The burden of proof usually lies upon the person who brings a claim in a dispute. It is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, a translation of which is: "the necessity of proof always lies with the person who lays charges." Hence an accused person has no burden to prove his case except where he pleads a general or a special exception in the Penal Code, where he will then be required to bring evidence to prove the defence.
Court of Appeal of the
Democratic Socialist Republic of Sri Lanka
Asitha Kumara
Satharasinghe v. The Attorney General
CA/HCC/0174/2023
Headnote:
Date of Judgment: 09
August 2024
Judges: P.
Kumararatnam, J., Sampath B. Abayakoon, J.
Summary:
The Court of Appeal overturned the conviction of the accused-appellant, who had been sentenced to life imprisonment for trafficking and possession of heroin under the Poisons, Opium, and Dangerous Drugs Ordinance. The Court found significant inconsistencies in the prosecution's evidence and a failure to produce critical physical evidence, leading to the conclusion that the appellant was not afforded a fair trial. The appeal was allowed, and the appellant was acquitted.
The appellant, Asitha Kumara Satharasinghe, was indicted in the High Court of Colombo under Sections 54(A)(b) and 54(A)(d) of the Poisons, Opium, and Dangerous Drugs Ordinance, as amended by Act No. 13 of 1984, for trafficking and possession of 123.67 grams of heroin on 18 June 2013. Following a trial, the High Court found the appellant guilty on both counts and imposed a sentence of life imprisonment on 04 May 2023.
The appellant appealed against
the conviction and sentence, raising two primary grounds:
1. The trial judge
failed to properly evaluate the evidence of key prosecution witnesses, leading
to an unjust verdict.
2. The trial judge unjustly rejected the defense's evidence on unreasonable grounds.
Legal Issues:
1. Evaluation
of Prosecution Evidence:
Whether
the trial judge properly assessed the credibility and probability of the
evidence presented by the prosecution, particularly the testimonies of PW1 and
PW8.
2. Rejection
of Defense Evidence: Whether the trial judge erred in dismissing the evidence
presented by the defense without justifiable reason.
3. Failure to Produce Critical Evidence: Whether the non-production of the three-wheeler, which allegedly contained heroin and other incriminating materials, undermined the prosecution's case and violated the appellant's right to a fair trial.
Previous decisions Discussed:
1. R v. Hepworth (1928)
AD 265: The Court of Appeal cited this case to emphasize the responsibility of
a trial judge in criminal proceedings, not merely as an umpire, but as an
administrator of justice who must ensure that justice is served. The case
underscores that a trial is not a game where one party can capitalize on the
mistakes or omissions of the other.
2. SC Appeal No. 155/14
- Judgment by Yasantha Kodagoda, PC, J. (2021): This case was cited to demonstrate
the importance of producing real evidence in a criminal trial. The Court noted
that while oral evidence is critical, the production of physical evidence
referred to in testimony is equally important for the proper administration of
justice. The failure to produce such evidence, especially when it is pivotal to
the prosecution's case, can lead to significant prejudice against the accused.
3. Appuhamy v. Nona
(1912) 15 NLR 311: The Court of Appeal referred to this case to discuss the
principle that new factual issues should not be raised for the first time on
appeal unless they were within the issues framed during the trial. This
precedent supports the argument that the prosecution's failure to address
critical evidence during the trial should not be overlooked or introduced for
the first time on appeal.
4. Henderson v.
Henderson (1843) 3 Hare 100: The Court reiterated the principle from this case
that all aspects of a dispute must be presented in the initial trial, and
parties cannot return to court to raise new issues that could have been
addressed earlier. This principle is rooted in the necessity for finality in
litigation.
Conclusion:
The Court of Appeal
found that the prosecution's case was flawed by significant inconsistencies and
a failure to produce essential physical evidence. The discrepancies in the
testimonies of PW1 and PW8 regarding the timeline of events, the excessive
mileage reported by the STF vehicle, and the non-production of the three-wheeler
containing critical evidence all contributed to reasonable doubt about the
appellant's guilt.
Furthermore, the trial
judge's reliance on the prosecution's evidence, despite these glaring issues,
and the unjust rejection of the evidence adduced on behalf of the accused, led
the Court of Appeal to conclude that the appellant was not afforded a fair
trial.
As a result, the Court
of Appeal allowed the appeal, set aside the conviction and sentence imposed by
the High Court, and acquitted the appellant of all charges. The judgment was
directed to be sent to the High Court of Colombo along with the original case
record.
