Jayantha Jayasuriya, PC.CJ

The Attorney-General invoked the jurisdiction of this Court and impugned the Order of the Court of Appeal dated 02.12.2021. The Petitioner-Respondent (hereinafter referred to as “the 1 ^st Accused-Respondent” or “the Respondent”) stands indicted with two others in the High Court of Colombo and the trial is in progress. Two hundred and thirty counts in the indictment are framed under the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 as amended and Emergency Regulations promulgated under the Public Security Ordinance. Offences in the indictment include the conspiracy to commit the murder of a specified person – the army commander, aiding and abetting to commit attempted murder of the army commander and series of offences of murder, attempted murder, causing injury by a bomb attack that were committed in the course of the same transaction of the offence of conspiracy and abetment to commit attempted murder of the army commander.

One of the main items of evidence against the 1^st Accused-Respondent is a purported statement he has made to a Superintendent of Police (SP) in the course of investigation. The 1^st Accused- Respondent was in custody at the time the purported statement was recorded. When the prosecution moved to produce the aforesaid statement through the relevant Superintendent of Police, an objection was raised on the basis that 1^st Accused-Respondent did not make a statement to the witness. The Learned High Court Judge thereafter had proceeded to hold an inquiry to examine whether the purported statement had been made voluntarily. At the inquiry, the evidence of the relevant Superintendent of Police, several police officers who brought the 1^st Accused-Respondent to the SP from the place of detention and took him back, the typist who prepared the statement of the Respondent and the doctor who examined the 1^st Accused- Respondent had been presented by the prosecution. All these witnesses had been cross-examined by the Learned Counsel who represented the 1^st Accused-Respondent. Thereafter, the 1^st Accused-Respondent had made a statement from the dock and called a witness on his behalf. Thereafter the Learned High Court Judge by his Order dated 25^th August 2017, has allowed the prosecution to produce the impugned statement as evidence. The Learned High Court Judge has held that the prosecution has proved beyond doubt that the 1^st Accused-Respondent had made the impugned statement to the relevant SP. Furthermore, he had held that the impugned statement has been made voluntarily and the 1^st Accused-Respondent has failed to show that the aforesaid statement was made involuntarily or that it was obtained by the SP by a threat, promise or inducement.

Being aggrieved by this Order, the 1^st Accused-Respondent invoked the revisionary jurisdiction of the Court of Appeal and the Learned Justices of the Court of Appeal by their Judgment dated 02.12.2021, set aside the aforementioned Order of the High Court. The Learned Justices of the Court of Appeal held that the “confession recorded in the instant case is in contravention of the provisions of section 24 of the Evidence Ordinance”. It was further held that the “……ASP translating the entirety of the confession on six long days causes doubt as with regard to the voluntariness of the same”.

The Attorney-General impugns the Judgment of the Court of Appeal and move that the Order of the High Court be restored. This Court has granted leave to appeal on the following questions of law:

1) Has the Court of Appeal erred in Law in deciding that the adduced statement of the Accused which was sought to be produced by the prosecution under Section 16 of the P.T.A. is irrelevant in terms of Section 16(2) of P.T.A?

2) Whether the Court of Appeal erred in Law by failing to properly consider the evidence adduced in the course of the voir dire inquiry?

3) Whether the Court of Appeal erred in Law and fact by misdirecting itself on the valuation of evidence adduced