JAYATISSA v. HON ATTORNEY GENERAL

022-SLLR-SLLR-2010-V-1-JAYATISSA-v.-HON-ATTORNEY-GENERAL.pdf


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Jayatissa v. Hon Attorney General
279
JAYATISSA V. HON ATTORNEY GENERALSUPREME COURTJ. A. N. DE SILVA, C. J.,
SRIPAVAN, J. ANDIMAM, J.
S.C. (SPL) L.A. NO. 229/2009H.C. (CHILAW) NO. 6/2000C. A. NO. 27/2004FEBRUARY9™, 2010
Evidence Ordinance – Section 11 Section 105 – When facts nototherwise relevant are relevant?- relevancy of facts which isinconsistent with a fact in issue or relevant fact – defence of alibi- facts which make the existence or non-existence of any fact inissue or relevant fact highly improbable or highly probable
The Appellant, with two others, were indicted before the High Court on acharge of attempted murder. After trial, the 2nd and 3rd Accused wereacquitted and the Appellant was convicted. The Appellant appealedagainst the judgment of the High Court and the Court of Appealdismissed the appeal.
The Appellant thereafter appealed to the Supreme Court mainly on theground that the Judge of the High Court acted on the premise that thedefence of alibi raised by the Appellant must be proved by the Appellant.The learned High Court Judge had held that the burden of proof of thedefence of alibi is always with the Accused.
Held
The word ‘inconsistence’ referred to in Section 11 of the EvidenceOrdinance indicates the physical impossibility of the co-existenceof two facts at any given time.
Plea of alibi is not an exception to penal liability. Hence there isno burden of proof on the Accused to prove a plea of alibi section105 of the Evidence Ordinance has no application Evidence of alibihas merely to be weighted in the balance with the prosecution evi-dence.
When the defence sets up an alibi, the prosecution is entitled tolead evidence in rebuttal.
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[2010]! SRILJt.
When an Accused takes up an alibi as a defence, three positions
could arise;
If the evidence is not believed the alibi fails,
If the evidence is believed, it succeeds,
If the alibi evidence is neither believed nor disbelieved, butwould create a reasonable doubt as to the prosecution case onidentity, the Accused is entitled to get the benefit of the doubt.
There are certain fundamentals to be observed when an alibi is set
up as a defence –
If an alibi is established by unsuspected testimony, that willbe satisfactory and conclusive.
An alibi should cover the time of the alleged offence so asto exclude the Accused’s presence at the crime scene at therelevant time.
The credibility of an alibi is greatly enhanced, if it was set upat the time the accusation was first made and was constantlymaintained. If it is taken up belatedly-the effect of the alibi willbe less.
An alibi can be falsified by mistaken identity and the differenceof time in the clocks. A few minutes will make all the difference.
A false alibi will weaken the defence case and strengthen the
prosecution case.
Held further –
Per J. A. N. De Silva, C. J., –
“. .. the trial judge has gone on the wrong assumption that burdenof proof of alibi is on the defence. Having considered the evidencerelating to alibi we are of the view that if proper evaluation wascarried out by the trial judge she could have rejected this defenceand still convicted the appellant.”
Cases referred to:
King v. Marshall – 51 N.L.R. 157
Yahonis Singh v. Queen-67 N.L.R. 8
Punchi Banda v. State – 76 N.L.R. 293
APPEAL from the Court of Appeal.
Dr. Ranjith Fernando for the Petitioner-AppellantMs. Ayesha Jinasena S.S.C. for the Respondent.
Cur.adv.vult.
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Jayatissa v. Hon Attorney General
(JA.N. De SUva, C.J.)
281
February 9th, 2010J.A.N. DE SILVA, C.J.
The learned counsel for the petitioner heard in support ofthis application. We formerly granted leave to proceed on thequestions set out in paragraph 7 (a) (b) and (c) of the petition.Thereafter the court decided to proceed with the appeal withthe consent of both parties.
Dr. Ranjith Fernando senior counsel for the appellantsubmitted that in the Court of Appeal judgment too the courthas recognized the fact that there are certain infirmities withregard to the identity of the appellant.
The appellant together with two others were indictedbefore the Chilaw High Court on a charge of attemptedmurder of one Herathge Don Nandasena on the 11th ofNovember 1991. After trial the 2nd and 3rd accused wereacquitted. The appellant was found guilty and sentenced to 3years R.I. together with a fine of Rs. 25,000/=
After the conviction and sentence the appellant lodged anappeal to the Court of Appeal. This appeal was heard and byits order dated 8 September 2009 dismissed the appeal.
