PREMASIRI and another, Appellants, and THE QUEEN, Respondent

008-NLR-NLR-V-77-PREMASIRI-and-another-Appellants-and-THE-QUEEN-Respondent.pdf


86
ALLES, J.—Premasiri v. The Queen
[Court or Criminal Appeal]
Present: Alles, J. (President), Weeramantry, J., and
Thamotheram, J.
PREMASIRI and another, Appellants, and THE QUEEN, RespondentC. C. A. 49 and 52 of 1971, with Applications 71 and 74S. C. 286/66—M. C. Oampaha, 82161 A
Evidence—Charge of rape—Uncorroborated testimony of the prosecutrix regarding thesexual act—Validity of conviction based thereon—Requirement of evidence ofidentification of the accused—Court of Criminal Appeal Ordinance, s. 5 (J)—“ Unreasonable verdict ”.
Whore, in a prosecution instituted against two or more persons for rape, thecase for tho prosecution regarding the sexual acts depends entirely on theuncorroborated evidence of the prosecutrix, it is the duty of the Judge to directthe jury clearly that the evidence of the prosecutrix must establish not onlythat intercourse took place without her consent but also that she identified theaccused who ravished her.
A verdict of the jury would be “ unreasonable ” within the meaning ofSection 5 (1) of the Court of Criminal Appeal Ordinance if the jury viewedthe evidence in sections and accepted and convicted the appellant on thoBeparts that were satisfactory and disregarded those facts which pointed to theimprobability of the story put forward by the Crown.
In a charge of rape it is proper for a jury to coDvict on the uncorroboratedevidence of the complainant only when such evidence is of such a characteras to convince the jury that she is speaking the truth.
Appeals against two convictions at a trial before the SupremeCourt.
E. R. S. R. Coomaraswamy, with C. Chakradaran, T. Joganathan,M. Devasagayam, S. G. B. Walgampaya and W. H. 0. Perera (assigned),for the accused-appellants.
Ian Wikramanayake, Senior Crown Counsel, for the Crown.
Cur. adv. vult*
December 6, 1971. Alles, J.—
The appellants, who were the 2nd and 5th accused at the trial, wereconvicted by divided verdicts of unlawful assembly and rape. The2nd appellant was convicted by a 5 to 2 verdict of unlawful assemblyand a 6 to 1 verdict of rape. The 5th appellant was convicted by 5 to 2verdicts of both offences. At the conclusion of the arguments in appealwe set aside the convictions of the appellants and stated that we wouldgive our reasons later. We now set down the reasons for our order.
ALLES, J.—Premasiri v. The Queen
87
This case has had a chequered career. These two appellants withfour others were indicted before the Assizes at Negombo and at theprevious trial the jury convicted all six accused of unlawful assembly,acquitted them of robbery, convicted the 1st, 2nd and 5th accused ofrape and acquitted the 3rd, 4th and 6th accused on the same charge.The Court of Criminal Appeal set aside the convictions on the groundthat inadmissible evidence was led at the trial and ordered a retrial.At the retrial all six accused were again charged with unlawful assemblyand the 1st, 2nd and 5th accused with rape. At the conclusion of theprosecution case the 1st accused died and the trial was continued againstthe remaining accused on an amended indictment. At the retrial the2nd, 3rd, 4th, 5th and 6th accused were again convicted of unlawfulassembly and the 2nd and 5th accused of rape. On the latter chargethey were sentenced to nine years rigorous imprisonment.
