THE ATTORNEY-GENERAL v. POTTA NAUFER AND OTHERS (AMBEPITIYA MURDER CASE)

015-SLLR-SLLR-2007-V-2-THE-ATTORNEY-GENERAL-v.-POTTA-NAUFER-AND-OTHERS-AMBEPITIYA-MURDER-CASE.pdf


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THE ATTORNEY-GENERALvPOTTA NAUFER AND OTHERS(AMBEPITIYA MURDER CASE)SUPREME COURTSHIRANEE TILAKAWARDANE, J.
UDALAGAMA, J.
DISSANAYAKE, J.
AMARATUNGA. J. ANDSOMAWANSA, J.
S.C. APPEAL (TAB) 01/20069TH OCTOBER, 2006
Murder — Sections 294, 295 – Application of common intention, section 32.Penal Code ■ Offence of conspiracy, section 113(a), Evidence Ordinance —Section 10, section 120, section 27, section 134 — Utilization of D.N.A.evidence.
The 1st accused was charged on counts of conspiracy to murder High CourtJudge. Mr. Ambepitiya, abetment of murder of Mr. Ambepitiya, and abetmentof murder of Police Inspector Upali Ranasinghe. The 2nd, 3rd, 4th and 5thaccused were charged on counts of conspiracy to murder Mr. Ambepitiya,murder of Mr. Ambepitiya, and murder of Inspector Upali Ranasinghe.
After trial the accused were convicted and sentenced in respect of the chargesmade against them.
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Held:
In a case of conspiracy there is no legal requirement regarding a modeof concurrence in the common purpose or the manner in which suchconcurrence may be established by the prosecution. To establishconspiracy it is possible that there could be one person around whomthe rest resolve.
PerShirani Thilakawardane, J.
*Although an agreement is at all times the essence of conspiracy it
does not necessarily contemplate a physical meeting of the conspirators orprior contract and correspondence between or among the accused as beingan essential or necessary ingredient to prove a charge of conspiracy “
There must be proof against each conspirator that he had knowledgeof the common plot and design although it is not necessary that eachshould be equally knowledgeable in this regard.
Section 10 of the Evidence Ordinance embodies the principle thatwhen various persons conspire to commit an offence the acts done byone in reference to the common intention are considered to be the actsof all.
In a case of murder against all the accused, where the accused aresought to be made liable on the basis of section 32, of the Penal Code,the common intention must necessarily be a murderous commonintention. While each of the accused may have a similar intention witha common object in view, it does not attract the application of section32 of the Penal Code.
The principle underlying section 27 of the Evidence Ordinance is thatthe danger of admitting false confession is taken care of as the truth ofthe confession is guaranteed by the discovery of facts in consequenceof the information given.
In terms of section 134 of the Evidence Ordinance, the criminalcharges against an accused can be proved by one witness alone, if theevidence is cogent, convincing, accurate and credible and if on thatevidence the ingredients of the charge could be proved beyond areasonable doubt.
The motive which induces a man to do a particular act, is known to himand to him alone. Therefore the prosecution is not bound to prove amotive for the offence to prove a charge. However, the presence of amotive is extremely relevant in establishing the actus reus or mens reaor both in most criminal cases. Nevertheless, criminal intentionsustains responsibility and the law does not go behind proved intentionto Investigate motive.
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When relyinq on circumstantial evidence to establish the charge ofconspiracy to commit murder and the charge of murder, the proveditems of circumstantial evidence when taken together must irresistiblypoint towards the only inference that the accused committed theoffence.
Per Shiranee Thilakawardane, J-
"… When faced with contradictions in a testimonial of a witness theCourt must bear in mind the nature and significance of the contradictions…. The Court must come to a determination regarding whether thiscontradiction was an honest mistake on the part of the witness orwhether it was a deliberate attempt to mislead Court…
The Courts in Sri Lanka have applied the principle commonly known as-Ellenborough dictumH in Rex v. Lord Cochrane (1814) Gurney’sReport 479 hand in hand with the principle set out in WoolmingtonV.DPP (1935 AC 462).
Per Shiranee Thilakawardane, J:
"While the judgment in Cochrane’s case provides the basis for the
development of the law in this area, the principle attached hasundeniably evolved fsr beyond its roots in the statement of LordEllenborough. This Court is not prepared to halt the development of thelaw through a deliberate and regressive step in the opposite direction tothe march of the Law in this field
Per Gamini Amaratunga, J:
I reject the learned President's Counsel’s submission that there is
no dictum called the dictum of Lord Ellenborough; that the wordsattributed to Lord Ellenborough is a fabrication by Wills; and that theviews expressed by Lord Ellenborough is not a part of the Law of SriLanka
Cases referred to:
Cooray (1950) 51 NLR 433.
Kanagaratnam (1952) 47 CLW 42.
Meyrick2' Cr. AR 94.
Sundaram (1943) 25 CLW 38.
Queen v Liyanage (1965) 67 NLR 193.
Don Sunny v Attorney-General (1998) 2 Sri LR.
Pierisv Silva (1913) 17 NLR 139.
King v Attanayaka (1931) 34 NLR 19.
Barendra Kumar Ghose AIR (1952) PC 1.
Mudalihamy (1957) 59 NLR 299.
Ranasinghe (1946) 47 NLR 373.
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Wilson Silva v The Queen (1969) 76 NLR 414.
In re. Asappu (1948) 50 NLR 324.
Mahabub Shah AIR (1945) PC 118
Ekmon (1962) 67 NLR 49.
Appuhamy (1960) 62 NLR 484.
Punchi Banda v The Queen (1969) 74 NLR 494.
Wasalamuni Richard v The State (1973) 76 NLR 534.
Weerasinghe v Kathirgamathamby (1957) 60 NLR 87.
Vincent Fernando v Clock (1963) 65 NLR 265.
Edwin v Check (1943) 44 NLR 297.
Queen v Albert (1960) 66 NLR 543.
Queen v Jinadasa (1960) 59 CLW 97.
R v Krishnapillai (1968) 74 NLR 438.
Gangaram v Emperor 62 IC 545.
Hazarat Gutkhan v Emperor AIR (1928) Cal. 430.
Emperor v Balram Das 49 Cal 358.
Shree Kanthiah Ramyya v State of Bombay AIR (1955) SC 287.
Queen v Buddharakkita 63 NLR 451.
R. v Palmer
Bharwada Bhogibhai Hirjabhaiv State of Gujrat (1983) Cri. L.J. 1096.
R v Lord Cochrane (1814) Gurney's Report 479.
Prematillake v The Republic of Sri Lanka (1972) 75 NLR 506.
Woolmington v DPP (1935) AC 462.
Mawaz Khan v R. (1967) AER 80 PC.
King v Gunaratne (1946) 47 NLR 145.
lllangathilleka v Republic of Sri Lanka (1984) 2 SLR 38.
Seetin v The Queen (1965) 68 NLR 316.
Commonwealth v Webster 5 Cush, 316, quoted in Amir Ali's Law ofEvidence, 59 Mass • 5 Cush 295, Mcguire – Evidence -Cases andMaterials.
Inspector Aroundstz v Pieris 10 CLW 122.
77ie Kingv WickremaSinghe 42 NLR 316.
The Kingv Pieris Appuhamy 43 NLR 412.
The King v Seeder Sifva 41 NLR 344.
The Queen v Sumanasena 66 NLR 350.
Rv Burdett(1820) 4 Barnwell and Anderson 95 at 120.
McQueen v Great Western Rail Company, 1875 LR 10 QB 569.
Somaratne Rajapakse and others v The Attorney-General SC Appeal2/2002 (TAB) c. minutes of 3.2.2004.
Queen v Santin Singho (1962) 65 NLR 445.
Richard v The State.
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APPEAL from the judgment of the High Court of the Western Province.
R. Arsakularatne, PC with W. Batagoda, J. Koralage and R. de Silva for the1st accused-appellant.
Dr. Ranjith Fernando with Ms. S. Munasinghe for the 2nd to 5 accused-appellant.
C.R. de Silva P.C..S.G. with Sarath Jayamanne DSG and Ms. H. Jayasundara,SSC for the Attorney-General.
Cur.adv.vuft.
December8, 2006
SHIRANEE THILAKAWARDANE, J.
This appeal has been preferred against the judgment of the Trialat Bar dated 04.07.2005, in High Court Colombo case No.2365/2005.
The 1st accused was charged on counts of conspiracy tomurder High Court Judge, Mr. Ambepitiya, abetment of murder ofMr. Ambepitiya, and abetment of murder of IP Upali Ranasinghe.The 2nd, 3rd, 4th, and 5th accused were charged on counts ofconspiracy to murder Mr Ambepitiya, murder of Mr. Ambepitiya,and murder of IP Upali Ranasinghe. The accused were found to beguilty of all counts preferred against them and accordinglyconvicted and sentenced.
At the appeal the counsel for the appellants relied on severalgrounds of appeal, including the failure of the prosecution toestablish the charge of conspiracy beyond reasonable doubt, thewrongful application of sections 10 and 27 of the EvidenceOrdinance, the improper application of section 32 of the PenalCode and the application of the non-existent EHenborough dictumto the accused. It was also submitted that the trial at bar erred inattaching a probative value to the identification parade evidence, inits appreciation of the opinion of the fingerprint expert and in itsfailure to attach significance of the infirmities related to the recoveryof Nokia phone number 0722716108 (hereinafter referred to as108) from the 2nd accused. It was further submitted on behalf ofthe 1st accused that the trial at bar erred with respect to thequestion of motive, and misdirected itself in the appreciation ofevidence given by Tilak Sri Jayalath.
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It is pertinent at this stage to examine the evidence against theaccused with respect to the several charges against them.
The 1st witness for the prosecution case, Susantha Pali, wasthe driver of van No. 253-0882 who was employed as a van driverfor the Leads Cab Service. At about 12.30 p.m. on 19.11.2004, thewitness was instructed by his office to pickup some passengersfrom a place proximate to the Elphinston Theatre. The witnessarrived at the Elphinston Theatre at 12.40 p.m. and was flaggeddown in front of the theatre by a man who identified himself as theperson who had hired the van. About 10 minutes later he, togetherwith three other persons got into the van. One person was seatedin front alongside the driver and the other three were seated in thepassenger seats in the rear of the vehicle. Having thereby had theopportunity to clearly see the passengers, the witnesssubsequently identified the 2nd, 3rd, 4th and 5th accused as thepersons who traveled in his van on 19.11.2004, at an identificationparade conducted on 29.11.2004. He specifically identified the 3rdaccused as the person who first stopped the van, and the 5thaccused as the person who sat in front alongside the driver's seatand was even able to describe the fact that he wore a gold chainaround his neck. This witness also made a dock identification of thefour accused at the trial.
The accused informed the witness that they were traveling toMoratuwa, and detailed the route to be followed in proceeding totheir specified destination. The first stop was at the John de SilvaTheatre at around 1.00 p.m. where the accused alighted from thevan. The witness observed that the 3rd accused was engaged in aconversation over a mobile phone. The accused informed thewitness that a person they referred to as 'Sir', whom they allegedwas a director of video tele-dramas, was late, and that they weretraveling to Moratuwa to meet this person. At around 1.15 p.m. theaccused got back into the van and the witness was directed to drivethem to a restaurant, later identified by the witness as the 'SteamBoat' restaurant situated on Kynsey Road, approximately 100-200metres from the Borella cemetery roundabout.
The witness entered the restaurant together with the accused,and was seated in a room to the left of the entrance. According tothis witness, the accused requested that they be served food that
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could be prepared in a hurry and also consumed half a bottle ofArrack together with their food. The witness as the driver of thevehicle had understandably refrained from drinking any alcohol atthe restaurant.
It is relevant that the police recovered this empty bottle of Arrackon the same day, after the incident, from the 'Steam Boat'restaurant and the fingerprints of the 2nd and 3rd accused wereidentified on the bottle. It is important to note that this recovery ofthe fingerprints took place after the incident had taken place andbefore any of the accused had been taken into custody.
The witness stated that once the bill was settled by one of theaccused, they got back into the van and the journey was resumed.However, on the way, this witness was asked to halt at a bar nearthe Castle Hospital on Castle Street, where they bought another1/2 bottle of arrack. On the direction of the 5th accused who wasseated in front, the witness parked around 50 metres past theOtters Sports Club on Sarana Road, where the accused thereupon,consumed this alcohol. The witness observed the 3rd accusedvomiting near the wall where the van was parked. He also observedthat the accused were in constant communication over a mobilephone during this time.
About 15 to 20 minutes later, the accused suddenly got backinto the van and ordered the witness to drive ahead and turn downa road to the left. Driving down this road, the witness observed acar parked in a garage nearby and a person standing next to thecar in a white shirt and black trousers. Soon after, the witness wasordered to stop the van and all the accused simultaneously jumpedout of the vehicle. According to this witness, the sounds of gunshotswere heard moments later. Immediately following the shots, the2nd to the 5th accused returned to the van hurriedly and thewitness stated that the 5th accused thereupon ordered the witnessto get out of his vehicle. Fearing for his life, the witness compliedpromptly, abandoned the van and sought refuge in a building sitenearby. He used a phone available at the site, to inform his officeof what had transpired. It is noteworthy that the shooting took placeapproximately at 3.15 p.m. on the same date.
The witness stated that he walked back to the scene of theshooting around 5 to 10 minutes later and observed that his van
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was missing. He again contacted his office and requested that theyinform the police about the loss of his van and the shooting. Thevan was later found by police, abandoned near the Elvitigala Flatsalong the Baseline Road. Police investigations conducted on thisabandoned vehicle revealed several fingerprints. It is significantthat the fingerprints of the 3rd and 5th accused were later identifiedon the vehicle, as it confirms that the accused definitely traveled inthe vehicle as testified by this witness.
Later, on the same day, the witness retraced his journey with the2nd to 5 accused for the benefit of IP Vedasinghe, -the InvestigationOfficer in charge, and pointed out to him the place where the vanwas parked and the 3rd accused had vomited as well as the SteamBoat Restaurant where they had consumed the half bottle of Arrackand their meal. IP Vedasinghe contemporaneously collected asample of vomit from the place pointed out by the witness, and theempty bottle of Arrack, containing the aforesaid fingerprints wasrecovered from the Steam Boat Restaurant.
