THUSHARA FERNANDO

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
WIJESUNDERA, J.
WENGAPPULI, J.
CA/177/2017
HC NEGOMBO 142/2010
APRIL 1, 2019

Murder-Conviction on circumstantial evidence-Standard of proof

The appellant was convicted of the murder of his wife and daughter wholly on circumstantial evidence and sentenced to death. The appellant had given evidence on his own behalf and suggested an alternative version of events that a squabble between his wife and the wife of another had led to that man committing the acts of murder. On appeal the appellant's primary contention was that the trial court failed to properly evaluate the appellant's evidence and that although the prosecution's case was entirely based on circumstantial evidence, the possibility of the crime being committed by the third party as alleged by the appellant had not been excluded beyond reasonable doubt.

Held:

1. When a case rests upon circumstantial evidence such evidence must satisfy the following tests:

(a) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(b) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(c) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else;

(d) in order to sustain the conviction, the circumstantial evidence must be complete and incapable of explanation of a hypothesis other than the guilt of the accused, and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

2. When evaluating the appellant's evidence, it is clear that his claim of the involvement of a third party is a fabrication. There was no explanation from the appellant as to how such a version of events was consistent with the circumstantial evidence led by the prosecution.

Cases referred to:

1. James Silva v. The Republic of Sri Lanka [1980] 2 Sri LR 167
2. Addara Arachchi v. The State [2002] 2 Sri LR 312
3. Ariyasinghe and others v. Attorney General [2004] 2 Sri LR 357
4. Rajapakse and others v. Attorney General [2010] 2 Sri LR 113
5. Ukkuwa and others v. Attorney General [2004] 2 Sri LR 263
6. R v. Exall [1866] EngR 22, (1866) 4 F and F 922, (1866) 176 ER 850
7. Kusumadasa v. The State (2011)
8. Reddy v. State of Andra Pradesh AIR 1990 SC 79
9. Navaneethakrishnan v. The State by Inspector of Police Criminal Appeal No. 1134 of 2013, decided on 16.04.2018 ·
10. R v. Danells [2006] EWCA Crim 628
11. Moore 92/2101.Y3, 20 August 1992
12. Mcgreevy v. OPP [1973] 1 WLR 276

APPEAL from the Judgment of the High Court of Negombo.

lndica Mallawarachchi with K. Kugaraja for the Accused-Appellant.

Janaka Bandara, S.S.C., for the Respondent.

cur. adv. vult

June 7, 2019

WENGAPPULI, J.

The appellant was indicted before the High Court of Negombo for the murder of his wife Rajapaksha Nadeeka Damayanthi and also of his 7- year-old daughter Warnakulasuriya Achala Roshini on or about 4th April 2009 at Kochchikade.

At the conclusion of the trial without a jury, the appellant was convicted on both counts of murder and sentenced to death. Being aggrieved by the said conviction and sentence, the appellant sought to challenge its validity on the following grounds of appeal:

a. the items of circumstantial evidence wholly inadequate to support the conviction,

b. the trial Court erred in failing to apply the principles governing the evaluation of circumstantial evidence,

c. the prosecution failed to exclude the possibility of a 3rd party committing the deaths,

d. when evaluating the defence evidence the trial Court erred in examining its legality and tenability in the light of the prosecution case,

e. the trial Court reversed the presumption of innocence when it shifted the burden of proof on the appellant in his defence of denial,

f. the trial Court