From the Bench - evaluation of evidence - police officers and presumption of truthfulness

Evaluation of evidence - Sec.134 of the Evidence Ordinance - police, excise, narcotic and bribery officers - corroboration

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"Devundarage Nihal vs Hon. Attorney General was overruled by the Supreme Court in S.C.Appeal 154/10. The Supreme Court held that there is no requirement in law that the evidence of a police officer who conducted an investigation / raid resulting in the arrest of an offender needs to be corroborated in material particulars. F.N.D. Jayasooriya,J, in C.A.87/97 A.G. vs. Mohemed Saheed too held that there is no legal requirement that the evidence of the Chief Police Officer who conducted the raid of a heroin case should be corroborated in regard to material particulars emanating from an independent source. In the instant case it is significant to note that even the chief investigating police officer IP Thennkoon, who conducted investigations, who received the first information, on whose instructions PC. Senaratne the only eye witness participated in the raid, had not given evidence. Simply to satisfy an established procedure, practice or formality the prosecution led the evidence of another police officer, who had nothing to say about the raid or the arrest or what happened at that point as he was one of those who were in the jeep. 

PC Senaratne either failed to answer or displayed his ignorance with regard to certain significant matters and developments that had taken place at the initial stages of the investigations. The Counsel who appeared for the defence whilst protesting that he cannot defend his client effectively without the chief investigating officer giving evidence in the case confronted that witness on several salient points in respect of which the witness claimed ignorance. When the witness was questioned about the 'B' report, filed in the case, wherein the name of one Kanchana Hemantha is mentioned as the suspect the witness had said that he had no idea. He had further stated that he did not know about that and that it was the chief investigating officer who decided on such matters. This witness admitted that the first information was received by the Chief Investigating Officer and that he did not know anything about that too. This fact becomes very important and rather decisive in the evaluation of the Dock Statement made by the Appellant. It was the position of the Appellant that the police first came in search of Kanchana Hemantha and forced the Appellant to show where Kanchana lived and that when the investigating officer was not able to accomplish what he wanted, had fabricated this case against the Appellant and took him into custody. Certainly the defence was deprived of the opportunity of cross-examining the Chief Investigating Officer as he was. not called as a witness and thereby the appellant was handicapped and seriously prejudiced in his defence. Even if the judge was unable to appreciate this one cannot disregard completely, the fact that it was one of the formidable means open to the defence to create a reasonable doubt in the prosecution case. During the last 31 years or more I, as a judicial officer, more often than not, have Observed that, preventing contradictions being marked, was one of the tactics adopted by the prosecution to secure a conviction. 

The need for corroboration in cases of this nature where it is almost impossible to get contradictions per tin in the evidence of a trained  police officer was adverted to by this court in Devundarage Nihal vs Hon. Attorney General reported in C.A. 125 / 2008 decided on 04-05-2008. This is a practice that has hardened into a rule and almost from times immemorial the courts have been very careful in assessing and evaluating. the evidence of trained police officers especially when they give evidence in cases where the police are entitled to a reward. 

On a careful analysis of the Judgment of this Court it is quite evident that the Court of Appeal was fully aware of section 134 of the Evidence Ordinance and also that corroboration is not an imperative
requirement. (Not the sine qua non). In the judgment their Lordships (I as the presiding Judge) of the Court of Appeal specifically mentioned this at pages 4 and 5 of the Judgment. I quote;

"Of course there is no compulsion or requirement or necessity for a party to summon more than one witness to prove a fact. It is not the quantity or the volume but the quality of the evidence that matters." 

Sec.134 of the Evidence Ordinance reads as follows; 

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

In fact as a matter of inveterate practice, more than prudence, especially in drug- related offences, where raids are conducted by trained officers, it is fair to require corroboration. It is only then the defence will have the opportunity to challenge the veracity or the credibility of the prosecution witnesses and thus contradict the prosecution version. More than corroboration I am concerned about the  act that the defence should be provided with the opportunity to contradict the witnesses. (attack the veracity). To obtain Contradictions inter se is the only way out for an innocent accused. 

