LIONEL v. THE ATTORNEY-GENERAL

017-SLLR-SLLR-2004-V-1-LIONEL-v.-THE-ATTORNEY-GENERAL.pdf


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Lionel v The Attorney-General
(Ameratunaa, J.)
123
LIONELv
THE ATTORNEY-GENERALCOURT OF APPEALFERNANDO, J. ANDAMERATUNGA, J.
CA 57/99
H.C. KALUTARA 51/97M.C. MATUGAMA 25891/NS14 MARCH, 2002
Penal Code, section 296 – Trial without jury – Case of prosecution resting main-ly on dying declaration – Deposition of witness read in evidence – Witness abroad- Evidence Ordinance, section 33 – Conditions under which a deposition of a wit-ness could be led.
Four accused stood indicted for causing the death of “B”. Two accused wereacquitted, one was dead at the time of the trial and the accused-appellant wasconvicted of murder and sentenced to death.
The case for the prosecution completely rested on dying declarations said tohave been made by the deceased to his mother, his mistress and to the police.The mother and the Police officer gave evidence. The deposition of the mistresswas led under section 33 the of Evidence Ordinance, on the basis that she wasabroad at the time of the trial.
On Appeal:
Held:
Evidence of the mistress was vital to the prosecution case, as there wasan apparent conflict between the evidence of the witness and the evi-dence of the deceased’s mother, and there was also a suggestion bythe defence that the mistress had an illicit relationship with another andover this matter there was a quarrel between the deceased and the mis-tress, and the former took to commit suicide.
In view of above the witness’ personal attendance was vital to bothsides and the trial judge should not have permitted the prosecution tolead the witness' deposition simply on the basis of a police report sub-mitted to court one year before the trial stating that the mistress hasgone abroad.
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It appears that, the trial judge’s mind was substantially influenced by thedeposition of the deceased's mistress.
Per Amaratunga, J.
“It might be very reasonable to submit to much delay and considerable expensewhen the evidence of the deponent is vital to the success of the prosecution caseor has a very important bearing on the guilt of the accused.”
APPEAL from the judgment of the High Court of Kalutara.Case referred to:
1. fiv Fernando – 51 NLR 224, 40 CLW 55
Dr.Ranjit Fernando with Sandamalie Munasinghe, Sandamalee Manatuga andKavindra Nanayakkara for accused-appellant.
Palitha Fernando , Deputy Solicitor-General for Attorney-General
Cur.adv.vult.
May 10, 2002
GAMINI AMARATUNGA J.The accused-appellant, along with three others stood indicted in 01the High Court of Kalutara for causing the death of one Beedin atMolkawa on 4.6.1991. At the time of the trial one accused was dead.After trial by the High Court Judge sitting without a jury the other twoaccused were acquitted and the accused-appellant was convicted ofmurder and sentenced to death.
The case for the prosecution completely rested on dying declara-tions said to have been made by the deceased to his mother, his mis-tress and to the police. The mother of the deceased and the policeofficer who recorded the deceased’s statement at the hospital testified 10at the trial. The deposition of the mistress, made at the preliminaryinquiry in the Magistrate’s Court was read in evidence under section33 of the Evidence Ordinance on the basis that she was abroad at thetime of the trial before the High Court. Before proceeding further Iwould like to make my observations regarding the learned trial
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Lionel v The Attorney-General
(Ameratunga, J.)
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Judge’s decision to allow the prosecution to lead the deceased’s mis-tress’ deposition in evidence.
It appears that the prosecuting state counsel has thought that shewas entitled to lead the witness’ deposition by simply showing to courtthat the witness has gone abroad and the trial judge too appears tohave allowed the application of the State Counsel without muchinquiry and as a matter of routine. One of the conditions under whicha deposition of a witness could be led in evidence under section 33 ofthe Evidence Ordinance is that when the witness’ presence cannot be. obtained without an amount of delay or expense which under the cir-cumstances of the case, the court considers unreasonable. Under cir-cumstances of the case one circumstance which the judge ought toweigh is the nature and importance of the statement contained in thedeposition. It might be very reasonable to submit to much delay andconsiderable expense when the evidence of the deponent is vital tothe success of the prosecution case or has a very important bearingon the guilt of the accused.
