WIJEPALA v. THE ATTORNEY-GENERAL

006-SLLR-SLLR-2001-V-1-WIJEPALA-v.-THE-ATTORNEY-GENERAL.pdf


WIJEPALA
v.THE ATTORNEY-GENERAL
SUPREME COURTFERNANDO. J.
WADUGODAPITIYA, J. ANDISMAIL. J.
SC APPEAL NO. 104/99SC (SPL) LA NO. 238/99CA NO. 80/95HC PANADURA NO. 534/993rd OCTOBER, 2000
Criminal Law – Conviction Jor culpable homicide not amounting to murder- Credibility of the evidence of the sole eye witness – Reasonable doubt -Failure to produce the first information ■ Denial offair trial – Article 13(3)of the Constitution.
The appellant and his brother Carolis were indicted with the murder ofthe deceased before the High Court. Carolis was acquitted and theappellant was convicted of culpable homicide not amounting to murder.Tne sole eye witness was Senaratne the father of the deceased. He saidthat at about 7.30 p.m. on the day of the incident he set out with thedeceased to visit one Thomas Singho to obtain some money to purchasefertilizer. On the way they met the accused and five others. One of theminquired whether the witness and his son had come to spy on thekassippu business the accused were carrying on. The deceased repliedin the negative. The appellant had a knife and Carolis had a katty. In thecourse of the incident that ensued the appellant stabbed the deceasedwhich the witness observed with the aid of a torch light. The witnessescaped the scene through fear and remained in hiding until it was safeto return. He then returned to the scene and removed the deceased to thehospital with the assistance of the Gramasevaka, Jayapala. The witnesssaid that he made a statement to the hospital police at about 9.30 p.m.
The stab injury caused the death of the deceased. The statement said tohave been made by witness Senaratne at 9.30 p.m. was not produced.-But the witness had in fact made a statement to the Anguruwatota Policeat 11.30 p.m. in which he had stated that both accused had pointedknives. The Gramasevaka testified that he provided his car and accom-panied witness Senaratne and the deceased to the hospital. However,there was no evidence that Senaratne revealed the identity of theassailant to him that night or even thereafter. Witness Thomas Singhogave evidence but did not confirm having requested Senaratne to call over
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that night to obtain a loan. A witness named Siripala who claimed thathe visited the scene soon after the stabbing testified that Senaratne camea few minutes later and lifted up the deceased saying “Son, who has donethis to you?"
Held :
The evidence of the sole eye witness raised a strong doubt as to theguilt of the appellant and the court should have given the benefit of thatdoubt to the appellant.
Per Ismail, J.
"The evidence of Senaratne who was the sole eye witness to theincident is open to suspicion. The trial judge had failed to appreciate thathis evidence in regard to the identity of the appellant has not beensupported by any other item of evidence.”
If Senaratne had made a statement at 9.30 p.m. that statementshould have been brought to the notice of the court and the defence andthe failure to do so impaired the right of the appellant to a fair trial whichwas his fundamental right under Article 13(3) of the Constitution.
Per Fernando, J.
“If indeed the 11.30 p.m. statement was the first information, thenobviously Senaratne had not made an earlier statement at the policepost; if so, his evidence on that point was not credible;
On the other hand, if Senaratne was truthful in claiming that he hadmade a statement at 9.30 p.m. then that statement would have been thefirst information. Whether in that statement Senaratne had claimed thathe had seen the stabbing, and had identified the appellant as theassailant would have been of very great importance"
Cases referred to :
Photo v. A.G. (1994) 3 Law Reports of the Commonwealth 506
ft. v. Stinchombe (1992) Law Reports of the Commonwealth (Crim) 68
State v. Botha (1994) 4 SA 799
King u. Endoris 46 NLR 498
Jagathsena and Others v. G.D.D. Perera, Inspector – CriminalInvestigation Department and Mrs. Bandaranaike (1992) 1 SRI LR371 at 380
APPEAL from the judgment of the Court of Appeal.
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Ranjil Abeysuriya, P.C. with Ms. D. Mirihana for accused-appellant.Dappula de Uvera Senior State Counsel for Attorney – General.
Cur. adv. vull.
December 05, 2000.
FERNANDO, J.I entirely agree with the judgment and order of Ismail, J.and wish to draw attention to a matter of fundamentalimportance, which is another ground for allowing this appeal.