It is of extreme relevance to the integrity of the investigation andthe authenticity of the evidence collected that at the point ofrecovery of both the empty bottle and the identification of printsfrom it, as well as collection of the sample of vomit, and therecovery of the prints on the van that no arrests had been made orthe accused identified in relation to the murder. Therefore thetiming of the recoveries effectively rules out the possibility of anysubsequent introduction, tampering or tainting of this forensicevidence, in order to deliberately and falsely implicate the accused.
The trustworthiness of the witness's statement has not beenassailed under cross-examination. In his responses during cross-examination the witness stated that he had participated in theidentification parade and that he was not introduced either to theaccused or shown pictures of the accused prior to his participationin the said parade. Also the witness explained that he was able toremember the accused clearly due to the special and unusualcircumstances surrounding their hire, during the time leading up toand after the shooting. The frequent stops made by them on theirjourney would reasonably have provided the witness with ampletime to closely observe the accused, enabling such a positiveidentification.
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It is also important to note that the witness had no knowledge orrelationship with the accused prior to 12.40 p.m. on 19.11.2004,and that his relationship with the accused up to the time when hewas ordered off the vehicle was cordial. No suggestions,alternatives or reasons were even suggested or adduced undercross-examination that gave any reason whatsoever for the witnessto have falsely implicated any of the accused. Therefore thiswitness is an entirely disinterested witness whose credibility andtestimonial trustworthiness was not only untouched by theextensive cross-examination, but rather enhanced by the lack ofany motive on his part to falsely implicate any of the accused.
The testimony of Susantha Pali was corroborated on materialaspects by that of Harshani Perera, an employee of the Leeds CabService, who stated that the van driven by Susantha Pali wasconnected to the base phone number 071-2349273. The informant,who identified himself as Nalaka, asked her not to call for theindicating number and informed her that four people would betraveling in the van and that they had to carry a small box with them.She then informed Susantha Pali of the hire, and asked him to pickupthe passengers from outside the Elphinston Theatre. After theincident, a call was received by fellow employee Surangi Arunila bywhich communication Susantha Pali informed the office that thepersons travelling in van No. 253-0882 had committed a murder.
The next witness called by the prosecution was AchalaWijerama, a waiter at the Steam Boat Restaurant. He stated that aspart of his daily routine he had removed all empty bottles from theprevious day and cleared the crates for the business of the newday. He observed the arrival of a group of five men aged around 30years, between 1.15 p.m. to 1.30 p.m. who seated themselves in aroom to the left of the entrance. He identified three of themsubsequently as the 2nd, 3rd and 5th accused.
This witness stated that the accused ordered half a bottle ofarrack, soda, coke and lunch. The bar order form (BOT) and thekitchen order form (KOT) relevant to the orders placed by his groupwere produced in evidence. The witness observed that with theexception of one person, all others in the group, consumed liquor.Importantly, the witness also observed a black bag placed on thelap of one of the accused.
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This witness stated that after he cleared the table he placed theempty arrack bottle in a crate, and that he had handed over thesame bottle to the police later, on the same day. The witness hadconfirmed that there were no other customers between 11.00 amand 2.00 p.m. at the Steam Boat restaurant who ordered alcohol on19.11.2004 and therefore the empty bottle handled by the accusedwas the only one in the crate. This eliminates even the possibility ofconfusion or any contamination of the evidence. The witness alsoidentified Susantha Pali who accompanied the police to the SteamBoat Restaurant at around 7.00 p.m. on the same day, as theperson who had sat with the accused and refrained fromconsuming any alcohol. This witness thereby corroborated evensuch minute details of the evidence as given by witness SusanthaPali.
The defence has failed under cross-examination of this witnessor by any other evidence to assail the credibility of the witnessAchala Wijerama. He positively identified the 2nd, 3rd, and 5thaccused. The witness has categorically denied any tutoring by thepolice prior to his participation in the Identification parade. It standsto reason that had the witness been tutored he would have alsoidentified the 4th accused at the identification. While the failure ofthe witness to identify the 4th accused does not preclude thelatter’s presence and involvement, it does however, contribute tothe genuineness and credibility of the witness's testimonialcreditworthiness.
There is no evidence or facts placed before court to rebut thepresumption of regularity and legitimacy, attached to the conduct ofthe identification parade by the police officers in charge. Importantlythe witness's statements have been corroborated by fingerprintevidence, 'real' evidence. Furthermore there is patent consistencyin the statements and evidence given by both, this waiter AchalaWijerama and Susantha Pali, where all material details as to theevents that had occurred have been corroborated.
The evidence of Inspector Vedasinghe is that he obtained andstudied the Mobile Transmission Report from Celltel Lanka Pvt. Ltd.and identified a pattern of incoming and outgoing calls at or aboutthe time of incident on phone number 108. His investigationsrevealed that a person by the name of Dilip Kumara living in
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Gunasinghepura owned the mobile number 108. Upon questioningthe said Dilip Kumara, it was found that the mobile was given to aperson named Lasantha. Further investigations tracing thepossession of this phone through this Lasantha, led the police tothe 2nd accused.
The 2nd accused was arrested at his residence on 25.11.2004and at the time of his arrest, had in his possession a 9mm Browningpistol marked as T3P1 and a mobile telephone and Rs. 34000 incash. Upon placing a call from the recovered phone to the phoneof his fellow officer, Inspector Vedasinghe identified the number ofthe phone recovered as No. 108. Based on information provided bythe 2nd accused, which was recovered under section 27 of theEvidence Ordinance, Inspector Vedasinghe also recovered awembley Mark IV revolver marked as T3P4, a Smith and Wesson'srevolver marked as T3P2 and a locally manufactured revolvermarked as T3P5 and some live cartridges, which were concealedin a house situated in Mabima, Heiyantuduwa.
The 3rd accused was arrested on 26.11.2004 and at the time ofhis arrest the police recovered an Armenias type revolver markedas T3P3 from his possession. The 5th accused was arrested atabout the same time. The 4th accused was arrested on 26.11.2004in Wattala.
Comparison and analysis of the weapons recovered from the2nd and 3rd accused with the empty casings and bullets recoveredat the crime scene by the Government Analyst Department,confirmed that the empty casings had been fired from the 9mmBrowning pistol marked as T3P1 that was recovered from thepossession of the 2nd accused and the Wembley Mark IV revolvermarked as T3P4, that was recovered in consequences ofinformation provided by the 2nd accused under section 27 of theEvidence Ordinance.
IP Vedasinghe who gave evidence on these matters, undercross-examination vehemently denied any suggestion that thepistol and revolver had been introduced by the police to implicatethese accused falsely. This bald suggestion however was notfounded on any fact that emerged in the evidence of his or anyother witness. The imputation of this suggestion was therefore notgrounded on any evidence whatsoever and is therefore not
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tenable. Furthermore had the police been interested in plantingsuch evidence, a much stronger case could have been made outeven against the 4th accused whose conviction was based solelyon the credible identification, and the cogent, convincing,trustworthy and un-assailed testimony given by the witnessSusantha Pali.
The Government Analyst report stated that the aforesaidweapons that were recovered based on the statement of the abovementioned accused were identified to be in good and workingcondition and included as a "gun“ in terms of the definitioncontained in section 2(a) of the Fire Arms Ordinance.
The expert witness on ballistics, explosives and firearms, fromthe Government Analyst Department, Mr. Gamini Gunatillake, arenowned authority on this subject, in his evidence detailed themanner in which a bullet can upon analysis be accuratelyforensically matched with the gun from which it was fired. Hedetailed that the barrel of each gun has certain unique features andmarkings, invisible to the naked eye, which casts an imprint uponthe bullet and the empty casing upon firing, leaving unique tracings,which could consequently be matched.
The witness stated that in the instant case, he was able toidentify conclusively that the empty casings marked as T2BA1,T2BA2, T2BA3, T2BA4, T2BA5, T2BA6 and T2BA8, were firedfrom the 9mm Browning pistol marked as T3P1. He also identifiedthat the bullet marked as T2nd N1 was fired from the samebrowning pistol marked as T3P1 and that the bullet marked asT2nd N2 was fired from the Wembley Mark IV revolver marked asT3P4.
This testimony gains additional testimonial trustworthiness inthe light of IP Vedasinghe's evidence above, that these relevantweapons which were consistent with the markings on the emptycasings, and bullets recovered from the scene of the crime wererecovered from the possession of the 2nd accused and inconsequence of information provided by him under section 27 ofthe Evidence Ordinance.
Also significant and of substantial probative evidential value isthe evidence of the Registrar of Fingerprints and other officersattached to his bureau who testified to the discovery of fingerprints
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on the vehicle No. 253-0882 and the bottle of arrack recoveredfrom the restaurant. Both the vehicle and the bottle were found andrecovered on the same day as the murder, before any of theaccused had been taken into custody, thereby completely militatingagainst any fabrication by the police. The Registrar of Fingerprintsstated that the prints of the 3rd and 5th accused were identified onthe vehicle and the 2nd and 3rd on the empty bottle. The Registrarof Fingerprints was categorical in his assertion that the procedureand technique employed in the lifting and identification of prints wasaccurate and sufficient to confirm the identity of the accused.
The Judicial Medical officer, Mr. Alwis identified the cause ofdeath of Mr. Ambepitiya and Mr. Ranasinghe Arachchige Upali asthe cerebral laceration caused by the discharge of bullets from arifled firearm. In this sense a rifled firearm is a weapon equippedwith a grooved bore as distinguished from a smooth bore such asa shotgun. This evidence was accepted under section 420 of theCriminal Procedure Code. His report as to the number, location andpossible sequence of the bullets wounds on the victim's bodies hasnot been challenged by the defence.
DNA evidence given by Dr. Maya Gunasekera of Genetech wasconclusive in matching the DNA from the sample of vomit collectedfrom near the Otters Sports Club with that of the 3rd accused,thereby placing him definitely in the Otters area, and furtherconfirming the testimony of Susantha Pali.
The record shows that the witness is highly specialized in herfield and has vast experience in the area of DNA typing. Her expertevidence is accepted as credible evidence on account of herexperience, expertise, the precautions taken to ensure the safety ofthe sample to prevent contamination and maintain the authenticityof the material and credibility of the findings. It is also relevant thatthe high standard of technology and procedure maintained byGenetech where the tests were conducted, also contributes to theacceptability of her evidence in this case.
In order to gain a proper understanding of the relevance of DNAevidence to this case, it is important to have a degree of familiaritywith the technical process of DNA extraction and analysis. Detailingthe basis and method of DNA extraction, the witness stated thatDNA evidence is based on the fact that human beings are made of
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cells. Within each of these cells there is an area called the nucleus,which contains chromosomes. There are 23 pairs of chromosomesin every cell. These chromosomes are made up of a chemicalknown as deoxyribonucleic acid also known as DNA. DNA is a longthread like polymeric molecule that is made up of units known asnucleotides. These nucleotides are in turn made up of a sugarmolecule, a phosphate molecule, and a nitrogenous base. Thereare four different types of nitrogenous bases. The sequence inwhich these bases are arranged differs from individual to individual.
DNA contains all the information that is necessaryfor the structureand the function of the cell and thereby the entire individual. DNA isknown as genetic material because it is inherited from the parents ofan individual.
An individual's genetic constitution is unique in so much as thereare no two individuals who have the same DNA. By analyzing DNA ofan individual it is possible to say that the chance of finding anotherperson with matching DNA is less than one in a trillion. This isanalogous to hand fingerprinting techniques and that is why DNAfingerprinting has received the degree of acceptability which is similarto hand fingerprinting in courts the world over.
Any two individuals are 99% genetically similar. However there is
around 1% of a person's genes which differs from individual toindividual. This is known as polymorphic DNA. In the analysis of DNAa scientist examines parts of the DNA in which individuals differ fromone another. These are called genetic loci or locations, which are hypervariable, as they, vary from individual to individual. One such type ofhyper variable is known as short tandem repeats (STR). By analyzingthese STR a scientist is able to distinguish one individual from another.
The analysis of short tandem repeats involves the counting of thenumber of repeating units at a given genetic location. The number ofrepeating units at a given location varies from person to person. Forexample at a particular STR location one person may have 3 repeatingunits and another may have 5 repeating units. Each of these areknown as alleles. Therefore we would say that a person has allele 3and another person has allele 5.
In order to determine which allele a person has, the scientistmust first extract DNA from some biological material of anindividual. After DNA extraction is done, the DNA is subjected to a
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process known as polymerase chain reaction (PCR). In thistechnique the scientist is able to select particular STR locations andmake a large number of copies of that genetic location.Subsequently the scientist is able to analyze this copied DNA anddetermine how many repeats there are at that STR location. This isdone by a process known as, Gel Electrophoresis. During GelElectrophoresis the copied DNA runs through a gel matrix underthe influence of an electric current. The STR alleles separate insidethis matrix according to their repeat numbers (size). By reading theDNA pattern on this gel it is possible to measure the size of the STRalleles and thereby record the DNA pattern. From this the scientistcan determine which alleles a person has. A scientist wouldanalyze a minimum of nine such STR locations.
The combination of alleles at all 9 locations can be expressed asa series of numbers, which is known as that person's DNA profile.This is unique to that individual and is the basis of identifyingpersons based on biological material. (This DNA profile is given inthe DNA report sent to courts) When two DNA profiles match, it isnecessary to express the possibility of having another person in thepopulation who might have this same DNA profile. The scientistusually expresses this in terms of a probability value. This is knownas the match probability.
With regard to the biological evidence subjected to DNAanalysis by her, the witness stated that when the sample wasreceived it was first placed in the fridge and subsequently twoaliquots (samples) were taken; one onto a piece of filter paper andthe other onto a cotton bud.
The sample of vomit was taken for analysis because it wasexpected to have human cellular material in it. When a personvomits, undigested food moves out of the stomach throughesophagus and the mouth. During this passage cellular materialfrom the inner well (mucus membrane) of the stomach, esophagusand mouth may come out with the vomit. This cellular materialwould contain mostly epithelial cells. Therefore, DNA extractedfrom these epithelial cells can be subjected to DNA analysis.
