Corpus Juris SL 4 - hpalpola.files.wordpress.com fileCORPUS JURIS SL Haris Palpola,LL,B. Hons-OUSL Attorney-at-Law Page 2 1. Don't criticize, condemn, or complain. 2. Give honest and

CORPUS JURIS SL

Haris Palpola,LL,B. Hons-OUSL

Attorney-at-Law Page 1

fiajdodhlhska woaojd .ekSu’’’’fiajdodhlhska woaojd .ekSu’’’’fiajdodhlhska woaojd .ekSu’’’’fiajdodhlhska woaojd .ekSu’’’’

kS;S{jrhl=g fnfyúka jeo.;a jk msßila úÈhg fiajdodhlhska y`ÿkajkak

mq`tjka’ fiajdodhlhska úiska kS;S{jrhd jD;a;sfha by,gu f.akjd jf.au

jD;a;sfhka bj;a lsÍug;a iuyr wjia:d j,§ lghq;= lrkjd’ fndfyda fj,djg

wykak ,efnk ueisú,a,la ;uhs fiajdodhlhskaf.a wvqjla ;sfnkjd hkak’ ta jf.au

;uhs iuyr kS;S{jrekaf.a ld¾hd, foi ne,Sfï§ fiajdodhlhska msß,d bkak

wdldrh;a olskak mq`tjka’ fiajdodhlhska fï wkqj kS;S{jrfhlag w;HjYHu

wx.hla úÈhg olaj;yels’

flfia fj;;a wfma kS;s wOHdmkh ;=,§ uka olsk f,dl= wvqmdvqjla ;uhs

fiajdodhlhska woaojd .ekSu iïnkaOfhka hula W.kajkafka ke;slu’ kS;s{hl=g

w;HjYHu idOlhla iïnkaOfhka wOHdmkhla ,efnkafka kE’ fïl f,dl=

wvqmdvqjla’

kuq;a tfyu jqkhs lsh,d wmg igk w;yßkak nE’ wms fiajdodhlhska woaojd

.ekSug l%ufõo fydhd.kak ´kd’ ta fjkqfjka ;sfhk fmd; m; lshjkak ´kd’ tajd

wfma Ôú; j,g tla lr.kak ´kd’ úfYaIfhkau ;ukaf.a wd.u iïnkaOfhka fydò

±kqula ,nd .ekSu fï ;=,§ b;du jeo.;a’

fï iïnkaOfhka ,shú,d ;sfhk fmd; m; w;=ßka uf.a ys;.;a; fmd; ;uhs fâ,a

ldk.S úiska ,sh,d ;sfhk How to Win Friends and Influence People lshk fmd;’

1937 § uq,skau uqøKh lr we;s fï fmdf;a msgm;a iEfykak m%udKhla ^úlsmSähd

iòyfka yeáhg ñ,shka 15 lg jvd& wf,ú fj,d ;sfhkjd’ ,xldfj;a lSm fofkla

úiska fkdfhla kï j,ska fï fmd; mßj¾;kh lr,d ;sfhkjd’ bx.S%is Ndú;dj

wmyiq whg isxy, mßj¾;khla mdúÉÑ lrkak mq`tjka’ id¾:l fiajdodhlhska

mokula we;s lr .kak wmg Woõjg .kak mq`tjka fydòu fmd;la úÈhg fï How

to Win Friends and Influence People lshk fmd; nh ke;sj ks¾foaY lr;yels’

kS;s fmd;a jf.au fï fmd;=;a wms Ndú;d lrkak ´kd wfma hym;g’ ta ksihs uka

ys;=fõ fï .ek iòykla lrkak’ fldfydu jqk;a igyk iïmQ¾K fjkak fï jákd

fmdf;ka wmsg .kak mq`tjka mdvï lSmhla Wmqg,d olaj,d ;sfhkjd my;ska’

CORPUS JURIS SL



1. Don't criticize, condemn, or complain.

2. Give honest and sincere appreciation.

3. Arouse in the other person an eager want.

4. Become genuinely interested in other people.

5. Smile.

6. Remember that a person's name is, to that person, the sweetest and most important sound in any language.

7. Be a good listener. Encourage others to talk about themselves.

8. Talk in terms of the other person's interest.

9. Make the other person feel important – and do it sincerely.

10. The only way to get the best of an argument is to avoid it.

11. Show respect for the other person's opinions. Never say "You're Wrong."

12. If you're wrong, admit it quickly and emphatically.

13. Begin in a friendly way.

14. Start with questions to which the other person will answer yes.

15. Let the other person do a great deal of the talking.

16. Let the other person feel the idea is his or hers.

17. Try honestly to see things from the other person's point of view.

18. Be sympathetic with the other person's ideas and desires.

19. Appeal to the nobler motives.

20. Dramatize your ideas.

21. Throw down a challenge.

22. Begin with praise and honest appreciation.

23. Call attention to people's mistakes indirectly.

24. Talk about your own mistakes before criticizing the other person.

25. Ask questions instead of giving direct orders.

26. Let the other person save face.

27. Praise every improvement.

28. Give the other person a fine reputation to live up to.

29. Use encouragement. Make the fault seem easy to correct.

30. Make the other person happy about doing what you suggest.

fï ;sfhk yeu woyilau fn!oaO o¾Ykfha§ bf.k .kak mq`tjka’ ta jf.au ;uhs

ls%ia;shdks wd.fï§;a" yskaÿ wd.fï§;a y`ÿkd .kak mq`tjka’ fï foaj,a wms ;=,

j¾Okh lr .ekSfï§ wms yq`.la ñ;%YS,S" ksy;udks njg m;afjkjd’ ta ;=, hy`t

CORPUS JURIS SL



ñ;=rka woaojd .ekSfï yelshdj;a j¾Okh fjkjd’ thu ;uhs fiajdodhlhska woaojd

.ekSug Wmldr jkafka;a" Tjqkaj r`ojd .ekSug Wmldr jkafka;a’

“The more your friends,

the more your clients,

the more your clients,

the more your friends.”

Why Study Evidence?