One of the questions which arose at the trial was whetherSenaratne, the father of the deceased, actually saw thedeceased being stabbed. A witness named Siripala, whoclaimed that he came to the scene soon after the stabbing,testified that Senaratne came a few minutes later and lifted upthe deceased, saying “Son, who has done this to you?". TheGramasevaka took Senaratne and his son to hospital in hiscar, but Senaratne did not disclose the identity of the assailantto him. In his evidence, Senaratne claimed that at 9.30 p.m.he made a statement at the police post at the hospital, andit is that statement which gives rise to a serious question.Admittedly, Senaratne made a statement to the Anguruwathotapolice at 11.30 p.m, and it was that statement which theprosecution sought to produce as being the first information.That was disallowed, for reasons which are not relevant to thequestion which now arises.
If indeed the 11.30 p.m. statement was the firstinformation, then obviously Senaratne had not made anearlier statement at the police post, if so, his evidence on thatpoint was not credible; and the finding of the Court of Appealthat he did make such a statement was erroneous.
On the other hand, if Senaratne was truthful in claimingthat he had made a statement at 9.30 p.m., then thatstatement would have been the first information. Whether inthat statement Senaratne had claimed that he had seen the
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stabbing, and had identified the Appellant as the assailant,would have been of very great importance.
An examination of the High Court record reveals, however,that such a statement was neither among the documentslisted in the indictment nor included in the statementsfurnished in terms of sections 147 and 159 of the Code ofCriminal Procedure Act, No. 15 of 1979. Section 147 providesthat the officer in charge of the relevant police station shall atthe commencement of the non-summary inquiry furnish to theMagistrate two certified copies of the notes of investigation andof all statements recorded in the course of the investigation.When the Magistrate commits the accused for trial, section159(2) requires him to send one of those copies to the HighCourt and the other to the Attorney-General. The prosecutionhas throughout gone on the basis that there had been no 9.30p.m. statement.
Either Senaratne made a statement at the police post, orhe did not. If he did not, his credibility was seriously inquestion. If, on the other hand, he had made that statement,then a very serious irregularity had occurred at the trial: thefirst information had neither been disclosed nor furnished tothe accused and to the Court. Quite apart from that being afailure to make such disclosure as the statutory provisionsrequire, the non-disclosure of that statement to the defenceand to the Court resulted – for the reasons I set out below -in the impairment of the right of the Appellant to a fairtrial which was his fundamental right under Article 13(3). ThatArticle not only entitles an accused to a right to legalrepresentation at a trial before a competent Court, but also toa fair trial, and that includes anything and everythingnecessary for a fair trial. That would include copies ofstatements made to the police by material witnesses.
In Photo v. A.G.ll> dealing with “the right to information . . .required for the exercise or protection of [one’s] rights”, readwith “the right to a fair trial”, the Supreme Court of South
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Africa (Eastern Cape Division) held that an accused had theright to information in the police docket, namely statementsmade by witnesses, in order to prepare properly for trial. Thefact that in South Africa there is an independent right toinformation, makes little difference, because in my view theright to a fair trial recognized by Article 13(3) necessarilyincludes, inter alia, the ancillary right to informationnecessary for a fair trial (subject, of course, to exceptions suchas privilege).
The judgment in Photo referred to R. u. Stinchcombef21 (adecision of the Supreme Court of Canada) which is even morein point. There, at a preliminary inquiry, a secretary employedby the accused gave evidence apparently favourable to theaccused. Thereafter, the police interviewed the secretary,before the trial, and took a tape-recorded statement, andagain, during the trial, got a written statement from her. Theprosecution informed the defence of the existence but not ofthe contents of those statements. During the course of the trialthe prosecutor told defence counsel that he would not call thesecretary as a witness because he considered that she was notcreditworthy. Because defence counsel did not know what thewitness had said to the police, he was unwilling to call her forthe defence. His application that the court should order thatthe contents of the statements be disclosed was refused. Theaccused was convicted. The Alberta Court of Appeal dismissedhis appeal. On appeal the Supreme Court of Canada ordereda new trial at which the statements were to be produced.