Firstly, DNA is extracted from these cells. This extraction wasperformed using a DNA extraction kit. Utilizing the chemicals thatare found in this kit, DNA was extracted from the filter paper, and
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cotton bud, which contained the vomit. After DNA was extracted, itwas subjected to polymerase chain reaction (PCR). The PCRproducts were further analyzed, in order to determine the STRalleles in the sample. From this it was possible to obtain a DNAprofile of the person whose vomit was analyzed.
This procedure was followed for two samples of vomit in orderto determine which sample was better and the amount of DNAsubjected to PCR was also varied in order to obtain optimal results.(The amount of DNA-2.5, 5.5, and 7.5 micro liters) Eleven suchSTR locations were analyzed for this sample of vomit and the DNApattern obtained was photographed and the digital images werestored in the laboratory computers. At the same time the DNAprofile was also determined and recorded in a record bookmaintained by Genetech.
Pictures of the DNA profiles were shown in court. In the firstpicture it was possible to observe the DNA pattern at 3 STR loci.The 3 STR loci are named, CSF1PO, TPOX and TH01. It wasdetermined that at the STR locations CSF1PO alleles number 11and 13 were present. At TPOX alleles number 9 and 10 werepresent. AtTHOI alleles number 8 and 9 were present. This profilewas obtained for the first vomit sample.
The second vomit sample was tested for these same three STRloci and was found to be identical. Subsequently the second vomitsample was also further tested for a total of 11 STR loci.
Males have a Y chromosome, which is not found in women. Theanalysis of the Y chromosome makes it possible to compare theDNA of two males. The Y chromosome analysis was performed onthe vomit sample, and it was determined that this vomit originatedfrom a male individual.
Based on the above findings a report was submitted to court.This report contained the DNA profile obtained from the vomitsample. A request was also made to the magistrate to produceblood samples from any suspects in this case in order to comparewith the DNA profile obtained from the vomit sample.
A blood sample was received, which was taken from the suspectSampath Thusahara Wijewardena Abeywickrame. About 2 ml ofblood had been collected into a plastic tube and had been placedin an envelope and the envelope had been duly sealed with sealing
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wax. The seals were found to be intact. The blood sample had beendrawn by the JMO Colombo, and was accompanied by a letter fromthe office of the JMO signed by Dr. Alwis. RM AbeyrathneRajapakse delivered the sample. Genetech sent a letter of receiptand acknowledgement to the magistrate and Mr. Rajapakse signedthe same. It is clear that the chain of transmission of the sampleprecluded any tampering with the sample.
Subsequently DNA was extracted from the blood sample andsubjected to polymerase chain reaction (PCR) and GelElectrophoresis and the STR alleles at 12 STR locations weredetermined. From this it was possible to obtain the DNA profile ofthe suspect. The DNA profile was then compared with the DNAprofile obtained from the vomit sample. This comparison was givenin a table in the report submitted to courts. It was found that thealleles in all the tested loci in the vomit sample were identical to thealleles in the samples of blood.
Explaining the conclusive nature of her findings the witnessstated that the match probability was calculated as one in fourhundred and seventy nine trillion. As the entire world population isabout 7 billion, this number far exceeds the number of people in theworld. Therefore, it can be concluded that no other random personcould have the same DNA profile. These findings were included inthe final report, which was also signed by Dr. Gaya Ranawake andMr. Ruwan llleperuma and duly authenticated and produced incourt.
The sample of vomit and the remaining sample of blood from thesuspect have both been stored in the deep freezer at Genetech andare available for examination.
During cross-examination this witness stated that although it isgood if the biological material does not contain any otherorganisms, the DNA test analyses specifically human DNA andtherefore the inclusion of microbial DNA will not hinder the test.However the inclusion of another human beings DNA will causecomplications in the testing.
This witness also stated that while there can be human DNA onthe road where the vomit was found this could be easily detected.In the vomit sample it was found that there was DNA only from oneperson. At a given STR locus there can be only a maximum of 2
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alleles. If there are more than 2 alleles, it can be said that there isa mixture of DNA from more than 1 person. During this analysis,they did not detect more than 2 alleles in any of the STR loci.
Furthermore, this witness clarified that the process of GelElectrophoresis is carried out on a gel, which is on a glass plate.When the blood sample was analyzed, the gel which contained theDNA from the vomit sample was not present, since the gel isdestroyed and the glass is cleaned, once the analysis is over.However prior to destroying the gel, it is read and the alleles aredetermined and recorded. Therefore when the blood sample wasanalyzed, the alleles in the blood sample were also similarly readand compared with the alleles that had been recorded forthe vomit sample. This was recorded in the DNA typing recordbook.
This evidence clearly establishes that the vomit found at theplace pointed out by Susantha Pali belonged to the 3rd accusedand confirms and corroborates the evidence of Susantha Pali,confirming that he was with the accused and had the knowledgethat he had vomited at the spot pointed out by him, therebyaffording him the clear opportunity to make the identification of theaccused subsequently.
Thus it has been proved beyond a reasonable doubt from theaforesaid witness, testimonies that there exists a strong sequenceof evidence linking the accused with the murder of Mr. Ambepitiya,and of IP Upali Ranasinghe.
Considering the grounds of appeal submitted on behalf of the2nd to the 5th accused, the first submission was that the trial at barerred in its application of the charge of conspiracy to the instantcase. It was submitted that the trial at bar erred in not holding thatthe prosecution had failed to establish the charge of conspiracyagainst the 2nd to the 5th accused.
The offence of conspiracy is defined under section 113(a) of thePenal Code as; "If two or more persons agree to commit or abet oract together with a common purpose for or in committing or bettingan offence, whether with or without any previous concert ordeliberation, each of them is guilty of the offence of conspiracy tocommit or abet that offence as the case may be."
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The essence of conspiracy lies in the common agreement orconcurrence or accord of minds, which is arrived at between theaccused. This view was endorsed by Gratiaen, J. in Cooray(V andit was reiterated in KanagaratnamW, where Choksy, J. summarizedthe principles laid down in Cooray as follows: "Under our law as ifnow stands it is the agreement per se to commit or abet a criminaloffence which is intended to be penalized, whether or not an overtact follows the conspiracy, so long as the existence of theconspiracy can be proved…. the common concurrence of minds —of more minds than one — with a view to achieving an object whichis an offence under our law that constitute criminal conspiracyunder the Penal Code.
While agreement is at all times the essence of conspiracy itdoes not necessarily contemplate a physical meeting of theconspirators or prior contact and correspondence between oramong the accused as being an essential or necessary ingredientto prove a charge of conspiracy. There is no legal requirementregarding a mode of concurrence in the common purpose or themanner in which such concurrence may be established by theprosecution. In a case of conspiracy it is possible that there couldbe one person around whom the rest revolve. [Vide MeyrickP)cited with approval by Gratiaen, J. in Cooray). The prosecutionmust simply establish an agreement to act together with a commonpurpose for or in committing an offence. Hearne, J. in SundaramWhas stated explicitly that; "the gist of the offence of conspiracy isagreement'.
With respect to the degree of proof, it has been held in Queen vLiyanagei5), that the question is not whether the inference ofconspiracy can be drawn but whether the facts are such that theycannot reasonably admit any other inference but that of conspiracy.As the evidence in support of a charge of conspiracy is oftencircumstantial, the actual facts of the conspiracy may be inferredfrom the collateral circumstances of the case. A charge ofconspiracy can often be proved only by an inference from thesubsequent conduct of the parties in committing some overt acts,which tend so obviously towards the alleged unlawful results as tosuggest that they must have arisen from an agreement to bringthem about.
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This court further observed that a conjectural interpretation isplaced on each isolated act and an inference is drawn from anaggregate of these interpretations. Therefore the detached acts ofconspirators relative to the main design are admissible as steps toestablish the conspiracy itself. The circumstances attendant on theacts of a conspirator may indicate association with others and assuch these circumstances may be availed of as a valid part of theproof of a conspiracy. There must be proof against each conspiratorthat he had knowledge of the common plot and design although itis not necessary that each should be equally knowledgeable in thisregard.
When relying on circumstantial evidence to establish the chargeof conspiracy to commit murder and the charge of murder, theproved items of circumstantial evidence when taken together mustirresistibly point towards the only inference that the accusedcommitted the offences. In a consideration of all the evidence theonly inference that can be arrived at should be consistent with theguilt of the accused only. [Vide Don Sunny v Attorney-General(®)concerning the Amarapafa murdet].
There is no doubt whatsoever that the evidence of all the abovewitnesses taken as a totality and considered as a wholecorresponds directly to this legal requirement for the offence ofconspiracy under our legal system. Of particular relevance is thetestimony of Susantha Pali wherein it was confirmed and clarifiedthat the 2nd to the 5th accused traveled together in the van with ashared common purpose and a common intention. The call madeto the Leeds Cab Service by one who identified himself as Nalakais significant as it displays a premeditated intention on the part ofthe 2nd to 5th accused to travel together and to carry what theyreferred to as a small box with them, and this was further identifiedas a bag by the waiter at the Steam Boat Restaurant. This provesbeyond a reasonable doubt the existence of an agreement andshared knowledge on the part of all accused.
The numerous phone conversations, delays and stops as wellas documentary evidence relating to the mobile phone records ofphone number 108 possessed by the accused reveal that theaccused were in constant communication with another person, whowas in effect directing the actions of the accused via his mobile
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phone communications. This other person is later identifiedconclusively as the 1st accused who is linked to the actions of the2nd to the 5th accused through credible documentary and witnessevidence which will be referred to later. It is clear that theingredients of conspiracy are met in the instant case based on theevidence against all the accused. It is apparent from the evidencethat the accused were clearly in agreement and bound by acommon intention and purpose to commit the murder ofMr. Ambepitiya and that the prosecution has proved this chargebeyond reasonable doubt.
Another submission on behalf of the 2nd to the 5th accused wasthat the trial at bar misdirected itself in the application of theprinciples contained in section 10 of the Evidence Ordinance to thefacts of the instant case.
Section 10 of the Evidence Ordinance provides that "Wherethere is reasonable ground to believe that two or more personshave conspired together to commit an offence or an actionablewrong, anything said or done or written by any one of such personsin reference to their common intention, after the time when suchintention was first entertained by each of the persons believed to beso conspiring; a) as well for the purpose of proving the existence ofthe conspiracy, b) as for the purpose of showing that any suchperson was a party to it."
The provision embodies the principle that when various personsconspire to commit an offence the acts done by one in reference tothe common intention are considered to be the acts of all. Theseacts are themselves evidence of the conspiracy to be establishedand the part played by each conspirator in it.
In Liyanage, (supra) several important rules were laid down withrespect to the degree of proof required for a charge of conspiracy.This court observed that, while agreement following upon intentionis the essence of conspiracy, the existence of such agreement isgenerally proved by circumstantial evidence. It is not necessary toprove any direct concert or any meeting of the conspirators as theactual fact of conspiracy is inferred from the collateralcircumstances of the case. It suffices to prove isolated acts as
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steps by which conspiracy may be proved. There must be proofagainst each conspirator that he had knowledge of the commonplot and design although it is not necessary that each should beequally knowledgeable in this regard.
Once there is prima facie evidence of conspiracy betweencertain defendants the acts and declarations of a person party tothe conspiracy and done or made before it was completed areadmissible under section 10 to all those who were party to it. Thecourt also recognized that it is impossible to lay down a general rulein this regard and that each case must be judged on its particularfacts and circumstances.
The principle laid down in Reins v SilvaW is that in order forsection 10 to be applied there must be an antecedent finding thatreasonable grounds to believe in a conspiracy exists, and thisreasonable belief must be based on independent evidence. Thisview is supported in the case of Kingv Attanayake^QK where it washeld that the judge should in each case determine whetherreasonable grounds exist to believe that a conspiracy exists on thebasis of evidence led to this effect, and the assurance of theprosecution that further evidence would be led.
In the instant case, the prosecution has clearly and beyondreasonable doubt, established the charge of conspiracy against the2nd to the 5th accused, based on the conduct of all the accusedwhich displayed shared intention and evidence of an agreement tocommit the murder of Mr. Ambepitiya. The prosecution has also ledindependent documentary and oral evidence linking the 1staccused with the other accused, proving beyond all reasonabledoubt the existence of such a conspiracy to murder Mr. Ambepitiya.
The evidence places the 2nd to the 5th accused together in avehicle hired by them for the purpose of transporting themselves tothe residence of Mr. Ambepitiya and in which they made theirgetaway upon commission of the offence. There appears to havebeen a communion of action between these accused evidenced bythe several stops made by them along the way. What is evidenttherefore is a concert of events, linked through the mobile phoneconversations, interlinking communication between them at a time
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relevant to the commission of the offence which culminates with theshooting of Mr. Ambepitiya and IP Upali Ranasinghe.
It is clear from the evidence of Susantha Pali which iscorroborated by documentary evidence by way of phone recordssubmitted by both Mobitel Lanka Pvt. Ltd. and Celltel Lanka Pvt.Ltd. with respect to phone number 0723323418 (hereinafterreferred to as 418) possessed by the 1st accused and No. 108possessed by the 2nd accused, that the accused were in regularcontact with the 1st accused during the course of the day and werebiding their time until the arrival of Mr. Ambepitiya at his residence.The tower report indicating the coverage of incoming and outgoingcalls made on No. 108 details the path traveled by the accused andis consistent with the evidence of Susantha Pali, adding credenceto his testimony. At no point did the accused break ranks or deviatefrom their common purpose, even when the 3rd accused wasevidently sick and had vomited near the Otters Sports Club wherethe vehicle was parked waiting for that specified moment of action.The only plausible, possible inference from this joint and concertedconduct of the accused considered along with other circumstantialevidence is that each of them was party to a conspiracy to committhe murder of Mr. Ambepitiya.
Therefore a prime facie case of conspiracy for the purpose interms of section 10 of the Evidence Ordinance has been veryclearly established by the prosecution, and the objection to theapplication of this section by the defence is not tenable in law.
There is however credence in the prosecution argument that as thecharge against the accused has been confirmed based on their jointconduct it does not require the application of section 10 to prove theexistence of a conspiracy as all acts were done by the conspirators inthe presence of each other and through linked communication. Alsowith respect to the application of the Elienborough dictum to theaccused, it is immaterial to enter into the validity of extending theprinciple in this charge, as the charge of conspiracy has been clearlyestablished beyond any reasonable doubt against all accused basedon their joint conduct and communications with the 1 st accused.