Black's Law #3: When you step on the playing field, you better know the rules. You are

a professional. You must have mastery of every rule, every technique, and every detail

of your case. Knowledge is the key, along with the ability to see and create patterns

others miss. You don't leave things to chance. You pride yourself on being the best.

You always know more than your opponent.

Why the emphasis on the rules of evidence? Evidence is the fuel that runs every trial,

and in fact, every dispute resolved by an independent body. How could you expect to

survive let alone win any contested matter without the ability to handle and shepherd

evidence, the very things which prove the propositions you are advocating? Evidence

has no meaning, no power, no persuasion, no connection to ideas or theories without a

human being to analyze, organize, interpret and then sell them.

CORPUS JURIS SL



CROSS-EXAMINATION IN ADVOCACY.

APT WORDS OF HON. CHAS. S. MAY.

"Among all the defensive weapons of the law, there is no one so utterly

abused and wasted as the right of cross-examination. In no other one

thing at the bar are so many mistakes made.

"The first great mistake, and one made in nine cases out of ten, certainly, is

to take the witness over the ground of his direct examination, and in the

same order, thus making him repeat his entire testimony. Nothing could

be worse than this. The witness, who is ordinarily somewhat embarrassed

and not always clears in his first statement, has his mind fully refreshed in

this way, and now more at his ease is able to fill in all he may have

forgotten, clearing up as he goes along, and leaving, generally, a full and

connected narrative of the facts with the jury. This is an immense

advantage to the other side. I have seen many a weak and hesitating

witness built up into a confident and strong one by this foolish and suicidal

mode of examination.

"The second great mistake is the attempt to break down the witness by a

brow-beating and bullying style of cross-examination. This almost always

fails, besides being in itself an outrageous abuse of the right of counsel

and a public disgrace to the bar.

"In this country, especially, where witnesses are generally fairly intelligent

and stand little in awe of lawyers, there is not one case in a thousand in

CORPUS JURIS SL



which this style of cross-examination will work. It will only make the witness

more positive and confident in his statements and is apt, besides, to give

him the sympathy of the jury. He will not be likely to confess himself a liar

and fabricator on the witness stand and though he may have lied and

fabricated, both, you are generally powerless to show this at the time and

his testimony will stand all the better thus re-affirmed.

"No, as a rule, it is never best to attack a witness in front. There is a better

and a safer way. Move cautiously on his flanks; dig carefully under him.

Conciliate him by your manner at the start. The ordinary witness expects

to be abused and insulted on the witness stand — and with too much

reason. Now, if your manner in your opening questions is quiet and

gentlemanly, it is wonderful how it will take the opposition and

antagonism out of him. He will then be in a mood to meet you more than

half way, and if you are shrewd, you can move carefully round his

testimony, leaving the strong points out of sight, and get admissions and

concessions from him and new facts on your side, and generally tone

down and weaken his statements greatly. And all the while the jury will be

forgetting what he testified to on the direct.

"Finally, it is quite an important matter, and one requiring considerable

judgment and tact, to know just when and where to leave the witness.

The only safe rule on the subject is to leave him in a good place; when

you have scored a good point. Counsel frequently make a great mistake

here and by one question too many lose their advantage and make an

awkward close of the examination. Let well enough alone, and without

any appearance of exultation, take leave of the witness.

CORPUS JURIS SL



"It is not always that anything can be made by cross-examination, but

there is never any need to help the other side with it, and there is no

place in a trial where the consummate advocate appears to a better

advantage than in the careful and skillful handling of an adverse witness."

From 'Skill in Trials' by J. W. DONOVAN.

�ම�ශනයක� ෙප�ස් �ලධා�� ලබා ග�නා සා��වල අදාළ�වය

ෙප��ස් �ලධා� �� වරද� �ම�ශනෙ�� සා��ක�වෙග ලබා ගනා සා�� න�

�භාගයක� සා�� ෙල� ආෙ#ශ $�ම ස%බධෙය ලංකාෙ# '(ෙ� පව(න ත*වය

ස%බධෙය වන ක�+ ,ස� ෙමම න� -.ෙ#� ��ර ද ආබෲ ��0�1මා ��

සාක2ඡා කර4 ලැබ ඇත. ෙබ�ෙහ9 �ට ෙප��ස් සා�� ඇග;ෙ%� අ=කරණය �� ගත ?1

@යාABෙවත ද ෙමC� සාක2ඡා කර4 ලැබ (ෙD. න� අංකය CA 200/2005. -රණය E ඇ(

Fනය 8.11.2012.

Sisira de Abrew J.

The indictment alleged that the accused

appellant along with HAK Leelarthne alias

Harbour who died before the commencement

of the trial committed the murder of a man

named Jayalath Kalansuriya which is an

offence punishable under section 296 of the

Penal Code. The learned High Court Judge

(the trial judge) convicted the accused

appellant for the said offence and sentenced

him to death. Being aggrieved by the said

conviction and the sentence the accused

appellant has appealed to this court.

Facts of this case may be briefly summarized

as follows: On 12.1.1995 around 10.30 p.m.

the accused appellant and Harbour who were

passing the deceased's house scolded the

deceased using filthy language. At this time

the deceased person who was seated on the

door step of his house went and addressed

them in the following language. "Are you

going to attack or fight?" Thereupon the

accused appellant and Harbour attacked the

deceased person with their fists, dragged for

about 25 feet, put him on the ground and

assaulted while he was lying fallen on the

CORPUS JURIS SL



ground. Thereafter the deceased got up and

tried to chase them but his wife intervened and

brought him back. At this stage his wife

noticed a bleeding injury below his armpit. On

hearing the shouts of the deceased's wife,

Mahindalal, a neighbour, came to the scene.

Then she told Mahindalal that Marrai (the

accused appellant) stabbed him. This was the

evidence of the deceased's wife Nanda

Gunawardene.

Mahindalal immediately went in search of a

vehicle and addressed the accused appellant

and Harbour whom he met about 250 feet

away from the scene of crime in the following

language: "What is the dirty thing that you

did." The accused appellant without speaking

showed the bleeding injury in his hand.

When Nanda Gunawardene, the wife of the

deceased gave evidence learned defence

counsel marked three contradictions (V 1, V2

and ~ v V3) with her evidence given at the

Non summary Inquiry. VI to V3 are as

follows:

VI - "I did not see Marrai and Harbour

assaulting the husband."