The accused were residents of the village of Obawatte, Kiribathgoda,in the Kadawata police area. The 1st accused is the paternal uncleof the 4th, 5th and 6th accused. The case for the prosecution dependedalmost entirely on the evidence of the prosecutrix, Soma Liyanage. She5vas a married woman, 27 years of age with one child and was adoptinganother, and lived in a house in a fairly populated area. Accordingto her evidence her husband had left for Galgamuwa in the KurunegalaDistrict on the morning of 11th June and the only inmates of her houseon the night in question—11th June 1966—were her two children anda servant girl, aged 11 years called Karunawathie. According to SomaLiyanage’s story, about 11 p.m. the 1st accused Abraham Dissanayake,whom she had known previously, came to her house, banged at the door,abused her in obscene language and forced her to open the door. Therewas a lamp lit at the time and as she opened the door a gang of nineor ten people rushed in. The 1st accused struck her on the face andthe 3rd accused, whom also she had known before, struck her on the headwith a club. The others assaulted her. She was then bodily draggedout of the house towards the lavatory behind the house. She was wearinga black skirt and a bodice at the time and the assailants removed theskirt and the bodice leaving her naked. Although she resisted and raisedcries nobody came to her rescue. Soma Liyanage purported to identifyall six accused as persons who at various stages had forcible sexualintercourse with her. She stated that it was the 1st accused, whoapparently was the ringleader of the gang, who was the first person to rapeher. While one might assume that she was in a position to identify thefirst person to commit an offence on her, especially when that personwas known to her and had been identified by her in the house earlier,it seems to us a well nigh impossible task for her to identify the otherpersons who ravished her having regard to her helpless condition andthe state of the light outside and the accused surrounding her. Shestated in evidence that she was able to identify her ravishers by .thelight of torches and also because the persons who committed offenceson her were in close proximity to her; she purported to give the orderin which she was ravished and naturally hopelessly contradicted herself;
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ALL.ES, J.—Premasiri v. The Queen
she even purported to state which of the accused passed semen into hervagina and which not, and she stated that at the end of the episode shebecame unconscious, but was not sure whether it was the 2nd or the 6thaccused who was the last person to have intercourse with her. If thiswas the case there must be grave doubts about the identity of the 2ndaccused as one of the ravishers. When she regained consciousness shestates that the accused had left her, she found herself nude, she raninto the house and put on some clothes, she found her house ransackedand some of her property missing and her son and adopted son hadfled from the house. She then went in search of her son and found himat the Obawatte Temple. Soon afterwards her adopted son also cameout from concealment and they all hid themselves in the shrub jungleclose by through fear. She tried to get a car to go to the Police buthaving failed continued to remain in the jungle until dawn. At dawnshe met Revd. Sangananda and also a woman called Seelawathie closeto the temple premises. She then hired a car and went with Revd.Sangananda, another priest, her children and Karunawatkie in searchof her husband to Kegalle, Mawanella, Kurunegala and Galgamuwa.Close to Galgamuwa she met Revd. Indrajoti in another car and havingfailed to meet her husband returned to Colombo with Revd. Indrajoti,met the Inspector-General of Police, obtained a letter from him and madeher first complaint at the Kadawata Police soon after midnight on the12th June. In her first complaint, which has been produced P3, shementioned the names of the 1st and 3rd accused and said that a personwhose name she did not know but who was wearing a red shirt alsoraped her. She said she did not know the others who raped her andcould not describe their features but could identify them if seen. Afterthe complaint was recorded she was sent to the Ragama Hospital formedical examination. The Doctor examined her at 10.55 a.m. on the13th June, and found abrasions on her forehead, contusions on the upperlip and left forearm, on the right arm, abrasions on the chest, left buttockand left hip bone. He also found contusions on the inner aspect of theright and left thighs which he thought could have been caused if pressurewas used to separate the thighs. The vagina was normal and did notindicate any traces of rape. Any inflammation of her parts would havesubsided at the time of the Doctor’s examination.
Karunawathie supported Soma Liyanage in regard to the entry ofthe crowd into the house—she reckoned the number as being about 25—the use of violence on her mistress and that she was dragged forciblytowards the rear compound. She identified the 1st, 3rd and 6th accusedamong the crowd. She also speaks of the events that transpiredsubsequent to the acts of rape.
The evidence of rape against the 2nd and 5th accused depended entirelyon Soma Liyanage’s uncorroborated testimony and at an early stageof the summing up the learned Commissioner warned the jury that itwas unsafe to convict on her uncorroborated testimony and repeatedthis warning several times in the course of his charge. In dealing with
AX.LES, J.—Prentaeiri v. The Queen
89
corroboration he said “ corroboration means something to support orstrengthen her evidence in regard to the offence itself, that is the offenceof rape, and also something to connect each of these accused with thatoffence ” and again that “ corroboration is something independentof her testimony which strengthens the story in relation to the offenceand connecting the accused with the offence No criticism can bemade about these directions which correctly sets out the law in regardto corroboration. Learned Counsel for the appellants, however,submitted that in the circumstances of the present case these directions,were inadequate and relied on the recent decision of the Privy Councilin James v. R1 (1970) 55 Cr. A. R. 299 which was an appeal from the Courtof Appeal of Jamaica where, as in the present case, the convictiondepended solely on the question of identification.