A further ground of appeal submitted is that the trial at bar failedto recognize the legal requirements for consideration of a common
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intention to commit murder in the application of section 32 of thePenal Code to the facts of the instant case. Section 32 of the PenalCode provides that, "Where a criminal act is done by severalpersons in furtherance of the common intention of all, each of suchpersons is liable for the act in the same manner as if it were doneby him alone."
The law in Sri Lanka follows the view expressed by the PrivyCouncil in Barendra Kumaffl in which it was observed that whereeach of several persons commits a different criminal act, each actbeing in furtherance of the common intention of all; each of them isliable for each such act as if he did it alone. As per the dictum inMudalihamyC*0) the effect of the application of section 32 is that thecasual effectiveness of the act of each accused to produce theharm is no longer treated as a relevant consideration.
The operation of the section preconceives a shared intention byall the accused but does not depart from the principle that eachaccused is punished based on his or her individual intention. Thesection also requires that a criminal act be conducted byeach of the accused in furtherance of the common intention ofall.
There exists an important distinction between a commonintention and a same or similar intention or common object.While each of the accused may have a similar intention with acommon object in view, this does not attract the application ofsection 32 of the Code. The same intention becomes a commonintention only when it is shared by all. This principle emergesclearly in Ranasinghei11> and the judgment of Weeramantry, J. inWilson Silva v The Queen,02) jn which he pronounced that "…the crucial distinction they (the jury) should have in mind wasthat, even if this was a simultaneous attack such attack shouldhave been in consequence of a sharing of intentions …" In acase of murder against all the accused where the accused are' sought to be made liable on the basis of section 32, thecommon intention must necessarily be a murderous commonintention.
In Asappu(13) several persons were accused of beingresponsible for an attack which caused the death of the victim.
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Dias, J. in his judgment laid down the rules that in order to justifythe inference of common intention there must be evidence,direct or circumstantial, either of pre-arrangement or a pre-arranged plan or a declaration showing common intention orsome other significant fact at the time of the commission of theoffence. This principle has also been recognized in the Indiancase of Mahbub ShahO*),
The distinction between common intention and commonobject was emphasized by Basnayake C.J. in Ekmon<15). InAppuhamyC*6) Sansoni, J. observed that "a common object isdifferent from a common intention in that it does not require priorconcert and a common meeting of minds before the offence iscommitted." The significance of a common murderous intentionwas again stressed in the case of Punchi-banda v TheQueen(A7
Significantly in Wasalamuni Richard v The Sfafe<18> eye-witness testimony was conclusive only against the 1st and 2ndaccused. The evidence against 3rd accused the younger brotherof the 1 st accused was circumstantial in that he was present onthe road at the time of the abduction and at the time and placeof the killing and on the direction of the 1st accused heprevented the witness from leaving the scene of the crime. Thecourt in this case held that the circumstantial evidence againsthim was sufficient in the absence of any explanation tenderedby him with regard to his presence, to establish that he actedin furtherance of a common murderous intention sharedwith the other accused as his presence was a participatingpresence.
In Weerasinghe v Kathirgamathamby,^^ several indicia wereused by court in coming to a conclusion of common intention.The fact that the accused had arrived together to the scene ofthe crime, that one accused was carrying an explosivesubstance and used it without protest from the other accused,that the other accused had taken action in furtherance of theircommon intention, and that they all made away upon theapproach of officers, were considered relevant by court indetermining liability based on common intention.
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It is clear that the case against each person must be consideredseparately and that the application of section 32 of the Code is attractedonly upon the fusion of the relevant mentes reae by reference to acommon intention. While Sri Lankan courts have consistently held thatmere presence at the scene of the crime does not by itself support aninference of common intention. Basnayake, C.J. in VincentFemandd2°) has clarified that this principle does not extend to a personwhose act of standing and waiting is itself a criminal act in a series ofcriminal acts done in furtherance of the common intention of all.Reference is made to the observations of Lord Summers in BarendraKumar Ghose,(supra) that “even if the appellant did nothing as he stoodoutside the door it is to be remembered that in crimes as in other thingsthey also serve who only stand and wait."
In the instant case the existence of a' conspiracy to murderMr Ambepitiya between the 2nd, 3rd, 4th and 5th accused and the 1staccused having been established, the question of motive on the part ofthe 2nd to the 5th accused does not arise. What remains to be seen iswhether the actions of the 2nd to the 5th accused correspond to therequirements of common intention as detailed above.
It is clear that the 2nd to the 5th accused traveled together to thescene of the crime in a van driven by prosecution witness Susantha Paliand that they had planned their route to the scene of the crime and thetiming of their arrival, based on communications addressed to them bythe 1st accused. It is also evident that they lay in wait near the OttersSports Club, a place proximate to the residence of Mr. Ambepitiya,biding their time until the correct time and opportunity to commit themurder of Mr. Ambepitiya. arose and was intimated to them by the 1staccused. DNA evidence obtained from the sample of vomit collectedfrom the Otters Sports Club area based on information received fromwitness Susantha Pali and analyzed by Or. Maya Gunasekeraconclusively places the 3rd accused in the Otters Sports Club area.
This fact is corroborated by the evidence of the van driver SusanthaPali, who has stated conclusively that the 2nd to the 5th accused gotinto his van around 12.40 p.m. and having made several previous stopsalong the way, directed that the van be parked near the Otters SportsClub where the accused waited, passing their time by consuming moreliquor and that the 3rd accused vomited. The witness stated that at aparticular time, he was specifically instructed to proceed along SaranaRoad and about 100 yards ahead the accused instructed him to turn
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into a by-Jane. The witness stated that he saw a person dressed in awhite shirt and a pair of black trousers standing next to a car and thathe was asked to halt the van. It is dear from the evidence that all theaccused jumped out of the van and shortly after the sound of gunshotswas heard. The witness was ordered to get down from the vehide andall the accused made their escape in the van.
It is pertinent at this stage to point out that Susantha Pali has dearlyidentified the 2nd to the 5th accused through an identification paradeheld on 29.11.2004 and that the fingerprints of the 3rd and 5th accusedwere found on the vehicle by the Registrar of Fingerprints.
It is abundantly clear from the evidence that the 2nd to the 5thaccused were joined in a shared intention to commit the murder ofMr. Ambepitiya and that the provisions of section 32 of the Penal Codeare applicable in this case with respect to establishing the liability of theaccused for the murder of Mr. Ambepitiya.
With respect to the contention of the defence that there was nocommon murderous intention on the part of the 2nd to the 5th accusedto cause the death of IP Upali Ranasinghe, it has been submitted by theprosecution that this contention runs contrary to the provisions ofsection 295 of the Penal Code.
Section 295 of the Code provides that "If a person by doing anythingwhich he intends or knows to be likely to cause death, commits culpablehomicide by causing the death of any person whose death he neitherintends nor knows himself to be likely to cause, the culpable homicidecommitted by the offender is of the description of which it would havebeen if he had caused the death of the person whose death he intendedor knew himself to be likely to cause."
Section 295 of the Code deals with transferred intent. It isrecognized that if the accused intended to kill one person but in factkilled another, a conviction of murder may be upheld. In Edwiri21)where the accused fired at A, intending to cause his death but insteadkilled B who was not intended to be killed, the accused was guilty ofmurder.
It has been established that the 2nd to the 5th accused were boundand entwined by a common murderous intention to cause the death ofMr. Ambepitiya. The operation of the provisions of section 295 againstthe accused transfers this intention to the killing of IP Upali Ranasingheeven if the accused had not entertained an intention to cause his death.
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It is relevant that IP Upali Ranasinghe was the official body guardattached to Mr. Ambepitiya. As this was a premeditated murder, theaccused would have reasonably foreseen that in order to commit themurder of Mr. Ambepitiya, they would be inevitably be forced to engagewith and kill IP Upati Ranasinghe who was the armed escort of Mr.Ambepitiya. This was the only conceivable way in which they couldhave made a safe gateway. There is no doubt that the accused dearlyanticipated and conspired to commit the murder of IP Upali Ranasingheas evidenced also by the use of two weapons during the shooting by- the accused.
On application of the scope and ambit of the law contained in section295 of the Penal Code and the reasonable inference evidenced fromthe facts of the case we find the accused guilty of the charges againstthem.
The next argument put forward by the defence was that the trial at
bar erred in accepting and acting upon the bald opinion of the fingerexpert and failed to arrive at an independent opinion on the evidence. Itis dear that the evidence of the Registrar of Fingerprints was notconsidered by the trial at bar in isolation but in conjunction with theposition of other officials in the Fingerprint Department and also of thetotality of the evidence in the case. The court has also considered theposition of the defence counsel for the accused gathered in the courseof the cross-examination. It is not tenable to impute a failure to applyjudicial principles to the conduct and conclusions of the trial at bar basedmerely on the acceptance of the evidence and reasoned opinionsubmitted by the Registrar of Fingerprints. It is pertinent that in responseto cross-examination, the Registrar of Fingerprints has clearly statedthat the methods employed relative to the discovery and analysis offingerprints in the instant case were more than sufficient to make aconclusive and positive identification of the accused whose prints hadbeen detected.
A challenge has also been made to the veracity and proper conductof the identification parade as a further ground of appeal. It wascontended by the defence that the identification by Susantha Pali andAchala Wijerama was flawed in that the witnesses were concealed fromthe judicial officer. It was submitted that this deviation from standardprocedure raises doubts regarding the true identity of the witness andmilitates against the veracity and validity of the identification against theaccused.
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We find that there is no merit in this argument, as both witnesseshave testified in court with regard to their identification through anidentification parade and no objections were raised by the defence atthat point. Furthermore according to the witnesses they had theopportunity, occasion and chance to identity the accused in terms of theevents as it had transpired at the time. It is clear from the evidence andnotes of the parade that the witnesses were isolated prior to theirparticipation in the parade and there is no evidence whatsoever thatthey were exposed to photographs of the accused prior to theidentification. Mere suggestions of these to the witnesses areunfounded on facts and not tenable in law.
Anonymity before the accused is a privilege afforded by law to anywitness participating in an identification parade. However theproceedings maintained by the magistrate contemporaneously, evincesand proves the participation of the witnesses in the parade. Theidentification parade notes and report were prepared under thesupervision of court and constitute judicial and official acts and theseare matters of record in court, in terms of section 114(d) of the EvidenceOrdinance, there is a presumption of regularity afforded to such recordand this can only be rebutted by evidence. No evidence to rebut thispresumption has been placed before court. Therefore the submission ofthe defence counsel on this matter is not justifiable.
The final ground of challenge is that the trial at bar erred in failing toconsider the legal principles related to section 27 recoveries in itsapplication to the instant case.
Section 27 provides that when any fact is deposed to as discoveredin consequence of information received from a person accused of anyoffence in the custody of an officer, so much of such information,whether it amounts to a confession or not as relates distinctly to the factthereby discovered may be proved.
The principle underlying this section is that the danger of admittingfalse confessions is taken care of as the truth of the confession isguaranteed by the discovery of facts in consequence of the informationgiven. The fact discovered shows that so much of the section asimmediately relates to it is true. (Vide, Coomaraswamy, Vol.1, p. 440).
In Queen v Albert22) and Queen v JinadasaS23> the court hasstressed that the information must relate distinctly to the fact discovered.A clear nexus must exist between the information given by the accused
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and the subsequent discovery of a relevant fact. In R v Krishnapillat24)the court has also stressed that such a statement cannot be consideredas a confession of guilt of the offence itself.
In the instant case we find that the trial at bar has duly adhered tothe legal principles underlying a section 27 recovery. The informationrelating to the recoveries has not in any way been treated asconfessions and relevant inferences and conclusions have been dulydrawn from the recovered items.
The issue related to the evidence of Inspector. Vedasinghe withrespect to the recovery of mobile phone No. 108 is that he failed tomention the number of the phone in the B report. However, IPVedasinghe has made a mention of the number 108 in his own notesand in the return entry at the police station, and this fact has not beenchallenged by the defence. Contemporaneous notes made by himwhich have been examined by court, negates the allegation of thedefence that mobile phone No. 108 was not recovered from the 2ndaccused.
A further issue repeatedly raised by the defence relates to the actualpossession of mobile phone No. 108 by the 2nd accused at the time theoffence was committed. The defence submits that possession at thetime of recovery does not per se lead to an inference regardingpossession and use on the day of the murder. In this regard they pointto the failure of the prosecution to lead evidence from the registered andprevious owners of the mobile phone 108, Mr. Dilip Kumara andLasantha in order to establish that the phone had been passed on to the2nd accused prior to the relevant date.
However, failure on the part of the prosecution to call evidence fromthe relevant persons in order to further clarify the possession of phoneNo. 108 with the 2nd accused, is not negated as the finding that thephone was in fact possessed by the 2nd accused, recovered from hispossession and was carried by the group consisting of the 2nd, to the5th accused on their journey to the scene of the crime.
Documentary evidence linking the call made and received by No.
108 to and from phone No. 418 throughout the relevant date, maps outthe route taken by the accused based on the coverage received andrecorded by different transmission towers. This considered togetherwith witness testimonies and DNA evidence which places the accusedat the different points and places indicated by the tower reports
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conclusively proves that the phone No. 108 was in the possession ofthe 2nd accused and was carried aboard the vehicle driven bySusantha Pali which transported the accused to the residence ofMr. Ambepitiya.
The defence has submitted separate written submissions on behalfof the 4th accused on the ground that no evidence of his involvementexists apart from the identification of Susantha Pali.
It is important to remember that in terms of section 134 of theEvidence Ordinance, the criminal charges against an accused can beproved by one witness alone, if the evidence is cogent, convincing,accurate and credible and if on that evidence the ingredients of thecharge could be proved beyond a reasonable doubt.
It is also important to note in this regard that while the presence offingerprint evidence conclusively proves the presence of a person at aparticular place, the reverse of this principle is not true; in that theabsence of fingerprint evidence of the fourth accused on the van drivenby Susantha Pali or on the empty bottle of arrack recovered from SteamBoat Restaurant does not preclude the presence of the accused at thedesignated places.