In State v. Botha131 Le Roux, J. analysed Stinchcombe, andextracted six principles, which have been summarized, thus inthe judgment in Phato:
The first of the six principles which Le Roux, J. extractsfrom Stinchcombe is that the information in the policedocket belongs not to the police or the prosecution but tothe public, not to secure a conviction but to see that justice
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is done. The second principle is that there is no duty on theaccused to assist the prosecutor, who as far as he isconcerned is his adversary. The third is that there is ageneral duty on the state to disclose to the defence allinformation which it intends adducing and also allinformation which it does not intend to use and whichcould assist the accused in his defence. This is not anabsolute duty, but one which is subject to the discretionby the state to withhold privileged information and to delaydisclosure if the investigation is not yet complete. Fourthly,the exercise of the state’s discretion is renewable by thetrial court on application by the defence. Fifthly, initialdisclosure must take place before the accused is calledupon to plead. This is a continuing duty. If further factscome to light, the state is obliged to furnish them to thedefence as soon as possible. The sixth and final principleis that the statements of all witnesses must be madeavailable to the defence, whether or not they are to becalled. If there is no complete statement but only notes, thenotes must be made available and. if there was an oralconsultation, a summary of the evidence must be preparedand provided to the defence.” (at pg 529)
These principles are, by and large, implicit in the right toa fair trial recognized by Article 13(3). Not only is no derogationpermitted, but the Code of Criminal Procedure Act contains noinconsistent provision.
The failure to disclose to an accused the existence andcontents of the first information – which might have castserious doubt on the informant’s credibility – may well resultin a miscarriage of justice. Rule 52 of the Supreme Court(Conduct of and Etiquette for Attomeys-at-Law) Rules, 1988,requires an Attomey-at-Law appearing for the prosecution tobring to the notice of the Court “any matter which if withheldmay lead to a miscarriage of justice”. That is a professionalobligation founded on a constitutional right to a fair trial.
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I hold that if Senaratne had made a statement at 9.30p.m., that statement should have been brought to the noticeof the Court and the defence, and the failure to do so was aviolation of Article 13(3), by which all Courts are bound.
ISMAIL, J.The appellant Wijeypala and his brother Carolis who werenamed as the 1st and 2nd accused respectively were charged onindictment with the murder of Don Sarath Srilal on 8th June1988 at Batagoda. At the trial before the High Court Judge,Panadura, sitting without a jury, N.D. Senaratne, the father ofthe deceased, was the sole eyewitness who claimed to haveseen the attack on his son that night shortly after 7.30 p.m.with the aid of a torchlight. The deceased had received a singlepenetrating 1 ” long stab inj ury on the back of the left side of theabdomen which had cut a major blood vessel resulting indeath due to shock and intense haemorrhage. The trial judgeaccepted the evidence of N.D. Senaratne and at the conclusionof the trial on 20. 06. 95, the 1st accused – appellant wasconvicted of the lesser offence of culpable homicide notamounting to murder and was sentenced to a term of 10 yearsrigorous imprisonment. The 2nd accused was acquitted. Theappeal of the 1st accused – appellant to the Court of Appeal wasdismissed by its judgment, dated 16. 09. 99. This appeal isagainst the said judgment of the Court of Appeal affirming theconviction and sentence.
The Court of Appeal has in its judgment summarized theevidence of Senaratne as follows: “The main eyewitness whogave incriminating evidence against the accused – appellantwas Nahalage Don Senaratne who was the father of thedeceased. In his testimony, he asserted that on 8th June 1988at about 7.30 p.m. that he set out with the deceased, his sonintending to proceed along Pelpola Road to reach Galketiya toobtain some money from Uswatte Liyanage Thomas Singho topurchase one hundred weight of fertilizer. When they were
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proceeding along this road and when they were nearing the 1staccused’s house, he has stated that he had seen the 1staccused, Carolis and five others on the road and these personswere standing beside a can of Kasippu which had been placedon the road. At that stage these persons had addressed thedeceased thus in Sinhala “adath tho oththu balannada awekiya mage puthagen ahuwa” whereupon the deceased hasstated “I have not come for any such purpose but I amproceeding on a journey". Thereafter the deceased proceededpassing these persons. Witness Senaratne who was followinghis son had heard footsteps behind them and when he flashedhis torch towards his rear, he has stated that he sawWijeypalaand Carolis proceeding towards his son with knives in theirhands. According to the witness, the 1st accused Wijeypalapassed him and stabbed his son who was proceeding ahead ofhim and at that point, the deceased Srilal had shouted out“Budu ammo, I have been stabbed” and had proceeded afterreceiving the injury for a short distance. At that stage, Carolisthe 2nd accused had shouted out – “Do not let this fellow escapetoo” and had approached witness Senaratne to stab him.Whereupon the witness had changed his course and fledtowards the rubber estate and had proceeded towards theextremity of the rubber estate to a point 200 yards away andhad concealed himself. After hiding himself for about 20-25minutes in the thicket of the rubber estate, and on observingthat there was no apprehension of danger to himself at thatstage he had proceeded towards the road and thereafterapproached the point at which his son lay fallen beside a poolof blood near a drain close to the Co-operative sales outlet”.
