SENEVIRATNE

Vs.

DIRECTOR GENERAL OF THE COMMISSION TO INVESTIGATE ALLEGATIONS OF BRIBERY OR CORRUPTION

SUPREME COURT
PERERA, C.J.
DEHIDENIYA, J.
M.N.B. FERNANDO, J.
SC/APPEAL/19/2013
HC COLOMBO 119/2017
MC COLOMBO 29621/5
SEPTEMBER 28, 2018

Bribery Act, No. 11 of 1954, section 19(c)-ldentification of accused-Conviction based on uncertified copies of identification parade notes-Belated dock identification by complainant

The appellant was a forest officer attached to the Southern Provincial Office of the Forest Department. He was charged in the Magistrate's Court of Colombo by the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) for the offences of soliciting and accepting a gratification of Rs. 2,000 from the complainant at Gintota, which were both offences under section 19(c) of the Bribery Act, No. 11 of 1954, as amended. The alleged incident had taken place on 06.08.1996 when a lorry containing timber that was being transported by the complainant, was stopped by members of the flying squad of the Forest Department. At an identification parade held in November 1996 in the Magistrate's Court of Galle, the appellant had been identified by the complainant and by another person who had been in the lorry as the person who had solicited and accepted the gratification. The trial in the Magistrate's Court began on 14.06.2002, six years after the alleged incident. The complainant gave evidence on that day and said it was difficult to identify the appellant. However, on the next trial date, the complainant identified the appellant as the person who had solicited and accepted the gratification. The investigation officer of the CIABOC, who had not been present at the identification parade, gave evidence and marked and produced the copies of the parade reports available with him, without any objection being raised against the same. The original parade reports were not available at the trial and a note in the case record indicated that they had been misplaced. After trial, the appellant was convicted on

both counts by the Magistrate and a suspended term of imprisonment and a fine on each count was imposed as punishment. The High Court affirmed the convictions and sentences. The appellant appealed to the Supreme Court.

Held:

1. The trial Judge erred in law by allowing uncertified copies of identification parade notes to be led in evidence when there was material before court that the originals had been misplaced. This could not be relied on either as substantive or corroborative evidence.

2. After excluding the copies of the parade notes, it was unsafe to convict the appellant based on the belated dock identification by the complainant.

Cases referred to:

1. Jayatissa v. Attorney General [2010] 1 Sri LR 279
2. Attorney General v. Sandanam Pitchi Mary Theresa [2011] 2 Sri LR 292

APPEAL from the Judgment of the High Court of Colombo.

Rienzie Arsecularatne, P.C., with Thejitha Koralage, Namal Karunaratne, Udara Muhandiramge, Ganesh Premkumar and Shevindri Manuel for the Accused-Appellant-Appellant.

Sunethra Jayasinghe, Deputy Director General, Bribery Commission for the Complainant-Respondent-Respondent.

cur. adv. vult.

April 25, 2019

M.N.B. FERNANDO, J.

The Accused-Appellant-Appellant ("the appellant") came before this Court being aggrieved by the Judgment of the High Court of Colombo ("the High Court") wherein the conviction and the sentence of the appellant of a bribery charge by the Magistrate Court of Colombo was upheld. The appellant moved this Court to set aside the Judgment of the High Court and the Magistrate Court and to acquit the appellant.

This Court on 24-01-2013 granted Special Leave to Appeal on the following questions of law.

i) Did the learned High Court Judge fail to consider whether the learned trial Judge had applied the Standard of Proof applicable in a criminal case.

ii) Did the learned High Court Judge fail to