001-SLLR-SLLR-2008-V-2-LEELAWATHIE-MENIKE-AND-ANOTHER-v.-ATTORNEY-GENERAL.pdf
Leelawathie Menike and another v
CAAttorney-General
LEELAWATHIE MENIKE AND ANOTHERv
ATTORNEY-GENERALCOURT OF APPEALIMAM, J.
SARATH DE ABREW, J.
CA 178/1999HC RATNAPURA 101/94FEBRUARY 14, 2006JULY 30, 2007SEPTEMBER 3, 2007DECEMBER 13, 2007
Penal Code – Sections 102, 113(b) and 296 – Murder – Conspiracy to commitmurder – Code of Criminal Procedure – Act No. 15 of 1979, Sections 279,280, 283(1), 283(5), 334(2), 335(2) and 436 – Non-compliance – EvidenceOrdinance Sections 33, 35 and 114 – Best evidence rule – Applicability -Constitution Article 138(1) – Is there substantial miscarriage of justice -Evidence given in a former judicial proceeding – When relevant? When couldit be used ?- Exception to hearsay rule?
The 3 accused-appellants were charged on three counts under Section 296read with Section 113(b) and Section 102 of the Penal Code with conspiracyto commit the murder of one E. In the 2nd count the 2nd and 3rd accusedwere charged with murder of E. In the 3rd count the 1st accused was indictedwith the abetment of the 2nd and 3rd accused to commit the murder of E.Accused were sentenced to death – 2nd accused had died.
In appeal it was contended that the trial judge erred in law by failing to complywith Sections 279 -283 in that the judgment had not been pronounced in openCourt immediately after the verdict in the presence of the accused and datedby the Judge and that the judgment has not been explained to the accusedand a copy given. It was contended that the handwritten judgment had beenwritten very much later and annexed to the case record without a date. It wasfurther contended that the trial judge had erred in placing a probative value andrelying upon evidence in breach of Section 33 of the Evidence Ordinance – theBest Evidence Rule – by relying upon the evidence of witness R who could notbe procured to give evidence but whose evidence at the non-summary inquirywas led in evidence under Section 33.
2Sri Lanka Law Reports[2008] 2 Sri L.R
Held:
In determining whether the grounds of appeal raised in this case aresufficient to vitiate the conviction, the following criteria have to be carefullyconsidered.
Whether such ground has prejudiced the substantial rights of theappellants or occasioned a failure of justice.
Whether on the available evidence the appellants might reasonablyhave been convicted.
Judgment consists of the verdict, reasons and sentence. The verdict andthe sentence had been delivered on 2.12.99 forthwith immediately aftertrial was concluded. Section 203 envisages a situation where the verdictand reasons could be pronounced within 10 days of the conclusion of thetrial. The'above provision is merely directory and not mandatory. If theverdict and sentence is delivered forthwith and the reasons for thejudgment recorded later within a reasonable time, the failure to date andpronounce the judgment in Open Court and explain same to the accusedmust be considered in the context whether such defect and, or irregularityhas prejudiced the substantial rights of the appellants or occasioned afailure of justice or whether such defect or irregularity could be cured underSection 436 of the Code.
The appellants have not even attempted to satisfy Court that as a result ofthe defect or irregularity whether the substantial rights of the appellantswere prejudiced and therefore it has occasioned a failure of justice. Aperusal of the evidence reveals cogent evidence on which the appellantsmust reasonably have been convicted.
In the interest of justice even though there is some merit in the 1st groundof appeal, as the appellants have failed to show that a substantialmiscarriage of justice has actually occurred resulting from same, in theface of clear and cogent evidence that justify the conviction, the 1 st groundof appeal by itself would not be sufficient to vitiate the conviction andsentence.
Held further
Court has no discretion as to admitting a deposition when the witness isdead, cannot be found, is incapable or is kept out of the way, deposition ofsuch witness is declared to be relevant and must therefore be admitted.
When the requirements in Section 33 of the Evidence Ordinance aresatisfied Section 33 governs the reception as substantive evidence of thetestimony given in a former judicial proceeding. The reception of narratedtestimony permitted by Section 33, is tantamount to an exception to thehearsay rule the basis is that the evidence was originally given on oath andwas subject to cross-examination. These characteristics invest theevidence so introduced with a degree of reliability comparable to a greaterextent with pure viva voce evidence – the trial judge had not erred in relyingon the evidence of witness R under Section 33.
