INFIRMITIES ATTCHED TO DOCK STATEMENT
PROBATIVE VALUE OF DOCK STATEMENT
1.
The Queen V. Buddharakkita Thera and 2
Others [1962](63 NLR 433) it was held that “ the right of the accused
person to make an unsworn statement from the dock is recognized by our law.
That right would be of no value unless such a statement is treated as evidence
on behalf of the accused subject to the infirmity which attaches to statements
that are sworn and have been tested by cross examination.”
2.
In Queen V. Kularatne [1968]
71 NLR 529 it was held “…that
such a statement must be looked
upon as evidence subject to the infirmity that the accused had deliberately
refrained from giving sworn testimony…”
3.
Zahira Habibullah Sheikh and Others V.
State of Gujarat [ Appeal
(crl.)446-449 of 2004] held that “Fair
trial obviously would
mean a trial before an
impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair trial
means a trial in which bias and prejudice for or against the accused, the
witnesses or the cause which is being tried is
eliminated.”
4.
In the case of Rajesh
Gupta V The State of Bihar [ Criminal Appeal
(SJ) No.308 of 2011; Criminal Appeal (SJ) No 247 of 2011]
it was held that “…the object of the trial is to meet out justice and to
convict the guilty and protect
the innocent, the trial should
be a research for the truth and not a bout over technicalities and
must be concluded under such rules as will protect the innocent and punish the guilty.”
5.
R V R.E.M (2008 SCC 51) the Counsel
further stated that an acceptable judgement
must indicate the judge’s absorption of the narrative
of events, his evaluation of evidence with reasons thereon and his
application of the law and legal principles. It was argued that the Learned
Trial Judge wrongly analyzed the dock statement of the Appellant prior to analyzing
the evidence lead by the prosecution thereby causing prejudice to the case of the Appellant. These observations would essentially be on
the premise that a trial judge has a duty to give adequate reasons for his
decision that facilitate review, accountability and transparency.
6.
R V Sheppard [2002]1 S.C.R. 869 that
“ the appellate court is not given the power to intervene
simply because thinks the trial court did a
poor job at of expressing itself” in fact the duty goes no further than to
render “ a decision which having regard to the particular circumstances of the case is reasonably intelligible to
the parties and provides the basis for meaningful appellate review of the
correctness of the trial judge’s decision” In the words of the Supreme Court,
to quash a decision on the basis of inadequacy of reasons “ the appellant must
show not only that there is deficiency in the reasons but that this deficiency
has occasioned prejudice to the exercise of his or her legal right to an appeal
in a criminal case”
7.
Wilmington V DPP [1935] AC 462 “Throughout the web of the English Law one
golden thread is always to be seen, that is the duty of the prosecution to
prove the prisoner’s guilt…” beyond reasonable doubt. “The burden of the
accused’s guilt extends beyond proving the elements of the offence to include
any burden of disproving any defence for which the defendant adduces evidence.”
(Criminal Law by William Wilson, 4th Ed, page 9)
8.
Jamis V. The Queen [53 NLR 401] that
“a mitigatory plea under exception 1 to section 294 is not available to an accused
person who can only satisfy
the jury that at the time
when he intentionally killed a person who had provoked him, he was acting under
the stress of that provocation. He must in addition establish that such provocation, objectively assessed,
was grave and sudden enough to prevent the offence from amounting to murder.
That depends on the actual effect of the provocation upon the person provoked
and upon the probability of it producing a similar effect upon other persons.”
9. K. D. J Perera V. The King (53 NLR 193)
the Court of Criminal Appeal held “that the provocation must be such as to
bring it within the category termed sudden, that is to say, that there should
be a close proximation in time between the acts of provocation and of
retaliation- which is a question of fact. This element is of importance in
reaching a decision as to whether the time that elapsed between the giving of
provocation and the committing of the retaliatory act was such as to have afforded
and did in fact afford the assailant an opportunity of regaining his normal
composure, in other words, whether there had been a ‘cooling’ of his temper.”
N. Bandula
Karunarathna J.
This is an appeal
from the judgement of the High Court of Batticaloa dated 2nd
November 2011. The accused was indicted on following counts.
1. On or about the 19th of May 2002 the accused named in the indictment (hereinafter referred to as the ‘Appellant’) caused the death of one Suneth Prasanna Subasinghe and thereby committing an offence punishable under Section 296 of the Penal Code.