V2 - "Were you there when they came"

V3 - "I did not see the incident."

Learned trial judge, when writing the

judgment, observed that she had not seen the

incident when the said contradictions are

considered. But he did not stop at this at this

point and considered her evidence given at the

Non summary Inquiry which was not

produced at the trial in order to decide

whether the contradictions go to the root of

the prosecution case. After considering her

evidence given at the Non Summary Inquiry

he concluded that the witness had given the

same evidence at the trial. After doing this he

rejected the contradictions on the basis that

they do not go to the root of the case. Thus it

is seen that he had used the Non Summary

evidence which was not produced as evidence

at the trial. It has to be stated here that the

accused was unaware that the trial judge was

using this evidence against him.

In the course of Nanda Gunawardene's

evidence she stated that when Mahindalal

came to the scene she informed him that

Marrai stabbed her husband. It has to be noted

here that she, at the trial, did not speak of any

dying declaration. But the learned trial judge

after going through her statement made to the

police in the course of the investigation

concluded that her husband (the deceased

person) had told her that Marrai stabbed him.

According to the learned trial judge this dying

declaration had been produced at the Non

Summary Inquiry as PIO. It is relevant to note

that no dying declaration was produced at the

trial. Her statement made to the police was not

produced at the trial. I must mention here that

there is no provision in law to produce her

statement as evidence at the trial. It is seen

from the above material that the learned trial

judge has used witness Nanda Gunawardene's

statement made to the police as evidence and

decided that the deceased had made a dying

declaration to the effect that the accused

appellant had stabbed the deceased. Learned

President's Counsel appearing for the accused

appellant contended that the procedure

adopted by the learned trial judge was highly

CORPUS JURIS SL



irregular. He contended that the accused

appellant was unaware that the learned trial

judge was using as evidence the statement

made by witness Nada Gunawardene and her

evidence at the non summary inquiry. Two

main questions arise for consideration. One is

whether the learned trial Judge when writing

the judgment can use a statement made by a

witness to the investigating police officer in

the course of the investigation (not produced

at the trial) as evidence. The other one is

whether the learned trial judge when writing

the judgment can use the evidence given by a

witness at the Non Summary inquiry (not

produced at the trial) as evidence. I now

advert to these questions. Criminal justice

system of this country functions on the

principle that no accused person charged with

criminal offences can be convicted except

upon the evidence produced at the trial. When

an accused person is tried by a jury, presiding

judge in his opening address and in the

summing up warns the jury inter alia that they

must consider only the evidence given in

court. This warning clearly indicates that

evidence must be led in open court to be heard

by the jury, the judge, the prosecuting State

Counsel, defence counsel and the accused.

Same principle is applicable when the accused

is tried by a judge.

What is evidence? Section 3 of the Evidence

Ordinance reads as follows:

Evidence means and includes –

(a) all statements which the court permits or

requires to be made before it by witnesses

in relation to matters of fact under inquiry;

such statements are called oral evidence;

(b) all documents produced for the inspection

of the court; such documents are called

documentary evidence.

It clearly says that the evidence must be

produced in court. This shows that the

evidence must be led in open court. The idea

of this procedure is that that accused or his

pleader must know the evidence led against

him so that he can test the truthfulness of the

evidence by way of cross examination, call

witnesses to counter and defend him. When

court considers material not produced in open

court, the accused does not get the above

opportunity and he is denied of a fair trial. At

this stage it is pertinent to ask the following

question. Can the court consider statements of

witnesses made to the investigating police

officer in the course of the investigation? In

this connection I would like to consider the

judgment in Keerthi Bandara v. The

Attorney General [2000] 2 SLR 245. Head

note of the judgment states: "It is for the Judge

to peruse the Information Book in the exercise

of its overall control of the said book and to

use it to aid the Court at the inquiry or trial."

This should not be interpreted to say that the

Judge is empowered to use the statement of

the witness which was not produced at the

trial when writing the judgment. It is pertinent

to consider what His Lordship in the above

judgment said at page 258. "We lay it down

that it is for the Judge to peruse the

Information Book in the exercise of his overall

control of the said book and to use it to aid the

Court at the inquiry or trial. When defence

counsel spot lights a vital omission, the trial

Judge ought to personally peruse the statement

recorded in the Information Book, interpret

the contents of the statement in his mind and

CORPUS JURIS SL



determine whether there is a vital omission or

not and thereafter inform the members of the

jury whether there is a vital omission or not

and his direction on the law in this respect is

binding on the members of the jury. Thus

when the defence contends that there is a vital

omission which militates against the adoption

of the credibility of the witness, it is the trial

Judge who should peruse the Information

Book and decide on that issue." Where does

he do it? Is it open Court or Chambers of the

Judge? Is it during trial or after conclusion of

trial? It is very clear that the Judge has to do

the above things in open court during the trial.

If it is a trial by a judge, same procedure

should apply. When the defence counsel spot

lights an omission or seeks to mark a

contradiction, the trial judge must peruse the

Information Book and decide whether the

sentence in the statement which the defence

counsel intends to mark as a contradiction is

in fact found in the statement or the defence

counsel is trying to confront the witness with

an incomplete sentence in the statement or

decide whether the omission is correct. This is

how court uses the Information Book to aid

the trial or inquiry. Thus the trial judge will

have to peruse the Information Book in order

to decide the above matters. This does not

mean that he can use statements of witnesses

made in the course of investigation to the

police officer as evidence. When the defence

counsel seeks to mark a contradiction or wants

to spotlight an omission the trial judge cannot

and should not permit the entire statement to

be marked. He can permit the defence counsel

to mark only the portion of the statement

which contradicts the evidence in court. In this

connection I would like to consider the

judgment in Rathnam v. Queen 74 NLR 317.