Leelawathie Menike and another v
CAAttorney-General (Sarath de Abrew. J.)^
Per Sarath de Abrew, J. –
"When the only eye-witness cannot be found where his evidence in a formerjudicial proceeding is introduced under Section 33 where thoroughly filteredthrough cross-examination, where the veracity of such evidence is sustainedthrough other independent corroborative testimony, such evidence may berelied on to sustain a conviction".
APPEAL from the judgment of the High Court of Ratnapura.
Cases referred to:
Sinha Ratnatunga v State 2001 2 Sri LR 172 at 211.
Sheela Sinharage v A.G. 1985 1 Sri LR 1.
Moses v State 1999 3 Sri LR 401.
Punchibanda v Seelawathie 1986 2 Sri LR 44.
Ekanayakev A.G. 1987 1 Sri LR 107.
Mutusamy v David 50 NLR 423.
King v Fernando 51 NLR 224 at 225.
Dr. Ranjit Fernando for 1 st and 3rd accused-appellants.
Kapila Waidyaratne D.S.G. for the respondent.
Cur.adv.vult.
June 13, 2008
SARATH DE ABREW, J.The 1st, 2nd and 3rd accused-appellants were indicted beforethe High Court of Ratnapura on three counts as follows:- In countone, all three accused were charged under Section 296 read withSections 113(b) and 102 of the Penal Code with conspiracy tocommit the murder of one Dr. Elvitigala between 1st January 1986and 31st March 1986 at Kaluaggala in the Kosgama police area inthe Avissawella Magistrate Court Jurisdiction. In the second count,the 2nd accused (deceased at the time of the second trial) and the3rd accused-appellant were charged with the murder of deceasedDr. Elvitigala under Section 296 of the Penal Code. In the 3rdcount, the 1st accused-appellant was indicted with the abetment ofthe 2nd accused and 3rd accused-appellant to commit the murderof Dr. Elvitigala under section 296 read with section 102 of thePenal Code.
The three accused were originally indicted before the High Courtof Ratnapura Case No. 65/92 (the first trial), where after trial before
4Sri Lanka Law Reports(2008J 2 Sri LR
a jury, the 1st accused was convicted on counts 1 and 3, the 2ndaccused was convicted on counts 1 and 2, while the 3rd accusedwas acquitted on count 1 but convicted on count 2, and all threeaccused were sentenced to death accordingly. However, on appeal(CA 41 -43/93) the aforesaid conviction and sentence was set asideas against all three accused and a retrial was ordered.
Before the second trial without a jury in High Court RatnapuraCase No. 101/94, the 2nd accused had died and the indictmentwas amended accordingly. At the conclusion of the second trial on
the learned trial Judge convicted the 1st and 3rdaccused-appellants (hereinafter sometimes referred to as 1st and3rd appellants respectively) of all charges and sentenced them todeath. Being aggrieved of the aforesaid conviction and sentence,the 1 st and 3rd appellants have tendered this appeal to this Court.
The facts pertaining to this case are briefly as follows:- Thedeceased Dr. Elvitigala had left his first wife and of mutual consentlived with the 1st appellant Leelawathie Menike by whom he hadfour children. Dr. Elvitigala used to practice medicine at his clinic atEmbilipitiya during week days and return to his family residing atKaluaggala, Kosgama during the weekend. The 2nd accused and3rd appellant were also from Kaluaggala and used to visit the 1stappellant's house frequently and according to the evidence, the2nd accused (now deceased) had developed an illicit intimacy withthe wife of the deceased, the 1st appellant.
At the dispensary in Embilipitiya the deceased had employed 03nurses and a person by the name of Jayaratne to assist him.Apparently there was displeasure between the 1st appellant andthe deceased doctor over the alleged involvement of the deceasedwith one of his nurses (Ramanayake) to whom he had giftedRs. 25,000/= to set up a house. The deceased used to spend theweek at Embilipitiya, have his meals from the house of his assistantJayaratne, and was in the habit of returning to Kaluaggala for theweekend while returning to his dispensary at Embilipitiya onSunday evening or Monday morning.
On 24.03.1986 evening the deceased had accordingly leftEmbilipitiya to come to Kaluaggala and thereafter had not returnedto Embilipitiya after the weekend. Jayaratne had come to
Leelawathie Menike and another v
CAAttorney-General (Sarath de Abrew, J.)
