INDRANANDA DE SILVA v. LT. GEN. WAIDYARATNE AND OTHERS

025-SLLR-SLLR-1998-1-INDRANANDA-DE-SILVA-v.-LT.-GEN.-WAIDYARATNE-AND-OTHERS.pdf


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indrananda de Silva v. U. Gen. Waidyaratne and Others
175
INDRANANDA DE SILVA
v.LT. GEN. WAIDYARATNE AND OTHERS
SUPREME COURTFERNANDO, J.
AMERASINGHE, J. ANDWADUGODAPlTlYA, J.
S.C. APPEAL NO. 19/97COURT OF APPEAL NO. 863/93GENERAL COURT MARTIALL/C. 90882
OCTOBER 16TH, 1997, NOVEMBER 26TH, 1997.
Writ of certiorari – Court Martial – Offences under the Army Act – Convictionbased on illegal evidence – Natural Justice.
The appellant, a Lance Corporal attached to the Sri Lanka Military Police Corpswas convicted before a General Court Martial of certain offences under the ArmyAct. A confession made by the appellant during the preliminary investigations whichthe prosecution offered in evidence was rejected by the Court after a voir direinquiry. Thereafter, the prosecution led in evidence a statement from the dockpurporting to have been made by the appellant during the inquiry against himfor recording a summary of evidence. That statement was received in evidencedespite objection as to its voluntariness and without a voir dire inquiry. Theconfession which was rejected and the 'Statement from the dock" were identicalin length and content The main complaint of the appellant was that the proceedingshad against him before the General Court Martial were procedurally defectiveand contrary to natural justice.
Held:
It was apparent that what was recorded at the inquiry for recording a summaryof evidence was not any statement which the appellant in fact made from thedock, but the confession which he is alleged to have made earlier and whichwas rightly rejected at the trial. The self same confession was later admitteddisguised as a ‘Statement from the dock* without testing its voluntariness. Assuch, it was not lawfully admitted in evidence by the Court. The other evidencewas insufficient to sustain the charges against the appellant; and he is, therefore,entitled to a writ of certiorari quashing his conviction.
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APPEAL against the judgment of the Court of Appeal.
Ranjan Mendis with Sarath Weerasinghe, Mrs. Lakshmi Mendis, K. A Manamperi,Bernard Peterson and J. A Wickremanayake for the appellant
W. P. G. Dep, DSG with N. Pulle SC for the respondents.
Cur. adv. vult.
December 16, 1997.
WADUGODAPITIYA, J.
The appellant, a Lance Corporal, who joined the Sri Lanka MilitaryPolice Corps in 1987, was functioning in the capacity of photographerof his unit, when on 14. 3. 90, he was taken into custody onthe orders of the Commanding Officer of the Military Police, Lt. Col.B. I. S. Dissanayake, as he was suspected of being involved insubversive activity with the Janatha Vimukthi Peramuna (JVP).
In the course of investigations into the activities of a JVP leadernamed Saman Piyasiri Fernando, the Criminal Investigations Departmentrecovered several photographs of the Military Police Headquarters atNarahenpita and of Army Headquarters at Panagoda, and also asketch of the Headquarters of the Military Police at Narahenpita, froma JVP activist named Muthu Banda. The handwriting on the sketchconsisted of several English words and five words in the Sinhalalanguage. The appellant's Commanding Officer had said he couldidentify the handwriting of the five Sinhala words as that of theappellant as he was familiar with the handwriting of the appellant.The Commanding Officer had further said that the photographs whichwere recovered, came from the photographic laboratory of the MilitaryPolice Headquarters.
The Army commenced a preliminary investigation, conducted byLt. Kumarasena, in the course of which the appellant made a detailedconfession running into about thirty pages in length to the saidLt. Kumarasena. In that he admitted his involvement with the JVPand their activities; that he had passed military intelligence to the JVP;that he had prepared a sketch of the Headquarters of the MilitaryPolice; that he had also taken photographs of the Military PoliceHeadquarters and of the Army Headquarters at Panagoda immediatelyafter the JVP attacked it, and that he had given the sketch and the
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photographs to a JVP leader named Dushan. Inasmuch as thisconfession was made to Lt. Kumarasena, an officer superior in rankto the appellant, (who was a Lance Corporal), the former was com-petent to record such confession.