It is not disputed that the main question that arose for the considerationof the jury in regard to the culpability of the 2nd and 5th accused wasthe question whether they were properly identified by the prosecutrix.In regard to the 2nd accused she said she had known him by sight andthat he had come on one occasion with the 1st accused to her house abouta month prior to the incident. In regard to the 5th accused she statedthat she had seen him on several occasions at the boutique of the 1staccused when she had gone to buy provisions. The identification ofthe 5th accused is subject to certain infirmities. In P3 she referred toone of her ravishers as a person who was wearing a red shirt. Whenshe was being examined by Crown Counsel the question was pointedlyput to her in a leading form whether there was a person wearing a redshirt who raped her and it was thereafter that she identified that personas the 5th accused. The learned Commissioner also presented the caseof the identification of the 5th accused to the jury on the same lines.Since P3 was made over 24 hours after the alleged rape it should nothave been difficult for Soma Liyanage to give a more detailed descriptionof her ravishers, having regard to her previous knowledge of the 2ndand 5th accused. Soma Liyanage’s identification of the accused whocommitted offences on her is certainly unsatisfactory. She shifted herposition at the trial from the evidence she gave in the Magistrate’s Courtand as her evidence progressed at the trial she referred to further detailswhich she had not mentioned earlier and one gets the impression fromher evidence that she was prone to exaggeration and became recklessin her evidence in identifying the persons who committed offences on her.It was the suggestion of the defence that some of the accused had beenfalsely implicated at the instance of Revd. Indrajoti, who at the timeof the transaction had been disrobed ; that this ex-monk was the paramourof Soma Liyanage and the political rival of the 1st accused and thather visit to Galgamuwa was not for the purpose of meeting her husbandbut of meeting this ex-monk who accompanied her to Colombo and whohad tutored her to implicate some of the accused falsely.
1 (1970) 55 Cr. A. P. 299.
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AJLLES, J.—Premasiri v. The Queen
In James v. R. (supra) the conviction for rape rested on theuncorroborated testimony of the prosecutrix, Miss Hall, and the mainquestion for the decision of the jury was whether the accused was properlyidentified as the ravisher. In that case the questions that arose for theconsideration of the jury were whether there was consent or no consent,whether the Doctor’s evidence in relation to the finding of semen on thevarious garments and objects was corroborative evidence of rape andfinally the important question whether the accused had been properlyidentified. The learned trial Judge gave proper directions on the law ofcorroboration but the Privy Council held that “ in sexual cases, in viewof the possibility of error in identification by the complainant,corroborative evidence confirming in a material particular her evidencethat the accused was the guilty man is just as important as such evidenceconfirming that intercourse took place without her consent. ” ThePrivy Council criticised the charge of the trial Judge because he not onlyfailed to tell the jury that there was no evidence capable of amountingto corroboration of the prosecutrix’s evidence but went on to tell themwrongly that the medical evidence could amount to corroboration, andhaving said that, stated that the only two questions that remained tobe considered were whether the act was committed without her consentand whether the accused was the guilty party. On both these questionshe failed to direct the jury as to the need for corroboration. The PrivyCouncil was of the view that the directions of the trial Judge might wellhave given the impression to the jury that, if they accepted the medicalevidence, they were entitled to disregard the warning he had given againstthe danger of acting on uncorroborated evidence.