It is also relevant that the testimony of Susantha Pali was credible inlight of its consistency and corroboration through independent forensicevidence and also due to its coherence and accuracy. The evidence ofthis witness, Susantha Pali with regard to the 2nd, 3rd and 5th accusedhas been conclusively corroborated by both documentary and oralevidence. Furthermore, the undisputed documentary evidenceprovided by phone records maintained by Celltel Lanka Pvt. Ltd. alsocorroborates the evidence of Susantha Pali. The testimonialtrustworthiness of this witness has been further enhanced by itsconsistency with the statements of all other relevant prosecutionwitnesses including Achala Wijerama on all material aspects of thecase.
This establishes the accuracy, ability and credibility of this witness toalso make a positive identification of the 4th accused and there is noreason whatsoever to disbelieve him on this. Especially as the identityof the other three accused by him under the circumstances, affordedhim the same scope and opportunity to identify the 4th accused as well.And therefore his evidence as to the identity of the 4th accused can beaccepted as credible evidence of a positive identification.
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Furthermore the record shows that no objection was maderegarding the conduct of the identification parade at the time by- thedefence counsel. The witness has stated clearly that he identified theaccused and that the police did not tutor him before his participation inthe identification parade. It stands to reason that if the police were totamper with the identifying witness Susantha Pali, they would do thesame with witness Achala Wijerama in order to strengthen theprosecution case against the 4th accused.
The absence of such tampering, considered together with the factthat Susantha Pali is an independent witness with no prior connectionor relationship with the accused and that he is not guided by any HIfeeling towards the 4th accused or the other accused, leads to theconclusion that his identification of the 4th accused was credible andacceptable under the relevant circumstances of this case and is provedbeyond any reasonable doubt
The sequence of events disclosing the participation of the 4thaccused and the unfolding of the narrative of events as evidencedthrough this witness shows that the 4th accused too acted together withthe 2nd, 3rd and 5th accused with the same degree of complicity andthe charges against him too have been proved beyond a reasonabledoubt.
In respect of the charges of conspiracy against the accused andthose of abetment to murder against the 1 st accused, it is pertinent toexamine the evidence specifically linking the 1st accused to the crimecommitted by the 2nd to the 5th accused. The prosecution case againstthe 1st accused is entirely circumstantial and reliance was placed onthe motive of the 1 st accused, his possession of phone No. 418 which,except for the call made to Tilak, was in constant and almost exclusivecontact with No. 108 possessed by the 2nd to the 5th accused, whilethey were on their planned journey to murder Mr. Ambepitiya.
The evidence of Tilak Sri Jayalath is crucial and decisive to theprosecution case in that it establishes that at or about the relevant timeleading up to and when the murders were committed, the phone No.418 was possessed by the 1st accused on 19.11.2004. The witnessclaims that he enjoyed a long-standing close business relationship withthe 1 st accused and that he travelled regularly in the vehicle belongingto the 1 st accused. The witness established that his phone number was0714926707 (hereinafter referred to as 707) and that the connectionhad been issued to a person by the name of Miskin and subsequently
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handed over to him. The witness confirmed that he alone was the userof 707. The witness also confirmed the home number of the 1staccused as number 2332630 and his mobile number of habitual use asNo. 077-3118195.
According to his evidence this witness had traveled to Hambantotapassing Suriyawewa and Ambalantota with one Sunil Gamage who hadarrived from Japan with his traditional dancing troupe. For this purposethe witness had borrowed a vehicle belonging to the 1st accused. Thewitness stated that he was on his way back to Colombo when hereceived a call from the 1 st accused on 19.11.2004, at around 2.40 p.m.while he was in Hanwella. The records produced by Mobitel Lanka PvtLtd. and Celltel Lanka Pvt. Ltd corroborates this statement of thewitness. The witness observed that the number 418 from which the callwas made was not the usual number used by the 1st accused, butstates that he could easily identify the voice of the 1st accused as theyhave been in regular phone contact, and by virtue of their long standingfriendship.
The witness stated that he informed the 1st accused that he wouldreturn the vehicle to the 1st accused upon his arrival in Colombo. Thewitness also stated that he called the 1st accused on his home phonenumber upon returning to Colombo. He informed the 1st accused thathe was going to the Katunayake Airport and that he would return thevehicle upon his return to Colombo.
The only issue raised on behalf of the 1st accused was that thewitness had mentioned his location when receiving the call from 418 asDondra in his initial statement to the police and that this was laterchanged to Hanwella. The witness himself has admitted to this mistakeon his part, and explained that this omission was due to his frequenttrips to the south and his habit of traveling along the Ratnapura route aswell along the coast, which led to the confusion regarding his locationat the relevant time.
It must be borne in mind that the first statement to the police by thiswitness was made two and a half months after the receipt of the phonecall from the 1st accused on the day of the murder of Mr. Ambepitiya.The statement was recorded only after the receipt of thecontemporaneous phone records from Mobitel Lanka Pvt. Ltd, wherepolice investigations on these records had led the police to this witness.
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The testimony of Tilak is corroborated by documentary evidenceproduced by Mobitel Lanka Pvt. Ud. by which it is apparent that severalcalls have been made between the witness and the 1 st accused. Phonerecords of No. 707 produced by Mr. Mahinda Jayasundara, ManagerSwitching, Mobitel Lanka Pvt. Ltd. confirm the various locations wherecalls were either made or received on this phone. The witness, Tilakwas able to convincingly identify each of the calls made or received onNo. 707. The records clearly show that the phone was being carriedfrom Tissamaharama via Embilipitiya-Ratnapura to Colombo. It alsoshows the cal! made by the witness to the land phone of the 1staccused at 7.47 p.m. in close proximity to the Colombo Cricket Groundssituated in Colombo 07. The witness has also initiated a call from theKatunayake area at 10.01 p.m. on 19.11.2004.
The information evidenced by these records confirms the statementmade by the witness Tilak and the credibility of the witness's testimonyregarding the identity of the caller on 418 as the 1st accused. Thepattern of this closer relationship between the 1st accused and thiswitness, a fact not controverted by evidence, becomes a basis to ruleout any reason of fabrication of evidence against the 1 st accused by thiswitness.
Having established that phone No. 418 was within the possession ofthe 1st accused, the prosecution went on to prove that the 1st accusedwas in constant contact with the 2nd to the 5th accused throughcommunications made on No. 418 to No. 108, possessed by theaccused traveling to the residence of Mr. Ambepitiya in the van drivenby Susantha Pali.
Documentary evidence in this regard had been provided by CelltelLanka Pvt. Ltd. regarding the calls received by phone bearing No. 108from another phone bearing No. 418. The collection and preservation ofdata regarding their customer's communications and the technologythat facilitates the identification of the location of both the caller and thereceiver based on tower technology has been critical evidence inproving the conspiracy between the 1st accused and the rest of theaccused.
The prosecution led the evidence of telecommunications expert Mr.Rasika Mallawa, employed by Celltel Lanka Pvt. Ltd. The record revealsthat Mr. Mallawa was vastly experienced in the telecommunicationsfield. He received his Electronics and Telecommunications Engineeringdegree at the University of Moratuwa, and Master of Business
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Administration from the University of Sri Jayawardenapura. He is amember of the Institution of Engineers in Sri Lanka, UK and USA. Hebegan his career handling transmission, and at the relevant time wasmanager of planning and network quality for Celltel Lanka. He statedthat he had overall experience and knowledge in all aspects of themobile communication network.
In order to fully comprehend the relevance of phone records andlocation identification, to the facts of the case it is necessary to bepossessed with a basic knowledge of the nature and functions of amobile communications network. Explaining this manner and function,Mr. Mallawa stated that under the GSM system (Global System forMobile Communication) Celltel provides 2 systems to its customers; thepost paid and the prepaid system. A SIM card or (Subscriber IdentityModule) is issued to the subscriber by the mobile service provider uponconclusion of the contract. The SIM card contains the subscribernumber and this card is essential to operate a mobile phone.
Under the post-paid system, the subscriber has to sign a contractwith the service provider and a monthly bill will be issued to thesubscriber. The subscriber is required to submit documentaryinformation or proof of billing in the form of utility bills and a deposit asa condition for the operation of the connection. All documents aremaintained with the contract ensuring that the registered person is theactual person using the connection. The identity and the authenticity ofthe purchase customer is ensured for billing purposes and in order tokeep a tracking record of the identity of the user, the phone calls he hasmade and payments made are recorded. A postcard user is consideredby the company to be a registered user.
In contrast the pre-paid system does not require such documentaryproof and can be issued by any authorized dealer who at the time wasonly required to maintain a copy of the contract. As the prepaid user canpurchase airtime without disclosing identity there is a greater degree ofanonymity in the case of a pre-paid user. A point of importance is thatunder the pre-paid system, the service provider would not provide adetailed bill and the same would not be available even upon a requestmade by the subscriber. But it is important to note that records aremaintained nevertheless and released only to restricted authorities likethe police. This should not therefore lead to a false impression thatunlike in the case of a post-paid connection, no record is maintained ofthe calls made or received upon a prepaid phone. The witness has also
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testified that cal! charges on a postpaid connection are cheaper thanthose on a prepaid connection.
The relevance of this testimony is that a prepaid connection wouldbe the preferred communication of a person who did not wish for hiscommunications to be tracked. However this witness has categoricallystated that though details are not released to the customers thecompany always maintains a record of all calls made and received onboth the prepaid and the postpaid systems.
Explaining the process of mobile communication the witness statedthat, the human voice is modulated and transmitted by the mobilephone through the conversion of analogue to digital and is transmittedby the antennae contained in the mobile phone via radio waves throughsectors logged on to base stations. Each base station hasapproximately 3 sectors. The transmission of the voice waves takesplace through that sector of a base station/ tower passing connectedbase station via micro waves to the mobile switching centre. The mobileswitching center records every act of operating a mobile telephone.
Through this system the mobile phone is constantly connected to theaforementioned path of transmission, which records automatically as ittransmits. As all service providers such as Mobitel, Telecom, Suntel etc.are all connected to the Celltel Mobile switching center it is important tonote that every call made and received by a mobile phone passesthrough and is recorded by the mobile switching center, which analysesthe number and determines whether the call is meant for a Celltelsubscriber. Information recorded includes the calling number, receivingnumber, duration of the call, identity of the tower or base station, and thetime and date of the call.
Transmission through the mobile switching center also assist in thetracing of the geographical path traveled by the radio waves through thetowers. Both the geographic location of the caller and the receiver in thecase of mobile phones is traceable and in the case of a non-mobilephone there is a listing of the number recorded at the mobile switchingcentre.
With the concentration of subscribers especially in urban areas thecoverage area of a tower or base station is smaller. However away fromurban areas i.e.Hanwella, Dondra the cell radius would be between8km to 10km. The relevance of this is that it is possible to state withcertainty that the mobile phone from which the calls were made orreceived was within the geographic location of a particular base station,
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based on coverage. In urban areas the location can be pinpointed withgreater accuracy, as each tower covers a smaller perimeter. The cellradius itself being divided into sectors intensifies accuracy, each sectorhaving a unique identity, which pinpoints the location with exactitudeand is recorded together with other data.
This witness, Mr. Matlawa submitted a report on calls made andreceived by No. 418 from 08.11.2004 to 20.11.2004. Based on thisreport it is apparent that on 19.11.2004 a total of seven calls were madeto No. 108, and one call was made to No. 707. The first call made at08.07.44 was covered by Sector 01 of the People's Park tower andcorresponding No. 108 was covered by Sector 02 of the Panchikawattetower, placing the owner of No. 108 at the Elphinstone Theatre or in aplace between the theatre and Borella. Sector 01 of the CommercialBank tower covered the second call made at 09.07.19, and Section 01of the Borella tower covered corresponding No. 108. The third call at09.48.03 was covered by Sector 03 of the People's Park tower andcorresponding No. 108 was also covered by Sector 03 of the People'sPark tower placing the phone in the area surrounding the courtpremises. Sector 01 of the People’s Park tower covered the fourth callat 12.38.30, and corresponding No. 108 was covered by Sector 02 ofthe Panchikawatte tower placing the accused in the ElphinstoneTheatre and Maradana Junction area. Sector 01 of the Panchikawattatower covered the 5th call at 14.03.46, and corresponding No. 108 wascovered by Sector 03 of the Borella tower, placing the phone in thevicinity of Viharamahadevi Park and the John de Silva Theatre. Thisevidence corroborates the statement of Susantha Pali.
Significantly the 6th call at 14.39.26 was made to No. 707possessed by prosecution witness Tilak. No. 418 from which the calloriginated was covered by Sector 01 of the People's Park tower andMobitel records indicate that the corresponding No. 707 was in theHanwella area at the time the call was received. Records of this call aresignificant as they conclusively corroborate the testimonial of Tilak.
Th next call made from No. 414 to No. 108 was at 15.06.28. Sector01 of the People's Park tower covered this call and corresponding No.108 was covered by Sector 03 of the Nawala tower, which placed the2nd to the 5th accused near the Otters Sports Club area. This evidencealso, corroborates the testimony of Susantha Pali. The call of the daywas made at 16.34.23 and was covered by Sector 03 of the People'sPark tower and corresponding No. 108 was covered by Sector 03 of the
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Kaduwela tower, which placed the phone near the Malabe-Kaduwelaarea. It is pertinent that the 2nd accused from whose possession themobile phone No. 108 was recovered was a resident of the Malabearea as per the testimonial of Inspector Vedasinghe.
This witness identified the No. 108 on a phone which was producedbefore him in court in a sealed envelope. The witness also testified thatIP Vedasinghe had inquired after the serving sector over the OttersSports Club area, which was identified by the witness and confirmed bythe Inspector as sector 03 of the Nawala tower. The inspector had alsoobtained a report of all calls which went through sector 03 of the Nawalatower between 2.00 p.m. and 5.00 p.m. on the relevant date19.11.2004. Upon examination of these calls the expert witness wasable to testify to the recurrence of calls between a set of numbers,namely No. 108 and No. 418. Once the pair was identified, themovement of the mobile phone bearing one number and thecorresponding number could be traced via the cell sites. A report oncommunications through sector 01 of the People's Park tower between2.15 and 3.30 p.m. also revealed the same combination of numbers.