At the conclusion of the said investigation, the appellant wastransferred to the Detention Camp at Panagoda. Seven months later,he was produced before Major D. D. Abeywickrema for the purposeof holding an inquiry against the appellant and recording a summaryof evidence in terms of Regulation 48 (2) (c) of the Army DisciplinaryRegulations. In the course of this inquiry the appellant made astatement from the dock. I must here mention the fact that thisstatement from the dock made before Major Abeywickrema turnedout to be identical with the confession which the appellant had madeto Lt. Karunasena during the preliminary investigation seven monthsearlier. At the request of this court, learned Deputy Solicitor-Generalcarefully compared the two documents, viz, the confession madeto Lt. Karunasena and the statement from the dock made before MajorAbeywickrema, and conceded that the two documents were identical,both in length and content.
Thereafter, on 20. 9. 91, the 6th respondent made order that theappellant be tried before a General Court Martial upon two charges(vide charge sheet marked XP1). viz, that he –
whilst serving in the Military Police Headquarters, Narahenpita,did treacherously hold correspondence with or give intelligenceto subversives (enemy) by giving them a sketch of thelayout of the said Military Police Headquarters, together withinformation relating to the Armoury of the said Military PoliceHeadquarters, and also details of the strength and locations ofthe several sentries at the said Military Police Headquarters,and did thereby commit an offence punishable under section95 of the Army Act, No. 17 of 1949, and
whilst serving in the said Military Police Headquarters,Narahenpita, during the period from about 1. 1. 89 to about13. 3. 90, did consort with subversive elements (enemy)resulting in conduct prejudicial to military discipline, and didthereby commit an offence punishable under section 129 (1)of the Army Act, No. 17 of 1949.
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The trial lasted from 11.11.91 to 23. 6. 93 before a tribunal ofthree Army officers, of whom the 2nd respondent was the Presidentand the 3rd and 4th respondents, the other members. The 5threspondent functioned as Judge Advocate. This Military Court foundthe appellant guilty on both counts and sentenced him to 15 yearsimprisonment.
Thereupon the appellant, in terms of the Army Act, forwarded anapplication for revision to the President of Sri Lanka, praying that hisconviction be quashed, but received no reply thereto.
It was thereafter that the appellant resorted to the Court of Appealseeking a Writ of Certiorari to quash his conviction and sentence, andalso seeking a Writ of Mandamus to direct the Commissioner ofPrisons (8th respondent) to release him from custody.
The Court of Appeal by its judgment dated 5. 6. 96 (XP10) refusedto issue the Writs prayed for and dismissed the appellant's application.The present appeal is against that judgment.
Special leave to appeal was granted by this Court on the followingquestions of law
“Is there a statutory prohibition that imposes, in terms of section129 (2) of the Army Act, No. 17 of 1949, which enjoins the6th respondent-respondent above-named from preferring thecharge sheet XP1 which contains charges under section 95 (c)in joinder with section 129 (1) of the Army Act?" and,
"Is the admission of the confessional statement of the appellantallegedly recorded by Major Abeywickrema, without an inquiryinto the question whether it was voluntary or not, an illegality?"
I will now consider the second question first.
The main complaint of the appellant is that the proceedings hadagainst him before the General Court Martial were procedurally defectiveand therefore bad in law. He adds that the conduct of the proceedingswas contrary to natural justice and to the rules of evidence and criminalprocedure.
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It transpired that at the appellant's trial before the General CourtMartial, Lt. Karunasena was called by the prosecution to lead inevidence the thirty-page confession made by the appellant. Uponobjection being taken by the defence, a voir dire inquiry was held,after which the objection was upheld and the Court unanimouslyrejected the confession as not having been made voluntarily. Nocomplaint is made about that. The confession made to Lt. Karunasenawas thus rightly shut out.
