A dock statement, though admissible, is not equivalent to sworn testimony and must be weighed cautiously.

 

ATTORNEY GENERAL v. WANNIARACHCHIGE RANGA SAMPATH FONSEKA

Supreme Court of Sri Lanka — SC Appeal No. 36/2020

Decided on: 24th October 2025 - Before: Menaka Wijesundera, J., Achala Wengappuli, J., and K. Priyantha Fernando, J.

Criminal Law — Poisons, Opium and Dangerous Drugs (Amendment) Act, No. 13 of 1984 — Sections 54A(a) and (d)  Possession and trafficking of heroin — Dock statement  Evidentiary value — Rebuttal evidence under Section 202 of the Code of Criminal Procedure Act — Defence of alibi — Timing and disclosure — Burden on accused — Procedural fairness — Estoppel and waiver.

 The appellant was indicted before the High Court of Colombo for possession and trafficking of 246.14 grams of heroin, contrary to Sections 54A(a) and (d) of the Poisons, Opium and Dangerous Drugs (Amendment) Act, No. 13 of 1984. Two co-accused pleaded guilty and were convicted. The appellant pleaded not guilty, stood trial, and was convicted after full proceedings. The conviction and sentence were affirmed by the Court of Appeal. The Supreme Court granted special leave to appeal on two questions of law concerning the alleged failure of the Court of Appeal to consider (i) whether the trial judge erred in failing to properly evaluate the defence case, and

(ii) whether the rejection of the dock statement and defence witnesses created a reasonable doubt in the prosecution case.

Facts 

Police Narcotics Bureau officers, acting on intelligence, arrested the appellant after observing him receiving a bag from two Pakistani nationals in Bambalapitiya. The bag contained heroin. The appellant denied the prosecution version, stating in his dock statement that he was arrested elsewhere, namely at Boralesgamuwa and was not in possession of any narcotics. He claimed his mobile phone records showed incoming calls at 1:27 p.m. and 3:00 p.m., allegedly while he was in custody, implying that he could not have been arrested at the time and place alleged.

After this new claim, the prosecution sought and obtained leave under Section 202 of the Code of Criminal Procedure Act to call rebuttal evidence from PW1, the arresting officer, to clarify the issue of the mobile phone. PW1 explained that the appellant’s phone had been temporarily returned for operational reasons. The defence then called witnesses from Dialog and Etisalat to verify call logs; however, no definitive location data or corroboration of the alibi was produced.

The trial judge rejected the belated alibi and found the appellant guilty on both counts. The Court of Appeal upheld the conviction.

 Held - Per Menaka Wijesundera, J. (Achala Wengappuli, J. and K. Priyantha Fernando, J. agreeing):  A dock statement, though unsworn and untested by cross-examination, constitutes evidence for the defence subject to inherent infirmities. Courts must consider it, but its weight depends on context and credibility. 

Queen v. Buddharakkitha Thera (63 NLR 433) and Queen v. Kularatne (71 NLR 529) reaffirm that such statements may raise a reasonable doubt if believed but cannot be used against co-accused. However, a dock statement unsupported by corroborative material carries limited probative value.

Rebuttal Evidence — Section 202 of the Code of Criminal Procedure Act: The prosecution may, with leave, adduce rebuttal evidence only to counter unexpected or decisive defence material.

As established in Hildon v. Munaweera (3 Sri LR 220), rebuttal is not a matter of right but of judicial discretion. In the instant case, the defence raised a new factual position (the alleged alibi) for the first time in the dock statement. Hence, the trial judge properly exercised discretion in permitting rebuttal evidence. The defence raised no objection at that time and is thereby estopped from later challenging admissibility.

Alibi — Timing and Credibility:

The defence of alibi must be disclosed at the earliest opportunity under Section 126A of the Code of Criminal Procedure Act. A belated alibi emerging only in the dock statement, without prior notice or evidential support, lacks credibility.

Citing Vishvanadan v. Attorney General (2021) 1 Sri LR 14 and SC Appeal No. 61/2023 (Mahinda Samayawardhena J.), the Court reiterated that failure to raise an alibi in cross-examination or investigation allows the trial judge to reject it as false.

 

Procedural Fairness and Estoppel:

The defence consented to the leading of rebuttal evidence. Having done so, it cannot later argue procedural unfairness. The doctrine of waiver and estoppel applies — a party cannot approbate and reprobate within the same proceeding.