2. Causing the death of Rohana Ekanayake and and thereby committing an offence punishable under Section 296 of the Penal Code.
At the conclusion
of the trial the Appellant was convicted as charged and was sentenced to death.
Being aggrieved
by the said conviction and sentence the Appellant preferred this appeal on the
following grounds.
(a)
Appellant has been denied of a fair trial as the
judgement was delivered immediately after the conclusion of the oral submissions, thereby demonstrating that due judicial consideration has not been
given in arriving at the final verdict.
(b)
The judgement of the Learned Trial Judge is depleted
of sufficient judicial evaluation as is required in a criminal trial.
(c)
The Learned Trial Judge flawed on the principles relating to the overall burden of proof
(d)
The Learned Trial Judge flawed on the principles
relating to the burden of proof in a defence of accidental firing.
(e)
The evidence led at the trial warrants the
consideration of the plea of grave and sudden
provocation.
At the trial the
accused opted to be tried by a judge without a jury and the prosecution led the
evidence of eye witness Hapu Arachchilage Upali Shantha, Wijesinghe Arachchige
Sumudu Chinthaka, PS 58886 Sumudu Kumara, PS11277 Lalith Kumar, IP Vimalasena,
Ekanayake Mudiyanselage Viharagedara Loku Bandara Ekanayake, Dr. Karunatilleke
, IP Fonseka , Dr. Kulatunga, PC Abeyratne, PC Gunaratne, Ekanayake Mudiyanselage
Lakshman Bandara and PS Vipulasena.
Productions
marked by the prosecution were a T 56 gun (P1), a magazine (P2), 10 empty
cartridges (P3), the post mortem report of deceased Rohana Ekanayake and live
cartridges (P4) and a bullet (P5)
The narrative unfolded by the
evidence led at the trial is as follows:
The Appellant was
a Sub Inspector serving at the Angana Police post which was attached to
Batticaloa Railway Station
and the two deceased persons
were Officers-In- Charge
at different police posts. On
the day of the incidents, at around 4.00pm the Appellant and the two deceased were having a meal together
during which they had been consuming liquor.
During the course of the meal an, argument had broken out between the
Appellant and the two deceased, regarding an accusation made by the first
deceased (Suneth Prasanna) that the Appellant had stolen a farewell gift
belonging to the first deceased. In an attempt to hinder further aggravation of the conflict
the eye witness (PW3) had taken the Appellant downstairs. After some time, when the two
deceased and PW3 were upstairs in the room of the first deceased, PW3 had seen
the Appellant holding a gun at the door of the entrance to the said room. The
Appellant had shot once at the two deceased when PW3 started fleeing from the
back door to the room, followed by further shots which were heard by PW3 and
two other witnesses (PW4 and PW5) who were on reserve and guard duty. Within
ten minutes to the incident PW3 had gone back to the scene where the
incident took place and noticed
that theAppellant had left
the scene. As per the evidence of PW4 and PW5 mentioned above, the Appellant had confessed to both of them that he had shot two people. The first deceased
was found dead and the second deceased (Rohana Ekanayake ) had
succumbed to his injuries while in hospital.
Subsequent to the
conclusion of the case of the prosecution, the Appellant in his dock statement
did not deny his complicity in the commission of the offense, stating that the two
deceased persons assaulted him with a T56 gun which discharged accidently during the fight.
The defence called no further witnesses.
The first
contention by the Counsel for the Appellant is that the Appellant has been denied
of a fair trial as the judgement of the Learned Trial Judge was
delivered immediately after the conclusion of the oral submissions demonstrating that due judicial consideration has not been given in arriving at the final
verdict. The Counsel for the Appellant further contends that the evidence of the prosecution was led before
the predecessors and the Learned
Trial Judge who delivered the judgement only had the privilege of hearing the dock statement of the Appellant stating that the evidence
of the trial was not fresh in the mind of the Learned Trial Judge who subsequently delivered the judgement.
The Indian
Supreme Court in the case of Zahira Habibullah Sheikh and Others V. State of
Gujarat [ Appeal (crl.)446-449 of 2004] held that “Fair
trial obviously would
mean a trial before an
impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair trial
means a trial in which bias and prejudice for or against the accused, the
witnesses or the cause which is being tried is
eliminated.”