Thereafter, however, despite objection to its voluntariness, theprosecution was allowed to call Major Abeywickrema to lead in evidencethe appellant's statement from the dock made when he recorded thesummary of evidence. No voir dire inquiry was held as to thevoluntariness of this statement, but it was admitted in evidence throughMajor Abeywickrema on the ground that it was really, only a statementfrom the dock made by the appellant at his inquiry where a summaryof evidence was recorded, and was therefore not a confession properlyso called. In the course of the oral argument before us, learnedCounsel for the appellant submitted that this statement from thedock made by'the appellant and now admitted in evidence, wasidentical to the already rejected thirty-page confession recorded byLt. Karunasena. That confession was not available, and the hearingwas adjourned to enable Counsel to look into the matter. When Courtresumed, it was conceded by learned Deputy Solicitor-Generalafter careful comparison, that both the confession (recorded byLt. Karunasena) and statement from the dock (recorded by MajorAbeywickrema) were identical in length and in content. It was commonground that at the time the appellant made his statement from thedock he had neither a copy of this confession nor any document withwhich to refresh his memory. It is clear beyond any reasonable doubtthat what was recorded was not any statement he made from thedock, but his alleged confession.
The resulting position then was, that although the Court shut outthe confession after a voir dire inquiry, it admitted in evidence thelatter statement from the dock, in the teeth of objection by the defence,without testing its voluntariness in any way. Thus, the selfsameconfession which had failed the test of voluntariness and was rightlyshut out earlier, was now admitted in evidence disguised as a"statement from the dock." There is no question that such confession,howsoever camouflaged, should ever have found its way into the bodyof evidence at a later stage of the same trial through a different
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witness and, as it now turns out, this piece of evidence so admitted,happened to be the only substantial evidence in the possession ofthe prosecution, without which the case against the appellant wouldmost certainly have failed.
It was contended, however, by learned Deputy Solicitor-Generalwho appeared for the respondents that the statement from the dockrecorded by Major Abeywickrema in pursuance of Regulation 48 (2)(c) of the Army Disciplinary Regulations, was voluntarily made by theappellant inasmuch as it was recorded after the appellant was cau-tioned, and after he was told that he was not obliged to say anythingunless he wanted to do so, but that whatever he said would be takendown in writing and put in evidence at his trial. He argued that thereforea statement from the dock was something quite different and distinctfrom a confession made to an officer in authority, and would thereforenot require a voir dire inquiry to ascertain whether it was madevoluntarily or not. The appellant he said could not later complain thatthe statement was not voluntarily made by him for the reason thathe had the opportunity of remaining silent if he so wished, and ofrefraining from making the said statement from the dock. In otherwords, since the appellant voluntarily made a statement from thedock in pursuance of the statutory provisions aforementioned, suchstatement was admissible without more ado, since by its very natureit is deemed to have been made voluntarily, and so, could lawfullybe made use of as evidence at the trial. Learned D.S.G furthercontended that when the appellant opted to make a statement fromthe dock in terms of the aforementioned Regulation 48 (2) (c), allthat Major Abeywickrema did was to merely record the statement justas a Magistrate would have done at a non-summary inquiry. Thereforesuch a statement from the dock carried no taint of coercion of anysort was, by its very nature, to be presumed to have been madevoluntarily. I
I would certainly agree with these submissions, if the statementfrom the dock was in fact what it was held out to be. But, it was;not; for, what the statement from the dock turned out to be was averbatim repetition of the thirty-page confession made by the appellantto Lt. Karunasena, which was earlier rejected by the selfsame Courtafter a voir dire inquiry, as not having been voluntarily made. It isinconceivable by any stretch of the imagination that this appellant oranyone else, for that matter, could ever have made a statement from
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the dock repeating word for word what he is alleged to have spelledout in detail in a lengthy thirty-page confession seven monthsearlier. In any event, there is not even a suggestion that the appellantreferred to any document when he made the statement from thedock. It does not need much imagination to conclude that, when theappellant told Major Abeywickrema that he was prepared to make astatement from the dock, what Major Abeywickrema in fact did, wasto simply introduce the earlier thirty-page confession into the summaryof evidence as being the appellant's statement from the dock.'