It is evident that several calls were made between No. 418 and No.108 and that No. 108 was moving from location to location. Call detailsreveal a systematic pattern of calling over the relevant time period. Theregularity of calls between No. 108 possessed by the 2nd to the 5thaccused and No. 418 possessed by the 1st accused, leads to areasonable finding that the parties were known and connected to eachother and precludes a sudden and random call made by a stranger.Considered together with all the evidence, the geographic areatraversed by the mobile phone which is tracked and evidenced bytechnological evidence in the form of independent phone recordsmaintained by the phone company, corroborates the path indicated bythe prosecution witnesses.
A report on calls made by No. 418 between 14.11.2004 and20.11.2004 reveal that 32 of the 49 calls made from No. 418 were madeto No. 108. The majority of the 9 remaining calls made, related to theoperational function of the phone, such as balance, language etc. It isapparent from the evidence that No. 418 was maintained by the 1staccused for almost exclusive communication with No. 108 possessedby the 2nd to the 5th accused over the relevant time period. The onlyexception being the single call made on No. 418 to No. 707 possessedby the prosecution witness Tiiak.
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It is also relevant that although the 1st accused was in possessionof another mobile phone bearing No. 195 which was a post paidconnection with cheaper call charges, he consistently refrained fromusing this phone to make contact with the mobile phone No. 108possessed by the 2nd to the 5th accused. The only logical and tenableexplanation of this unusual conduct is that the 1st accused believingwrongly, that phone records were not obtainable on pre-paidconnections, and wishing to conceal his contact with the 2nd to 5thaccused, the actual killers of Mr. Ambepltiya, used phone No. 418 whichwas a pre-paid connection, despite being in possession of the otherphone.
Retired Registrar of the High Court Colombo, LiyanathanthriGamage Munasinghe, has given evidence with respect to motive. Thewitness stated that he served as the Registrar of the High Court duringthe period 5.11.2004 to 29.02.2005. According to his evidence theAttorney-General prosecuted the 1st accused on a charge of murder incase bearing No. 693/2001 and the case was heard by High CourtJudge, Mr. Ambepitiya. During the course of the trial a witness informedthe judge that he had been threatened by the accused in the case.Based on this allegation, Mr. Ambepitiya ordered that the 1st accusedbe taken into custody, and refused a bail application submitted by the1st accused-appellant. However the 1st accused was enlarged on bailby the Court of Appeal for a sum of Rs.20,000.00. Following this rulingof the Court of Appeal, Mr. Ambepitiya expressing his obviousdisappointment with the decision, enlarged the 5th accused on bail fora mere sum of Rs. 100.00.
The prosecution intimated to Mr. Ambepitiya that a key witness in theprosecution case was unable to give evidence as he had left thecountry. The prosecution sought permission to remedy this situation byleading the evidence of this witness in a previous judicial proceeding.This application by the prosecution however, was strenuously contestedby the counsel for the accused as they claimed that allowing thetestimony of this witness would have serious implications on the fate ofhis clients.
In considering the application of the prosecution, Mr. Ambepitiya hasstated that before allowing the application, he would only permitevidence to be taken to establish that the witness had gone abroad.This statement by the presiding Judge, Mr. Ambepitiya would haveraised a powerful impression in the minds of the accused that the judge
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would no doubt hold in favour of the application made by theprosecution. It is important to note that a verdict on this applicationwould have been of critical importance to the accused as according tohis counsel, the fate of the accused depended on the testimonial of thiswitness. The accused was well aware that a finding of guilt by Mr.Ambepitiya would undoubtedly result in his long term incarceration injail.
When considering as a whole, the previous decision given by Mr.Ambepitiya on the issue of bail against the 1st accused, and in light ofhis statement relative to the application which was of Crucial importanceto the accused, it is reasonable to suppose that the accused functionedunder a strong belief that Mr. Ambepitiya was strongly biased againstthem and that such bias may determine the outcome of not only thepresent application but also the final decision of the Court It is relevantthat the application of the State was set for inquiry of the court. It isrelevant that the application of the state was set for inquiry on23.11.2004 and that Mr. Ambepitiya was murdered on 19.11.2004.
We find that the above facts display reasonable grounds for theaccused to arrive at a conclusion that Mr. Ambepitiya definitely intendedto rule against him in the application set for decision on 23.11.2004 andthis would be a most tenable and credible motive for the 1 st accused toenter into a conspiracy to murder Mr. Ambepitiya on 19.11.2004, beforethat decision could be given by him.
However in appeal it has been submitted on behalf of the 1staccused that the trial at bar misdirected itself on the question of motiveas there were many others who shared the same motive against Mr.Ambepitiya. It was contended that the prosecution had failed toestablish a sufficient motive for the offences charged.
Motive has been defined as that which moves or influences themind'. An action without a motive has been considered to be an effectwithout a cause. It has been defined in Gangaram v EmperoA25) assomething so operating upon the mind as to induce or to tend towardsinducing a particular act or course of conduct.
With respect to the relevance of motive to a criminal case, it hasbeen stated with clarity that the existence of a motive is not a whollyessential ingredient in the prosecution case. There is go requirementtherefore for the prosecution to prove a motive or the adequacy of amotive in order to prove a charge. The motive, which induces a man todo a particular act, is known to him and him alone.Therefore the
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prosecution is not bound to prove a motive for the offence, though, it cansuggest a motive and when it does so, the judge may examine themotive so suggested. [Vide, Wood Renton J. in 1906-Jaffna Sessions,Case No. 1 cited in Coomaraswamy, p.224 and Hazarat Gulkhan vEmperod26L In Emperor v Bafram Dak27) the court held that wherethere is clear evidence that a person has committed an offence it isimmaterial that no motive is proved, or that the evidence of motive isunclear. According to a judgment of the Indian Supreme Court inShreekanthiah Ramayya v State of Bombay<2S> has held that aconviction is possible without any motive being disclosed.
Though motive is not in itself necessary, the presence of motive isextremely relevant in establishing the actus reus or mens rea or bothin most criminal cases. It is mostly relevant and significant on thequestion of intention as in the case of Queen v Buddarakkitat20). In Rv Palmed30), Lord Campbell CJ has observed that there is nonecessity to establish the adequacy of the suggested motive. theadequacy of motive is of little importance. We know from theexperience of criminal courts that the most atrocious crimes of thissort have been committed from very slight motives…"
It is important in this context to distinguish between motive andintention. Austin has adopted the attitude that “intention is the aim ofthe act and motive is the spring" [Lectures on Jurisprudence, 4th Ed.,165] motive can be defined roughly as the reason why the intention isentertained. Motive in this sense is a compelling or propellingpsychological factor. However, criminal intention sustainsresponsibility and the law does not go behind proved intention toinvestigate motive. [As per, GL Peiris, Criminal Liability in Ceylon, 2ndEd., 31]
In the instant case, the prosecution has advanced a possiblemotive for the actions of the 1st accused with respect to his spokendispleasure regarding what he may have perceived as bias shownagainst him by Mr. Ambepitiya. A credible motive does not carry withit the added burden of being exclusive to the accused alone. Whilemany may have a motive to carry out an offence; which is usually thecase in situations of perceived unfair treatment or bias, not all personssimilarly affected would take the same course of conduct. The factthat the 1 st accused was not the only person to be affected by thedeliberations of Mr. Ambepitiya as suggested by the defence, doesnot in any way detract or preclude from the credible motive put
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forward by the prosecution, especially when considered in light of the
plethora of evidence produced by the prosecution case.
A further ground put forward by the defence was regarding thefailure of the trial at bar to properly evaluate the evidence of IPVedasinghe with respect to the recovery of mobile phone No. 108 fromthe 2nd accused. The contention on behalf of all the accused has beenthat the trial at bar failed to consider the failure on the part of IPVedasinghe to record the number of the phone as No. 108 in the Breport. However it has been established beyond any doubt that thisevidence was disclosed and that IP Vedasinghe did record and makean entiy regarding the recovery of the phone bearing this number bothin his own notes as well as in his return entry in the information bookextracts kept at the police station. If his intention in omitting the numberfrom the B report was to falsely implicate the accused, it stands toreason that he would not have mentioned the same in his own notesand the return entry as such action would be counterproductive to hispurported intention. The defence has not raised objection to thepresence of the number in both the return entry and in his personalnotes.
This confusion has also been clearly explained by IP Vedasinghewho stated that this omission was the result of an honest mistake andoversight on his part. We find this explanation tenable and credible andthat this mistake does not militate against the validity of the recovery ofthe phone No. 108 made from the possession of the 2nd accused.
The defence has also drawn the attention of court and submitted,that the trial at bar erred in failing to properly evaluate the evidence ofTilak Sri Jayalath and has disregarded the contradictions evidentbetween his statement in court and his initial statement to the police. Itis apparent from the record that the only contradictions relate firstly tohis statement to the police concerning his location at the time ofreceiving the call and secondly his testimony that he had commencedhis travel on 16.11.2004.
The reliability or credence of witness testimonials is generally testedon the grounds of testimonial trustworthiness, accuracy, veracity andcoherence as well as the creditworthiness of the witness. Corroborationthrough other oral and documentary evidence contributes significantlytowards the credibility of a witness testimonial.
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When faced with contradictions in a witness testimonial the courtmust bear in mind the nature and significance of the contradictions,viewed in light of the whole of the evidence given by the witness. Thecourt must also come to a determination regarding whether thiscontradiction was an honest mistake on the part of the witness orwhether it was a deliberate attempt to mislead court.
Too great a significance cannot be attached to minordiscrepancies, or contradictions as by and large a witness cannot beexpected to possess a photographic memory and to recall the exactdetails of an incident. As observed by Thakker, J. of the IndianSupreme Court in the case of Bharwada Bhiginbhai Hirjibhaiv Stateof Gujarat(31>, V../Y is not as if a video tape is being replayed on themental screen. "Furthermore, it must also be borne in mind that thepowers of observation differ from person to person.
With regard to the exact time and location of an incident, or the timeand duration of an occurrence or conversation, most people make theirestimates by guesswork on the spur of the moment at the time ofinterrogation. It is unreasonable to expect a witness to make extremelyprecise and reliable statement on such matters. This depends largelyon the sense of time and location of a person, which again varies fromperson to person. A witness may also get confused regarding thesequence of events or his actions, which took place over a particulartime span. Particularly when a statement is recorded after the lapse ofconsiderable time following the incident, it is likely that the witness maygenuinely get confused and mixed up regarding specific details of theincident or occurrence.
Confusion is also a likely result when the incident itself was of aseemingly innocuous nature, and not obviously connected with acrime or offence. In such cases a material witness is unlikely tohave attached the same significance to the incident at the time ofoccurrence as he or she may later come to attach in retrospect, andthis may lead to some minor discrepancies when recalling detailsof the incident.
Therefore court should disregard discrepancies and contradictions,which do not, go to the root of the matter and shake the credibility andcoherence of the testimonial as a whole. The mere presence of suchcontradictions therefore, does not have the effect of militating againstthe overall testimonial creditworthiness of the witness, particularly if thesaid contradictions are explicable by the witness. What is important is
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whether the witness is telling the truth on the material mattersconcerned with the event.
With respect to the first contradiction regarding his location at thetime of receiving the call, the witness Trfak has explained to court thathis confusion on his location at the time of receiving the call from the 1 staccused on phone number 418, was caused due to his frequent travelsdown South and his habit of alternately travelling back on either theRatnapura route or the coastal road. The mistake was aided by the factthat his statement was first recorded almost two and a half months afterthe receipt of the call, and that at the time the call was received, hewould not have placed any importance to his communications with hisfriend, the 1st accused with whom he was in frequent contact.
It is important to note that the evidence of Tilak given in court iscorroborated and confirmed by the documentary evidence produced byMobitel Lanka through the witness Mahinda Jayasundara. The phonerecords prove conclusively that he was in fact in Hanwella when hereceived the call from phone No. 418. it is also relevant that Tilak beinga friend and business associate of the 1 st accused had no reason tofalsely implicate him in the murder of Mr. Ambepitiya and IP UpaliRanasinghe and the defence did not in cross-examination even makea suggestion to this effect.
With regard to the second contradiction, Mobitel records prove thatTilak was in Tissamaharama on the 18th and 19th of November 2004.The mistake regarding the date of his departure has no bearing on theevidence of Tilak and a mistake to this effect does not militate againstthe testimonial creditworthiness of his evidence in light of the whole ofhis evidence and his explanation as to why he traveled toTissamaharama on the dates mentioned and the other documentaryevidence of the phone records that corroborates his evidence.
It is indeed incongruous that given the weight attached to thisparticular witness's testimonial that the opposing counsel has not raisedany other challenge to the credibility of his testimony. Tilak's statementsas to his friendship with the accused, his standing as an disinterestedwitness, the content of his conversation and the fact that a call wasmade from No. 418 to his phone No. 707 was never challenged by thecounsel for the 1st accused. The crux of his evidence, linking thenumber 418 proving the possession and use of that phone by the 1 staccused at or about the time of the murder, has not been challenged bythe cross-examination and in its substance and content can beconsidered as accurate and credible evidence.
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In these circumstances, we find that the two contradictions apparentin the testimonial of Tilak are honest mistakes not intended to misleadcourt or falsely implicate the 1st accused. Furthermore, mistakes as tothe witness's location at the point of receiving the call, and the date oftravel are certainly not fatal and do not go to the root of his testimonial.The witness has convincingly and reasonably explained thecontradictions.
Therefore, we find that the testimony of witness Tilak is both credibleand trustworthy and can be regarded as truthful evidence given to court
In considering the submission by the defence for the 1st accusedregarding the wrong application of the Lucas principle to the facts ofthe instant case, it is noted that while the argument was raised by theprosecution with regard to the failure on the part of the 1st accused toproduce the mobile phone bearing No. 418 despite a request made byIP Vedasinghe to this effect, the trial at bar has not applied the saidprinciple against the accused. Therefore reference to the Lucasprinciple is only limited to a submission on the part of the prosecutionand has not been applied by court against the accused.
The final ground of appeal submitted on behalf of the 1 st accused isthat the trial at bar erred in its application of a non-existent dictum ofLord Ellenborough to the facts of the instant case. The contention in thisregard is that the said dictum of Lord Ellenborough does not form partof the judgment in Bex v Lord Cochrand32> and therefore the trial at barerred in its application of the principle to the instant case.
