EVAUATION OF DOCK STATEMENT
Court of Appeal of the
Democratic Socialist Republic of Sri Lanka.
Case Title: Ramalan Mohamed
Hafeel v. The Democratic Socialist
Republic of Sri Lanka
Citation: HCC/0043/18
In this appeal against the
conviction of Ramalan Mohamed Hafeel under the Firearms Ordinance and
Explosives Act, the Court of Appeal upheld the life imprisonment sentence for
possessing an automatic rifle and live ammunition. The appellant's conviction was
based on direct evidence rather than circumstantial, with the court dismissing
arguments regarding possible third-party involvement and ownership issues of
the vehicle where the firearms were found.
Background:
The appellant, Ramalan Mohamed
Hafeel, was convicted by the High Court of Puttalam for illegal possession of
an automatic rifle and 30 live rounds of ammunition, discovered during a
routine traffic stop. The first accused was sentenced to life imprisonment and
fined for the offenses under the Firearms Ordinance and the Explosives Act,
respectively. The second accused was acquitted. The appellant challenged the
conviction, raising several grounds of appeal, including the rejection of
defense evidence and the alleged introduction of surmises by the trial judge.
Legal Issues:
1. Whether the learned High
Court Judge erred in law by rejecting the defense evidence and reversing the
presumption of innocence.
2. Whether the judgment was
based on surmises and conjectures not supported by evidence.
3. Whether the prosecution
failed to eliminate the involvement of a third party.
4. The appropriateness of the
dock statement evaluation and its impact on the judgment.
Precedents Discussed:
An Essay on Possession in Common
Law by R.S. Wright [Pollock and Wright]: Discusses the necessity of the accused
having or being imputed knowledge of possession in cases involving prohibited
substances or articles.
The principles around the
interpretation of dock statements and their influence on reasonable doubt
regarding the prosecution's case were scrutinized.
Conclusion:
The Court of Appeal affirmed the
conviction and sentence of the High Court, concluding that the prosecution had
sufficiently established the appellant's knowledge and possession of the
firearm and ammunition found under the driver's seat of the van he was
operating. The court held that the defense's dock statement failed to raise
reasonable doubt about the prosecution's case. The court dismissed the argument
that the judgment was based on conjecture, asserting that observations made by
the trial judge were grounded in evidence and logical inference. The
appellant's argument regarding third-party involvement was also rejected as
irrelevant since the appellant denied any firearms were present in the vehicle.
The acquittal of the second accused was maintained due to insufficient evidence
of his knowledge regarding the concealed weapons.
The appeal was dismissed, and the original judgment and sentences were upheld.
High Court of Puttalam
Case No. HC/10/2014
COUNSEL : Amila palliyage
with Sandeepani Wijesooriya, Savani Udugampola, Lakitha Wakishta Arachchi
and Subaj De Silva for the 1st Accused-Appellant.
Jayalakshi De Silva,
SSC for the Respondents.
ARGUED ON : 15.07.2024
DECIDED ON : 07.08.2024
WICKUM A. KALUARACHCHI, J.
Two accused in this case were indicted under Section 22(3)
read with Section 22(1) of the
Firearms Ordinance as amended by Act No. 22 of
1996 for illegally possessing an automatic rifle and under
Section 27(1)
(b)
of the Explosives
Act as amended by Act No. 18 of 2005 for illegally possessing 30 live ammunitions by violating Section 9(2).
After trial, the 1st accused
was convicted for both counts and the 2nd accused was acquitted of both counts
by the Judgment dated 28.05.2018 of the learned
High Court Judge
of Puttalam. Life imprisonment
was imposed against the 1st accused for the
first count and a fine of Rs. 2500/-
which carries a default sentence of simple imprisonment
of three months were imposed on the 2nd count. The 1st accused preferred
this appeal against the said Judgment.
Prior to the hearing of the appeal, written submissions
were filed on behalf of both parties.
However, apart from mentioning four grounds of appeal, no facts or arguments relating to those grounds
were mentioned in the written submissions of the appellant. In
consequence, in the written submissions of the respondents also nothing has been mentioned
apart from the two charges,
four grounds of appeal mentioned by the appellant and the
sentences imposed by the learned Judge. At the hearing
of the appeal, the learned
Counsel for the appellant and the learned
Senior State Counsel
(SSC) for the respondents made oral submissions.
The facts of the case, according to the prosecution, may
be briefly summarized as follows:
PW-1, was the Officer in Charge of the Traffic Division of
the Police Station of Anamaduwa at the time of the incident. On the day in question, around 4.15 p.m., he had gone on
petrol duties with Police Constable Rathnayaka. They had toured about 9 kilometers in the direction
of Puttlam from Anamaduwa and met Police Constable Sumith (PW-5) and Police Constable Samantha (PW-2) in Kottukatchchiya area. The four Police Officers had put up road
barriers near Kottukatchchiya temple to search vehicles that commit motor traffic
offences. While they were on duty, a Dolphin model van bearing No. 253-4691 was
moving fast from Puttlam side and O.I.C.
Ranbanda (PW-1) has signaled to stop the van. The van stopped after moving
little further passing the police officers.