An allegation on violation of principles of fair trial requires substantial evidence that challenge the independence, impartiality
and the competence of a trial judge. In this instance the Counsel for the Appellant
by failing to do so has unnecessarily stressed over the technicalities
of delivering a verdict.
In the case of Rajesh Gupta V The State of Bihar [ Criminal Appeal
(SJ) No.308 of 2011; Criminal Appeal (SJ) No 247 of 2011]
it was held that “…the object of the trial is to meet out justice and to
convict the guilty and protect
the innocent, the trial should
be a research for the truth and not a bout over technicalities and
must be concluded under such rules as will protect the innocent and punish the guilty.”
The second
contention by the Counsel for the Appellant is that the Learned Trial Judge is
depleted of sufficient judicial evaluation. Citing R V R.E.M (2008 SCC 51) the
Counsel further stated that an acceptable judgement
must indicate the judge’s absorption of the narrative
of events, his evaluation of evidence with reasons thereon and his
application of the law and legal principles. It was argued that the Learned
Trial Judge wrongly analyzed the dock statement of the Appellant prior to analyzing
the evidence lead by the prosecution thereby causing prejudice to the case of the Appellant. These observations would essentially be on
the premise that
a trial judge has a duty to give adequate reasons for his decision that
facilitate review, accountability and transparency.
It was held by
the Canadian Supreme Court in R V Sheppard [2002]1 S.C.R. 869 that “ the
appellate court is not given the power to intervene
simply because thinks the trial court did a
poor job at of expressing itself” in fact the duty goes no further than to
render “ a decision which having regard to the particular circumstances of the case is reasonably intelligible to
the parties and provides the basis for meaningful appellate review of the
correctness of the trial judge’s decision” In the words of the Supreme Court,
to quash a decision on the basis of inadequacy of reasons “ the appellant must
show not only that there is deficiency in the reasons but that this deficiency
has occasioned prejudice to the exercise of his or her legal right to an appeal
in a criminal case”
In the present case the Learned
Trial Judge has arrived at the decision
subsequent to analyzing the entirety of evidence
presented at the trial inclusive
of the sole eye witness
account, dock statement and
circumstantial evidence relating to the incident. Therefore, the allegation
levelled against the judgement of the Learned Trial Judge fails to hold any water.
The third, fourth
and fifth contentions by the Counsel for the Appellant revolves around the
overall burden of proof in a criminal
trial and the onus of proving any defence by the accused. Counsel for the Appellant is of the view that the Learned
Trial Judge by embarking to evaluate
the dock statement of the Appellant prior to evaluating the evidence led by the
prosecution has erred in shifting the burden of proof to the Appellant and
thereby reversing the presumption of innocence.
It is an
established fact that the burden of proof in a criminal trial must be proved
beyond reasonable doubt by the prosecution. House of Lords in Wilmington V
DPP [1935] AC 462 Held that “Throughout the web of the English Law one
golden thread is always to be seen, that is the duty of the prosecution to
prove the prisoner’s guilt…” beyond reasonable doubt. “The burden of the
accused’s guilt extends beyond proving the elements of the offence to include
any burden of disproving any defence for which the defendant adduces evidence.”
(Criminal Law by William Wilson, 4th Ed, page 9)
The Counsel of
the Appellant contends that the Learned Trial Judge had erred in his judgement
by failing to consider the defences of accidental firing and grave and sudden
provocation. However, “It should be noted that a defence can only be raised by
adducing evidence by the defendant. It cannot be done simply by means of
pleading. The prosecution does not have to disprove every cock-and-bull story
the defendant might raise”
It is worth analyzing
the evidential value of a dock statement given by the Appellant in the present
case. In The Queen V. Buddharakkita Thera and 2 Others [1962](63 NLR 433)
it was held that “ the right of the accused person to make an unsworn statement
from the dock is recognized by our law. That right would be of no value unless
such a statement is treated as evidence on behalf of the accused subject to the
infirmity which attaches to statements that are sworn and have been tested by
cross examination.”
In Queen V. Kularatne [1968] 71 NLR 529 it was held “…that such a statement must be looked upon as evidence subject to the
infirmity that the accused had deliberately refrained from giving sworn testimony…”
The Appellant in
his dock statement had taken up the position that the gun he was holding
accidently broke fire as a result of the fight that occurred
between the Appellant
and the two deceased. However, whilst medical
evidence proved that the wounds were caused by a fire arm shot at close range.