I therefore cannot agree with learned D.S.G that the appellant'sstatement from the dock had been correctly and lawfully admitted inevidence by the Court.
If this so called "statement from the dock" is thus shut out andnot admitted in evidence, the question that arises is, whether thereis any other independent credible evidence left to support the chargeslevelled against the appellant
Learned Deputy Solicitor-General was helpful in itemizing whatremained of the evidence against the appellant which I set out below.
Certain photographs of the Military Police Camp and thePanagoda Army Camp marked P2A1 to L1 were produced bythe prosecution. According to witness Lt. Col. Dissanayake, theappellant's Commanding Officer, these photographs were fromthe Military Police Laboratory. Suspicion therefore fell on theappellant because he was one of the photographers attachedto the Military Police Unit and it was his job to take photographswhen directed to do so. There was however, no evidence inany way connecting the appellant with the photographs P2A1to L1. Thus, the evidence regarding the photographs was ofno evidentiary value as far as the charges went, for, theprosecution failed to prove either that they were taken by theappellant or that the appellant gave them to the JVP activistsas alleged.
The sketch marked P1 constituted the other possible evidenceagainst the appellant. This sketch which was a rough freehanddrawing, which sought to depict the Military Police Headquartersat Narahenpita. It was recovered from a JVP leader named
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Muthu Banda and it was alleged that the appellant drew thesketch and handed it to a JVP leader named Dushan (throughwhom it reached Muthu Banda). According to witness, Lt. Col.Dissanayake, the appellant's Commanding Officer, the handwrit-ing of the five Sinhala words on the sketch (P1) was that ofthe appellant. Witness said he was shown the sketch P1 bythe C.I.D and on examining it by looking at it, he was ableto identify the appellant's handwriting as he was familiar withit; the appellant being a functionary under him. On severaloccasions the appellant had submitted vouchers to the witnessfor authorisation of money claims and had also submitted severalleave chits for authorization of leave of absence. However, noneof the appellant's vouchers or leave chits was produced at thetrial.
Although this type of identification of handwriting is maderelevant by section 47 of the Evidence Ordinance, it remainsa mere expression of opinion of a non-expert. Further, therewere only five short words written in Sinhala on the sketch P1,and it would be highly questionable whether a non-expert could,by merely looking at them, say they were written by theappellant. As I said before, none of the vouchers or leave chitsactually written by the appellant was produced. If this wasdone, the Tribunal would have had the opportunity of makinga comparison, and thereafter arriving at a conclusion. In anyevent, the handwriting of some of the words appears to be quitedifferent to the others. I therefore do not think that the mereopinion of a layman, though admissible under section 47 Of theEvidence Ordinance, would carry any evidentiary weight.
Instead of obtaining the assistance of the Examiner ofQuestioned Document (EQD), Lt. Col. Dissanayake sent thesketch (P1) and the photographs to Captain Siyambalapitiya forfurther examination. This witness, Capt. Siyambalapitiya, did nothold himself out to be an expert on handwriting, and indeedwas not. Instead, he too claimed to be familiar with theappellant's handwriting, and if was this familiarity, coupled witha comparison of the appellant's handwriting with some of his(the appellant's) note books, and with specimen handwritingobtained from the appellant that led witness Siyambalapitiya to
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conclude that the five Sinhala words in the sketch P1 werewritten by the appellant. Here too, it must be observed that thistype of comparison and consequent tendering of opinions bylaymen, in respect of charges as serious as those faced bythe appellant (the first of which carried the possible penalty ofdeath), is, to say the least, extremely dangerous.
