Appreciation of criminal evidence - few observations by apex courts

Appreciation of criminal evidence - few observations by apex courts

Relevant provisions -

Evidence Ordinance,

Section 118

“All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind”.

Whenever a witness appears before Court, the Court will proceed on the basis that he is competent to testify. When a person of tender years or extreme old age or a person who suffers from disease or other abnormality of the body or mind, the Court is alert on the need to decide whether oath can be administered. Ordinarily this satisfaction is to be arrived at by preliminary examination of the witness by the Court. - AG v. Ramalingam Selvaratnam (C.A. Revision Application No. 09/2015 decided on 10.05.2016)

Section 119

“A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs in open court. Evidence so given shall be deemed to be oral evidence.”

The reliability of evidence adduced by a dumb witness must be considered in light of the facts and circumstances of each case. There exists no general standard or straightjacket formula applicable to such cases. Whereas a dumb witness could testify in court in the manner prescribed in Sec. 119, he or she must competent witness as contemplated under Section 118 of the Ordinance. …. In evaluating such evidence an essential prerequisite would be to ascertain and determine whether testimony given by the said witness, was understood with clarity and whether such question was answered logically. Importantly the court must be satisfied as to whether the interpreter sufficiently understood the witness and was conveyed through him without distortion, so that such is recorded by the court. - Gunawathie v. Priyantha Priyalal (2007) B.L.R. 71

Section 133

“An accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”

While Section 133 makes it clear that the uncorroborated evidence of an accomplice is acceptable, this section must be read in conjunction with Section 114(b) of the Evidence Ordinance which states as follows: -

An accomplice is unworthy of credit, unless he is corroborated in material particulars.

These statutory provisions, read together, create a conundrum of sorts leading to the conclusion that the creditworthiness of an accomplice is dependent upon whether his evidence, in material particulars, is corroborated by another source, whereas a conviction based solely on the uncorroborated evidence of an accomplice is not illegal. Yet, such a conviction would undoubtedly be a dangerous and unsafe one. Thus, it is within the purview of the Courts to consider the creditworthiness of each accomplice, apply their mind and search for cogent and conclusive factors that satisfy them that the accomplice is in fact, reliable, if they are to convict solely on his evidence. - W.M.M. Kumarihamy, Chief Registrar, Colombo (S.C.TAB Appeal No. 02/2012 decided on 02.04.2014)

“In the case of fellow conspirators or accomplices the established practice, virtually equivalent to a rule of law, requires independent corroboration of their evidence, in material particulars. What is required is some additional evidence, direct or circumstantial, rendering it probable that the accomplice's story is true and reasonably safe to act upon, and connecting or tending to connect the particular defendant with the offence. The degree of suspicion attaching to an accomplice's evidence varies according to the extent and nature of his complicity.” - The Queen v. Liyanage and Others (1962) (67 NLR 193)

Section 134

“No particular number of witnesses shall in any case be required for the proof of any fact.”

In our law of evidence the salutary principle is enunciated that evidence must not be counted, but weighed and the evidence of a single solitary witness if cogent and impressive could be acted upon by a Court of law. Section 134 of the Evidence Ordinance sets out that “no particular number of witnesses shall in any case be required for the proof of any fact'. - Sumanasena v. Attorney General - (1999) 3 Sri LR 137

According to section 134 of the Evidence Ordinance particular number of witnesses are not required to establish a fact. -  Dissanayake Rallage Ranasingha & another v. OIC, Police Station, Warakapola (SC Appeal No. 39/2011 &39A/11 decided on 02.04.2014)

Section 134 of the Evidence Ordinance lays down a specific rule that no particular number of witnesses shall in any case be required for the proof of any fact, thus attaching more importance to the quality of evidence rather than the quantity. The evidence of a single witness, if cogent and impressive, can be acted upon by 'a Court, but, whenever there are circumstances of suspicion in the testimony of such a witness or is challenged by the cross-examination or otherwise, then corroboration may be necessary. The established rule of practice in such circumstances is to look for corroboration in material particulars by reliable testimony, direct or circumstantial. -Wijepala v. The Attorney General - (2001) 1 Sri LR 46

There is no requirement in law that evidence of a police officer who has conducted an investigation in to a charge of illegal possession of Heroin, should be corroborated in regard to material particulars emanating from an independent source, section 134 of the Evidence Ordinance states that, 'No particular number of witnesses shall in any case be required for the proof of any fact.’ -  The Attorney General v. Mohomed Saheeb Mohamed Ismath CA 87/97 (Court of I I Appeal minutes dated 13.07.1999)

“Therefore it is quite clear that unlike in the case where an accomplice or a decoy is concerned in any other case there is no requirement in law that the evidence of a police officer who conducted an investigation or raid resulting in the arrest of an offender need to be corroborated in material particulars. However, caution must be exercised by a trial judge in evaluating such evidence and arriving at a conclusion against an offender. It cannot be stated as a rule' of thumb that the evidence of a police witness in a drug related offence must be corroborated in material particulars where police officers are the key witnesses. If such a proposition were to be accepted it would impose an added burden on the prosecution to call more than one witness on the back of the Indictment to prove its case in a drug related offence however satisfactory the evidence of the main police witness would be.” - The Attorney General v. Devunderage Nihal (2011) 1 Sri LR 409