Then, PW-1 had gone near the van and asked the driver his driving license. At this instance, the
diver had submitted only a photo copy
of the driving license and accordingly PW-1 had summoned the other three police officers to the place
where the van was stopped. The driver
of the van was seen to be in a frightened state. PW-1 has got on to the driving seat and searched the
vehicle. PW-1 had observed that the
carpet under the driving seat was protruded and upon search, he observed a gun and two magazines below the
carpet. According to PW-1 one of the magazines was loaded with 30 live ammunitions while
the other one was not loaded. Accordingly, the officers
arrested the driver of the van (the 1st accused) and the person
who was sitting in the left
side front seat of the van (the 2nd accused) and brought them with the van to the police station at 7.00 p.m.
Although, four grounds of appeal have been mentioned in
the written submissions tendered on
behalf of the appellant, the learned Counsel
for the appellant
based his arguments at the hearing
on following three
grounds:
i.
The learned High
Court Judge is erred in law by rejecting the
defence evidence and the principle of presumption of innocence has been reversed
in evaluating the evidence.
ii.
The learned
High Court Judge has based his decision
on surmises and conjectures
and the findings are not supported by the evidence.
iii.
The prosecution has not eliminated the involvement of a third
party.
As explained previously, the 1st accused-appellant was arrested by
the police officers who were engaged
on traffic duty. They checked the vehicle
that the appellant and the 2nd accused was travelling and found the automatic rifle and two magazines,
one of which contained live ammunitions. In a case where the charges are proved on circumstantial evidence, the possibility of third
person’s involvement must be clearly excluded.
This is not a case proved on circumstantial evidence. The learned
Counsel for the appellant pointed
out certain items of evidence
and contended that the appellant
was driving a vehicle owned by somebody else. The learned Counsel raised
the issue of ownership of the van to
show that some other person could have kept this firearm and the ammunitions without the knowledge of the appellant as
this is not a vehicle owned by the
appellant. This argument fails because the position
taken up by the 1st
accused-appellant was not that the firearm and ammunitions were in the vehicle without
his knowledge but no
firearm, magazines or ammunitions were found in the van. According to the statement made by the appellant
from the dock, nothing was found in the van that he was driving.
Hence, there is no issue regarding the possibility of a third person’s involvement in this case.
The main contention of the learned Counsel for the
appellant was that the dock statement has not been considered in correct perspective. The learned Counsel
contended that the learned High Court Judge neither rejected the defence
version nor accepted
the same. In the last paragraph
of page 8 of his Judgment, the learned High Court Judge stated that no reasonable doubt is created
as a result of the dock statement. When a dock statement is evaluated, there are three
aspects to be considered.
i.
If the dock statement cannot be believed,
it must be rejected.
ii.
If the court
believes the dock statement, it must
be acted upon.
iii.
If the dock statement raises a reasonable doubt in the mind of the
court about the prosecution case, the accused is entitled for an acquittal.
If the learned Trial Judge acted upon either the 1st or the 2nd of the aforesaid aspects, the learned Judge must state in analyzing
the defence version whether he accepted the defence version or
rejected the defence version. In this case, the learned High Court
Judge has acted upon the aforesaid 3rd aspect and
stated that the dock statement does not raise a reasonable doubt regarding the evidence of the prosecution witnesses.
The learned High Court Judge has come to the said
conclusion not only for the reason
that the prosecution has presented strong evidence that can be accepted without a reasonable doubt. The learned Judge
stated in his Judgment that the 1st accused-appellant,
as the driver of the van should have
observed that there is something under the carpet where he was seated in the van. The learned Counsel for the appellant stated that this is a surmise of the learned Trial Judge.
That is why he raised the 2nd ground of appeal that the Judgment
is based on surmises and conjectures.
The learned Counsel for the appellant handed over a
picture at the hearing of this appeal
that demonstrate the length of a firearm similar to the firearm produced in this case. According to the said
picture, the length is about 99
centimeters. When such a big weapon was there
under the carpet below the driving seat, obviously, the appellant who was seated in the driving
seat should have noticed the same. According
to the Cambridge Dictionary, the meaning of surmise is “to guess something, without having much or any
proof.” It is certainly not a surmise of the learned High Court Judge.
It is an observation made by the
learned Judge based on the evidence of the case. The learned Judge has
stated in making the said observation that if PW-1 observed without any
difficulty that there was something under the carpet in searching the van, the appellant who was driving
this vehicle should have definitely noticed this. I am also of the
view that the learned Judge’s said observation is perfectly correct.
At page 143 of the appeal brief, it is recorded that PW-1
had demonstrated how he searched the van and
the learned Trial Judge has observed
that the carpet under the driving seat has protruded when the firearm
that was recovered
was there under the carpet.
The learned Judge has also observed when the firearm
was under the carpet in that way, there was no difficulty for the driver to drive the van. These observations establish the probability of the prosecution case.
The learned Counsel for the appellant contended that when
the police officers signaled to stop
the van, in a little distance, they had stopped the van and if they possessed an illegal article, they could
have fled without stopping the van.