To mark contradictions per se, where trained, experienced government officials such as police officers give evidence  seemingly impossible and is a task next to impossibility in view of the fact that an official conducting a raid is more often than not is resourceful in strategy and inevitably an experienced officer with a lot of ingenuity and cunning. 

Unlike in cases where the majority of the eyewitnesses or the key witnesses who speak to the facts in issue or the facts which are closely connected or related or linked to the occurrence of the incident are lay witnesses and generally, it is to corroborate and supplement the evidence of the lay witnesses that the evidence of the police officers is led, in this type of cases it is. the evidence of the decoys and complainants who are trained officers of the state, are the main Witnesses. Therefore the courts are duty- bound to be careful in accepting the evidence of these witnesses on face value. Traditionally and from times immemorial the courts have been vigilant, careful and alert "in evaluating the evidence of such officers before convicting an accused. The court must look for corroboration unless the court finds some very good reason, in all the circumstances of that particular case that it would not be reasonable or fair to expect corroboration (i.e. where the prosecution' tads it impossible to summon a particular witness because that witness is not available and cannot be found and all their endeavours to lead the evidence of that witness had proved abortive.) 

The question why the prosecution had refrained from summoning the particular witness becomes very significant in this regard. The prosecution never took up the position or suggested that this particular witness is not available or that all their endeavours were fruitless or that all their efforts proved in vain."

On a perusal of the Judgment of the Court of Appeal one could see that the Court of Appeal was not insisting that there should be corroboration as an imperative requirement. But the court was only asserting that as a precautionary rule it would be discreet to look for corroboration in the circumstances of that case where the witness was available but not summoned and the prosecution took up the high ground and challenged the defence to summon the police officer on their own. That was a circumstance highly suspicious as to why the prosecution did not or refrained from summoning that evidence in that case. Unfortunately the accused Appellant or his act attorney- at law was not there to bring these matters to the notice of the Supreme Court and it was only the Deputy Solicitor General who had the opportunity to make submissions and present his written submissions to Court.

E.R.S.R.Coomaraswaniy in The Law of Evidence volume 2 book 1 at page 395 dealing with how the police evidence in bribery cases should be considered has stated as follows 

"In the great many cases, the police agents are, as a rule unreliable witnesses. It is all ways in their interest to secure a conviction in the hope of getting a reward. Such evidence ought, therefore, to be received with great caution and should be closely scrutinized. Particularly where their evidence is the only corroborating evidence of the evidence of the accomplice,"

R.K.W.Goonasekara in his hook "Bribery" at page 93 commented on this fact as follows; 

"More than once the Supreme Court has been disturbed by the tendency of trial judges to treat the evidence of prosecution witnesses in bribery cases with the particular sanctity. In Mohamed Saleem's case the court observed that the evidence of prosecution witnesses does not carry any presumption of truth and should not be given undue weightage. In Siriwardane vs The Attorney General the Chief Justice cautioned trial judges against proceeding upon an irrebuttable presumption that police officers engaged in the bribery commission's Department always speaks the absolute truth as this would be to deny the accused the opportunity of a lair trial. 

By the same token the same principles should apply and guide the judges in the 'assessment of the evidence of excise officers in narcotic cases. Judges must not rely on a non-existent presumption of truthfulness and regularity as regards the evidence of such trained police or excise officers. 

In Don Edwin et al, Appellant and Inspector of Police 46 NLR 281, it was held that when the consideration of the evidence in the case leaves upon the Appellate Court the impression that on the whole it is safer that the conviction should not be allowed to stand, it would be a good and sufficient reason for interfering with the order of the Magistrate."

per Justice W.L.R. Silva in Senaka Priyantha v. AG (CA 91/2008 decided on 30.09.2011)