Kaluaggala in search of the deceased and met the wife of thedeceased, the 1st appellant, who had maintained that thedeceased had left their house in Kaluaggala on 25.03.1986 to go toEmbilipitiya. Having made further inquiries from the sisters of thedeceased and on being satisfied as to the disappearance of thedoctor, witness Jayaratne had made a complaint to the Embilipitiyapolice on 30.03.1986.
The evidence also disclose that the 1st appellant hadmaintained that she received a letter by post demanding a ransomof Rupees Five Lakhs to release the deceased and therefore shesuspects the JVP for the disappearance of the deceased. WitnessKaithan had also stated that the 1st appellant had attempted toinduce him to falsely state that he saw the deceased get into avehicle at Kaluaggala on the day the deceased allegedly left toreturn to Embilipitiya but never returned.
Against this backdrop, the main prosecution witness JayanthaRupasinghe, a female domestic servant in the Kaluaggala house,told a different story and directly implicated the 1st, 2nd and 3rdaccused in the murder of Dr. Elvitigala. This witness Jayantha hadgiven evidence at the non-summary inquiry and also at the first trialbefore the High Court of Ratnapura. However at the second trial, asher whereabouts were not known and the prosecution was unableto procure her attendance, the learned trial Judge had grantedpermission for the prosecution to lead in evidence the testimony ofJayantha given at the non-summary inquiry under Section 33 of theEvidence Ordinance.
According to witness Jayantha, she had been a domesticservant in the Kaluaggala household at the time of the incident.According to her evidence, the deceased had come home fromEmbilipitiya around 8.00 p.m. on 24.03.1986 and had his dinner.The 1st appellant had given the deceased a cup of tea to which shehad administered two pills or tablets before the deceased went tosleep. Around 10.30 p.m. the 1st appellant had woken Jayanthastating that she wanted to go to the toilet and had sent the domestichelp to the kitchen to boil water. Then witness Jayantha had hearda noise of assault inside the house and had seen the 1st appellantseated on a chair in the hall. Thereafter Jayantha had gone near
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the room where the deceased slept and had seen the 2ndaccused squeezing the male organ of the deceased and the 3rdappellant strangling the neck of the deceased. The deceasedthereafter had been tied with a rope in a reclining position andthrust into two gunny bags which were firmly tied with a rope givenby the 1st appellant. The body inside the gunny bags had beencarried out of the house by the 2nd accused and the 3rd appellant.An iron rod and a sword too was seen near the bed of thedeceased. The 2nd accused had returned in the morning to removethe bag and shoes used by the deceased. The 1st appellant hadcautioned witness Jayantha to state that the deceased had left thehouse to go to Embilipitiya if anyone questioned her. On asubsequent date Jayantha had divulged the entire gruesomeepisode to witness Wijesiri Fernando at the Bellanvila temple afterobtaining an oath from the latter before a deity that he would notdivulge this to anyone. When the 1st appellant found this out, the1st appellant had threatened Jayantha who had left the housethereafter.
The evidence of Jayantha had been corroborated by witnessWijesiri Fernando who had struck up a friendship with the 1stappellant while travelling in a bus from Embilipitiya to Ratnapura.Subsequently Wijesiri Fernando, who had given his name to the 1stappellant as Dharshana Mayadunne, had visited the 1st appellant’shouse at Kaluaggala two or three times on the pretext of gettingforeign employment to 1st appellant's son, and had developedsexual intimacy with the 1st appellant. On the request of domestichelp Jayantha, Wijesiri Fernando had met her at Maharagama andgone to the Bellanvila temple, when after an oath before a deity thathe would not divulge the secret, witness Jayantha had poured outto witness Wijesiri Fernando an eyewitness account of thegruesome details of what she saw on the night of 24.03.1986 as tothe murder and disappearance of the deceased Dr. Elvitigala.Wijesiri Fernando had finally informed the police which led to thearrests of the 1st, 2nd and 3rd accused. On a statement made bythe 2nd accused, the body of the deceased was found buried in anabandoned gem pit some distance away from the house. Thepolice have also recovered a sword, an iron rod and a mammotybased on the statements of the accused.