The Ellenborough dictum contained in Lord Cochrane's case and asadopted and developed by courts today provides that "No personaccused of a crime is bound to offer any explanation of his conduct orof circumstances of suspicion which attach to him; but nevertheless ithe refuses to do so where a strong prima facie case has been madeout; and when it is in his power to offer evidence, if such exist inexplanation of such suspicious appearance which would show them tobe fallacious and explicable consistently with his innocence, it is areasonable and justifiable conclusion that he refrains from doing soonly from the conviction that the evidence so suppressed or adducedwould operate adversely to his interest"
When dealing with this contention it is pertinent to delve briefly intothe facts of Lord Cochrane's case. The charge in this case was that theaccused conspired to spread false rumors of the death of Napoleon
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Bonaparte and of peace with France in the belief that this would lead toan increase in government funds and securities in the country andcreate a false market for government securities. The accused thenplanned to sell their stake in the securities and funds at the inflatedprice thereby committing large-scale fraud on the public. Uponconclusion of the trial, Lord Chochrane stated before court thatimportant evidence with respect to his innocence had not been broughtforward by him at the time of trial and pleaded that he be granted a newtrial.
While the dictum in its modem form is not present in the judgment,a basic reading of the text sheds light on the context in which theprinciple was borne out. The pith and substance of the judgment reflectskey elements of the dictum attributed to him, but which has no doubtover the years been adopted by courts in different jurisdictions andthrough this process evolved into its modem form.
Sri Lankan courts have for the most part applied the principle thatwhile, suspicious circumstances alone do not relieve the prosecution ofthe burden of proving the guilt of the accused beyond reasonable doubtthe existence of a telling evidence of a mass of circumstances, whichremain unexplained by the accused, could result in a finding of guiltagainst the accused. [Vide, Prematillekev The Republic^33). Thus courtsin Sri Lanka have applied the principle commonly known as theEllenborough principle hand in hand with the principle set out inWoolmighton v DPP^h which provides that the burden of the proof ina criminal trial is on the prosecution and remains so throughout the trial.The principle of expecting an explanation of damning circumstancesdoes not displace the principle of Woolmington (supra) and it is appliedonly when the prosecution has established a strong prima fade case.
In Mawaz Khan v RS35) it was held that where the circumstantialevidence taken together with the setting up of a false alibi by theaccused persons might determine the guilt or innocence of the accusedin the absence of an explanation. This court has held in King vGunaratnefiS) that in cases of circumstantial evidence the facts takencumulatively might be sufficient to rebut the presumption of innocence;although each fact when taken separately may be a circumstance onlyof suspicion, particularly in the absence of an explanation. In recenttimes this court has shown a greater tendency towards expecting anexplanation of telling circumstances as evidenced by the decision of thecourt in Hlangatilieke v RepS37). In Seetin v the Queed3B) the court
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pronounced that a party's failure to explain damning facts cannotconvert insufficient evidence into prima fade evidence but it may causeprima facie evidence to become presumptive. Whether such aconversion takes place would depend on the strength of the evidencein order to meet the high standard of proof required for criminal cases.In the same case Fernando, J. observed that the above principle is nota principle of evidence but a rule of logic.
A similar sentiment has also been uttered by Shaw, J. inCommonwealth v Websteri39), quoted in Ameer Alt's Law of Evidencewhere he based his judgment on the rationale that where a strong casehas been established by the prosecution with proof of circumstancesestablishing the charge beyond a reasonable doubt, failure of theaccused to explain incriminating circumstances would tend towardssustaining the charge.
The principle has acquired a high precedent value in Sri Lankathrough its application and endorsement by this court in a plethora ofcases as a rule of logic as well as evidence. While the judgment inCochrane provides the basis for the development of the law in this area,the principle attached has undeniably evolved far beyond its roots in thestatements of Lord Ellenborough. This court is not prepared to halt thedevelopment of the law through a deliberate and regressive step in theopposite direction to the march of the law in this field.
It is however pertinent that a prerequisite to the application of theprinciple is the requirement of a strong prima facie case against theaccused to be established by the prosecution . On the instant case, it isevident that a strong case has been established against 1 st accused,based on his motive conclusive evidence on his possession of phonenumber 418, and his continuous communication with the other accusedthroughout 19.11.2004 and the exclusive use of No. 418 tocommunicate with No. 108 despite possession of a home phonenumber as well as a post paid connection bearing number 195. It is alsorelevant to the prosecution case that no further calls were received byNo. 418 after 4.30 p.m. on 19.11.2004.
It was within the purview of the 1st accused to provide a tenableexplanation for his communications with the 2nd to the 5th accusedwhile they were on their way to commit the murder of Mr. Ambepitiya.Instead the 1st accused has associated himself with a patently falsedefence in an attempt to distance himself from the actual killers of Mr.Ambepitiya, and his co-conspirators, the 2nd to the 5th accused.
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(Shiranee Tilakawardane. J.) (Ambeoitiva Murder Case)
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In light of the gamut of cogent, convincing, and credible evidenceproduced against the 1 st accused, as referred to above, it is evident thatthe charges preferred against him have been proved beyond areasonable doubt.
We have considered the judgment of the trial at bar and theevidence and argument submitted by both sides. We find that there areno infirmities in the judgment of the trial at bar, and we are satisfied thatthe trial at bar has adequately dealt with the evidence of the witnesseswho had testified regarding the involvement of each.of the accused inthe conspiracy and murder of Mr. Ambepitiya and IP Upali Ranasinghe.
Therefore, upon evaluation of the evidence as a whole we are ableto conclusively confirm the conviction of the accused of the offencescharged against them.
We see no reason to interfere with the conviction and sentence ofthe accused-appellants and therefore we affirm the conviction andsentence of the accused in respect of the charges made against them.
The Appeals of the accused stands dismissed and the convictionand sentence imposed by the trial at bar is affirmed.
UDALAGAMA, J.DISSANAYAKE, J.AMARATUNGA, J,SOMAWANSA, J.
Appeals dismissed.
I agree.I agree.I agree.I agree.
GAMINl AMARATUNGA, J.I have had the advantage of reading the judgment of Tilakawardane,J. in draft and whilst agreeing with the reasons and conclusions set outtherein on the merits of these appeals, I wish to specifically deal withone of the arguments addressed to us by the learned President'sCounsel for the 1st accused-appellant. The learned President'sCounsel vehemently criticized the trial Judges' reference to the dictumof Lord Ellenborough in Lord Cochrane and others,®2) at 479. Inconsidering the cumulative effect of the evidence against the 1staccused appellant, the trial Judges in their judgment have referred tothe dictum of Lord Ellenborough and to the decisions of the appellateCourts of Sri Lanka where this dictum had been applied in appropriatecircumstances to support conclusions reached against accusedpersons.
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Hon. Tilakawardane, J. has dealt with the learned President'sCounsel’s submission on the use of Lord Ellenborough's dictum and myobservations on the same matter are in addition to what is stated in thejudgment of Tilakawardane, J. In order to place the learned trial Judges'reference to the dictum of Lord Ellenborough in its proper context, it isnecessary for me to give a brief account of the evidence availableagainst the first accused-appellant.
According to the evidence led by the prosecution mobile phone 072-2716108 (referred to as phone 108) was recovered by IP Vedasighefrom the 2nd accused. On 19.11.2004, the date on which the murder ofMr. Ambepitiya was committed, mobile phone 108 had received sevencalls given from mobile phone No. 072-3323418 (referred to as phone418). According to the records of the mobile phone company the callsreceived by phone 108 from phone 418 had been made at the followingtimes. 1st call 8.07 a m., 2nd call 9.17 a.m., 3rd call 9.48 a.m., 4th call12.38 p.m., 5th call 14.03 p.m., 6th call 15.06 p.m., 7th call 16.34 p.m.According to the evidence, Mr. Ambepitiya and Mr. R.A. Upali weregunned down around 15.15 p.m. The sixth call from phone 418 tophone 108 was nine minutes before the killing. At the time of the last callfrom 418 to 108 (16.34 p.m.) the killers have accomplished their task.When the last call was received by phone 108, the geographicallocation of phone 108, as indicated by the records of the phonecompany, was Malabe-Kaduwela area. The 2nd accused from whomphone No. 108 was recovered by the police was resident in Malabe.After the last call from phone 418 to 108 at 16.34 p.m., there were nocontacts between phone 418 and 108. This evidence clearly indicatethat on 19.11.2004 the person who used phone 418 was in constantcontact with phone 108, later recovered by the police from the 2ndaccused-appellant.
Witness Susantha Pali, the driver of the vehicle in which the killersreached the residence of Mr. Ambepitiya, has positively identified the2nd accused-appellant as one of the persons who travelled in hisvehicle and this identification finds support from the presence of the 2ndaccused-appellant's finger prints on the empty arrack bottle recoveredfrom the Steam Boat Restaurant.
The evidence of the Govt. Analyst was that empty casings found atthe scene of crime had been fired from the pistol (recovered by thepolice from 2A) and the revolver that was recovered by the police inconsequence of information given by the 2nd accused-appellant.
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The Attorney-General v Potta Naufer and others
(Gamini Amaratunga. J.) (Ambeoitiva Murder Case)
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According to the evidence of Susantha Pali, he had seen the personstravelling in his vehicle using a mobile phone. The evidence from therecords of the mobile phone company with regard to the geographicallocation of phone No. 108 at the time it received the 3rd, 4th and the 5thcalls from phone 418 support Susantha Pali's evidence with regard tothe details of the journey from the time he picked up the 2nd to 5thaccused-appellants at Maradana. Thus the available evidence lead tothe irresistible inference that the persons who travelled in SusanthaPali's vehicle on 19.11.2004 had with them mobile phone 108throughout their journey along with Susantha Pali.
Evidence relating to the identity of the person who had access (tosay the least) to phone 418 came from Thilak Sri Jayalath, a good friendof the 1st accused-appellant. The witness knew the 1st accused-appellant for a long period of time and the witness was in the habit oftalking to the 1 st accused-appellant over the telephone. He could easilyrecognize the voice of the 1st accused appellant. On 16.11.2004, thewitness had borrowed a 'Sunny' car from the 1st accused-appellant totravel to the southern part of Sri Lanka along with a friend who hadcome from Japan. On 19.11.2004 on his return journey to Colombo inthe car borrowed from the 1st accused-appellant, the witness hadreceived a call to his mobile phone No. 071-4926707 (707 phone) fromphone 072-3323418 at 2.40 p.m. The caller was the 1st accused-appellant. Thilak had recognised the 1st accused-appellant’s voice verywell. The latter had inquired from Thilak about the return of the vehicleand Thilak in response had indicated to the 1st accused-appellant thathe was on his way to Colombo and would contact 1A once he reachedColombo. Phone 072-3323418 used by the 1st accused-appellant tocall Thilak was not a number familiar to Thilak who knew the numbersof the land phone and the mobile phone used by the 1st accused-appellant. According to Thilak’s evidence he was passing Hanwellaarea at the time he received the 1st accused-appellant’s call whichoriginated from phone 418. The fact that phone 418 had been used tocontact Thilak's mobile phone 707 at 2.40 p.m. on 19.11.2004 and thatat the time of the said call phone 707 was in the area of Hanwella hasbeen proved from the records of the mobile phone company.
There was no apparent reason for Thilak, a long standing closefriend of the 1st accused-appellant to give false evidence against thelatter. His evidence positively establishes that it was the 1st accused-appellant who called Thilak's 707 phone at 2.40 p.m. on 19.11.2004 andthe records of the mobile phone company positively established that
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that call originated from phone 418, which according to the evidencewas the phone used on 19.11.2004 to maintain contacts with phone108.
The time of the call from phone 418 to 707 (2.40 p.m.) is important.It is pertinent to note that according to the evidence available from therecords of the mobile phone company, the 5th call from phone 418 to108 was at 2.03 p.m. The call to Thflak by the 1st accused-appellantfrom the same phone 418 had been made 37 minutes after the 5th callfrom phone 418 to phone 108. This positively establishes that at2.40p.m. on 19.11.2004, the 1st accused-appellant was in possessionof phone 418. The sixth call from phone 418 to phone 108 had beenmade at 3.06 p.m., just 26 minutes after the call to Thilak and just nineminutes before the assassins gunned down Mr. Ambepitiya and hispolice security officer.
The prosecution had led evidence to suggest a motive for the 1 staccused-appellant to be displeased with the manner in whichMr. Ambepitiya bandied the case where the 1st accused-appellantalong with others, stood charged for committing the offence of murder.
The evidence led by the prosecution establish beyondreasonable doubt that phone No. 418 used to maintain a constantcontact with phone No. 108 which was with the killers ofMr. Ambepitiya, was in the hands of the 1st accused-appeffant at2.40p.m. on 19.11.2004, just twenty nine minutes before the sixthcall from phone 418 was given to phone 108 and just 35 minutesbefore Mr, Ambepitiya and the other were gunned down. The onlyevidence to link the 1st accused-appellant with phone 418 is theevidence of Thifak with regard to the calf he had received at2.40p.m. on 19.11.2004 from the 1st accused-appellant. The factthat phone 418 had been used to contact Thilak’s phone 707 isconfirmed by the records maintained by the mobile phone companyand the same records establish the connection between phone 418and 108 on 19.11.2004. Although the connecting /ink between the1st accused-appellant and phone 418 is the single telephone callgiven to Thilak, this link is established beyond reasonable doubtand a Court can safely and confidently act on such evidence. Whatmatters is the testimonial trustworthiness of the evidence and theweight of such evidence.
The only reasonable and irresistible inference deducible from thisevidence is that the 1 st accused-appellant was In possession of phone
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(Gamini Amaratunaa, J.) (Ambeoittva Murder Case)
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418 at 2.40 p.m. If phone 418 changed hands either before or after 2.40pm, it is a matter well within the knowledge of the first accused-appellant. In the absence of a reasonable explanation from the firstaccused appellant on this matter, the Court is entitled to come to thelogical conclusion that the first accused-appellant remained inpossession of phone 418 before and after 2.40 p.m. on 19.11.2004. Inview of the evidence of the prosecution relating to a possible motive ofthe first accused-appellant to be displeased with Mr. Ambepitiya and inthe absence of a reasonable explanation from the first accused-appellant with regard to the possession of phone 418 before and after2.40 p.m. on 19.11.2004 the Court is entitled to draw the legitimateinference that the first accused-appellant had possession of phone 418before and after 2.40 p.m. on 19.11.2004. Court is also entitled to inferfrom the fact of possession of phone 418 that the first accused-appellanthad in fact used it on 19.11.2004 to contact phone 108.