Before I consider the said judgment it is

pertinent to state here section 110(3), (4) of

the Code of Criminal Procedure Act No. 15 of

1979 (hereinafter referred to as the present

CPC) and section 122(3) of the old Criminal

Procedure Code (hereinafter referred to as the

old CPC). Section 110(3) of the present CPC

reads as follows: "A statement made by any

person to a police officer in the course of any

investigation may be used in accordance with

the provisions of the Evidence Ordinance

except for the purpose of corroborating the

testimony of such person in court;

Provided that a statement made by an accused

person in the course of any investigation shall

only be used to prove that he made a different

statement at a different time.

Anything in this subsection shall not be

deemed to apply to any statement falling

within the provisions of section 27 of the

Evidence Ordinance or to prevent any

statement made by a person in the course of

any investigation being used as evidence in a

charge under section 180 of the Penal Code."

Section 110(4) of the present CPC reads as

follows: "Any criminal court may send for the

statements recorded in a case under inquiry or

trial in such court and may use such

statements or information, not as evidence in

the case, but to aid it in such inquiry or trial.

Save as otherwise provided for in Sec.444

neither the accused nor his agents shall be

entitled to call for such statements, nor shall

he or they be entitled to see them merely

because they are referred to by the court but if

they are used by the Police officer or inquirer

or witness who made them to refresh his

CORPUS JURIS SL



memory, or if the court uses them for the

purpose of contradicting such police officer or

inquirer or witness the provisions of the

Evidence Ordinance Sec.161 or 145 as the

case may be, shall apply:

Provided that where a preliminary inquiry

under chapter XV is being held in respect of

any offence, such statements of witnesses as

have up to then been recorded shall, on the

application of the accused, be made available

to the accused for his perusal in open court

during the inquiry."

Sec.122(3) of the old CPC: "No statement

made by any person to a police officer or an

inquirer in the course of any investigation

under this chapter shall be used otherwise than

to prove that a witness made a different

statement at a different time, or to refresh his

memory of the person recording it. But any

criminal court may send for the statements

recorded in a case under inquiry or trial in

such court and may use such statements or

information, not as evidence in the case, but to

aid any such inquiry or trial. Neither the

accused or his agents shall be entitled to call

for such statements, nor shall he or they be

entitled to see them merely because they are

referred to by the Court; but if they are used

by the police officer or inquirer who made

them to refresh his memory, or if the court

uses them for the purpose of contradicting

such police officer or inquirer, the provisions

of the Evidence Ordinance, Sec. 161 or

Sec.145 as the case may be, shall apply.

Nothing in this section shall be deemed to

apply to any statement falling within the

provisions of Sec. 32(1) of the Evidence

Ordinance, or to prevent such statement being

used as evidence in a charge under Sec. 180 of

the Penal Code."

It is seen that the first part of the Section

122(3) of the old Criminal Procedure Code is

almost identical with the first part of Section

110(3) of the Present Criminal Procedure

Code.

In Rathnam v. Queen 74 NLR 317 Justice

Alles held thus:

(i) The accused-appellant was charged with

the murder of a person by shooting him from a

passing car in which the accused was

travelling. When the Police Inspector who

conducted the police inquiries immediately

after the commission of the alleged offence

was giving evidence at the trial, the

prosecuting Counsel elicited from him the fact

that when he reached the scene of the shooting

the chief prosecution witness K made oral

statements to him inculpating the accused,

which resulted in instructions being given for

the arrest of the accused. In the summing-up

the Jury were invited indirectly by the trial

Judge to accept the evidence of K because it

was corroborated by the statement which K

promptly made to the Police inculpating the

accused.

Held, that the effect of section 122 (3) of the

Criminal Procedure Code is to render the use

of an oral statement made to a police officer in

the course of a Police investigation just as

obnoxious to it as the use of the same

statement reduced into writing. Neither

Counsel for the defence nor Counsel for the

prosecution nor even the Court is entitled to

elicit, either directly or indirectly, material

CORPUS JURIS SL



which would suggest to a jury that the

contents of a statement to the Police made

either orally or recorded in writing

corroborates the evidence given by a witness

in Court. In the present case therefore, there

was a serious misdirection to the Jury when

they were invited indirectly by the trial Judge

to accept the contents of K's oral statements to

the Police as corroboration of to K's testimony

in Court.

"An analysis of Sec.122 (3) of the Criminal

Procedure Code would seem to indicate that-

(a) The statement can only be used for the

limited purpose of proving that a witness

made a different statement at a different

time or to refresh the memory of the

person recording it:

(b) Any criminal Court may send for the

statements recorded in a case under

inquiry or trial in such Court and may use

such statements or information not as

evidence in the case but to aid it in such

inquiry or trial:

(c) Neither the accused nor his agents shall be

entitled to call for such statements except

as provided for in the recent amendment

to the Criminal Procedure Code by Act

No. 42 of 1961, nor shall he or they be

entitled to see them because they are

referred to by the Court:

(d) If the statement is used by the police

officer or inquirer to refresh his memory

or if the Court uses them for the purpose

of contradicting such police officer or

inquirer the statement will be entitled to

be shown to the adverse party and such

party will be entitled to cross-examine the

witness thereupon."

It is seen from the above legal literature that

statements made by witnesses to the

investigating officer in the course of the

investigation cannot be used as evidence but

the court can peruse them to aid the inquiry or

trial. I have earlier stated as to how the

information book is used by court to aid the

inquiry or trial.

In King v. Soysa 26 NLR 324 His Lordship

Justice Jyawardene held: "A Judge is not

entitled to use statements, made to the police

and entered in the Information Book, for the

purpose of corroborating the evidence of the

prosecution."

In PAULIS APPU v. DON DAVIT. 32 NLR

335 "Where at the close of a case, the Police

Magistrate reserved judgment, noting that he

wished to peruse the information book,- Held,

that the use of the information book for the

purpose of arriving at a decision was

irregular."

In WICKREMESINGHE v. FERNANDO.

29 NLR 403 "Where a Magistrate referred to

the Police Information Book for the purpose

of testing the credibility of a witness by

comparing his evidence with a statement by

him to the Police,-Held, that the use of the

Police Information Book was irregular."