Leelawathie Menike and another v
CAAttorney-General (Sarath de Abrew, J.)7
The medical testimony was that the deceased sustainedcontusions in the scrotum and the root of the penis, on the left sideof the neck, on the upper region of the neck, on the right side of theback of the chest, and left side of the chest with a fracture of the12th rib, which injuries were consistent with the eyewitness accountof domestic help Jayantha.
Witness Upatissa had testified that he was aware that the 1 stappellant and the 2nd accused were having an illicit affair as he hadseen them bathing together and even feeding each other. Further,Upatissa had testified that on a day in March 198'6 he had met the2nd accused, and having partaken in some illicit liquor, the 2ndaccused had taken Upatissa to a close by field where a foul smellemanated from a gunny bag. The 2nd accused had confessed toUpatissa that Dr. Elvitigala was inside the gunny bag. Under threatthe 2nd accused had forced Upatissa to assist him to carry thegunny bag to a nearby abandoned gem pit at Salawe estate,Moonamale, where the 2nd accused had finally buried the body.
Witness Kaithen had also testified that he lived in theneighbourhood of the 1st appellant who had informed him that thedeceased was abducted by the insurgents. However, according toKaithen, the 1st appellant had also requested him to state that hesaw the deceased get into a vehicle on 25th March, the day that thedeceased disappeared.
The 1st appellant had made a dock statement on 03.11.1999denying the charges against her but had admitted that the 2ndaccused was known to her and that he assisted her in thehousehold chores. She had taken up the position that the deceasedhad many enemies who may have committed the murder.According to her, she was not aware of what happened to thedeceased until the body was found in September 1986. The 3rdappellant had not given evidence but had remained silent.
After the addresses of the State Counsel and the two DefenceCounsel on 02.12.1999, the learned trial Judge had proceeded toconvict the 1st and 3rd appellants of all charges levelled againstthem and after compliance with section 280 of the Code of CriminalProcedure (AUocutus), had sentenced them to death.
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At the hearing of this appeal, the learned Counsel for the 1 st and3rd appellants propounded two grounds of appeal on which he wasrelying on.
Ground 1
The learned trial Judge had erred in law bv failing to comply withSection 279 and Section 283(11 and (51 of the Code of CriminalProcedure Act No. 15 of 1979 which are mandatory statutoryprovisions relating to the mode of delivering Judgments in respectof Judgments of the Superior Courts.
Ground M
The learned trial Judge had erred in placing a probative valueand relying upon evidence in breach of Section 33 of the EvidenceOrdinance and acceptable principles and criteria laid down withregard to the best evidence principle.
Having perused the entirety of the proceedings and the writtensubmissions submitted by both parties, I now proceed to deal withthe 1st ground of appeal adduced on behalf of the appellants.
The learned Counsel for the 1st and 3rd appellants submittedthat the documentary record, the record of proceedings and thejournal entries on the appeal brief do not in any way confirm thatthe judgment in the case had in fact been pronounced in openCourt before the accused and/or their attorneys-at-law and arguedfurther that consequently the points for determination, the decisionsthereon and the reasons for the decision could not have beenpronounced in open Court and explained to the accused affectedthereby as mandatorily required under Section 279 and 283(1) and
of the Code of Criminal Procedure, Act No. 15 of 1979, for thefollowing reasons:-
It would have been humanly impracticable and impossible tohave delivered and pronounced a 52 page Judgment in openCourt on 2.12.1999 immediately after the lengthy andexhaustive submissions of both Counsel lasting over 03hours after days of trial and an unusual 21 page dockstatement.
Leelawathie Menike and another v
CAAttorney-General (Sarath de Abrew, J.)9
The fact that the journal entries or proceedings do not confirmany where that a judgment was pronounced in open Court.
That no Petition of Appeal had been filed by the Attorney-at-Law although a motion had been filed to obtain a certifiedcopy, the supplying of which has not been recorded on anydate.
That the prisoners themselves had filed Petitions of Appealthrough the Prison Authorities.
That the purported judgment runs into 52 hand written pages,undated, with the case number interpolated in different hand-writing.
That the Registrar of the High Court places on record that theHigh Court Judge had taken away the case record from theRegistry and consequently there was a delay of over 3 yearsto prepare the Brief in Appeal due to the non-availability ofthe case record.
On the strength of the above circumstances, the learnedCounsel for the appellants disputed the validity of the handwrittenundated judgment found in the case record on the basis that thelearned trial Judge failed to comply with the mandatory provisionsembodied in sections 279 and 283(1) and (5) of the Code ofCriminal Procedure Act, as stated below.