The fact that the bodies of the two deceased being found at two different
places as per other circumstantial evidence led at the trial, any argument
hinting at any possibility of any physical fight amongst the Appellant and the
two deceased cannot be retained thus rendering the authenticity of the aforementioned dock statement questionable.
As regards the issue of whether the trial warrants consideration of a plea of grave and sudden provocation, it is well established law that “the plea of grave and sudden provocation is required to be established by the accused on a balance of probability” [ “Offences Under the Penal Code of Ceylon” G.L Peiris, page 118].
It was held in Jamis V. The Queen [53 NLR 401] that “a mitigatory
plea under exception 1 to section 294 is not available to an accused
person who can only satisfy
the jury that at the time
when he intentionally killed a person who had provoked him, he was acting under
the stress of that provocation. He must in addition establish that such provocation, objectively assessed,
was grave and sudden enough to prevent the offence from amounting to murder.
That depends on the actual effect of the provocation upon the person provoked
and upon the probability of it producing a similar effect upon other persons.”
It is pertinent
to note that in K. D. J Perera V. The King (53 NLR 193) the Court of
Criminal Appeal held “that the provocation must be such as to bring it within
the category termed sudden, that is to say, that there should be a close
proximation in time between the acts of provocation and of retaliation- which
is a question of fact. This element is of importance in reaching a decision as
to whether the time that elapsed between the giving of provocation and the
committing of the retaliatory act was such as to have afforded and did in fact
afford the assailant an opportunity of regaining his normal composure, in other
words, whether there had been a ‘cooling’ of his temper.”
According to the testimony of the eyewitness PW3, the Appellant was taken away to prevent further prolonging of the argument that had taken place between the Appellant and the two deceased persons. The most probable inference that can be drawn from the subsequent conduct of the Appellant in obtaining a gun is that he was acting upon his premeditated murderous intention. The said inference is further supported by medical evidence led at the trial where the witnesses testified to the fact that the 2nd deceased had sustained 10 external wounds which could have been caused by a firearm within a distance of 2 to 3 feet, thus leaving no gap for the defence of provocation to be raised.
The leaned trial
Judge in this case had considered the totality of the evidence before he
reached the conclusion to reject the evidence given by the accused-appellant is
insufficient to create a reasonable doubt in the prosecution case.
This court will not lightly disturb
the findings of a trial
Judge with regard
to the acceptance or
rejection of testimony of a witness unless it is manifestly wrong.
The Privy Council
in Fradd V. Brown
& Company., 20 NLR at page 282 held as follows: -
“It is rare that
a decision of a Judge so express, so explicit upon a point of fact purely is
overruled by a Court of Appeal, because the Courts of Appeals recognize the
priceless advantage which a Judge of first instance has in matters of that
kind, as contrasted with any Judge of a Court of Appeal, who can only learn
from paper or from narrative of those who were present. It is very rare that,
in questions of veracity so direct and so specific as these, a Court of Appeal
will over rule a judge of first instance.
I find there is no material
before this court to support the Defence proposition.
For the reasons
set out in my judgment I affirm the conviction and the sentence dated
02.11.2012 by the learned trial Judge and dismiss the appeal.
Appeal dismissed.
Judge of the Court of Appeal
R. Gurusinghe J.
I agree.
Judge of the
Court of Appeal
IN THE COURT OF APPEAL
OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
In the matter of an appeal under and
in terms of Section 331of Code of Criminal Procedure Act No. 15 of 1979.
G.M. Chaminda Bandara No.23/4, Elagolla, Kandy.
C.A. HCC No.
263/2012 Accused Appellant
HC: Batticaloa, HC/2333/2005
Vs
The Hon. Attorney
General Attorney General's Department Colombo 12.
Complainant-Respondent
Before: N.
Bandula Karunarathna J. &
R. Gurusinghe J.
Counsel: Indica
Mallawaratchy AAL for the Accused – Appellant Dilan Rathnayaka, DSG for the Respondent
Written Submissions: By the Accused – Appellant on 24.02.2020 & 22.02.2017
By the Respondent on 10.08.2020 & 06.04.2017
Argued on: 23/02/2021
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