The above-named Accused-Appellant (hereinafter referred to as the Appellant) was indicted by the Attorney General in the High Court of Colombo under Sections 54(A) (b) and 54(A) (d) of the Poisons, Opium and Dangerous Drugs Ordinance as amended by Act No. 13 of 1984 for Trafficking and Possession of 123.67 grams of Heroin (diacetylmorphine) on 18.06. 2013.
After trial, the Appellant was found guilty on both counts and the Learned High Court Judge of Colombo had imposed a sentence of life imprisonment on both counts on 04/05/2023.
Being aggrieved by the
aforesaid conviction and sentence the Appellant preferred this appeal to this
court.
The Learned Counsel for
the Appellant informed this court that the Appellant has given his consent to
argue this matter in his absence. At the hearing, the Appellant was connected
via Zoom platform from prison.
The following Grounds of Appeal were raised on behalf of the Appellant.
1. Learned High Court Judge had failed to
evaluate the evidence of PW1 and PW8 and there by failed to take into consideration
that the evidence of PW1 and PW8
fails the tests of credibility and probability.
2. Learned High Court Judge had rejected the
defence evidence on unreasonable grounds.
In this case the raid
was conducted based on information received. The raid was headed by PW1 with 19
male Special Task Police Officers from the Colombo Head Quarters. All have been
named as witnesses in the indictment including the Government Analyst. The
prosecution had called PW1, PW8, PW19, and PW22 and marked productions P1 to
P37 in support of their case. Handing over the productions to the reserve
police officer, taking the productions to the Court and handing over the
productions to the Government Analyst were admitted under Section 420 of the
Code of Criminal Procedure Act No. 15 of 1979.
When the defence was
called, the Appellant gave evidence from witness box, called one witness on his
behalf, and closed the defence case.
Background of the case.
According to PW1 IP/Kulasekera attached to Special Task Force of the Colombo Head Quarters, upon an information, they had organized a raid to apprehend a person carrying Heroin. According to the information received by PW8 SI/Roshan from his personal informer, that the said person was enroute to Maliban Junction. PW8 had received the information in the morning and the raiding party had left the Colombo STF Head Quarters around 11:15 hours. PW1 and three other STF personnel had proceeded to Maliban Junction in a car while other STF officers who travelled in a Cab were stationed near the Dehiwala Overhead Bridge. According to PW1, the informant had given the description of the person and he was arrested at 12:30 hours at Maliban Junction.
The same informant had
furnished further information regarding another person trafficking Heroin in a
three-wheeler bearing No. WPYU-0372
who was expected near the Kaduwela Bus Stand. While the STF Officers
waited near Kaduwela Bus Stand till 15:30 hours, such a three-wheeler
was not observed thereabouts.
At that time the
informer renewing his information, called PW8 and informed that the person is
expected near Millenium Food Centre situated along Piliyandala Road, Maharagama
around 17:30 hours. PW1 and PW8 waited in the car which was parked near the Food
Centre. At about 17:30 hours the Appellant had arrived in the three-wheeler
numbered WPYU-0372 and inadvertently parked it facing the car in which the STF
personnel were stationed.
When the Appellant was
searched, two parcels with some substances were found to be in his left
and right-side trouser
pockets. Rs.65000/- in
cash and a purse were also recovered from the Appellant. Upon searching
the three-wheeler, another parcel with some substance, a digital scale and two
live bullets were found in a secret chamber behind the rear seat. As the
substances in the parcel recovered from the Appellant reacted for Heroin
(diacetylmorphine) he was arrested at 17:30 hours by PW1.
Upon further information provided by the informer, the STF officers had checked a grocery shop nearby and a digital scale was recovered from under a table. The owner, namely Dilummika, was also arrested at 17:50 hours. Thereafter, the STF officers had gone to the Police Narcotics Bureau at 20:15 hours, sealed the productions, entered the same under PR No. 115/2013 to 120/2013 and handed over the Appellant, Dilummika and the productions to PW19 at 23:45 hours.
Thereafter, PW8 was
called to give evidence to corroborate the evidence of PW1 and it was followed
by the evidence of the Government Analyst
and PW19.
The burden of proof
usually lies upon the person who brings a claim in a dispute. It is often
associated with the Latin maxim semper necessitas probandi incumbit ei qui
agit, a translation of which is: "the necessity of proof always lies with
the person who lays charges." Hence an accused person has no burden to
prove his case except where he pleads a general or a special exception in the
Penal Code, where he will then be required to bring evidence to prove the
defence.
Therefore, a person can
only be convicted based on cogent and unambiguous evidence as that 'presumption
of innocence' is the hallmark and glory of our system of criminal justice.