Section 279: The Judgment in every trial under the Code shall bepronounced in open court immediately after the verdict is recordedor save as provided in Section 203 at some subsequent time of whichdue notice shall be given to parties or their pleaders, and the accusedshall if in custody be brought up or if not in custody shall be requiredto attend to hear judgment delivered except when his personalattendance during the trial has been dispensed with and the sentenceis one of fine only or when he has been absent at the trial.
Section 283: The following provisions shall apply to judgments ofCourts other than the Supreme Court or Court of Appeal:-
The Judgment shall be written by the Judge who heard thecase and shall be dated and signed by him in open court atthe time of pronouncing it, and in case where appeal lies shall
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contain point or points for determination, the decisionthereon, and reasons for the decision.
(5) The Judgment shall be explained to the accused affectedthereby and a copy thereof shall be given to him withoutdelay if he applies for it.
Section 203: When the case for the prosecution and defence areconcluded the Judge shall forthwith or within 10 davs of theconclusion of the trial record a verdict of a acquittal or convictiongiving his reasons therefore and if the verdict is one of convictionpass sentence on the accused according to law.
However, in Sinha Ratnatunga v Stated) at 211 it has been heldthat requirement to record the verdict and pronounce reasonsforthwith or within 10 days after the conclusion of the case is merelydirectory and not mandatory.
The question that would arise for determination is whetherwhatever irregularity in the judgment or the mode of passing ofjudgment would necessarily vitiate the conviction, or whether suchirregularity could be cured under Section 436 of the Code ofCriminal Procedure Act, if there is no failure of justice.
Section 436: Subject to the provisions hereinbefore contained anyJudgment passed by a Court of competent jurisdiction shall not bereversed or altered on appeal or revision on account
of any error, omission, or irregularity in the complaint,summons, warrant, charge, Judgment, summing up, or otherproceedings before or during trial or in any inquiry or otherproceedings under this code; or
of the want of any sanction required by section 135, unlesssuch error, omission, irregularity or want has occasioned afailure of Justice.
In determining whether a failure of Justice has been occasioned,the above provision should be interpreted in the light of otherrelevant statutory provisions which have a direct bearing on theJurisdiction and powers of the Court of Appeal in the exercise of itsappellate powers.
While dealing with the jurisdiction of the Court of Appeal, theproviso to Article 138(11 of the Constitution also stipulates:-
Leeiawatnie MeniKe ana anotner v
CAAttorney-General (Sarath de Abrew, J.)11
No judgment, decree or order of any Court shall be reversed orvaried on account of any error, defect or irregularity; which has notprejudiced the substantial rights of the parties or occasioned afailure of Justice.
Similarly, in determination of appeals in cases where High Courttrials were held without a Jury, Section 335(11 of the Code ofCriminal Procedure Act. No.15 of 1979 provides that in an appealfrom a verdict of a Judge of the High Court at a trial without a Jurythe Court of Appeal may if it considers that there is no sufficientground for interfering dismiss the appeal.
In Section 334(1) of the Code, pertaining to determination ofappeals in cases where trial was before a jury, the following provisois enacted which is not found in Section 335.
"Provided that the Court may, notwithstanding that it is of opinionthat the point raised in the appeal might be decided in favour of theappellant, dismiss the appeal if it considers that no substantialmiscarriage of justice has actually occurred."
In Sheila Sinharage v ACH2) the Supreme Court has decided thatthe principle in the above proviso will apply only to cases of trialbefore a jury. However, the Court of Appeal in a much laterdecision. Hector Yapa, J. held in Moses v State*3) "Though Section334(2) refers to cases of trial by Jury, it is reasonable and proper toassume that the intention of the legislature must necessarily be thesame, whether it is a trial before a Jury or Judge sitting alone. Thedeciding factor being that there should be evidence upon which theaccused might reasonably have been convicted.
After careful consideration of the aforesaid provisions and caselaw authorities, I am strongly inclined to conclude that, indetermining whether the grounds of appeal raised in this case aresufficient to vitiate the conviction, the following criteria have to becarefully considered.
(11 Whether such around has prejudiced the substantial rights ofthe appellants or occasioned a failure of Justice.
(21 Whether on the available evidence in this case the appellantsmight reasonably have been convicted.