In Rv. FernandcP) an application was made by the prosecution toread in evidence the depositions of four witnesses, recorded duringthe non-summary inquiry, on the basis that the four witnesses were atTokyo, Bangkok, Singapore and Culcutta respectively. The defenceobjected to this application on the basis that there was no evidencethat efforts had been made to secure the personal attendence of thewitnesses in question. The trial Judge allowed the application of theprosecution holding that such evidence was unnecessary and that theCourt was satisfied that the presence of the witnesses could not beobtained without an amount of delay and expense. In appeal theCourt of Criminal Appeal held that the discretion of the trial Judge wasexercised on insufficient material as there was no evidence of theactual delay and expense that would be involved in securing theattendence of the witnesses in question and that as the evidence ofthe witness in Culcutta was of a vital nature, the delay and expenseinvolved in securing his attendence was not unreasonable under thecircumstances of the case and steps should have been taken by thecrown to secure his attendence at the trial.
In the instant case the evidence of the mistress of the deceasedwas vital to the prosecution case. There was ar> apparent conflictbetween the evidence of the witness and the evidence of the
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deceased's mother as to the exact words uttered by the deceased atthe time both of them simultaneously rushed to the place where thedeceased was lying fallen after ingestion of a corrosive substance.There was also a suggestion by the defence that the mistress of thedeceased had an illicit relationship with another man and over this mat-ter there was a quarrel between the deceased and the mistress andthe former thereafter took acid to commit suicide. In view of these mat-ters the witness’ personal attendence was vital to both sides and thetrial judge should not have permitted the prosecution to lead the wit-ness’ deposition in evidence simply on the basis of the police reportsubmitted to court one year before the trial stating that the witness hadgone abroad. Accordingly I am of the view that the deposition of themistress of the deceased was wrongly admitted in evidence. Howeversince there was other evidence about the dying declarations made bythe deceased I shall proceed to consider whether those dying decla-rations are acceptable and sufficient to sustain the conviction.
According to the medical evidence the cause of death of thedeceased was the burns of the internal organs from the mouth to theintestines sustained due to ingestion of a corrosive substance. Thedoctor has stated that after the ingestion of the corrosive substancethe deceased could have spoken with a coarse voice and that hecould have been in his proper senses for sometime. According to thedoctor, in view of the nature of the injuries to the internal organs thechance of death ensuing was more probable than not. The doctor'sopinion was that no force had been used to pour or force the corro-sive substance into the mouth of the deceased.
According to the mother of the deceased, on the date of the inci-dent, when she was at the deceased's house the four accused camethere around 8 p.m. She knew them well as three of the accusedwere her aunt's sons and the other was her aunt's son-in-law. Theyused to visit the deceased's house often to chat with him. On seeingthem she went into the house and the deceased and the four accusedremained in the front portion of the house. Thereafter the deceasedwent into the kitchen, took a jug and returned to the front portion of thehouse. Then she heard her son crying out ‘Budu Ammd. On hearinghis cry she and the deceased’s wife rushed to the front of the houseand found the deceased lying fallen in the compound. The deceasedthen said “ ^ZSS Oz$zs>6eo SSQd” (that he poured acid and drank). At
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Lionel v The Attorney-General
(Ameratunga, J.)
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that stage he never said that acid was administered to him or that acidwas given to him by anyone. Thereafter her sister's son Jayasenacame there and took the deceased to hospital. According to thewitness when she first rushed to the front portion of the house inresponse to the deceased's cry of distress, the four accused werenot there.
The witness has stated that later at the hospital the deceased
told her,