I must here make the observation that when a recognisedexpert, viz, the Examiner of Questioned Documents (EQD), whosecompetence in the field of examining handwriting is acknowledged,was readily available, it is inexplicable why this task of examining thesketch P1 was entrusted instead, to unqualified persons.
I must also make mention of the fact that even where the EQDhimself expresses an opinion on handwriting, the Court must itselfcome to its own conclusion independently of that of the EQD. It canthereafter decide whether the EQD's opinion is credible, before acceptingand acting upon it. In the instant case too, the Court itself ought tohave examined the sketch (P1); made the necessary comparisons,and then formed its own opinion as to the handwriting on P1independently of the opinion of the witnesses. On the contrary,what appears to have happened in the instant case, is that the Courtnever did give its mind to that question and never did satisfy itselfindependently of the opinion expressed by the lay witnesses. It wasunsafe to act on the mere ipse dixit of the witnesses in a situationsuch as this. Such action has resulted in the court accepting as truethe evidence of these two witnesses that the sketch P1 was in factthe handiwork of the appellant. .This I find is wholly unacceptable andtherefore, this evidence must be rejected as being, at the lowest,unsafe to be acted upon.
Thus it is clear that all the items of evidence thus enumeratedare of no evidentiary value and would not in any way support thecase for the prosecution. The resultant position is that once theconfessionary "statement from the dock" is excluded, there is nomaterial whatsoever that the prosecution is left with that would warrantthe conviction of the appellant. Theconviction of the appellant on bothcounts cannot therefore be sustained and must necessarily fail. Thusthere is no room for the provisions of section 167 of the EvidenceOrdinance to be called in aid by the prosecution.
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All that is left now is to consider the judgment of the Court ofAppeal. For the reasons set out above, it is not possible to agreewith the conclusion arrived at by the Court of Appeal when it statesthat the confession of the appellant was admitted after voir dire inquiry.This was not so. I also cannot agree with the learned Judge of theCourt of Appeal when he says at page 6 of his judgment, that "therewas ample evidence before the Court Martial to find the petitionerguilty of the charge of passing a sketch of the Military Police Head-quarters to the subversives". On the contrary there is, in fact, noevidence at all that the appellant did any such thing. The learnedJudge also seems to have accepted the evidence of Li. Col. Dissanayakewhen he says, at page 3 of his judgment, "Lt. Col. Dissanayake, theCommanding Officer of the petitioner had identified the handwritingof the petitioner on the documents recovered. There was evidenceto prove the photographs originated from the photographic laboratoryof the Military Police".
The identification of handwriting by this witness, as discussedearlier, is not worthy of consideration and further, even if the pho-tographs did come from the Military Police laboratory, there is noevidence at all to connect the photographs with this appellant.
Although the learned Judge accepts the. evidence of Lt. Col.Dissanayake he does not even advert to the evidence of Capt.Siyambalapitiya. Neither does he advert to the most important itemof evidence in this case, viz, the improper admission in evidence ofthe appellant's confessionary "statement from the dock". This is inspite of the fact that the learned Judge makes mention of the factthat it has been brought to the notice of Court as ground No. 4 ofthe grounds of appeal (vide page 4 of the Judgment of the Courtof Appeal) in the following way: “(4) The failure to examine thevoluntariness of the confessionary statement made by the petitionerto Major Abeywickrama".
As discussed in detail above this confessionary statement from thedock must be rejected, and once that is done, there is no otherevidence left to sustain the two charges.
In the circumstances, it is not necessary for me to decide the firstquestion regarding joinder of charges.
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For the above reasons I would allow the appeal, and direct thata Writ of Certiorari do issue quashing the conviction of the appellant.
I also make order directing the 8th respondent to release theappellant from custody forthwith.
A sum of Rs. 15,000 will be paid to the appellant as his costsby the State.
FERNANDO, J. – I agree.
AMERASINGHE, J, – I agree.
Appeal allowed.
Writ of Certiorari issued.