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In the light of the above conclusion, I now return to consider thefirst around of appeal propounded by the appellants, in respect ofwhich the following features may be noted.
The appellants have not disputed or challenged theauthenticity and contents of the hand written reasons for theJudgment filed of record. There is also no dispute that theJudgment contains the points for determination, thedecisions thereon and the reasons for the decision.
Further there is no dispute that the Judge who heard the casehad written the judgement and signed it.
The accused appellants have disputed that the Judgment orreasons for the Judgment had not been pronounced in opencourt immediately after the verdict in the presence of theaccused and dated by the learned trial Judge. The appellantshave further disputed that the Judgment or reasons for theJudgment had not been explained to the accused and a copythereof had not been given to them in spite of applying forsame. The implied allegation was that the hand-writtenreasons for the judgment has been written very much laterand annexed to the case record without a date.
Even though the appellants have taken up the position thaton 02.12.1999, as the 1st appellant made a dock statementcomprising of 21 pages and as the State Counsel and the twoDefence Counsel had also addressed Court for about 03hours, it was not practicable on the very same day for thelearned trial Judge to write and record a 52 page Judgment,this position is not factually correct.
A perusal of the case record reveals that after the 1staccused had made her dock statement on 03.11.1999, thecase had been postponed to 11.11.99 for correction ofproceedings and again postponed to 18.11.99 on which datethe trial Judge was on leave and finally postponed to02.12.99 when the verdict was recorded after submissions ofCounsel. Therefore the learned trial Judge had sufficient timefrom 3.11.99 to 2.12.99 to prepare his Judgment if he soendeavoured.
It must also be noted that the submission that a copy of theJudgment requested by the appellants had not been received
Leelawathie Menike and another v
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is not substantiated and had not been stated in the Petition ofAppeal.
The (earned Deputy Solicitor-General had further submittedthat the endorsement made by the Registrar as to the delayin preparing the brief for appeal does not specificallysubstantiate that the reasons for the judgment was notalready filed of record.
The learned D.S.G. had also submitted that the very fact thatthe learned trial Judge had made order on,06.12.99 to issuea copy of the judgment and on 17.12.99 and 13.01.2000 hadmade further orders to accept the Petitions of Appeal andforward the case record to the Court of Appeal is furtherindicative that the reasons for the Judgment had been filed ofrecord.
In the absence of proof to the contrary, the presumptionunder Section 114(d) of the Evidence Ordinance that thedisputed judicial act had in fact been regularly performedwould operate to the disadvantage of the appellants.
The Judgment comprises of the verdict, reasons and sentence.There is no dispute that the verdict and sentence had been deliveredon 02.12.99 forthwith, immediately after the trial was concluded. Thedispute remains as to when the reasons were annexed to the caserecord and the fact that the reasons were not dated and pronouncedin open court and explained to the 1st and 3rd accused . Section 203of the Code of Criminal Procedure Act No. 15 of 1979 envisages asituation where the verdict and reasons for Judgment could bepronounced within 10 days of the conclusion of the trial. As statedearlier, the above provision is merely directory and not mandatory,(eg. Singha Ratnatunga v State (supra). Therefore if the verdict andsentence is delivered forthwith and the reasons for the Judgmentrecorded later within a reasonable time, the failure to date andpronounce the reasons in open Court and explain same to theaccused must be considered in the context whether such defect orirregularity has prejudiced the substantial rights of the appellants oroccasioned a failure of justice, or whether such defect or irregularitycould be cured under section 436 of the Code of Criminal ProcedureAct. Equally, the sequence is first the verdict, then the reasons andfinally the sentence if any. Although the general consensus is that
14Sri Lanka Law Reports[2008] 2 Sri L.R
reasons should precede the sentence, in practice it often happensthat the reasons follow the sentence, as in this case, which would bean irregularity. The cursus curiae is that such an irregularity in thejudgment is not necessarily fatal to vitiate a conviction but can becured under Section 436 of the code unless it can be shown that sucha defect or irregularity had occasioned a failure of Justice.
In Punchibanda v Seelawathid*) it had been held that the merefact that the Judgment or order has not been dated does notconstitute a fatal irregularity.