– meaning that Lionel poured it
and gave it to him and he drank it. According to the witness, as 100far as she knew there was no displeasure between her son andthe accused and the deceased had no reason to commit suicide.
In answer to a question posed by Court the witness has said that
at the hospital the deceased said

When she asked the deceased if she did not drink

what happened he said
The witness

has stated that the deceased and the accused used to drink alco-hol at the deceased's house.
In cross examination the witness was asked whether, when shegave evidence in the Magistrate's Court, she said that she heard her 110
son crying out

or something like that. Her reply was that

what the deceased said was
Then she was asked whether she told the Magistrate's Court

To this question her reply was

substantial difference between her evidence in chief and the answersgiven in cross examination regarding the exact words uttered by the 120deceased when he was lying fallen after ingestion of a corrosive sub-stance.
On 5.6.1991 at 10.00 a.m. (nearly 13 hours after the ingestion ofthe corrosive substance) police sergeant Prematilake attached to theNagoda Hospital police post has recorded the deceased's statementat the hospital. According to his evidence at the time he questionedthe deceased before recording the statement, the latter was able tospeak and was in his proper senses. The statement of the deceasedwas produced in evidence marked P3. In his statement the deceased
Thus there is a
shouted
the Magistrate's Court as D1 (proceedings of 31.8.99 commencingfrom 12.55 p.m. page 6) She has again repeated that the deceased

Then the defence marked what she told

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has stated that on 4.6.1991 around 8 p.m. the four accused brought 130a bottle of arrack to his house and invited him for a drink. Then hebrought a glass and gave it to Lionel (the accused-appellant) whofilled it and gave it to him and he took the glass and poured its con-tents straight to his throat. When he felt the burning sensation in histhroat he realised that they have given him acid and not arrack. Thenhe shouted out ®o <^83 gstezoi His mother came towards the frontof the house and then the four accused ran away. The deceased hasstated that he thought that he was given acid because he had anargument with Lionel at a wedding some time back. –
Police have visited the scene of the alleged offence (deceased's 140house) three days after the incident. They have not found any con-tainer or a jug in the deceased’s house.
Having considered the three dying declarations said to have beenmade by the deceased the trial Judge has come to the conclusion thatthe glass or the jug containing acid had been given to the deceasedby the appellant. I have already pointed out that the deposition of thedeceased's mistress has been wrongly received in evidence by thetrial judge. We do not know and we have no way to ascertain to whatextent the trial judge's mind has been influenced by this inadmissibleevidence. The trial judge also has failed to properly consider the effect isoof the different statements attributed to the deceased by his mother.According to her, the very first statement made by the deceased was
These two statements cannot be reconciled. However in view of thelearned trial Judge's acceptence of the deceased's mistress’ evidencethe trial judge has not attached much importance to this apparent con-tradiction. •
It also appears that the learned judge has attached some impor-tance to an opinion expressed by the doctor to the effect that there 160were no signs to indicate that the corrosive substance has beenforcibly administered to the deceased but has consumed it due to
a doctor could scientifically give such an opinion. He certainly is com-petent to say whether there were signs, compatible with forcibleadministration of the substance or not. However he cannot saywhether the corrosive substance has been voluntarily and deliberate-