The trial judge had arrived at a favourable finding inregard to the testimonial trustworthiness and credibility of thewitness Senaratne. The Court of Appeal, while affirming thesaid judgment, has observed that it was unable to concludethat the trial judge had misdirected himself in the evaluationof the evidence of Senaratne.
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Learned President’s Counsel for the appellant submitted,however, that the testimony of Senaratne was completelyuntrustworthy and of such poor quality that a comictionagainst the appellant cannot possibly be sustained in law. Histestimonial trustworthiness on vital aspects relating to theincident was assailed in an attempt to cast a doubt even inregard to his presence at the time the deceased had receivedthe fatal stab injury.
Senaratne stated in his evidence that when his deceasedson and himself were proceeding along the road to reachGalketiya that he saw the appellant, his brother Carolis andfive others on the road beside a can of Kasippu. One of themhad addressed the deceased and asked him in Sinhala “Adaththo oththu balannada awe?” to which the deceased had repliedin the negative and said that he was proceeding on a journey.Nevertheless, the High Court Judge had noted downerroneously in his judgment that this question was asked bythe appellant. It was submitted that this misdirection by thetrial judge on an item of evidence relating to the sametransaction wrongly imputing the question as having beenasked by the appellant could have largely contributed to hisconviction. The Court of Appeal has not dealt with this vitalmisdirection on a crucial factual matter considering thepossibility that any one of the other six persons who posed thequestion could have inflicted the fatal injury.
Further, Senaratne appears to have sought to buttress hisclaim to having been present at the scene with his son whenhe was fatally injured, by stating in evidence that his sonhad exclaimed “Budu Thaathe mata pihiyen anna". It wasestablished at the trial that the witness had omitted to mentionthis fact in his statement to the police, that he had omitted tostate so at the inquest proceedings and that he had notrevealed this in his evidence even at the non-summaryproceedings in the Magistrate’s Court. The trial judge hastaken the view that this omission did not affect the credibility
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of the witness as these words have been uttered after theincident. It was submitted that, on the other hand, the HighCourt Judge had erred in failing to consider that as thesewords were allegedly uttered immediately after the deceasedwas stabbed, this fact itself raised a grave doubt as to theactual presence of the witness at the time of the incident. TheCourt of Appeal having erroneously set out that the wordsuttered were “Budu amme, I have been stabbed”, has alsofailed to attach any significance to this omission as raising apossible doubt as to the actual presence of Senaratne at thescene, thus affecting his trustworthiness as a witness.
Senaratne stated in his evidence that he took his injuredson in a car to the hospital. The Gramasevaka Jayapalatestified that he provided his car for the purpose and that hehimself accompanied Senaratne and his injured son in the carto the hospital. Although the Gramasevaka testified thatSenaratne was known to him, there is no evidence thatSenaratne revealed the identity of the assailant to him thatnight or even thereafter. The failure of Senaratne to inform theGramasevaka of the identity of the assailant therefore raisesa serious doubt in regard to the presence of Senaratne at thescene of the incident and his claim to have identified theappellant as the assailant. Applying the test of spontaneity, hisbelatedness reduces the weight of his evidence and affects hiscredibility.
Senaratne made a bare unsupported assertion that hemade a statement to the Horana hospital post at 9.30 p.m. thatnight although according to Jayapala, they reached thehospital at about 9.45 or 10 p.m. There was no evidence thatthe statement claimed to have been made at the hospital postwas the first information to the police regarding this incidentor in regard to the identity of any of the suspects. Although twopolice officers IP Dharmasena and PC Jayaratne gave evidenceat the trial, there was no evidence elicited from either of them
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that Senaratne had made a statement to the hospital post atany time that night. It was submitted therefore that the Courtof Appeal erred in its finding that Senaratne had made astatement at the earliest opportunity that presented itself. TheCourt of Appeal appears to have formed the impression thatSenaratne had been thereby prompt in revealing also theidentity of the suspects.
Senaratne was cross-examined in a further attempt toassail his testimony that he was eyewitness to the incident. Hetestified that he was on his way to the house of one ThomasSingho together with his son that night to obtain a loan fromhim for the purchase of some fertilizer. It was established thathe had made no reference in his complaint to the police to thefact that he was on his way to the house of Thomas Singho orthat he had sought a loan from him. Thomas Singho himselfgave evidence but he did not confirm either that he requestedSenaratne to call over at his house or to call over thatparticular night to obtain the loan from him. While the Courtof Appeal has erred in stating that there was such evidencefrom Thomas Singho, both the trial judge and the Court ofAppeal did not attach any significance to this omission for thereason that Senaratne had mentioned to the police that he wasproceeding to the village called Galketiya that night where ittranspired that Thomas Singho resided.