The following two grounds were urged by the appellantbefore us (a) Non consideration of material infirmities in theprosecution case (b) The High Court Judge misdirected herselfby acting on the premise that the alibi defence must be provedby the accused.
The evidence of the victim Nandasena was that he waswatching a television program with his family members on11th November 1991 around 8.30 P.M. and when he heardthe noise of dogs barking, through the door he saw the
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accused with gun in hand. Soon thereafter he fired the gunat him injuring him on his thigh and genital area. He testi-fied that he did not know the name of the appellant but knewhim as “Hamuda Karaya” (army man or soldier). He furtherstated that the 2 and 3 accused too were there armed withclubs. According to Nandasena’s testimony when the incidenthappened he shouted “Hamuda Karaya” fired at him as hedid not know his name. When he was taken to the hospitaldoctor has recorded the short history given by the patient. Itreads as “Kerthi or Keerthi B-in law”. MLR had been recordedthe very next day i.e. on 12.11.1991. Keerthi was the 2nd ac-cused and he was acquitted at the High Court. 1st informationto the police had been provided by one Wimalasiri, brother ofthe victim at 7 AM on 12.11.1991. According to Wimalasirivictim told him Jayatissa fired and he mentioned that namein the police complaint.
Udulawathie the sister of the victim who is also an eyewitness relates the same story but says that she saw onlythe appellant and also states that her brother soon after theincident shouted that Jayatissa (appellant) fired and alsosaid that appellant was known to her family and they knewhis name. The above evidence creates a problem with regardto the credibility of Nandasena’s evidence regarding theidentity of the appellant. However Udalawathie’s evidencehad not been shaken by the defence at the trial. Therefore theconviction of the appellant could be sustained solely on herevidence if properly considered by the High Court Judge.
The learned counsel for the appellant contended thatthe approach taken by the High Court Judge relating to thedefence of alibi and the burden of proof is totally erroneous.In the judgement High Court Judge has noted that theburden of proof of the defence of alibi is on the accused.
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Jayatisaa v. Hon Attorney General
(J.A.N.De Silva, C.J.)
283
The defence in a criminal case is entitled to plead alibias a defence. Section 11 of the Evidence Ordinance providefor such a plea. The word “inconsistence” referred to thereindenotes the physical impossibility of the co existence of twofacts-see also illustration in section 11 (a).
Plea of alibi is not an exception to penal liability. Hencethere is no burden of proof on the accused. Section 105 of theEvidence Ordinance has no application. Evidence of alibi hasmerely to be weighted in the balance with the prosecutionevidence. When the defence set up an alibi the prosecution isentitled to lead evidence in rebuttal. When the accused takeup an alibi defence, three positions could arise.
If the evidence is not believed the alibi fails
If the evidence is believed the alibi succeeds
If the alibi evidence is neither believed nor disbelievedbut would create a reasonable doubt the accused shouldget the benefit of the doubt. These principles have beendiscussed in the following cases:
King vs Marshall
Yahonis Singh vs. Queen™
Punchi Banda vs. State ,3>
It is to be noted that these are certain fundamentals to beobserved when an alibi is set up as a defence.
If an alibi is established by unsuspected testimony thatwill be satisfactory and conclusive
It should cover the time of the alleged offence so as toexclude accused presence at the crime scene at therelevant time.
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[2010] 1 SRI LR.
If the alibi was set up at the time the accusation was firstmade and was constantly maintained, credibility of alibiwill be enhanced. If it is taken up belatedly the effect willbe less.
Evidence of alibi can be falsified by mistaken identity andthe difference of the times in the clocks. A few minuteswill make all the difference.
It is also to be noted that false alibi will weaken thedefence case and strengthen the prosecution case.
In this case of course the trial judge has gone on thewrong assumption that burden of proof of alibi is on thedefence. Having considered the evidence relating to alibi weare of the view that if proper evaluation was carried out bythe trial judge she could have rejected this defence and stillconvict the appellant. We have also given due considerationto the fact that the offence had taken place 19 years ago andthe appellant had been in custody for considerable lengthof time before the trial. We are of the view that interest ofjustice would be met if a non custodial sentence is imposedand by increasing the fine. We affirm the conviction. However,considering the circumstances of this case we reduce the3 R. I. imposed on the accused to 2 years and suspend it for7 years. The fine imposed is increased to Rs. 50,000/= andthat should be given to the victim as compensation. Subject tothe above variation of the sentence this appeal is dismissed.The High Court judge is directed to act in terms of Section303 of the Criminal Procedure Code.
SRIPAVAN J. – I agreeIMAM, J. – I agree.
Sentence Varied.
Appeal dismissed.