Secondly section 134 of the Evidence Ordinance does not require a particular number of witnesses for the proof of any fact. When the evidence before the trial judge is credible and can be acted upon without any hesitation I see no reason for the judge to look for further material. - Ranasinghe Arachchige Lionel alias Ariyapala v. AG (CA - 177/2010 decided on 26.02.2016)

 “The mere fact that the evidence of the only eye - witness of a crime is that of a child of 6 years of age, is not a ground for not relying upon it, especially when the evidence is given without hesitation and without the slightest suggestion of tutoring or anything of that sort, and there is corroboration of the evidence in so far as narrates the actual facts, and of the child's subsequent conduct immediately afterwards.” - Palaniyandi vs. State, 76 NLR 145 

No particular number of witnesses shall be required for the proof of any fact. The adequacy of one witness to prove a fact in terms of the section 134 of the Evidence Ordinance will hold good in a case where only one witness is available to the party desiring to establish a fact, and where only one witness is called even though others are also available. - Walimunige John vs. State, 76 NLR 488

The provisions of Section 134 of the Evidence Ordinance postulates that evidence should be evaluated and weighted and not counted. That section sets out that no particular number of witnesses are required for proof of any fact. This principle has been applied by the Indian Supreme Court where the conviction rested solely on the evidence of a solitary witness who gave circumstantial evidence in regard to the accused’s liability. Vide Mulluwa v. State of Madhya Pradesh. The Privy Council upheld the conviction. This principle has been adopted with approval and applied in the judgment of Justice G.P.A. de Silva in WaIimunige John v. State at 495. The principle applied is that testimony must be weighed and not counted. If the trial Judge was satisfied with the testimonial trustworthiness of a witness even though he is the sole witness relied upon by the prosecution to establish the incident the learned trial Judge could act upon such evidence. ‘Just because the statement of a witness is belated the Court is not entitled to reject such testimony". In applying the Test of Spontaineity and Test of Contemporaneity and the Test of Promptness the Court ought to scrupulously proceed to examine the reasons for the delay. If the reasons for the delay adduced by the witness are justifiable and probable the trial Judge is entitled to act on the evidence of a witness who had made a “belated statement”. – Dayananda Lokugalappaththi and Eight Others v. the State (The Embilipitiya Abduction and Murder Case) - (2003) 3 Sri LR 362

Evidence  must  be  weighed  and  never  countered,  in  reviewing the veracity  of a  witness  appellate  Courts  enforce  certain  rules and guidelines as they do not have the benefit of observing and questioning the witnesses first hand. Credibility is a question of fact, not of law. The acceptance or rejection of evidence of witnesses is therefore a question of fact for the trial Judge. Credibility of a witness may be impugned by employing the tests of probability and improbability consistence and inconsistence, interestedness and disinterestedness and spontaneity and belatedness. - Kumara de Silva and 2 others vs. Attorney General – (2010) Sri LR 169

The trial Judge in a bribery trial is entitled to convict on the sole testimony of a prosecution witness without any corroboration provided the evidence is cogent, of convincing character and has strong testimonial trustworthiness. Accordingly in the instant case the trial judge had found the complainant’s evidence fulfills the aforementioned criteria. Section 134 of the Evidence Ordinance doesn’t determine a number of witnesses to prove any fact; court can act on the evidence without the need for corroboration where it deems that a witness is speaking the truth. - M.H.T. Herath v. The Attorney General, (CA Application No. 140/2004, HC-Colombo-B- 1366/2001) (2/CA) Decided on 22/10/2009  

Our law does not require the prosecution to call a number of witnesses to prove a case against an accused. Evidence given by one witness is sufficient. It is the quality of the evidence given by the said witness that matters. – Jinapalage Sumathipala and others v. AG (C.A.Case No:-09/2013 decided on 09.11.2015)/ K.A. Don Lakshman Sanjeewa v. AG (C.A.Case No:- 12/2012 decided on 05.10.2015)

It has to be stressed here that credibility of prosecution witnesses should be subject to judicial evaluation in totality and not isolated scrutiny by the Judge. When witnesses makes inconsistent statements in their evidence either at one stage or at 2 stages, the testimony of such witnesses is unreliable and in the absence of special circumstances, no conviction can be based on the testimony of such witnesses. On the other hand one cannot be unmindful of the proposition that Court cannot mechanically reject the evidence of any witness.

Further it is the paramount duty of the Court to consider entire evidence of a witness brought on record in the examination-in-chief, cross-examination and re-examination. In other words Courts must take an overall view of the evidence of each witness.

