C.A. NO. 96/86-H.C. NEGOMBO NO. 535/86,
MAY 9 and 10. 1986.
Criminal Procedure — Taking additional evidence in appeal — Code of CriminalProcedure Act. S.35Jfb).
Application by the prosecution was made to take evidence at the appeal stage tocall the Government Analyst to testify whether there was an envelope whichcontained five packets of heroin'whfther the seals on the envelope were intactand whether where originally 482 gaarfimes of heroin had been recovered thesubsequent finding of only 455 grammes couldbe attributed to dehydration.
Although S.351 .(b) of the Code of Criminal Procedure Act confers a very wide. discretion on the Appeal Court in the matter of-taking evidence at the appealstage, still the Court. will . not exercise it unless there are exceptional^rcumstances affecting the interests of justice.
The points on which clarification #as being sought could easily have beenclarified' at the trial stage by. the prosecution.- There were no specialcircumstances affecting the interests of justice to justify taking of evidence inappeal.
ApphcatipnA Court of Appeal to take evidence at appeal stage.
Ranjith merysurrya. PC. with Iqbal Mohamad apd Lasantha Wickrematunga forAccused-Appeiant.
D. P. Kumarasuwne. Senior State Counsel for Attorney-General.
Cur. adv. vult.
May 11.1988RAMANATHAN, J..
The application is made by learned Senior State Counsel underSection 351 (b) of the Criminal Procedure Code to take additionalevidence bn appeal.
Learned Senior State Counsel made application to recall theGovernment Analyst Mr. A. R. L. Wijesekera who gave evidence atthe trial court and elicit his answers on the following threequestions—
whether there was an envelope inside P8 whichcontained the five packets Of heroin.
to state whether the seals on the envelope P8 were intactwhen he repeived them and if the answer was in theaffirmative, the reasons for stating so.
the quantity of heroin detected on the 9th April, 1985' was 482 grammes. Subsequently, when the heroin was
weighed for analysis it wasgfound to be 455 grammes.There was a discrepancy of 27 grammes. If theGovernment Analyst could express an opinion as to thecause of the diminution of weight and whether it could beattributed to dehydration during the time of storagebetween detection and weighing by the Analyst.
Learned President's Counsel appearing for the accused-appellant opposed the application and submitted that thqprosecutioh had ample opportunity to have clarified thesematters from the witness who ha8 given evidence at the trial.Furthermore, at this stage of the appeal the prosecution shouldnot be allowed a second chance to fill up the gaps in the
prosecution case.
I have perused Section 351 (b) of the Criminal Procedure Codewhich reads as follows:
"In dealing with an appeal, the Court of Appeal may,#f itthinks it necessary or expedient in the interests of justice—
(b) take additional, evidence itself or direct it to betaken byany judge of an original court or other person appointed bythe Court of Appeal for the purpose:".
This*section has conferred on the Court of Appeal a very widediscretion. However this court will not exercise that discretionunless there are exceptional circumstances which would affectthe interests of justice. An-application for the exercise of thisdiscretion by the prosecution or the defence, where either partyhad an opportunity to clarify the matters in issue at the trialstage.
In the present case the prosecution had the opportunity at thetrial to have clarified the three matters raised at the appeal stagebecause these matters arose out of the evidence led at the trial.In particular A.R.L. Wijesekera. Deputy Government Analyst gaveevidence at the trial and the prosecution had the opportunity tohave easily clarified these matters.
Learned Senior State Tlotrisel has not adduced any specialcircumstances affecting the interests of justice which wouldjustify taking additional evidence in appeal.
-It was submitted by counsel for the accused-appellant that itwould be highly prejudicial to the accused-appellant at this stageand would tantamount to a retrial and if not a second chance forKhe prosecution to prove their case.
In the circumstances, we do not see any reason why we shouldact under Section 351(b) of the Criminal Procedure Code and
ordef j»e taking of additional evidence. The application isref us
w. n. D. pAera, j. — I agree.a^oez.GUJAwardana,j. — l agree.Application refused