MUTHUARACHCHI

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
WENGAPPULI, J.
FERNANDO, J.
CA/HCC/484/2017
HC KULIYAPITIYA 4/2016
JULY 2, 2020

Attempted murder-Failure to name the accused at the first opportunity-Belated statement to the police-Test of Spontaneity-Test of Contemporaneity- Test of Promptness-Shifting the burden erroneously onto the accused-Lack of analysis of evidence

The accused was convicted by the High Court of attempted murder of two persons. Upon admission to hospital, the two victims had not named the accused as the assailant to the examining doctor. In their statements to the police 25 days after the incident, one victim (who was not familiar with the area) mentioned the name of the accused as the assailant whereas the other (who was a resident of the area) did not do so even in this belated statement. The High Court convicted the accused on the basis that the accused was known to the victims. The accused appealed to the Court of Appear.

Held:

1. No acceptable reason has been adduced for the failure to name the accused to the doctor who examined the victims soon after the incident and for the delay of 25 days in making the statements to the police.

2. The statement to the police regarding the incident should be made within a reasonable time. The test is whether it was made as early as reasonably expected in the circumstances. No hard and fast rule can be laid down as to when a statement is sufficiently contemporaneous to the incident. The longer the delay in making the statement, the greater the probability of tutoring and concoction.

3. It would be dangerous to act on the evidence of a belated witness if the delay has not been satisfactorily explained. However, if the

reasons for the delay are justifiable and probable, the trial judge is entitled to act on the evidence of a belated witness.

4. There is a conspicuous lack of evaluation of the testimonial trustworthiness of the prosecution witnesses for their failure to name the accused at the first available opportunity and for having made statements to the police 25 days after the incident. The trial court has abdicated its judicial duty.

5. It was erroneous on the part of the trial judge to shift the burden of proof onto the accused by ruling that the accused failed to raise a reasonable doubt in the case of the prosecution.

Cases referred to:

1. Haramanis v. Somalatha [1998] 3 Sri LR 365
2. Jayawardena and others v. The State [2000] 3 Sri LR 192
3. Paulin de Croos v. The Queen 71 NLR 169
4. Bandaranaike v. Jagathsena [1984] 2 Sri LR 397
5. Bandara v. The State [2001] 2 Sri LR 63
6. Samarakoon v, The Republic [2004] 2 Sri LR 20

APPEAL from the Judgment of the High Court of Kuliyapitiya.

Shanaka Ranasinghe, P.C., with Niroshan Mihindukulasuriya, Anushika Ranasinghe, Thevaka Manchanayake for the Accused-Appellant.

A. Navavi, D.S.G., for the Respondent.

cur. adv. vult.

July 24, 2020

WENGAPPULI, J.

The accused-appellant (hereinafter referred to as the Appellant) was indicted by the Hon. Attorney General, before the High Court of Kuliyapitiya, under two counts of attempted murder for causing injuries to Ezra Dishan Alexander and Hettiarachchilage Nandana Pradeep Kumara, by attacking them with a manna knife on 25.03.2009 at Makandura.

Upon being elected to be tried without a jury, the trial against the Appellant proceeded. He offered evidence under oath when the High Court ruled that he had a case to answer at the end of the prosecution case. The prosecution called a witness in rebuttal and at the conclusion of the

trial, the High Court found the Appellant guilty on both counts and was sentenced to seven year term of imprisonment each on the two counts of attempted murder. In respect of the 1st count, the Appellant was imposed a fine of Rs. 10,000.00 with a default term of six months. He was also ordered to pay Rs.300,000.00 to the PW1 as compensation and in default