In the instant case the medical testimony would seem to indicatethat not only were the injuries found on Soma Liyanage received whenshe was assaulted and forcibly dragged from the house, but also that someof the injuries were caused as the result of forcible sexual intercourse.This would particularly be the case in regard to the contusions foundby the Doctor on the inner aspect of the thighs, supporting SomaLiyanage’s version that one or more of the accused forcibly separatedher legs when she was put on the ground prior to the ravishment. Thelearned Commissioner also quite justifiably posed the question to thejury that the only reasonable inference to be drawn from the fact thatshe was dragged out of the house by several males, that her clothes wereremoved, and that she was in distress can only mean that she was takenout of the house for the purpose of forcible sexual intercourse. Inregard to the culpability of the 2nd and 5th accused the learnedCommissioner categorically directed the jury that “ there is no supportfrom an independent source that connects the 2nd and 5th accused withthe crime ” and “ that there was no corroborative evidence connectingthe 2nd and 5th accused with the offence of rape ”. To this extenttherefore the directions differ from those which formed the subjectmatter of criticism in James v. R., but the principles laid down by thePrivy Council would appear to be applicable on a lesser key to theapproach of the learned Commissioner to the prosecution in the present
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case, which may have persuaded the jury unjustifiably to accept SomaLiyanage’s uncorroborated testimony that the 2nd and 5th accusedwere two of her ravishers. He presented the case to the jury on thebasis that the entire transaction could be divided into five stages—whathappened outside the door before it was opened, what happened insidethe hall when it was opened, what happened near the lavatory, the nighttravails of Soma Liyanage before she set out in the morning and finallyher peregrinations before she made her statement to the KadawataPolice soon after midnight on the 12th. In regard to the first, second,fourth and fifth stages there was evidence to support Soma Liyanage’stestimony but in regard to the third stage it depended solely on SomaLiyanage’s uncorroborated testimony. The 2nd and 5th appellantswere not identified by Soma Liyanage or Karunawathie in the house.The evidence of a forcible sexual act near the lavatory is consistent withthe 1st accused or some of the other unidentified persons being theravishers. Even the convictions of the 2nd and 5th accused on thecharges of unlawful assembly must depend on Soma Liyanage’s evidencethat they were identified near the lavatory. In dealing with the casesof the 2nd and 5th appellants the learned Commissioner directed the juryin the following terms :—
“ You may ask yourselves the question, ‘ Why should a woman,in the absence of her husband, be taken outside ? ’ Of course, as Itold you in the morning, the only person who says what happenedoutside the house is Soma Liyanage. If you are satisfied beyondreasonable doubt on Soma Liyanage’s evidence, then you can findthe 2nd and 5th accused guilty.”
and again
“ therefore you have to accept the evidence of Soma Liyanagewith absolute certainty that the act was committed. In so doing,you can take into consideration the fact that she was taken out of thehouse. That does not mean necessarily that an offence was committedbut Soma Liyanage says that offences were committed on her and shespecifies the 2nd and 5th accused.”
These directions would have been appropriate, if the 2nd and 5th accusedwere identified in the house as being the only two persons who draggedher out and, in such an event, the jury may well have been justified inaccepting Soma Liyanage’s uncorroborated testimony that these twoaccused committed offences on her. When, however, the evidencedisclosed that several persons dragged the prosecutrix out of the houseand persons other than the appellants are also alleged to have ravishedthe woman the jury may too readily accept the position on such a directionthat if rape did take place (and there was sufficient material to come tosuch a conclusion) that the evidence of Soma Liyanage, even thoughnot corroborated on the question of identification, must be acceptedin regard to the identity of the 2nd and 5th accused, in spite of thewarning given by the learned Commissioner.
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ALLES, J.—Premaairi v. The Queen
We might have not interfered with the convictions of the appellants,in spite of these criticisms had it not been for the unsatisfactory natureof Soma Liyanage’s evidence. In our view the learned Commissionerput the case to the jury very fairly, even if he was inclined sometimesto commend too favourably the evidence of Soma Liyanage, but the-evidence of Soma Liyanage was of such a calibre that it could hardlyhave inspired confidence with a reasonable jury. We are conscious ofthe fact that the Court of Criminal Appeal has stated in no uncertainterms that it is not the function of this Court to retry a case which hasalready been decided by the jury—Andris Silva1—and that on questionsof fact we should not lightly interfere with the verdict of the jury, whoon a proper direction, are entitled to accept questions of fact. SomaLiyanage’s evidence is however so full of infirmities and her accountappears so improbable that we think this is an appropriate case in whichwe must exercise our powers under Section 5 (1) of the Court of CriminalAppeal Act and set aside the verdict of the jury on the ground that itis unreasonable. Learned Crown Counsel too was constrained to admitthat her evidence was not of the kind on which the Grown could,confidently rely.