In Ekanayake v A.G.15) the argument was raised that the trial Judgehad failed to comply with Section 203 of the Code and that he did notgive reasons for the conviction nor deliver judgment in open court. Ajudgment dated 23.8.83 signed by the Judge was filed of record. Itwas held that the circumstance that the appellant appealed againstthe Judgment and finding shows that the Judge did deliver Judgment.It was also held that the presumption that an official act had beendone correctly would apply and hence there was sufficient complianceof Section 203 and 279 of the Code. In Muthusamyv David6> it washeld that failure to comply in every particular with section 306 (Section283 of the new code) of the Criminal Procedure Code does not byitself vitiate a conviction.
The journal entries and the trial proceedings however do notindicate that the learned trial judge had pronounced the Judgment orgiven reasons for the Judgment in open Court and explained same tothe accused as required under Section 279 and 283 of the Code. Ifthe situation is such, this Court strongly disapproves the irresponsibleconduct of the learned trial Judge who had a paramount duty to do so.Nevertheless, in the interests of justice, this Court has a duty toexamine whether the aforesaid defect or irregularity shouldnecessarily be construed as a fatal irregularity especially so wherethere is overwhelming evidence to justify the conviction. In such asituation the Court is entitled to examine whether a failure of justicehas occurred detrimental to the appellants as a result of the aforesaiddefect or irregularity.
In this case the appellants have not even attempted to satisfyCourt that as a result of the aforesaid defect or irregularity whetherthe substantial rights of the appellants were prejudiced andtherefore it has occasioned a failure of justice. The defect has not
Leelawathie Menike and another v
Attorney-General (Sarath de Abrew. J.)2®.
precluded the appellants from submitting their appeals on time. Thehand-written reasons for Judgment contain the points fordetermination, the decisions thereon and the reasons for suchdecisions to base their argument at the hearing of the appeal. Aperusal of the evidence reveals cogent evidence on which theappellants might reasonably have been convicted. Therefore, in theinterests of justice, even though there is some merit in the 1staround of appeal, as the appellants have failed to show that asubstantial miscarriage of justice has actually occurred resultingfrom same, in the face of clear and cogent evidence that justify theconviction. I hold that the first around of appeal bv itself would notbe sufficient to vitiate the conviction and sentence imposed on the1st and 3rd appellants.
The second around of appeal is that the learned trial Judge haderred in placing a probative value and relying upon the evidence ofdomestic servant Jayantha Rupasinghe who could not be procuredto give evidence at the second trial but whose evidence at the non-summary inquiry was led in evidence under Section 33 of theEvidence Ordinance which the appellants alleged was in breach ofthe best evidence principle.
Section 33 of the Evidence Ordinance stipulates as follows:
Evidence given by a witness in a judicial proceeding or beforeany person authorized by law to take it, is relevant, for the purposeof proving, in a subsequent judicial proceeding or in a later stage ofthe same judicial proceeding, the truth of the facts which it states,when the witness is dead or cannot be found, or is incapable ofgiving evidence, or is kept out of the way by the adverse party, or ifhis presence cannot be obtained without an amount of delay orexpense which, under the circumstances of the case, the courtconsiders unreasonable.
Provided
that the proceeding was between the same parties or theirrepresentatives in interest;
that the adverse party in the first proceedings had the rightand opportunity to cross-examine.
that the questions in issue were substantially the same in thefirst as in the second proceeding.
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Explanation: A criminal trial or inquiry shall be deemed to be aproceeding between the prosecutor and the accused within themeaning of this section.
The submission raised on behalf of the appellants was that eventhough the defence had vehemently objected to the application by theState to lead the evidence of the domestic help Jayantha Rupasingherelating to the non-summary Magistrate Court proceedings which hadnot been subject to cross-examination when in fact her evidence andtestimony in the High Court at the previous trial which had been underOath and tested by cross-examination was readily available, was inbreach of the best evidence principle.
Contrary to the aforesaid submission raised on behalf of theappellants a careful perusal of the original case record reveals thefollowing vital information.
At the time of the second trial, the prosecution could notprocure the presence of this vital witness Jayantha as shecould not be found and her whereabouts were not known.P.C. Heenbanda of the CID had given evidence to this effect(page 327-345) and had produced written reports XI to X5.Therefore there was adequate material for the learned trialJudge to conclude that the above witness cannot be found.
In the case of Kingv G.W. Fernandoat 225 Jayatilleke SPJexpressed the view that "the court has no discretion as toadmitting a deposition when the witness (1) is dead (2)cannot be found (3) is incapable or (4) is kept out of the way;the deposition of such witness is declared to be relevant andmust therefore be admitted."