In INSPECTOR OF POLICE, GAMPAHA

v. PERERA 33 NLR 69 "Where, after

examining the complainant and his witnesses,

the Magistrate cited the Police to produce

extracts from the information book for his

perusal, before issuing process,- Held; that the

use of information book was irregular. "

CORPUS JURIS SL



In PEIRIS v. ELIYATAMBY 44 NLR 207

It was held that entries in a Police Information

Book cannot be used as evidence for the

purpose of testing the credibility of a witness.

Having considered the above legal literature

and observation, I hold that in criminal trials

court is not entitled to use statements made by

witnesses to the investigating police officer in

the course of the investigation as evidence. A

statement made by a witness to the

investigating police officer can be used for the

purpose of contradicting the witnesses but the

portion of the statement so produced cannot be

used as evidence. Such portion of the

statement can be used to decide the credibility

of the witness. I further hold that the trial

judge, when writing the judgment, is not

entitled to use statements made by witnesses

to the investigating police officer in the course

of the investigation which were not produced

at the trial.

The other question that must be decided is

whether the trial judge when writing the

judgment can use the evidence given by a

witness at the non summary inquiry which

was not produced at the trial as evidence. I

now advert to this question.

According to section 3 of the Evidence

Ordinance for an oral statement or written

statement or document to become evidence it

has to be produced at the trial. Then if it is not

produced at the trail it does not become

evidence. Then the trial judge cannot use such

a document. What is the position when trial

judge uses a document which was not

produced at the trial? If he uses it, does the

accused know it? The answer is no. It is an

accepted principle that the evidence must be

led in open court to be heard by the accused or

his pleader. This view is supported by section

272 of the Crminal Proceduure Code which

reads as follows: "Except as otherwise

expressly provided all evidence taken at

inquires or trials under this Code shall be

taken in the presence of the accused or when

his personal attendance is dispensed with in

the presence of his pleader."

It is an accepted principle in our criminal

justice system that no accused can be

convicted of the charge with which he is

charged except upon evidence produced at the

trial. Same rule will apply to acquittals too.

Thus if the trial judge uses evidence given at

the non summary inquiry or document which

is not produced at the trial he violates the

above principle. If he does so it would cause

severe prejudice to the accused. Thus the trial

judge is not entitled to use any evidence or

document not produced at the trial. At this

stage it is pertinent to consider the judgment

of the Court of Criminal Appeal in King v.

Namasivayam 49 NLR 289. The Court of

Criminal Appeal in the said case observed the

following facts. "The accused were charged

with being members of an unlawful assembly,

rioting, criminal trespass and causing hurt.

The defence did not contest the fact of

perpetration of the offence but did contest that

the prisoners on the trial were responsible for

it and the question of identification became, in

consequence, of extreme importance. Some of

the witnesses in the course of examination

stated that they could not remember the

presence of various accused, whereupon the

trial judge proceeded to examine them in the

following strain:

CORPUS JURIS SL



Q: You told the Magistrate that four people

came and one of them was the first accused.

What you said in the lower court, is that true?

A: Yes.

Q: If you told in the lower court that the first

accused was one of them is that true?

A: Yes.

Court held: that such examination let in as

substantive evidence the depositions made by

the witnesses before the Magistrate and that

such evidence was illegal and inadmissible."

Howard CJ in the said judgment observed

thus: "There is also another aspect of the

matter: the deposition of a witness before the

Magistrate can properly be used for the

purpose of contradicting a witness and not for

the purpose of corroborating him."

Considering the above legal literature and

observation I hold that in a criminal trial, trial

judge cannot use the deposition of a witness at

the non summary inquiry which is not

produced at that trial as evidence. But this

does not mean that he cannot use deposition of

a witness at a non summary inquiry produced

under section 33 of the Evidence Ordinance as

evidence.

In the present case the learned trial judge used

the statement of Nanda Gunawardene made to

the investigating officer in the course the

investigation and her evidence given at the

non summary inquiry which were not

produced at the trial as evidence. In view of

the above conclusion reached by me, the

decision of the learned trial judge to use above

documents as evidence is wrong. Therefore

the conviction of murder and the death

sentence will have to be set aside. The next

question is whether to order a retrial or

consider less culpability. The accused was

sentenced to death on 7.10.2005. If I order a

retrial such an order can be considered as

another punishment. I therefore intend to

consider lesser culpability. The deceased

person went and questioned the accused and

Harbour when they were scolding him using

filthy language. They assaulted the deceased

person. He was brought back home with a

bleeding injury. When questioned by

Mahindalal as to the dirty thing that accused

appellant did, he did not deny it and showed a

bleeding injury in his hand. The deceased died

of a stab injury. All these circumstances

establish that there was a fight between the

deceased and the accused appellant and

Harbour. Therefore the prosecution has

established beyond reasonable doubt that the

deceased died in the course of a sudden fight

between him and the two accused (the accused

appellant and Harbour). This is the one and

only conclusion that can be reached on the

facts of this case and no other conclusion is

possible. In these circumstances I convict the

accused appellant of the offence of culpable

homicide not amounting to murder on the

basis of sudden fight which is an offence

punishable under section 297 of the Penal

Code. Court is entitled to act on evidence of

defences such as sudden fight, grave and

sudden provocation or exceeding right of

private defence although such a defence was

not taken up by the accused appellant if such a

defence has been established by the

prosecution evidence. This view is supported

by the judgment in the case of The King v.

Bellana Vithanage Eddin 41 NLR 345

where Court of Criminal Appeal held thus: ''In

CO


Attorney-at-Law

a charge of murder it is the duty of

to put to the jury the alternative of

accused guilty of culpable not am

murder when there is any basis

finding in the evidence on record

such defence was not raised nor r

by the accused.

I sentence the accused appellant to

eight years rigorous imprisonment

pay a fine of Rs.2500/- carrying

සා�� ඇග!ම ස"බ�ධෙය� වැදග

ෙමම න� -.ෙ#� සා�� '(

සා��ක�වෙG Hමාදය සා�� ඇ

සා��යට ලැෙබන වIනාකම, ඌණ

�ලධා� �� ලබා ගනා සා�

ආකාරය වැ� '( වෘ*(කMට ව

CORPUS JURIS SL

is the duty of the Judge

lternative of finding the

able not amounting to

any basis for such a

ce on record, although

raised nor relied upon

appellant to a term of

prisonment (RI) and to

carrying a default

sentence of one month impriso

aside the conviction of murder

sentence. I direct the Prison A

implement the sentence of eight

the date of sentencing by the

Judge (7.10.2005). The learned

Judge is directed to issue a fre

indicating the sentence imposed

�ධෙය� වැදග� ක$% …….