With regard to the possession of phone 418 on 19.11.2004 Thitak'sevidence is damning, against the first accused-appellant. When suchdamning evidence is produced before a Court against an accusedperson who stands charged with a capital offence, what is his naturalreaction when it is in his power to offer evidence to explain that thecircumstances relied on by the prosecution to establish his guilt areexplicable consistently with his innocence?
It was in this context that the trial Judges have referred to the dictumof Lord Ellenborough which I set out below:
"No person accused of a crime is bound to offer any explanationof his conduct or of circumstances of suspicion which attach tohim; but nevertheless if he refuses to do so, where a strongprima facie case has been made out, and when it is in his ownpower to offer evidence, if such exist, in explanation of suchsuspicious appearance which would show them to be fallaciousand explicable consistently with his innocence, it is a reasonableand justifiable conclusion that he refrains from doing so onlyfrom the conviction that the evidence so suppressed or adducedwould operate adversely to his interest"/? v tend Cochrane andothers (supra). As quoted by E.R.S.R. Coomaraswamy – Law ofEvidence, Vol. I page 21.
The first reference in Sri Lanka to the dictum of Lord Ellenborough isfound in Inspector Aroundstz v Peirid40) where Mosely J. quoting apassage from Wills on Circumstantial Evidence (7th edition) stated as
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follows:
"Lord Ellenborough said that no person accused of crime isbound to offer any explanation of his conduct or ofcircumstances of suspicion which attach to him; butnevertheless if he refuse to do so where a strong prima faciecase has been made out and when it is in his own power to offerevidence, if such exist, in explanation of such suspiciousappearances which would show them to be fallacious andexplicable consistently with his innocence, it is a reasonable andjustifiable conclusion that he refrains from doing so only fromthe conviction that the evidence so suppressed or not adducedwould operate adversely to his interest" Rexv Lord Cochraneand others, (supra).
In the above case the Court applied the dictum in a case whichdepended on circumstantial evidence. Subsequently this dictum wasreferred to and applied in The King v Wickramasinghd41), The King vPeiris Appuham/*2) and The Kingv Seeder Silver.
In The Queer? v Sumanasend44) where the trial Judge referred tothe accused's failure to explain suspicious circumstances provedagainst him, Basnayake, CJ. delivering the judgment of the Court ofCriminal Appeal stated as follows:
"The words quoted by the learned Judge appear to us to be thewords attributed to Lord Ellenborough in the case of Rexv LordCochrane and others. The report of the trial in which heexpressed those observations is not available in any of thelibraries in Hulftsdorp and it is therefore not possible toascertain the context in which it was stated. In view of the factthat this opinion was expressed by Lord Ellenborough in 1814before the Criminal Evidence Act and at a time when anaccused person had no right to give evidence on his ownbehalf, it is unthinkable that he thereby intended to impose onthe accused a burden which the law did not permit him todischarge. It would appear from the feet that Rex v Cochraneand others is not referred to in the recent editions of suchauthoritative text books on evidence as Taylor and Phipson thatthe dictum of Lord Ellenborough is no longer good law even inEngland. In our opinion the doctrine of Lord Ellenborough hasno place in the scheme of our criminal law." (P. 352).
The learned President's Counsel for the 1st accused-appellantsubmitted that,
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There was no case called Lord Cochrane and others and that thecase in which Lord Cochrane was charged as the 2nd accusedwas the case of ft v De Berenger and others. This position is infact correct.
Gurney's shorthand report of the case does not contain thewords attributed to Lord Ellenborough by Wills in his work onCircumstantial Evidence.
The words attributed to Lord Ellenborough appears to be a"creation of Wills" and that it "appears to be a fabrication of Wills."
The learned President's Counsel therefore submitted that there wasno dictum called 'Ellenborough dictum', that it is not a part of the law ofSri Lanka and that in subsequent cases of Prematilake v the Republicof Sri Lanka(supra) and Hlangatilakav Republic of Sri Lanka(supra) theCourts have not considered the views of Basnayake, C.J. in Queen vSumanasend46) and that the judgments beginning from the case ofInspector Arouncfstz (supra) right up to the present day which appliedthe dictum of Lord Ellenborough are judgments per incuriam..
However, the learned President's Counsel has conspicuously andsignificantly omitted to refer to the judgment of T.S. Fernando, J. in thecase of The Queen v Seetin(supra) where T.S. Fernando, J., havingreferred to the above quoted passage of Basnayake, CJ. in Queen vSumanasena, (supra) fully dealt with the views of Basnayake, CJ. in thefollowing passages:
"I agree, with great respect, that it would be wrong to attributeto any Judge an intention to impose on an accused person aburden which the law did not permit the latter to discharge.But it seems to me necessary to point out that the wordsused by Lord Ellenborough on the occasion in question didnot refer to a failure of the accused to give evidence but onlyto offer evidence which was in his power to offer. Even in1814 an accused, although not competent to give evidencehimself, was not denied the right (a) to call witnesses and (b)to make an unsworn statement from the dock. The commentin Lord Cochrane's case came to be made in respect of thefailure of the accused to call as his witnesses his servants toexplain suspicious features in the case which told againsthim. What has been referred to above as the dictum of LordEllenborough is, if I may say so, not a principle of evidencebut a rule of logic. It is therefore not surprising that this
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dictum is not ordinarily to be met with in books on Evidence."(emphasis added)
"I have already observed above that in the year 1814 LordEllenborough was commenting in Cochrane's case on thefailure to offer evidence of persons other than the accused andnot to a failure of the accused to give evidence himself. Evenon an assumption (which is not warranted) that the dictum waswrong at the time it was delivered, I fail to see what justificationthere was for the court to observe as it did in Sumanasena'scase (supra) that" it is no longer good law even in England."There is now no bar in England to an accused person givingevidence and, again with much respect, it is in my opinion quiteerroneous to say that that dictum is not good law in England. Itis good law there even as it is here in Ceylon. Chief JusticeShaw's words which the Court in Santin Singho's case adoptedwith approval express in different language the same rule aswas set out by Lord Ellenborough, and, if Lord Ellenborough'sdictum was bad law, the words of Chief Justice Shaw shouldalso have been held to be enunciating bad law."
The words of Chief Justice Shaw in Commonwealth v Websterreferred to by T.S. Fernando, J. are as follows:
“Where probably proof is brought of a statement of facts tendingto criminate the accused, the absence of evidence tending tocontrary conclusion is to be considered though not alone entitledto much weight, because the burden of proof lies on the accuserto make out the whole case by substantive evidence. But whenpretty stringent proof of circumstances is produced tending tosupport the charge, and it is apparent that the accused is sosituated that he could offer evidence of all the facts andcircumstances as they exist, and show, if such was the truth, thatthe suspicious circumstances can be accounted for consistentlywith his innocence and he fails to offer such proof, the naturalconclusion is that the proof, if produced, instead of rebutting, wouldtend to sustain the charge." (Quoted in Seetin's case)(Commonwealth v Webster (supra), Maguire – Evidence – Casesand Materials -)
There are other judicial dicta in England which are substantiallysimilar in effect to the dictum of Lord Ellenborough. In Rex v Burdett f45)and Alderson at 120 (reprinted in Vol. 106 English Reports) Abbot, CJ.
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stated as follows:
"No person is to be required to explain or contradict until enoughhas been proved to warrant a reasonable and just conclusionagainst him, in the absence of explanation or contradiction; butwhen such proof has been given, and the nature of the case issuch as to admit of explanation or contradiction if the conclusionto which the prima lade case tends be true, and the accused offersno explanation or contradiction, can human reason do otherwisethan adopt the conclusion to which the proof tends?"
The trial Judges have quoted the above dictum of Abbot, CJ, at 195of their judgment when they considered the effect of the first accused-appellanfs failure to offer an explanation to the evidence whichconnected him to phone 4.18.
Again in McQueen v Great Western Rail Companyf4®) at 574Cockburn, CJ. stated as follows:
"If a prima facie case is made out, capable of being displaced, andif the party against whom it is established might by callingparticular witnesses and producing particular evidence displacethat prima fade case, and he omits to adduce that evidence, thenthe inference fairly arises, as a matter of inference for the jury, andnot a matter of legal presumption, that the absence of thatevidence is to be accounted for by the fact that even if it wereadduced it would not disprove the prima facie case. But thatalways presupposes that a prima facie case has been established;and unless we can see our way clearly to the conclusion that aprima facie case has been established, the omission to callwitness who might have been called on the part of the defendantamounts to nothing."
The above judicial pronouncements reflect the consenses of judicialopinion on the effect of an accused person's failure to offer anexplanation in the circumstances referred to in those passages. Whatthose learned Judges have indicated in their pronouncements is theprocess of reasoning of a prudent trier of fact, well informed of therelevant legal principles, in the circumstances referred to in thosepronouncements. In short they indicate the use of logic and commonsense in the process of reasoning.
Commenting on the present legal position of Sri Lanka E.R.S.R.Coomaraswamy in his Law of Evidence Vol. I page 21 has made the
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following observation:
"The recent tendency of the Supreme Court of Sri Lanka alsoappears to be to expect an explanation of telling circumstances,though the failure that is commented on is the failure of theaccused to offer evidence and not to give evidence himself. Aparty's failure to explain damning facts cannot convert insufficientinto prima facie evidence, but it may cause prima facie evidenceto become presumptive. Whether prima facie evidence will beconverted into presumptive evidence by the absence of anexplanation depends upon the strength of the evidence and theoperation of such rules as that requiring a specially high standardof proof on a criminal charge", (emphasis added)
The correct legal view appears to be that, in civil and criminalproceedings alike, whereas a party's failure to testify must not betreated as equivalent to an admission of the case against him, it mayadd considerably to the weight of the latter.
The learned President's Counsel for the first accused-appellant inhis written submissions tendered to this Court has stated that the wordsattributed to Lord Ellenborough in Wills’ circumstantial evidenceappears to be "a creation of Wills*' and "a fabrication of Wills.'' Thistreatise by Wills on circumstantial evidence was first published by thelate William Wills in 1838. The favourable reception it received from thelegal profession is evident from the fact that between 1838 and 1902there had been five editions. In the preface of the first edition in 1838the author has stated as follows.
"It has not always been practicable to support the statement ofcases by reference to books of recognised authority, or of an equaldegree of credit; but discrimination has uniformly been exercisedin the adoption of such statements; and they have generally beenverified by comparison with contemporaneous and independentaccounts. A like discretion has been exercised in the rejection ofsome generally received cases of circumstantial evidence, theauthenticity of which does not appear to be sufficientlyestablished".
The editor of the fifth edition 1902 was Sir Alfred Wills, Knt., one ofHis Majesty's Judges of the High Court of Justice. Lord Ellenborough'sdictum appears at page 256 of the 5th edition. If there was no suchdictum in existence, the editor who held high judicial office in England
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would not have allowed a non-existent dictum to remain inthis book.
In their judgment the learned trial Judges have referred to the recentdecision of this Court in the case of Somaratna Rajapakshe and othersv the Attorney-General47) (Chrishanthi Coomaraswamy murder case)where Dr. Shirani Bandaranayake. J, having set out the main items ofcircumstantial evidence led at the trial against the accused-appellantsconsidered the effect of the failure of accused-appellants to offer anyexplanation with regard to such items of circumstantial evidence. Thetrial Judges have quoted the following passages from the judgment ofDr. Shirani Bandaranayake, J:
"With all this damning evidence against the appellants with thecharges including murder and rape, the appellants did notoffer, any explanation with regard to any of the mattersreferred to above. Although there cannot be a direction thatthe accused person must explain each and everycircumstance relied on by the prosecution and thefundamental principle being that no person accused of a crimeis bound to offer any explanation of his conduct, there arepermissible limitations in which it would be necessary for asuspect to explain the circumstances of suspicion which areattached to him. As pointed out in Queen v Santin Singhd-46)if a strong case has been made out against the accused, andif he declines to offer an explanation although it is in his powerto offer one, it is a reasonable conclusion that the accused isnot doing so because the evidence suppressed would operateadversely on him. The dictum of Lord Ellenborough in R. vLord Cochrane (supra) which has been followed by our CourtsR, v Seedar Silva (supra), Q v Santin Singho (supra), Prema-thi/ake v The Republic of Sri Lanka (supra), Richard v TheStatef49), lllangatilake v The Republic of Sri Lanka (supra)described this position in very clear terms."
Thereafter having quoted the dictum of Lord Ellenborough, Dr.Shirani Bandaranayake, J. proceeded to state as follows:
"On a consideration of the totality of the evidence that was placedbefore the Trial at Bar and the judicial evaluation of such evidencemade by the Judges, the appellants have not been able toestablish any kind of misdirection, mistake of law or misreception
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of evidence. In such circumstances, taking into consi-deration the position that there is no principle in the lawof evidence which precludes a conviction in a criminalcase being based entirely on circumstantial evidence andthe fact that the appellants, decided not to offer anyexplanations regarding the vital items of circumstantialevidence led to establish the serious charges againstthem, I am of the view that the Trial at Bar has not erred incoming to a finding of guilt against the appellants."(emphasis added).
The passage quoted above perfectly fits into the facts of thiscase where the case against the first accused-appellant restedentirely on circumstantial evidence. In the absence of anexplanation from the first accused-appellant in respect of thedamning item of evidence available against him, the learned trialJudges were perfectly justified in adopting the rule of logicembodied in Lord Ellenborough's dictum in deciding the guilt of thefirst accused-appellant.
For the reasons set out above I reject the learned PresidentsCounsel's submission that there is no dictum called the dictum ofLord Ellenborough; that the words attributed to Lord Ellenboroughis a fabrication by Wills; and that the views expressed by LordEllenborough is not a part of the law of Sri Lanka.
Appeal dismissed.