Further, in a drug
related prosecution, the evidence adduced by both the prosecution and the
defence should be considered very carefully to avoid anybody taking undue
advantage. Establishment of high degree of probability is an indispensable
requirement in all drug related prosecutions.
Probability holds a
very important role when it comes to convincing the judge on a specific point
as more probable one of the two or more possibilities are, where then there
will be a better chance for the judge to get convinced. Probability is of
utmost importance during criminal investigation and is used to assess
the significance of
various types of
evidence. To accuse someone “beyond reasonable doubt” it
becomes quintessential to
have strong evidence and for the sake of that one has to make few
assumptions to reach certain conclusions, the possibility of these assumptions
to be true is specifically know as principle of probability in legal terms.
As the appeal grounds
raised by the Appellant are inter-related, the grounds will be considered
together in this case.
In this case, police
officers had conducted the raid upon an information that the Appellant was
expected at Maliban Junction, Ratmalana. They set off from the STF Head
Quarters and reached Ratmalana in a car and a cab. A person was arrested there
and when they were returning via Attidiya Road, the informant had given second
information to PW8 that the Appellant is enroute to Kaduwela in a three-wheeler
bearing No. WP YU-372. Hence the team proceeded to Kaduwela. Although they had
waited at Kaduwela till 15:30 hours, the three-wheeler did not turn up. At that
time PW8 had received third information that the Appellant is expected near
Millenium Food Centre on the Maharagama-Piliyandala Road. The Cab was stationed
near YMCA Maharagama and PW1 and P8 had proceeded in a car with three other
officers to Millenium Food City. According to PW1 they had arrived at the
Millenium Food Centre at 17:25 hours while PW8 had stated that they arrived at
14:00 hours. PW1 further contradicted his own evidence saying that they reached
Millenium Food Centre at 16:00 pm. The contradictory evidence regarding arrival
time is given much significance in this case, as the informer had given three
pieces of information. As such the contradictory evidence given by PW1 and PW8
regarding the arrival time certainly affects the probability of events which
had been heavily relied on by the prosecution.
According to PW1 first
they had gone to Maliban Junction in Ratmalana. From there the police party had
gone to Kaduwela and finally they had arrived at Maharagama. As per the ODO
meter of the Cab, it had run 112 Km for the entire operation. Considering the
distance between Bauddhaloka Mawatha to Maliban Junction, Maliban Junction to
Kaduwela, Kaduwela to Maharagama and then from Maharagama to Police Narcotics
Bureau, the distances covered by the cab is excessive. No plausible explanation
was adduced by the prosecution to iron out the excessive mileage. This too
raises
doubts about the
probability of the events as described by the prosecution witnesses.
According to the
prosecution, another Heroin parcel, two live 9mm bullets and a scale were
detected from a secret chamber in the rear of the three- wheeler. The Learned
High Court Judge relied heavily on this recovery to come to arrive at his
decision. But the prosecution had failed to produce the three-wheeler during
the trial. The Learned High Court Judge had considered this evidence in favour
of the prosecution merely because of the failure of the defence to direct
questions to the relevant prosecution witnesses regarding non-production of the
three-wheeler. The relevant portion of the judgment is re-produced below:
Pages 577-578 of the
brief.
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f,i bosrsm;a lsrSfï m%dfhdacsl yelshdjla
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w;g ;%Sfrdao r:fha
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fujka miqìula hgf;a
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,o ryia l=Ihla ;snqfKah hk lreK fkdms,scekSug lsisş fya;=jla ud yg fkdfmfka'
The importance of
adducing real evidence in a criminal trial is very important when oral evidence
refers to the existence of any material thing.
In this case as stated above a three-wheeler with a
secret chamber had been referred to by the prosecution witnesses, but they had
failed to produce the same at the trial.
Section 60 of the
Evidence ordinance states:
“Oral evidence must, in
all cases whatever, be direct; that is to say–
(1) If it refers to a fact which could be seen
it must be the evidence of a witness who says he saw
that fact;
(2) If it refers to a fact which could be heard,
it must be the evidence of a witness who says he heard that fact;
(3) If it refers to a fact which could be
perceived by any other sense or in any
other manner, it must be the
evidence of a witness who says he perceived that fact by
that sense or in that manner;
(4) If it refers to an opinion or to the grounds
on which that opinion is held, it must be the evidence of the person who holds
that opinion on those grounds.