සා�� '(ෙ�� වැදග* වන ෙබ�ෙහ9 ක�+ සාක2

ාදය සා�� ඇග;ෙ%� බලපාන ආකාරය, ඇ� .N සා��

ඌණතා ලK+ $�ෙ%� පව(න ත*වය, �ම�ශන

ා ගනා සා�� ඇ1ල* ෙත�ර1� ෙප�ත අ=කරණෙ�� භ

(කMට වැදග* ක�+ ,ස� ෙමC� සාක2ඡා E ඇත

Page 14

onth imprisonment. I set

of murder and the death

the Prison Authorities to

nce of eight years RI from

cing by the learned trial

The learned High Court

o issue a fresh committal

ce imposed by this Court.

�+ සාක2ඡා E ඇත.

.N සා��ක�ෙවKෙG

�ම�ශනෙ�� ෙප��ස්

කරණෙ�� භා�තා කරන

.

CORPUS JURIS SL



IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF

SRI LANKA

Ms Shiranee Tilakawardane J.

The Appellant has sought Leave to Appeal from the decision of the Court of

Appeal dated 17th June 2008 whereby the Court of Appeal upheld the

In the matter of an Application for

Special Leave to Appeal from the

Judgment of the Court of Appeal in

Case No: C.A 17/2004 dated

17.06.2008, under and in terms of

Article 128 of the Constitution

SC. Appeal No.04/2009 Kahandagamage Dharmasiri

Bogahahena

SC.SPL.LA No.165/2008 Godawela, Nihiluwa

C.A. Application No.17/2004 (Presently at the Welikada Prison)

HC Hambantota Case No.44/99 1st Accused-Appellant-Petitioner

Vs.

The Republic of Sri Lanka

Respondent-Respondent

BEFORE : TILAKAWARDANE J,

MARSOOF J, &

IMAM J.

COUNSEL : Saliya Pieris with Upul Kumarapperuma and Suranga

Munasinghe for Accused-Appellant

G. Kulatunga, SSC for Respondent-Respondent

ARGUED ON: 19th July, 2011

DECIDED ON: 03rd

February 2012

CORPUS JURIS SL



Judgment of the High Court of Hambantota. This Court granted Special Leave

to Appeal on 28th January 2009 on the following two questions of law.

i. Have the Courts failed to consider the serious and material omissions in

the main witness evidence?

ii. Have the Lordships of the Court of Appeal failed to scrutinize the

information book of the police officers to determine whether in fact valid

omissions subsist?

Parties filed their written submissions in terms of the Supreme Court Rules.

Parties were represented by Counsel and their submissions were heard. The

Court has considered the written submissions, oral submissions and the

pleadings that have been tendered to this Court.

The death of Arabada Gamage Nandawathie occurred due to an incident that

took place on 31st March 1993, at her residence in the district of Hambantota.

At the trial the Prosecution (hereinafter referred to as the Respondent) led the

evidence of two eye witnesses namely Kusumawathie, mother of the deceased

and Maduranga the son of deceased. The Accused – Appellant- Petitioner

(hereinafter referred to as the Appellant) along with two others stood trial

without a jury in the High Court of Hambantota.

The Appellant (the 1st accused in the case) and the 2nd accused were found

guilty and sentenced to death whilst the 3rd accused was acquitted on 29th

June 2004. The 2nd accused died pending the hearing of the appeal in the

Court of Appeal.

The incident that led to the murder of Arabada Gamage Nandawathie is not

disputed. The District Medical officer evidence concludes that the deceased was

shot twice. She was first shot in the chest and subsequently shot in the head

with both having been in close proximity.

The first question of law is based on Appellant’s assertion that the evidence of

the main witnesses has serious and material omissions insomuch as the first

eyewitness, Kusumawathie had revealed the names of the 2nd and 3rd accused

but failed to mention the Appellant in her statement to the police whilst the

second eyewitness, Maduranga’s statement was recorded three weeks after the

incident.

CORPUS JURIS SL



As it stands, the major question of law is pertinent to the failure or tardiness of

the 1st witness, in plausibly establishing the identity of the Appellant, as there

was no reference whatsoever provided in the contemporaneous first statement

made by her. This was never marked or produced as an omission at the trial.

This Court accepts that the statement of the 1st witness did not reflect the

identity of the 1st appellant, though he was known to her and the statement of

the 2nd witness was recorded belatedly. When considering the belated evidence

or a belated statement, one cannot neglect the basis for such delay which

transpired in the evidence. The Courts must look at the broader spectrum and

must take into account the holistic picture of the occurrences that the family

had been affected by, not forgetting the civil unrest and political tension in the

country during 1980’s to early1990’s during which the JVP (Janatha Vimukthi

Peramuna, a Marxist Sinhalese Political Party) insurrection took place

accounting to a large number of killings [Gunaratna, R. (1990), ‘Sri Lanka, a

lost revolution?: The inside story of the JVP’, Institute of Fundamental Studies,

Sri Lanka].The famous Embilipitiya abduction and murder case, Dayananda

Lokugalappaththi and eight others v. The State [2003]3 Sri. L.R 362, illustrates

the dark and bleak time period that brought consternation and struck an

almost unshakable fear into the hearts of the people of Sri Lanka.