Senaratne testified further that while he was proceedingwith his deceased son that night, he heard footsteps behindhim and that when he flashed his torch towards the rear hesaw the appellant armed with a knife and his brother Caroliswith a sickle like katty. However, in his statement to the policehe had stated that both accused had pointed knives. The trialjudge did not attach any significance to this contradiction asthe position of the witness was that both accused were armedwith weapons and the Court of Appeal too has found that thecontradiction has been sufficiently explained and that it didnot affect the credibility of the witness.
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Senaratne who was the sole eyewitness has thus beencross-examined on vital aspects relating to the incident anddoubts have been raised in regard to his presence at the scene.Section 134 of the Evidence Ordinance lays down a specificrule that no particular number of witnesses shall in any casebe required for the proof of any fact, thus attaching moreimportance to the quality of evidence rather than the quantity.The evidence of a single witness, if cogent'and impressive,can be acted upon by a Court, but, whenever there arecircumstances of suspicion in the testimony of such a witnessor is challenged by the cross-examination or otherwise, thencorroboration may be necessary. The established rule ofpractice in such circumstances is to look for corroborationin material particulars by reliable testimony, direct orcircumstantial. In this instance the prosecution has not ledany other evidence, which even barely supported Senaratne inregard to the infliction of the injuiy by the appellant.
The Court of Appeal was, in these circumstances, notjustified in holding that the testimonial trustworthiness andcredibility of the witness has been established before the trialjudge. The Court of Appeal has circumscribed its jurisdictionand limited it to ascertaining if there was any vital misdirectionor non-direction and if there was admissible evidence tosupport the finding of the trial judge. The Court of Appeal hasdeclined to interfere with the finding of the trial judge and hasstated that it is not entitled to indulge in a re-appraisal andre-trial on questions of fact, which came up before the judgein his capacity as the “trier of facts”. The Court of Appeal hasbeen guided in following such an approach by the principlesset out by Soertsz, ACJ in King v. Endoris141, that its functionin hearing an appeal, "as laid down by the Court of CriminalAppeal Ordinance, is to examine the evidence in the case inorder to satisfy ourselves with the assistance of counsel thatthere is evidence upon which the jury could have reachedthe verdict to which they came, and also, similarly, to examine
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the charge of the trial judge to satisfy ourselves that there hasnot been any substantial misdirection or non-direction". Theseguidelines are appropriate for an appellate court consideringa charge to a jury. However, in a trial before a judge sittingalone, while his decision on questions of fact based on thedemeanour and credibility of witnesses carry great weight, anappellate court has a duty to test the evidence by a careful andclose scrutiny and if it entertains a strong doubt as to the guiltof the accused, the Court must give the benefit of that doubtto him. The Court of Appeal has erred in failing to subject theevidence of Senaratne to a close scrutiny, but had it done so,it would certainly have entertained a doubt as to the guilt ofthe appellant on such weak and unsupported testimony.As Ranasinghe, J. as he then was, after a review of theearlier authorities, in Jagathsena and others v. G.D.D.Perera, Inspector, Criminal Investigation Department andMrs. Bandaranaiket5>, said “. . . although the findings of aMagistrate on questions of fact are entitled to great weight, yet,it is a duty of the Appellate Court to test, both intrinsically andextrinsically the evidence led at the trial: that, if after a closeand careful examination of such evidence, the Appellate Courtentertains a strong doubt as to the guilt of the accused, theAppellate Court must give the accused the benefit of suchdoubt”.
The evidence of Senaratne who was the sole eyewitness tothe incident is open to suspicion. The trial judge has failed toappreciate that his evidence in regard to the identity of theappellant has not been supported by any other item ofevidence. There is therefore a strong doubt as to the guilt of theappellant and, as such, the benefit of the doubt should havebeen given to the appellant. The Court of Appeal has erred inaffirming the conviction without adequately testing theevidence of Senaratne. For these reasons, I allow the appealand set aside the judgment of the Court of Appeal. Theconviction and sentence imposed on the appellant by the HighCourt are set aside and the appellant is acquitted.
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I agree with the reasons set out by Fernando, J. in hisjudgment allowing the appeal on an additional ground.
WADUGODAPITIYA, J.I agree with the reasons set out by Fernando, J. and Ismail, J.and allow the appeal.
Appeal allowed.