the deceased said was
But under cross-examination she has said that what

I cannot see how
ignorance

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Lionel v The Attorney-General
(Ameratunga, J.)
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ly taken with the knowledge of the real nature of the substance orwhether it has been taken in ignorance of the real nature of the sub-stance. For instance if a person deliberately takes a corrosive sub-stance with a view to commit suicide, the burn injuries sustained byhim cannot in any way differ from the injuries sustained when the sub-stance is taken in ignorance of the real nature of the substance. Insuch a situation the real reason for the ingestion of the corrosive sub-stance is a matter within the peculiar knowledge of the person whohas ingested the substance. In this case the opinion expressed by thedoctor that the substance had been taken in ignbrance of the realnature of the substance is not an opinion the doctor could haveexpressed on any scientific basis.
Thus it is not an expert opinion but a mere guess and as such it isnot an opinion a court should have considered at all. However as Ihave already stated above it appears that the trial judge had placedreliance on this item of evidence in coming to the conclusion that thedeceased has ingested the corrosive substance without knowing thereal nature of the substance.
The trial judge has also relied on the accused’s failure to visit thehospital to see the deceased as an item of evidence of the subse-quent conduct of the accused. It is implicit from the trial judge’s rea-soning that they did not visit the hospital to see the deceased due totheir awareness of their guilt. The evidence that the accused did notvisit the hospital to see the deceased came from the evidence of themother of the deceased. There was no evidence that she was with thedeceased from the time of his admission to the hospital upto the timeof his death. Evidence relating to the accused’s failure to visit thedeceased could have come only from a person who was continuous-ly with the deceased from the time of the latter’s admission to the hos-pital upto the time of his death. Even if there is such evidence, theaccused’s failure to visit the hospital could have been due to reasonsother than the consciousness of guilt for instance the embarassmentcaused due to a wrong accusation.
The trial judge has also come to the conclusion that when thedeceased was crying in pain after ingesting the corrosive substancethe accused have fled from the scene due to their complicity in theincident. The deceased in his statement has stated that when hismother came the four accused ran away. However the deceased’s
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have exposed him to a possible charge of attempted suicide. In sucha situation as a way out a person could have attributed the act tosome other person to exculpate himself. The learned trial judge hasfailed to consider this aspect when he considered whether thedeceased could have had a motive to falsely implicate the accused.
In this case the trial judge has erroneously admitted the depositionof the deceased’s mistress. It appears that his mind was substantiallyinfluenced by her evidence. If he has excluded her evidence – as he 230should have done – he was left with the evidence of the deceased’smother as to what her son told her. There is a serious discrepancy inher evidence about the exact words used by the deceased when shefirst spoke to him. The trial judge has not paid much attention to thisdiscrepancy – perhaps due to the impression created in his mind by theevidence of the deceased’s mistress. We are unbale to decide whatreliance the trial judge could have placed on the deceased’s mother’sevidence if he has considered her evidence without being influencedby the deceased’s mistress’s evidence.
The absence of signs to indicate forcible administration of the cor- 240rosive substance was compatible with voluntary ingestion as well asadministration of the substance by deceit. The statement attributed to
mother has not seen the accused running away from the scene.
The prosecution has called Jayasena who first came to thedeceased’s house on hearing the cries of distress. The prosecutionhas treated him as an adverse witness. He has stated that on the pre-vious day there had been a quarrel between the four accused and the 210deceased. The prosecution had not been able to contradict this evi-dence. This supplies a motive for the accused to administer a corro-sive substance to the deceased. But motive is a double edgedweapon. The deceased also could have had a reason to implicate theaccused due to this reason. The learned trial judge had failed to con-sider this aspect when he considered whether there was any motivefor the deceased to falsely implicate the accused. There is also ano-ther matter he should have considered in relation to the deceased’smotive. The evidence in the case is that the deceased mother neverthought that the deceased would die.220
If the deceased voluntarily took the corrosive substance as his first
indicate – a possible chance of survival would
words

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Lionel v The Attorney-General
(Ameratunga. J.)
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the deceased QsJa>decD2n SE©d is compatible with voluntary ingestion.The trial judge has not considered this aspect. If the deceased has infact stated Oa5s>deros> SSQo the trial judge should have consideredwhy he changed this version subsequently.
A detailed and careful consideration of the matters set out aboveshould have been necessary in a case depending solely on a dyingdeclaration contrary to the very first statement said to have beenmade by the deceased. We are unable to say whether the trial judgecould have come to the same conclusion if he had carefully consid-ered the matters set out above. If he had a reasonable doubt aboutthe correctness of the statement made to the police by the deceasedthe accused should have been entitled to the benefit of it and in sucha situation a court could not have legitimately expected an explana-tion from the accused.
Taking into consideration all those matters it is our consideredview, that it is unsafe to allow this conviction to stand. Accordingly weallow the appeal, set aside the conviction and acquit the accused-appellant.
FERNANDO, J. – I agree.
Appeal allowed.
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