007-SLLR-SLLR-2008-V-1-NANDANA-v.-ATTORNEY-GENERAL.pdf
Nandana v Attorney-General
CA51
NANDANAv
ATTORNEY-GENERALCOURT OF APPEALIMAM, J.
SARATH DE ABREW, J.
CA 58/2005
HC 1520/2000 PANADURANOVEMBER 23, 2006APRIL 4, 2007JULY 18, 2007FEBRUARY 6, 2008APRIL 28, 2008AUGUST 20, 2008
Penal Code – S296 – Convicted – Placing burden on the defence to rebutprosecution evidence – Is it fatal? Retrial – Would it meet the ends of justice?- Discretion vested in Court – Criminal Procedure Code S335 (2) a -Constitution Art 13 (5) Art 138 – Evidence Ordinance S114.
The accused-appellant was indicted and convicted for the murder of his ownfather, and sentenced to death. In the appeal it was contended that, the trialJudge has committed a very serious and fundamental misdirection of law byattaching a burden on the defence to rebut the prosecution evidence, and dueto the filmsy nature of the evidence and due to the long lapse of time since thedate of the incident, ordering a retrial would not meet the ends of justice.
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Held:
Imposing a burden on the accused to prove his innocence is totallyforeign to the accepted fundamental principles of our Criminal Law asto the presumption of evidence.
Per Sarath Abrew, J.
"The mis-statements of law by the trial Judge would tantamount to a denial ofa fundamental right of any accused as enshrined in Art 13(5) of theConstitution – a misdirection on the burden of proof is so fundamental in acriminal trial that it cannot be condoned and could necessarily vitiate theconviction."
Held further
A discretion is vested in the Court whether or not to order a retrial ina fit case, which discretion should be exercised judicially to satisfy theends of justice taking into consideration the nature of the evidenceavailable, the time duration. Since the date of appeal, the period ofincarceration the accused had already suffered, the trauma andhazards an accused person would have to suffer in being subject to asecond trial for no fault on his part and the resultant traumatic effectin his immediate family members who have no connection to thealleged crime, should be considered.
In the circumstances of this case, the interests of justice would notrequire the appellant to be subjected to a protracted second trial,especially so where the only eye witness has made a belatedstatement and the time duration since the date of the incident isalmost 10 years.
APPEAL from a judgment of the High Court of Panadura.
Cases referred to:
In Re M.A.S. de Alwis – (1972) 75 NLR 337
Keerthi Bandara v Attorney General – 2SLR 245 at 261
Peter Singho v Warapitiya – 55 NLR 157
Queen v Jayasinghe – 69 NLR 413
L.C. Fernando v Republic of Sri Lanka – 79(2) 313 at 374
Ranjith Abeysuriya PC with Thanoja Rodrigo for appellant.
Priyantha Navana, Senior State Counsel for Attorney-General
Nandana v Attorney-General
CA(Sarath de Abrew, J,)53
October 19, 2008SARATH DE ABREW, J.
The accused-appellant (hereinafter sometimes referred to as 01the "Appellant”) was indicted before the High Court of Panadura forhaving committed the murder of his own father WarnagodagePunyasiri Ratnasuriya on 07.02.1999 at Wadduwa under section296 of the Penal Code. After trial without a jury the learned trialJudge had convicted the appellant for the offence of murder undersection 296 of the Penal Code and sentenced him to death. Beingaggrieved of the aforesaid conviction and sentence the appellanthad preferred this Appeal to this Court.
The only eyewitness Meegama Archarige Isira, a neighbour, 10had given evidence for the prosecution followed by I.P.Karunatilleke Bopitiya, then OIC Crimes, Wadduwa Police Station,who had conducted the investigations. Thereafter, then AJMOColombo, Dr. Chandrasiri Herath had given evidence regarding thepost-mortem Examination and injuries on the body followed by theInterpreter Mudaliyar Suduhetti, whereupon the prosecution hadclosed its case producing in evidence P1-P3 as productions.Thereafter the accused has given evidence from the witness-boxdenying complicity and the defence had called one MaliniAriyaratne, a Medical Records Officer of the Colombo General 20Hospital.
The facts pertaining to this case briefly are as follows. Thedeceased, whose second son was the accused, used to live atGnanatilleke Road, Morontuduwa, Wadduwa, about 04 to 05houses away from the residence of eyewitness Isira. The deceasedwas subsequently estranged from the family, lived elsewhere andused to visit his family often. At the time of the incident thedeceased Punyasiri was staying with elder brother Sumanadasa acouple of houses away from that of witness Isira, where theappellant was residing at Wellaboda about 01 mile away.30
According to eyewitness Isira, on the morning of 07.02.99, hewas working in their garden getting ready to put a concrete layer attheir kitchen furnace while his parents, younger brother and sistertoo were present at their house. Around 10.30 – 11.00 a.m. that
54Sri Lanka Law Reports[2008] 1 Sri L.R
morning the deceased had come running towards the house of Isirafrom the direction of the road with his son the accused-appellant inhot pursuit around 10 feet behind. The deceased had told Isira thathis son is coming to assault him and the appellant too had utteredan obscenity to the effect that that he is going to kill the deceased.
