Rs. 50/- for the serviceof summons. Besides, how did the learned trial Judge reach hisfinding "that the accused had solicited Rs. 50/- from Seelawathi onthe 26th, being well aware of the fact that Mr. Samarakkody hadasked her to bring Rs. 50/- for the service of summons?” Seelawathihad testified that her Attorney had mentioned to her that Rs. 50/-would be required, not on the 26th, but about a week earlier whenshe went to see him to find out how summons could be served.Thereafter he did not mention to her at any time anything about theRs. 50/-. Her evidence is that the Attorney had said that theenterprise will cost her about Rs. 50/-. He accepted Biso Menike’srepetition of what Seelawathi is alleged to have said to the accused,namely, that “she has come prepared with the Rs. 50/- asked by thegentleman”. He accepted Biso Menike’s evidence that by"gentleman” Seelawathi meant the accused. He concludes thatSeelawathi said that she had come prepared with the Rs. 50/-required by the “gentleman” because the accused had asked herearlier whether she had brought the money. It was an inflexibleimpression in the learned trial Judge’s mind that the accused hadasked Seelawathi whether she had brought the money. This must bea reference to what Seelawathi says happened outside the Attorney’sroom on the 26th. But I have already discussed above the difficultiesstanding in the way of this piece of evidence being accepted. Thelearned trial Judge however does not show any inclination to assesssuch a crucial piece of evidence but accepts it on its surface valueand makes it a springboard for reaching inferences. That BisoMenike did not mention that the accused had told Seelawathi that herwaiting was pointless had made no impression on the trial Judge, orthe fact that Biso Menike was a Police Officer having an interest inthe prosecution.
We find that in discussing the evidence of the accused thelearned trial Judge misdirects himself on matters of fact testified toby witnesses. For, in one passage, the learned trial Judge states “Imust state that the evidence of Seelawathi is that the accused hadaccosted her on the 26th August at the Mount Lavinia District Courtand inquired from her whether she had brought the money which shehad been told to bring for the service of summons on her husband. Iprefer to accept the evidence of Seelawathi to that of the accused onthis aspect of the matter.” Seelawathi had never said so according tothe record. Again the learned trial Judge states:
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“Furthermore, Mr. Samarakkody in his evidence said that hehad introduced the accused to Seelawathi on the 26th”.
This is not borne out by the record. In fact Mr. Samarakkody’sevidence is that Seelawathi saw him at his bungalow on the eveningof the 26th. The learned trial Judge continues,
“Seelawathi had stated in her evidence that she had told theaccused that she had brought the Rs. 50/- demanded by theaccused for the service of summons.”
This is not correct. Seelawathi had not said so. That was BisoMenike’s version of what Seelawathi is alleged to have said.
Then there is this serious misdirection in law, namely, to quote thetrial Judge,
“I had considered the defence of the accused and I hold that itis untenable and false in the light of the evidence led by theprosecution."
It is a grave error of law for a trial Judge to direct himself that hemust examine the tenability and truthfulness of the evidence of thedefence in the light of the evidence led by the prosecution. Ourcriminal law postulates a fundamental presumption of legalinnocence of every accused till the contrary is proved. This is rootedin the concept of legal inviolability of every individual in our society,now enshrined in our Constitution. There is not even a surfacepresumption of truth in the charge with which an accused is indicted.Therefore to examine the evidence of the accused in the light of theprosecution witnesses is to reverse the presumption of innocence.
A satisfactory way to arrive at a verdict of guilt or innocence is toconsider all the matters before the Court adduced whether by theprosecution or by the defence in its totality withoutcompartmentalising and, ask himself whether as a prudent man, inthe circumstances of the particular case, he believes the accusedguilty of the charge or not guilty – see the Privy Council Judgment inJayasena v. The Queen<2).
By reason of the learned trial Judge misdirecting himself on thelaw as stated above, he has not considered whether the evidence ofthe accused creates a reasonable doubt in the prosecution case. Hehas directed himself to examining the defence by itself. It must beremembered that there was no fact in issue such as a specialdefence or a general exception which rested the burden of proof on
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the accused. See Rex v. Chandrasekera(3) which was mentioned withapproval in Jayasena v. The Queen (supra). The burden therefore,was all along on the prosecution to bring home the charge ofsolicitation and acceptance of a bribe to the accused beyondreasonable doubt and it is our view that, when the evidence adducedby the prosecution and the defence is analysed and examined, theprosecution has not discharged that burden.
For these reasons we set aside the conviction and sentences andacquit the accused.
RANASINGHE, J. -1 agree.
Appeal allowed.