At the outset it is not out of place to state that the verdicts of thejury against the appellants are divided, that a previous jury did notaccept Soma Liyanage’s evidence that there was a robbery or that the3rd, 4th and 6th accused raped her. Learned Counsel of the appellantsalso commented on the unlikelihood of the 4th, 5th and 6th accusedhaving raped the woman in the presence of their paternal uncle the 1staccused. I have already commented on the unsatisfactory nature of thelight that was available to make identification in the vicinity of thelavatory possible ; she contradicted herself in regard to the identityof the last person to rape her—a contradiction which affects the identityof the 2nd accused ; she said it was the 4th accused who removed hertalisman and at another stage she fathered this act on the 6th accused ;in the Magistrate’s Court she did not mention that the 3rd accused rapedher—a position which she took up for the first time when she gave evidencebefore the Supreme Court, and finally her conduct subsequent to thetransaction creates considerable doubt on the accuracy of heridentification. Although she was living in a populated locality and the -Grama Sevaka lived only two miles away she made no complaint to theauthorities that night. When cross-examined on this point she gavethe lame excuse that she did not go to the Police through fear. Shemet Revd. Sangananda, a woman Seelawathie and her younger brotherSomaratne in the course of the morning but did not mention to any ofthem that she had been raped. She was a married woman and, if sheintended to ultimately inform the Police of what had happened to her,there was no reason why she should not have disclosed to the person*who accompanied her in the car that she had been raped. Herperegrinations in search of her husband, her failure to meet him, her
1 {1949) 41 N. L. It. 433.
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chance meeting with Revd. Indrajoti, her return to Colombo to getthe assistance of the Inspector-General of Police, lends colour to thesuggestion that Revd. Indrajoti may have had a hand in implicatingsome of the accused falsely. In fairness to the learned Commissionerit must be stated that he did refer to most of these infirmities when hedealt with Soma Liyanage’s evidence and left it open to the jury to acceptor reject her evidence. We think however, having regard to theunsatisfactory nature of her evidence the verdict of the jury wasunreasonable.
The principles which the Court of Criminal Appeal should follow insuch a case have been set down in the case of Andris Silva (supra)referred to earlier in this judgment. In Buckley 1 where the accusedwas convicted of rape by a divided verdict this Court stated that “ thereis no doubt that in the present case the jury have arrived at their verdictupon evidence properly admitted and after a correct direction by theJudge. If, however, the Court thought, after reviewing the whole ofthe evidence, that the verdict could not be supported, the Court was notonly entitled, but was bound, to exercise the powers conferred upon itby Section 5 (1) of the Ordinance and allow the appeal.” In that casethe Court of Criminal Appeal thought that the jury had viewed theevidence in sections and accepted and convicted the appellant on thoseparts that were satisfactory and disregarded those facts which pointedto the improbability of the story put forward by the Crown—anobservation that could well apply to the evidence of Soma Liyanagein the present case. In Musthapa Lebbe2, also a case of rape, the Courtof Criminal Appeal was of opinion that there was a real doubt as to theappellant’s guilt and the Court cited with approval the decisions of theEnglish Court of Criminal Appeal in Rex v. Isaac Schrager3 and Rexv. John Reuben Parker4. In the former case the principle enunciatedwas that “ in all the circumstances (of the case) it did seem to the Courtthat there was a reasonable and substantial amount of doubt as to theguilt of the appellant ”, and in the latter case the Court was entitled togive the benefit of the doubt to the accused because “ there was held
to be sufficient doubt as to the accuracy of the verdictThe
principles laid down by this Court in the above cases are applicable tothe evidence of the Crown in the present case, particularly when oneconsiders the unsatisfactory nature of Soma Liyanage’s evidence. InThemis Singho 5 this Court held that in a charge of rape it is proper for ajury to convict on the uncorroborated evidence of the complainant onlywhen such evidence is of such a character as to convince the jury that she isspeaking the truth. In our view Soma Liyanage’s evidence does not passthis test. To use the language of the Lord Chief Justice in Rex v. JohnAlfred Bradley8 “ on the whole we think it safer that the conviction
should not be allowed to stand.”
1 (1942) 43 N. L. R. 474.
– (1943) 44 N. L. R. 505.
3 6 Or. A. R 253.
6 Cr. A. R. 285.
5 (1944) 45 N. L. R. 37S.
4 Cr A R 228.
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WEERAMANTRY, J.—Ounasekera v. William
For the above reasons we set aside the convictions of the 2nd and 6thappellants and allow their appeals.
Appeals allowed.