As the deceased reached the front step of Isira's house, the 4appellant had picked up a milla club (P1) which had been there foruse in the concrete work of Isira, and dealt a blow on the head ofthe deceased. After the deceased fell on the step of the house, theappellant had dealt a second blow on the forehead of thedeceased, at which point Isira had intervened and wrested the clubfrom the appellant and thrown it away, while himself suffering a clubblow into the bargain. Thereafter witness Isira had dragged awaythe accused-appellant towards the road and sent him away andsubsequently had rushed the injured person to the ColomboGeneral Hospital where he was pronounced dead the following day 5after emergency surgery. Witness Isira had made a statement tothe police two days later on 09.02.1999. According to Isira themotive for the attack was not known. The appellant, who hadapparently, attended the funeral too, had surrendered to the policeon 15.02.1999.
I.P. Bopitiya had testified as to the presence of blood stains atthe front step of Isira's house and as to the recovery of the club (P1)from the compound of Isira. AJMO Dr. Herath had testified to thepresence of 05 external injuries on the skull and forehead of thedeceased and that the injuries were necessarily fatal. The cause of 6<death given was due to Craniocerebral injuries caused by "blunt"weapon.
The accused-appellant, while denying complicity, testified thathis father the deceased had deserted his mother and family whenhe was about 08 to 09 years of age and had gone to Negombo tolive with another woman. The appellant further stated that he wasa fisherman by profession and on the fateful day 07.02.1999, hewas engaged in "madal fishing". Thereafter he had gone to hisfiancee's house closely and attended a birthday party of hisfiancee's elder sisters daughter the following day. Subsequently he 7had gone Galle to visit a friend who had informed the appellant thathis father was in hospital on the night of 08.02.1999. He had gone
Nandana v Attorney-General
CA(Sarath de Abrew. J.)
to the cemetery where his father's funeral was held. Subsequently,on learning that he was wanted by the police in connection with hisfathers' death he had surrendered to the police. Another witnesswas called on behalf of the defence to testify to the history of thepatient as recorded on the bed-head ticket.
At the hearing of the Appeal, the learned Counsel for theappellant adduced the following contentions in support.
In the judgment, the learned trial judge has committed a sovery serious and fundamental misdirection of law, asreflected in page 154 of the original record which vitiated theconviction, by attaching a burden on the defence to rebutthe prosecution evidence, which would necessitate a retrial,
as conceded by the learned Senior State Counsel.
Adducing several authorities in support, the learnedCounsel for the appellant submitted that due to theostensibly flimsy nature of the evidence available and due tothe long lapse of time since the date of the incident, ordering
a retrial would not meet the ends of justice.90
On the other hand, the learned senior State Counsel, whileconceding that the fundamental defect in the judgment of thelearned trial judge imposing a burden of proof of innocence on theaccused (page 151 of the original record) vitiated the conviction,nevertheless submitted that as the evidence of eyewitness Isira iscorroborated by the medical evidence and well-supported by theevidence of IP Bopitiya who had observed blood stains at the door-step of the house of the eyewitness, there was ample evidence tojustify a conviction, and therefore this is a fit and proper case to besent for re-trial.100 I
I have perused the totality of the proceedings, the InformationBook Extracts and the written submissions tendered by bothparties. On a perusal of the judgment of the learned trial judge thefollowing glaring misdirection of law as to the required burden ofproof appear on the record which would necessarily vitiate theconviction and sentence. The learned Senior State Counsel too hasconceded this fundamental error on the part of the learned trialjudge which would have prejudiced the substantial rights of the
The above mis-statements of law by the learned trial judgewould tantamount to a denial of a fundamental right of any accusedperson as enshrined in Article 13(5) of our Constitution whichstipulates that "Every person shall be presumed innocent until he isproved guilty." In the case of M.A.S. de Alwis<1> G.P.A. de SilvaS.P.J. held that a misdirection on the burden of proof is so 13cfundamental in a criminal trial that it cannot be condoned and wouldnecessarily vitiate the conviction.
Therefore I am in total agreement with the learned Counsel forthe appellant and the learned Senior State Counsel that the twomis-statements of law highlighted above would suffice to vitiate theconviction and sentence imposed in this case.
It is now left to decide whether the nature of the evidence ledin this case and the time duration that has elapsed would justifyordering a retrial to meet the ends of justice. On this issue thelearned Counsel for the appellant and the learned Senior Counsel uofor the Attorney-General are in conflict with each other and haveadduced contrasting arguments. I have carefully considered theoral and written submissions of both parties on this issue, and alsothe case law authorities submitted on behalf of the appellant.
