SIVATHASAN

Vs.

ATTORNEY GENERAL

SUPREME COURT
ALUWIHARE, J.
KODAGODA, J.
DE SILVA, J.
SC/APPEAL/208/2012
CA/APPEAL/46/2008
HC VAVUNIYA HCV/1946/07
JANUARY 22, 2021

Poisons, Opium and Dangerous Drugs Ordinance, as amended by Act No. 13 of 1984, sections 54A(b), 54A(d), 82(3)-Trafficking in and possessing heroin-Code of Criminal Procedure Act, sections 200, 201, 263(1)-Burden of proof-Credibility of witnesses-Evidence Ordinance, sections 3, -Duty of the trial judge in recording evidence-Articles13(3), 118, 127(1), 127(2), 128(1), 128(2), 138(1) of the Constitution Right to a fair trial-Grounds of appeal-Appellate jurisdiction of the Supreme Court

The two accused were convicted of trafficking in and possessing 1.503g of heroin-offences under sections 54A(b) and (d) of the Poisons, Opium and Dangerous Drugs Ordinance, as amended by Act No. 13 of 1984 - and sentenced to life imprisonment. On appeal, the Court of Appeal acquitted the 2nd accused but upheld the conviction and sentence of the 1st accused. The 1st accused appealed to the Supreme Court.

Held:

1. Since the informant did not testify at the trial, the contents of the information received from him are inadmissible. However, such information is admissible and relevant for the limited purpose of providing an explanation for the conduct of the two police officers of the Narcotics Bureau.

2. Section 201 of the Code of Criminal Procedure Act regulates the receipt of defence evidence in a criminal trial heard by a judge in the High Court. The testimony of the accused must be first received by court before other defence witnesses are permitted to testify,

though the section does not expressly provide so. Where this procedure has not been followed, the evidence of the accused is of little value.

3. In a criminal case the prosecution must prove its case beyond reasonable doubt. However, the prosecution cannot be expected to prove its case to a degree of mathematical accuracy or scientific certainty. Reasonable doubt is real or substantial doubt, as opposed to imaginary or flimsy doubt, that may arise in the mind of the decider following an objective consideration of all the attendant facts and circumstances.

4. For the purpose of discharging its burden, the prosecution cannot rely on (i) the accused having elected to exercise his right to remain silent, (ii) the weaknesses in the case of the defence, or (iii) the case of the defence having been proven by the prosecution to be false.

5. When the defence takes up its position belatedly, without having put it to prosecution witnesses, it is not possible to check its veracity. A suggestion unsupported by evidence does not have any evidentiary value and hardly serves any purpose.

6. It is the duty of the trial judge to control the proceedings and forbid questions which an Attorney-at-Law is precluded or disentitled from asking in terms of the Evidence Ordinance and professional ethics.

7. The Court of Appeal shall not reverse or vary a judgment, decree or order of any court on account of any error, defect or irregularity that has not prejudiced the substantial rights of the parties or occasioned a failure of justice as envisaged by the proviso to Article 138(1) of the Constitution.

8. In practice, what defines the scope of the exercise of the appellate jurisdiction of the Court of Appeal is the grounds of appeal urged on behalf of the appellant during the hearing. It is the cursus curiae of appellate courts in this country that an appellate court will not lightly interfere with the assessment and determination of the credibility and testimonial trustworthiness of witnesses arrived at by the trial judge.

9. In terms of Article 127(2) of the Constitution, the Supreme Court has an overarching duty to consider (a) whether the failure, if any, on the part of the Court of Appeal performing its appellate function occasioned a miscarriage of justice, and (b) whether, in any event, for cogent reasons