In view of the above, the decision taken by the learned trialJudge to admit the evidence of Jayantha Rupasinghe (P4)cannot be assailed.
The submission of the learned Counsel for the appellants thatthe non-summary evidence of witness Jayantha which wasadmitted at the second trial as P4 was not subject to cross-examination is indeed a fallacy and may be construed as anattempt to mislead Court. Witness Pinidiya Senadheera Perera,interpreter-mudaliyar of Ratnapura High Court, had givenevidence and had read in evidence the entirety of the testimony
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of witness Jayantha given at the non-summary Inquiry markedP4 as follows:
Original record pages 370-385 – Evidence in chief
pages 385-386 – Questions by the learned trial
Judge.
pages 387-397 – cross-examination on behalf
of 1 st accused
pages 398-404 – cross-examination on behalf
of 2nd accused.
pages 404-407 – cross-examination on behalf
of 3rd accused
pages 407-408 – Re-examination.
Therefore the evidence of eye-witness Jayantha contains 20pages of thorough cross-examination. Her credibility has notbeen challenged by the appellants. As her evidence has beencorroborated in material particulars by the medical evidenceand other direct and circumstantial evidence, the learned trialJudge had correctly relied on her evidence.
The non-summary evidence of the deceased witness No. 18,Kaithan too similarly had been admitted under Section 33 of theEvidence Ordinance. (Page 410 of the Record). Therefore itcannot be sustained that the prosecution discriminately andselectively relied on Jayantha's evidence at the non-summaryas against her evidence at the 1st High Court trial in order toderive an undue advantage and thereby violating the bestevidence principle, as witness Jayantha's non-summaryevidence too had been under oath and thoroughly tested bycross-examination.
Pages 353-357 of the original record clearly disclose that asone of the Defence Counsel had objected to leading Jayantha'sevidence given at the 1st trial under Section 33 of the EvidenceOrdinance on the mistaken premise that there was no suchprovision in Section 33, the State Counsel had resorted to leadJayantha's evidence led at the non-summary. Page 357 and369 of the record clearly indicate that the defence had notobjected to this move at this stage.
18Sri Lanka Law Reports[2008} 2 Sri LR
Where the requirements contained in Section 33 of theEvidence Ordinance are satisfied, section 33 governs thereception, as substantive evidence, of the testimony given in aformer judicial proceeding. The reception of narrated testimony,permitted by Section 33, is tantamount to an exception to theheresay rule. The basis of the exception is that the evidencewas originally given on oath and was subject to cross-examination. These characteristics invest the evidence sointroduced with a degree of reliability comparable to a greatextent with pure viva voce evidence. Therefore when the onlyeye-witness cannot be found, where his or her evidence in aformer judicial proceeding is introduced under Section 33,where thoroughly filtered through cross-examination, andwhere the veracity of such evidence is sustained through otherindependent corroborative testimony, such evidence may berelied on to sustain a conviction. Accordingly the learned trialJudge had not erred in relying on witness Jayantha Rupasinghe'sevidence introduced under Section 33 of the EvidenceOrdinance.
The appellants had further submitted that part of witnessWijesiri Fernando's evidence would tantamount to heresayevidence on the failure of the prosecution to call witnessJayantha to give viva voce evidence. I am inclined to rejectthis contention as witness Jayantha's non-summary evidence(P4) introduced under Section 33 of the Evidence Ordinancetoo forms part of the substantive evidence led at the trial.
On the basis of the above material gleaned from the originalrecord, there is no substance in the defence submission that thebest evidence principle had been observed in the breach. Neitherhave the appellants succeeded in sustaining a failure of justice.Therefore I do not see any merit in the 2nd ground of appealpropounded by the appellants and therefore I reject same.
Due to the aforesaid reasons I am unable to conclude that afailure of justice had occurred with regard to the 1st and 3rdappellants in respect of the grounds of appeal adduced on theirbehalf. Therefore, I do not perceive any sufficient ground tointerfere with the conviction and sentence.
Ananda Dharmadasa and others v
$cArivaratne Hewage and others
In view of the above conclusion I dismiss the appeal and affirmthe conviction and sentence imposed by the learned High CourtJudge of Ratnapura dated 02.12.1999 on both the 1st and 3rdappellants.
Accordingly appeal is dismissed.
IMAM, J.- I agree.
Appeal dismissed.