It was in the backdrop of such times, that the husband of the deceased was murdered in 1989 and four years later, in this particular incident, the deceased was murdered at her residence, in front of her mother and her 9 year old son, who were the main eyewitnesses at the trial in the High Court. The first witness, the mother of the deceased, conceded at the trial that she had not disclosed the identity of the appellant in her first statement as the Appellant had instilled the fear of death into her, when, after shooting the deceased, he had aimed the same gun at her and threatened them with death if she informed or divulged his identity or his complicity to the police. The witness avers that she was so terrified, that even though she knew the identity of this assailant, she did not disclose his identity even to her youngest daughter Ranjinie, who was dispatched to the police station to report the murder. Understanding the state of mind of this first witness is not complex. As testified by her, she had to bear this secret without fail in order to safeguard the life of the only family that she had been left, her daughter Ranjinie and her 9 year old grandson. Under the circumstances she perceived them to be potential victims

CORPUS JURIS SL



and in imminent danger, being driven and motivated by pure human instincts to protect herself, her grandson and daughter. The potency of their bald fear was apparent when the family abandoned their family properties, and fled the village, due to the palpable fear that had been instilled in them through this incident. Given the circumstances any reasonable person would have acted in a similar manner as this witness, and it is reasonably conceivable that the deep fear and the sheer trauma and shock of the event would justifiably motivate her not to disclose the name of the appellant at the first given opportunity, when she recorded her first statement to the police. At the time the Appellant was not in custody. It is important that in evaluating the extent of the fear instilled and apprehended in the 1st witness, the cumulative effect of all the attenuate circumstances described by her be considered, realistically. The finding can only be concluded as a plausible and justifiable fear, which reasonably precluded her from mentioning the identity of the Appellant, who had made a directed and concerted threat to her life in the immediate aftermath of the incident. Although she knew the identity of the appellant, she would not compromise the safety of her family and could not dispel her own fear. Therefore the cause of the belatedness in testifying to the Appellant’s identity, which according to her, was the palpable and petrifying fear instilled into the witnesses by the 1st Appellant, when he threatened her with a gun to her head, directing her not to disclose his identity is accepted as a plausible and a reasonable ground for the initial non-disclosure by this witness. It is significant that this witness, in her first statement, named the others who accompanied the Appellant. The witness revealed in her testimony at the trial that the Appellant had fired the second shot at the deceased and proceeded to unfold a clear and consistent narrative of the events. No material contradictions were marked and an evaluation of the events proves beyond a reasonable doubt the presence of the eye witness, at the incident. In the case of Surendra Pal &Ors v State of U.P & ANR, Judgment held on 16th Septemeber 2010, Supreme Court of India states the following: “Merely because eye-witnesses did not give out the names of the accused persons while describing the cause of death in the inquest report did not render the presence of the eye-witnesses on the spot doubtful.” In addition to the reasons given above no material omissions or contradictions had been marked by the counsel for the defense at the trial, and the testimony of the 1st and 2nd witnesses, corroborated each other on all material aspects of

CORPUS JURIS SL



the case. This evidence was also corroborated by the independent, scientific forensic evidence and the Post Mortem Report. Therefore, this Court holds that the mere belatedness and failure of the 1st witness to name the appellant in the first statement, under the given circumstances does not render the witness’s evidence unreliable or lacking in testimonial creditworthiness; or the presence at the incident of the 1st and 2nd eyewitness doubtful. This court also concurs with the opinion of the Honourable Judge of the High Court and Their Lordships of the Court of Appeal that the evidence of the witnesses corroborates each other on all material aspects disclosing the consistency, reliability and credibility of their testimony. Therefore, the opinion of this Court is that the delay of disclosing the Appellant is understandable under the circumstances and agrees with the conclusions on this matter which is contained in the judgments of the High Court and Court of Appeal. The Appellant stressed on the fact that even the 2nd eye witness (the son of the deceased) Maduranga’s statement was belated and was as a consequence a fabrication and concoction. Whilst it is desirable for prompt statements to be made after an incident, the relevance is that this would pre-empt or forestall the likelihood of the opportunity for fabrication of the facts. It was held in the case of Sumanasena v. Attornery- General [1999] 3 Sri.L.R 137 at 140; “just because the witness is a belated witness the Court ought not to reject his testimony on that score alone and that a court must inquire into the reason for the delay and if the reason for the delay is plausible and justifiable the Court could act on the evidence of a belated witness”. This court must also in considering the testimony of the 2nd eyewitness determine two critical tests before considering belated evidence as reliable evidence: firstly, reasons for delay? And secondly, are those reasons justifiable? The first witness’s evidence states that Maduranga was nine years old when he witnessed his mother being murdered and after the incident he kept his ears closed until 8 a.m the following day. Maduranga claims in his evidence that he lost his speech for 5-10 minutes soon after the incident due to shock. The Court must necessarily take into account the level of trauma a child of such tender age would have undergone. To witness his mother, the only living parent being shot, would have without doubt petrified the child and in all probability caused irreversible trauma. The 1st witness alleged in her evidence that soon after the funeral of his father, her grandson Maduranga was sent to Colombo to live with his uncle Chandradasa, where he received psychiatric treatment and

CORPUS JURIS SL



commenced his studies at a new school. There is no evidence to evince that there was any contact between this witness and any other members of his immediate family, either directly or indirectly. Maduranga stated in his evidence that he did not discuss the incident with anyone until 3 weeks later; he first told his uncle Chandradasa what he witnessed, after which he made a formal statement to the police. This primary fact, has not been assailed or disbelieved, or challenged by any evidence. There was no evidence that this witness was tutored or coached or that he gave falsified evidence or that his evidence was a product of a rehearsed recital. At the trial, the learned High Court Judge, after hearing the evidence and reasons for belated statement by the first witness and Maduranga, had determined that delay did not assail the credibility of the witness. This Court holds that the reasons given to explain the delay in this witness making a statement, on the facts elicited at the trial, is reasonably plausible, conceivable and justifiable. Furthermore, this court unlike the trial courts does not have the benefit of observing the demeanor and the deportment of a witness in order to determine the credibility of the witness. As Justice Collin Thome stated in the case of Jagathsena v Bandaranayake [1984] 2 Sri L.R.397- “Deportment and demeanor as the all important factor when it relates to the arriving at of findings in regard to credibility even in a case where there were contradictions inter se in the evidence of the prosecution witnesses”. In this context, the learned trial High Court Judge had the privilege to witness, assess and understand the level of credibility that the 2nd witnesses possessed. As a result, the findings of the learned trial judge cannot easily be dismissed, especially in the absence of any plausible evidence that could be adverted to by the counsel for the Appellant. This court therefore finds the testimonial creditworthiness of this witness too has not been assailed. As the second question of law the Appellant has averred that the Court of Appeal had failed to peruse and read the contents of the statements recorded in the information book of the police officers. More specifically, the Appellant aver that 1) the omissions in the High Court evidence that was first brought to light in appeal were vital and serious omissions in the interest of justice 2) the Court of Appeal was in error to hold that the omissions need to be ‘marked’ at trial and 3) therefore the Court of Appeal erred in failing to use its wider power to peruse the information books as a result erred in affirming the Appellants conviction. To authenticate this position, the Appellant refer this Court to the two following