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appellant and occasioned a failure of justice under the proviso toarticle 138 of the Constitution.111
trial judge had therefore sounded a death knell on the convictionand death sentence per se by imposing a burden on the accusedto prove his innocence which is totally foreign to the acceptedfundamental principles of our criminal law as to the presumption ofinnocence. Further at page 154 of the original record, the learned
that there is a burden on the defence to rebut the prosecutionevidence.
There too she introduces a concept foreign to our Criminal Law
120
trial judge in her judgment, further ventures to state
The leaned
At pages 150-151 of the original record, in her judgment, the
learned trial judge had stated
CANandana v Attorney-General57
(Sarath de Abrew, J,)
Section 335 (2) (a) of the Code of Criminal Procedure, Act, 15 of1979 provides that in determination of appeals in cases where trialwas without a jury, the Court of Appeal may reverse the verdict andsentence and acquit or discharge the accused or order him to beretried. Therefore a discretion is vested in the Court whether or not toorder a retrial in a fit case, which discretion should be exercisedjudicially to satisfy the ends of justice, taking into consideration thenature of the evidence available, the time duration since the date ofthe offence, the period of incarceration the accused person hadalready suffered, and last but not the least, the trauma and hazardsan accused person would have to suffer in being subject to a secondtrial for no fault on his part and the resultant traumatic effect in hisimmediate family members who have no connection to the allegedcrime.
The learned counsel for the appellant had based hissubmissions on two grounds that this is not a fit case to order a retrial,namely:-
The infirmities in the evidence of the prosecution based solelyon the only eyewitness Isira.
The time duration from the date of offence 07.02.99 up to nowbeing almost 10 years.
On a consideration of the first ground as to the infirmities in theprosecution evidence the following salient features, as submitted bythe learned counsel for the appellant, spring to the eye.
In Keerthi Bandara v Attorney-GeneraK2) at 261 it has beenheld that even the Appellate Court may peruse theInformation Book Extracts in the interests of justice. TheInformation Book Extracts reveal that eyewitness Isira hadmade a belated statement to the police two days after theincident on 09.02.99. Even then it appears that he has notvoluntarily done so but had been taken to the police stationby I.P. Bopitiya to record his statement. A perusal of theevidence led at the trial indicate that Isira has failed to givea plausible reason to justify this delay.
Neither has Isira divulged to the Colombo General Hospitalauthorities the true nature of the incident at the time headmitted the deceased to the hospital. The bed-head ticket
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produced in evidence indicate a history of an accidental falland consumption of alcohol.
Even though Isira had stated in evidence that he too hadreceived a club blow from the accused-appellant at the time ofwresting the club from the accused, there is no evidence onrecord to indicate that he too received an injury.
The appellant has given evidence from the witness box andhad put forward on alibi which had not received the attentionof the learned trial Judge.
The subsequent conduct of the accused-appellant in beingpresent as the cemetery where the funeral was held is not inkeeping with the normal conduct of a person who had causedthe death of the deceased under section 114 of the EvidenceOrdinance.
in view of the above, there is some substance in the first groundurged by the learned counsel for the appellant.
As regards the second ground as to the time duration, it must benoted that as the alleged offence has been committed on 07.02.99,almost 10 years have elapsed since the date of the offence. In a longline of case law authorities, our Courts have consistently refused toexercise the discretion to order a retrial where the time duration issubstantia).
In Peter Singho v Werapotiyai3) Gration, J. refused to order aretrial where the time duration was over 04 years.
In Queen v Jayasinghei4) Sansoni, J. refused to order a retrialwhere the time duration was over 03 years.
In L.C. Fernando v Republic of Sri Lanka<5) at 374 Wijesun-dara, J. held that "It is a basic principle of the criminal law of our land,that a retrial is to be ordered only, if it appears to the Court that theinterests of justice so required.
In this case the original case record reveals that the appellanthad suffered incarceration already for over 3 1/2 years sincesurrendering to the police. The learned Senior State Counsel hadsubmitted that as the trial Judge who delivered the judgment did nothave the benefit of recording the evidence of eyewitness Isira andtherefore did not have the opportunity of observing the demeanour
CAVen. Kirama Sumana Nanda Thero v Rajapakshe59
and deportment of this witness, a retrial could be justified on thisground. I am unable to agree with the above contention as theinterests of justice would not require the appellant to be subjugated toa protracted second trial in remand in the circumstances set forthabove in that case, especially so where the only eyewitness has madea belated statement and the time duration since the date of theincident in almost 10 years.
Under the circumstances I uphold the submission of the (earnedcounsel for the appellant that this is not a fit and proper case to ordera retrial.
For the foregoing reasons, I allow the Appeal and set aside theconviction and sentence dated 08.07.2005 imposed on the appellantfor the offence of murder under section 296 of the Penal Code by thelearned High Court Judge of Panadura, and I acquit the appellant.The Registrar is directed to send a certified copy of this order to theHigh Court of Panadura.
IMAM, J.- I agree.
Appeal is allowed.