Provided that the
opinions of experts expressed in any treatise commonly offered for sale, and
the grounds on which such opinions are held, may be proved by the production of
such treatises if the author is dead or cannot be found, or has become incapable
of giving evidence, or cannot be called as a witness without an amount of delay
or expense which the court regards as unreasonable:
Provided also that, if
oral evidence refers to the existence or condition of any material thing other
than a document, the production of such material thing for its inspection.”
The importance of
presenting a physical object referred to in evidence in a criminal trial was
very extensively discussed in SC Appeal No.155/14 decided on 28.06.2021 by His
Lordship Yasantha Kodagoda, PC, J. The relevant portion of the judgment is
re-produced below:
According to the law of
Evidence, as of right it would not be possible for a party to a criminal or
civil case to present a physical object as an item of evidence, on its own
standing. This is because it would not come within any one of the four categories
of ‘evidence’ also referred to as ‘judicial evidence,’ recognized by the law of
Evidence, namely ‘oral evidence,’ ‘documentary evidence,’ ‘contemporaneous
audio-visual recordings’ and ‘computer evidence.’ The latter two categories of
evidence, namely ‘contemporaneous audio-visual recordings’ and ‘computer
evidence’ gained recognition in the eyes of the law by the Evidence (Special
Provisions) Act, No. 14 of 1995. What is contemplated by ‘contemporaneous
audio-visual recordings’ are recordings of the occurrence of the facts in issue
or relevant facts embedded in certain media, and they can take the form of
audio recordings, video recordings, audio-visual or video recordings, and still
photographs. Section 60 of the Evidence Ordinance which provides that oral
evidence must in all cases whatsoever, be direct, provides further, in its
second proviso that,” if oral evidence refers to the existence or condition of
any material thing other than a document, the court may, if it thinks fit,
require the production of such material thing for its inspection”. (Emphasis
added.) Such material things when produced at a trial are referred to as real
evidence. Thus, it would be seen that the law of Evidence has not completely
precluded the presentation of physical material as evidence. Therefore, the
sequence to be followed in the presentation of a physical object as real
evidence would be, first, to present oral evidence regarding the existence or
condition of such a physical object, and thereafter, secondly, invite the Court
to consider permitting the production of such physical object for inspection.
What is important to note is that in terms of section 60 of the Evidence
Ordinance, once such a
material thing is presented to the Court, the function of the Court is to
inspect it. That is for the Judge or Jury as the case may be, to directly
perceive such an object using his or their own senses. If necessary, the Court
may record its observations regarding such material object that was produced.
However, as in the case of oral and documentary evidence, a physical object is
not ordinarily produced at the trial for the purpose of proving or disproving
the existence or non-existence of a fact in issue or a relevant fact. The
practice in Sri Lanka is to refer to such items as ‘productions’. In most other
jurisdictions they are referred to as ‘exhibits’. 13 E.R.S.R. Coomaraswamy
(Volume I, at page 68) in his monumental work on the Law of Evidence, has
stated that though ‘real evidence’ does not come within the ambit of ‘Evidence’
under section 3 of the Evidence Ordinance, real evidence is an item of
‘judicial evidence’ and the judge is called upon to see the thing himself and
the knowledge derivable therefrom is generally obtained without the use of any
medium. However, in view of the second proviso to section 60 of the Evidence
Ordinance which provides for the admission of real / physical evidence, it is
necessary to bear in mind that, such evidence in the nature of physical objects
are not sui generis (does not stand alone by itself), and is necessarily
associated with an item of oral evidence which provides a description of the
existence or condition of such physical item. In other words, the Court may in
terms of section 60 permit the production of a material object for inspection,
only if oral evidence refers to the existence or the condition of any material
thing. In the alternative, acting in terms of section 165 of the Evidence
Ordinance, the Court may on its own motion order the production of any document
or thing in order to discover or to obtain proper proof of relevant facts.