The learned Counsel stated that since the vehicle was empty, the appellant waited until the police officers
came and searched the vehicle. The learned SSC for the respondents contended that when there was a police
team in the main road and if they
asked to stop a vehicle, no prudent person would try to escape. It should
be noted that the learned
SSC's position is more rational
since if they tried to flee,
the police officers would undoubtedly know that they had been involved
in some illegal activity, and the police
officers on traffic
duty could have easily apprehended them. If they stopped the vehicle
obeying the direction given by the police officers, there was a chance for them to escape,
if the police officers had not noticed
the weapon hidden under the carpet.
The learned Counsel for the appellant also contended
pointing out the proviso to Section
22(3) of the Firearms Ordinance that the exclusive possession of the 1st accused-appellant has not been established. The learned
Counsel contended further
that the 2nd accused who was travelling with the 1st accused sitting
in the left front seat was acquitted from the charges
on the ground that he had no knowledge. The contention
of the learned Counsel was that if the 2nd accused
had no knowledge, the same yardstick
could be applied to the 1st accused- appellant
as well.
Proviso to the Section 22(3) of the Firearms Ordinance
states that “Provided that where the offence consists
of having the custody or possession of, or of using, an automatic gun or repeater
shotgun, the offender
shall be punished
with imprisonment for life.”
Therefore, if the prosecution has proved that the
appellant was in the custody or
possession of an automatic gun, the appellant is guilty for the 1st charge.
When considering whether the exclusive possession of the 1st accused-appellant has been established, it must be noted that an
accused who has been charged for possessing an illegal substance or article, can take up two positions in
presenting his defence. Firstly, the accused
can take up the position
that he was physically in possession of the prohibited substance or article,
but was unaware of the true nature.
Secondly, the accused can deny the possession. In the case at hand, the 1st accused-appellant had taken up the position
that there was no firearm or any
weapon in the vehicle that he was driving. Therefore,
the learned High Court Judge had to consider whether the accused’s version can be believed or the prosecution version
that the firearm and the ammunitions were found under the driving
seat can be believed. Considering the entirety of the evidence
of the case, the learned Judge has correctly found that the
prosecution version is true and believable and no reasonable doubt would be cast on the prosecution case as a result of the dock statements made by the accused.
In “An Essay on Possession in Common Law” [1888 Part III
Chapter 1 page 119] by R.S. Wright
[Pollock and Wright], it is stated that “… they [the jury] must make the decision whether, in addition to physical control,
he has, or ought to have imputed to
him the intention to possess or knowledge
that he does possess what is in fact a prohibited substance. If he has this intention or
knowledge, it is not additionally necessary
that he should know the nature of the substance.” (Emphasis added)
In the case at hand, there is no issue regarding the
knowledge of the appellant in respect
of the firearm and the ammunitions because they were under the
carpet which was there under the driving seat. As shown by the learned
Counsel for the appellant, the firearm was about 99 centimeters in length and necessarily the appellant had the
knowledge about this weapon, as the
person who was driving the van. Only the 1st accused
and the 2nd accused
were in the van. Hence, the 1st accused is guilty for possessing a firearm and ammunitions without
a valid license as his knowledge is well established. Therefore, the learned
High Court Judge is correct in convicting the 1st accused-appellant
for the 1st and 2nd counts.
The 2nd accused travelled in the van with the appellant. The appellant was in the driving seat and the 2nd accused was in the left front seat. The firearm and the ammunitions were under
the carpet below the driving seat
where the 1st accused was seated and drove the
vehicle. Therefore, it has already
been decided that the appellant
had the knowledge about the thing that was under the carpet. The 2nd accused may have noticed
that the carpet
was protruded than normal or he may have
not noticed. There is a doubt about the knowledge of the 2nd accused. The benefit of the doubt
has to be given to the 2nd accused. Therefore, the learned High Court Judge is correct
in deciding that there is no evidence
to prove beyond
a reasonable doubt that the 2nd accused had the knowledge
about the firearm
or the ammunitions. Hence, acquittal of the 2nd accused has no impact in
deciding the 1st
accused- appellant’s case.
The other vital matter to be mentioned is that there was
no reason for these police officers to introduce a firearm and live ammunitions to the appellant. As contended by the
learned SSC, these police officers had no
animosity whatsoever with the appellant. Even in the dock statement of
the appellant, he had not stated about any animosity or any other reason
for these police officers to introduce a firearm and bring criminal charges
against the appellant. So, there was no reason for these police officers who came for traffic duties to
falsely imply criminal liability to the
appellant. Also, it is impossible for the police officers who were engaged
in traffic duties to introduce
a weapon and ammunitions to the appellant.
For the reasons stated above, I hold that the Judgment of
the learned High Court Judge is
correct in law and this court has no reason to
interfere with the said Judgment.
Therefore, the Judgment
dated 28.05.2018, the convictions and the sentences imposed by the learned High Court Judge are affirmed.
The appeal is dismissed.
[ JUDGE OF THE COURT OF APPEAL]
MenakaWijesundera, J I agree. [ JUDGE OF THE COURT OF APPEAL]
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