CORPUS JURIS SL



cases: Keerthi Bandara V. The Attorney General [2000] 2 Sri.L.R 245 and Banda and Others V The Attorney General [1999] 3 Sri. L.R, 168-174 In Keerthi Bandara’s case the Court of Appeal held that;

“We lay it down that it is for the judge to peruse the Information Book in the exercise of his overall control of the said book and to use it to aid the Court at the inquiry or trial. When defense counsel spots lights a vital omission, the trial judge ought to personally peruse the statement recorded in the Information Book, interpret the contents of the statement in his mind and determine whether there is a vital omission or not and thereafter inform the members of the jury whether there is a vital omission or not and his direction on the law in this respect is binding on the members of the jury. Thus when the defense contends that there is a vital omission which militates against the adoption of the credibility of the witness, it is the trial Judge who should peruse the Information Book and decide on that issue. When the matter is again raised before the Court of Appeal, the Court of Appeal Judges are equally entitled to read the contents of the statements recorded in the Information Book and determine whether there is a vital omission or not and both Courts ought to exclude altogether the illegal and inadmissible opinions expressed orally by police officers (who are not experts but lay witnesses) in the witness box on this point” (at page 258).

Indeed it is pertinent to note that in the present case the defense counsel did not spotlight a vital omission, and no omission was marked. Under the circumstances there was no burden for the trial judge to peruse the statements recorded in the information book. In Banda and Others case, His Lordship Justice Jayasuriya states the following;

“[t]he right to mark omissions and proof of omissions to the right of the judge to use the Information Book to ensure that the interests of justice are satisfied. Omissions do not stand in the same position as contradictions and discrepancies. Thus, the rule in regard to consistency and inconsistency is not strictly applicable to omissions... [t]he judge who has the use of the Information book, ought to use this book to elicit any material and prove any flagrant omissions between the testimony of the witness at the trial and his police statement in the discharge of his judicial duty and function” (at pages 172-173).

To demonstrate the Court of Appeals error further, the Appellant directed this

Court to Article 139 (1) & (2) of the Constitution:

CORPUS JURIS SL



“the Court of Appeal may in the exercise of its jurisdiction, affirm,

reverse, correct or modify any order, judgment, decree or sentence

according to law or it may give directions to such court of first instance,

tribunal or other institution or order a new trial or further hearing

upon such terms as the Court of Appeal shall think fit”.

“The Court of Appeal may further receive and admit new evidence

additional to or supplementary of the evidence already taken in the

Court of First Instance touching the matter at issue in any original

case, suit, prosecution or action as the justice of the case may require”.

While this Court considers the Appellants suggestions and of his Lordships reasoned judgments, this Court logically will have to explore the answers to the following questions: 1) did the Appellant bring to the trial Judges notice the material in contradiction? Or 2) did the trial Judge discover discrepancies in the evidence that requires him to view the Information Book? 3) Did the trial Judge execute his duties adequately and provide a judgment in the interest of justice?4) Did the Court of Appeal error in failing to scrutinize the Information Book to determine omissions? The Appellant could not bring to the notice of the trial Judge any material in contradictions in the evidence which assailed, in any manner, the credibility of the witnesses. Nevertheless, in the event the Appellant fails to mark out discrepancies and if the trial Judge perceives contradiction in evidence that is likely to hinder the interest of justice he may inspect the Information Books.

This Court accepts the presumption made by the Court of Appeal that the learned trial Judge certainly had the benefit of determining the witnesses’ credibility both under examination-in-chief and under cross-examination and has arrived at a reasonable finding that in the interest of justice, the Courts had overlooked the inconsistencies in the witness statements and evidence at the trial due to various reasonable circumstances in the aforementioned. In Fattal v Wallbrook Trustee (Jersey) Ltd, CA [2008] EWCA Civ 427 the Court of Appeal of England and Wales observed the following:

“An appellate court should not interfere with case Management decisions by the Judge who had applied the correct principles and who had taken in to account matters which should be taken into account and left out of account matters which are irrelevant”.

Accordingly, the opinion of this Court is that the Court of Appeal was in the right not to interfere with the trial Judges case decisions as the learned trial

CO


Attorney-at-Law

Judge had applied correct pCourt of Appeal to “reversesentence according to law” osupplementary of the evidetouching the matter at issuethe justice of the case may Constitution. “A criminal trial is meant society so that law and ordcriminal trial merely to seepresides to see that a guiltyother. Both are public dutAdministration) 2000 SCC For the aforesaid reasons, tof Appeal is affirmed. No Co MARSOOF J. I agree. IMAM J. I agree.

CORPUS JURIS SL

rrect principles. As a result there was no necreverse, correct or modify any order, judgme law” or “receive and admit new evidence ade evidence already taken in the Court of Ft issue in any original case, suit, prosecutione may require” as directed in Article 139 (1)

eant for doing justice to the accused, vicnd order is maintained. A Judge does not pto see that no innocent man is punished. Aguilty man does not escape. One is as imp

duties.”[Ambika Prasad and Another v 0 SCC Crl.522]

ons, the Appeal is refused and the JudgmentNo Costs.

JUDGE OF THE SUPREME CO



Page 23

o necessity for the udgment, decree or nce additional to or rt of First Instance ecution or action as 39 (1) & (2) of the

d, victim and the not preside over a hed. A Judge also s important as the

her v State (Delhi

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CORPUS JURIS SL



Documents

Corpus Juris SL 4 - hpalpola.files.wordpress.com fileCORPUS JURIS SL Haris Palpola,LL,B. Hons-OUSL Attorney-at-Law Page 2 1. Don't criticize, condemn, or complain. 2. Give honest and