Therefore, such evidence (physical / real evidence) in my view will serve the
purposes of (i) providing clarity to oral evidence and enable the judge or the
jury as the case may be to correctly comprehend the relevant item of oral
evidence, (ii) providing corroboration of oral testimony and documentary
evidence, (iii) being used as an aide to the assessment of credibility and
testimonial trustworthiness of testimony provided by one or more witnesses, and
(iv) being a basis for the Court to determine the cogency or sufficiency of
evidence presented in the form of oral and documentary evidence. Thus, an item
of real evidence cannot by itself generally be used to ‘prove’ the facts in
issue, which in criminal cases amounts to the constituent ingredients of the
offence. In certain situations, a physical object may be produced at a trial
for the first time, for the purpose of its identification. That may aid the
proof of a fact in issue or a relevant fact. The impact or the legal
consequences arising out of the absence of a particular physical item of
evidence being presented by the prosecution at a trial will depend on a host of
considerations, including the attendant facts and circumstances of the case. In
such situations, the principal factor to be taken into consideration is, what
purpose, if any, would the prosecution have achieved, had they produced the
relevant item of real evidence. As 14 E.R.S.R. Coomaraswamy has put it, “non-
production of a physical object, which might conveniently be produced for
inspection by the Court, does not render oral evidence respecting the same
inadmissible” (Volume II, Book I, page 19). The legal consequences arising out
of a doubt being created with regard to the integrity of a physical object that
was produced, would be founded upon a consideration of the purpose sought to
have been achieved by the party which produced the object. The legal
consequences that may arise by a party not producing a material object which
was within their control to produce, would be the rendering of nugatory the
purpose such party could have achieved by having produced it. It may also
affect the cogency of the evidence. There may be situations where the
circumstances of the case may justify the judge from drawing an adverse
presumption in terms of section 114(f) of the Evidence Ordinance.
Considering above cited
Supreme Court Judgment and the importance of tendering material evidence; the
non-production of the three-wheeler has certainly caused great prejudice to the
Appellant.
According to PW1 the
purpose for which the Appellant came to the boutique was to handover heroin to
a nearby boutique. But PW8 in his evidence stated that according to the
informer, the purpose for his arrival was to weigh the Heroin from a retail
shop.
According to the
evidence of PW1 and PW8, once the three-wheeler was stopped in front of the car
in which the STF Officers were waiting, PW8 had given a call to the informant.
Thereafter two STF Officers in civil attire
had been sent to approach the three-wheeler driver. Thereafter only PW1
had gone near the three-wheeler. It is in evidence that the two STF
Officers who were sent near the three-wheeler were asked to behave as normal
people and the Appellant was not blocked by anybody, enabling him to get down
from the three-wheeler and to proceed to the boutique. Hence the Counsel for
the Appellant contended that it is highly improbable to believe that the
Appellant remained inside the three-wheeler without even getting down till all steps were taken by PW1.
The profound duty of
the trial court is to consider the evidence placed by the prosecution and the
defence on equal footings to arrive at its finding.
In R v. Hepworth 1928
(AD) 265, at 277, Curlews JA stated:
“A criminal trial is
not a game where one side is entitled to claim the benefit of any omission or
mistake made by the other side, and a Judge's position in a criminal trial is
not merely that of an umpire to see that the rules of the game are applied by
both sides. A Judge is an administrator of justice, not merely a figure-head,
he has not only to direct and control the proceedings according to recognised
rules of procedure but to see that justice is done.”
In this case the
defence witness Wasantha Dilummika was also arrested along with the Appellant
by PW1. After his arrest his retail shop was checked by the police. From a
cupboard underneath the cashier an electronic scale was recovered during this
search. As such, he was arrested and the scale
which had been
recovered from his shop was sent to the Government Analyst. According to the
Government Analyst Report, traces of Heroin had been detected on the electronic
scale recovered from the witness’s shop. But he was discharged by the Hon.
Attorney General from this case. Although he was discharged, Learned High Court
Judge had used the recovery evidence to disbelieve his evidence. [ Sinhala
version has not been copied here]
As correctly argued by
the Defence Counsel, this has caused great prejudice to the Appellant and he
was not afforded a fair trial.
In this case the raid
was conducted upon receiving three pieces of information. Further, the arrest
and recovery of productions has failed to pass the probability test in this
case mainly due to the existence of glaring inconsistencies between evidence given
by PW1 and PW8 and non- production of the real evidence which was vital to the
case. Had the Learned Trial Judge looked into the evidence presented in its
correct perspective, he should have accepted the evidence given by the
Appellant.
Further, the Appellant
had not afforded a fair trial as guaranteed in the Constitution.
Guided by the above
cited judicial decisions, I conclude that the appeal grounds advanced by the
Appellant have very serious impact on the prosecution case.
As the prosecution had
failed its duty to prove this case beyond reasonable doubt, I set aside the
conviction and sentence imposed by the Learned High Court Judge of Colombo
dated 04/05/2023 on the Appellant. Therefore, he is acquitted from this case.
Accordingly, the appeal
is allowed.
The Registrar of this
Court is directed to send this judgment
to the High Court of Colombo along with the original
case record.
SAMPATH B. ABAYAKOON,
J. - I agree. JUDGE OF THE COURT OF
APPEAL
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