It is a cardinal principle that unreliable and unacceptable evidence cannot be rendered credible, simply because there is some corroborative material. - Kalinga Padmatillake, alias Sergeant Elpitiya v. The Director General, Commission to Investigate Allegations of Bribery or Corruption ( SC Appeal No. 99/2007 decided on 30.07.2009)

As the judicial precedents have indicated it is incumbent upon the trial judges to take the trouble of applying and where necessary modifying the general criteria of good and bad identification evidence to the facts of the instant case. (R v Fergus (1994) 98 Cr. App R 313 CAl It is important for the trial judges to work systematically through all the relevant evidence presented at the trial emphasizing the circumstances of the offence or of its investigation which might have affected the quality and therefore, the reliability of the evidence led. However, it must also be stated here that though the jurisprudence arising out of Turnbull had been staunchly adopted in our jurisprudence it must not be extended by mechanical analogy to cases In which the risk of misidentification does not rise. (vide R v Forbes (2001) 1 Cr. App. R 430 HL. And R v Oabell (1978) 1 WLR 32 CAl It is of utmost importance for the trial judge to assess the quality of the identifying evidence. When the identifying evidence is poor, as for example, when it depends on a fleeting glance or on a larger observation made in difficult conditions, the situations is very different. The judge should then withdraw the case from the jury if it was a jury trial, or if it was not a jury trial at the end of the prosecution case acquit the accused on the basis that there is 'no case to answer' unless there is other evidence which goes to support the correctness of the identification. ….. Experience has shown that even honest and convincing witnesses can make mistakes in identification. - Weerasinha Mudiyanselage Weerasinha and others v. AG (CA 286 A-B-287/08 decided on 08.10.2012)

“While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as whole appears to have ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to tender it unworthy of belief Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.”- Oliver Dayananda Kalansuriya alias Raja v. Republic of Sri Lanka CA 28/2009 (13.02.2013).

Evidence of the sole witness

The uncorroborated evidence is sufficient for a conviction if that evidence was not contradicted on material points by other witnesses. - Oliver Dayananda Kalansuriya Raja v. AG (SC. Appeal No. 144/2013 decided on 11.11.2015)

Evidence of an accused

“We are in respectful agreement, and are of the view that such a statement must be looked upon as evidence subject to the infirmity that the accused had deliberately refrained from giving sworn testimony, and the jury must be so informed. But the jury must also be directed that,

(a) If they believe the unsworn statement it must be acted upon,

(b) If it raised a reasonable doubt in their minds about the case for the prosecution, the defence must succeed, and

(c) That it should not be used against another accused”. - The Queen v. Kularatne [1968] [71 NLR 529]

These principles must be satisfied in order to reject a Dock Statement and can be summarized as follows:

1. It must be deliberate;

2. It must relate to a material issue;

3. The motive for the lie must be realization of guilt and a fear of truth;

4. The statement must be clearly shown to be a lie other than that of the accomplice who is to be corroborated. - Karunanayake v. Karunasiri Perera [1986] [2 SLR 27].

Rape victim’s evidence

I hold that it is unsafe to act upon uncorroborated evidence of a rape victim when her evidence is inconsistent with the medical evidence.- Andi Budugae Derik Niroshan Fernando v. Attorney General (C.A.No. 21/12 decided on 16.07.2015)

“In a charge of rape it is proper for a Jury to convict on the uncorroborated evidence of the complainant only when such evidence is of such character as to convince the Jury that she is speaking the truth.”- Premasiri v. The Queen 77 N.L.R 85

“lt is very dangerous to act on the uncorroborated testimony of a woman victim of a sex offence but if her evidence is convincing such evidence could be acted on even in the absence of corroboration.” - Sunil and another v. The Attorney General (1986) 1 Sri LR 230

In a charge of rape, if the Court feels that the evidence of the prosecutrix needs corroboration, then her evidence must be corroborated on material points. What are the material points?

(1) The identity of the accused

(2) The fact that she was subjected to sexual intercourse by the accused.

(3) Sexual intercourse was committed against her will. - Karunaratne Mudiyanselage Madduma Bandara and others v. AG (CA 190-191/11 decided on 15.03.2013

Child witness - evidence

Competence of a child witness is tested on the basis of an old Latin Maxim "Varitatem Dicere a Corruption of viodire" which means that examination of a witness is a series of questions by the Court usually in the nature of an examination as to his / her competence to give evidence in some other collateral matter prior to his examination in chief. It was held in R. vs. Hampshire (1995) 2 All E R 1019, although a judge was under no duty to conduct a preliminary investigation of a child's competence to give evidence, he retained the power to do so, where he considered that there was a question as to the child's knowledge of the difference between truth and falsehood and the importance of telling the truth.

The whole object behind such examination is to assess whether the witness has understood the questions asked and has been able to give rational answers to them. Apart from that, a child witness mayor may not be fully matured. By virtue of his/her tender years, is susceptible to tutoring by a person interested in the case or by near relatives. A child witness is susceptible to influence from such persons. It is therefore necessary that Court should examine the child witness with care or caution bearing in mind the susceptibility and possible immaturity of the child.

To have a preliminary examination, namely voire dire, of a child witness in order to make her / his testimony admissible. Such a course however was considered necessary, for it offers an opportunity to the Court to assess the mental capacity of the witness. - AG v. Ramalingam Selvaratnam (C.A. Revision Application No. 09/2015 decided on 10.05.2016)

 (Time to time this post will be update with cases and materials)