Evaluation of Defence and Prosecution Evidence:

The trial judge carefully assessed both the prosecution and defence evidence. The alleged phone calls did not establish the accused’s location nor undermine the prosecution case. The Court of Appeal correctly affirmed that no reasonable doubt was created. 

Public Policy and Judicial Principle:

Courts must strike a balance between individual liberty and the integrity of the criminal justice process. While safeguarding fair trial rights, fabricated or belated defences cannot override credible prosecution evidence.

Decision - Questions of law answered in the negative.

Judgment of the Court of Appeal affirmed. Appeal dismissed.

Principles Reaffirmed

A dock statement, though admissible, is not equivalent to sworn testimony and must be weighed cautiously. 

Rebuttal evidence under Section 202 may be admitted to counter new defences, provided procedural fairness is observed. 

The defence of alibi must be disclosed early; a delayed disclosure without corroboration may justifiably be rejected. 

Parties who consent to procedural steps cannot later challenge them on grounds of unfairness, estoppel and waiver principles apply. 

Judicial evaluation of evidence must ensure that rights of the accused are balanced against the interest of justice and public safety. 

Dock statement is admissible as evidence, but with limitations.

A dock statement must be treated as evidence on behalf of the accused, though subject to certain infirmities — namely, it is unsworn and not tested under cross-examination

 

 

 

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Two specific infirmities are recognized:

(i) It is not tested by cross-examination, and

(ii) It is not made under oath

 

 

 

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Legal basis established in leading precedents:

 

Queen v. Buddharakkitha Thera (63 NLR 433): Recognized that the right to make a dock statement exists in Sri Lankan law, but its value is diminished because it is neither sworn nor cross-examined.

 

Queen v. Kularatne (71 NLR 529): Re-affirmed that such a statement must be considered as evidence, yet the jury must be directed that it has reduced weight due to its infirmities.

 

Guidelines from Queen v. Kularatne clarified by the Court:

 

(a) If the jury believes the dock statement, it must be acted upon.

 

(b) If it raises a reasonable doubt, the defence must succeed.

 

(c) It must not be used against another accused

 

Despite infirmities, it remains usable evidence.

The Court affirms: a dock statement “can be considered as evidence and be acted upon” provided it creates a reasonable doubt or is credible on its face

 

In this particular case:

 

The accused introduced a new alibi defence only in his dock statement (claiming he was elsewhere at the time of arrest).

 

The Court held this was a belated defence and thus unreliable because it was not raised earlier during the investigation or cross-examination

 

Dock statement cannot substitute sworn evidence.

The trial judge correctly viewed the dock statement as evidence of limited value, since the defence’s supporting witnesses failed to corroborate it

 

Principle reinforced

dock statement alone cannot create reasonable doubt.

Where a dock statement raises a new defence (e.g., an alibi) without corroboration, the Court may reject it as false, following Vishvanadan v. Attorney-General (2021 1 Sri L.R. 14)

 

 

Conclusion of the Supreme Court:

 

The trial judge did not err in rejecting the dock statement.

 

The statement failed to raise a reasonable doubt in the prosecution’s case.

 

The conviction was therefore properly sustained

 

 

In Summary – Core Legal Principles

A dock statement is admissible but unsworn evidence.

It carries lesser weight than sworn testimony.

It allows the accused to present their version without oath or cross-examination.

The Court must still consider it, but cautiously.

Effect      It can create reasonable doubt only if credible or corroborated.

 

Precedent Support  Buddharakkitha Thera (63 NLR 433), Kularatne (71 NLR 529), Vishvanadan v. AG (2021 1 SLR 14).

 

Precedents Cited

 

Queen v. Buddharakkitha Thera (63 NLR 433)

 

Queen v. Kularatne (71 NLR 529)

 

Hildon v. Munaweera (3 Sri LR 220)

 

Vishvanadan v. Attorney General (2021) 1 Sri LR 14)

 

SC Appeal No. 61/2023, Mahinda Samayawardhena J. (Unreported, 09.10.2024)

 A belated and uncorroborated alibi introduced for the first time in a dock statement cannot create a reasonable doubt in the prosecution’s case. The trial court’s acceptance of rebuttal evidence with defence consent is lawful and procedurally fair. Judicial scrutiny of dock statements must preserve the equilibrium between individual rights and public security, ensuring both the bona fides of police action and the integrity of criminal adjudication.

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