FRANK PERERA

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
WICKREMASINGHE, J.
P. FERNANDO, J.
CA/HCC/318/2015
HC COLOMBO 6248/2012
AUGUST 5, 2019

Criminal law-Penal Code, sections 462, 455-Possession of a forged document-Mens rea-Knowledge of the offence-Reasonable doubt

The accused was indicted in the High Court for committing an offence punishable under section 462 read with section 455 of the Penal Code for knowingly having in his possession a forged police clearance certificate. After trial, the High Court found the accused guilty and sentenced him to seven years imprisonment. The accused appealed to the Court of Appeal on the grounds that the High Court judge had failed to consider the infirmities in the prosecution case and that the prosecution had not proved the mens rea of the offence beyond reasonable doubt.

Held:

1. In terms of section 462 of the Penal Code, the prosecution must prove that the appellant possessed the document and also that he knew it was a forged document.

2. It is always open to the trial court to base a finding of knowledge on evidence that the accused deliberately shut his eyes to the obvious or refrained from inquiry because he suspected the truth but did not wish to have his suspicion confirmed.

3. In a criminal case, suspicious circumstances alone do not establish guilt. Nor does the proof of any number of suspicious circumstances relieve the prosecution of its burden of proving the case against the accused beyond reasonable doubt.

4. The trial judge has only considered the element of possession, not the knowledge of the accused as required. Hence, the trial judge erred when he found that the prosecution proved the charge beyond reasonable doubt.

Cases referred to:

1. Sweetv. Parsley (1970) AC 132at149
2. R. v. Hallam (1957) 1 QB 569
3. Westminster City Council v. Croyalgrange Ltd 83 Cr. App. R. 155 at 164
4. Joti Prasad v. State of Haryana 1993 Supp (2) Sec 497
5. Queen v. Sumanasena 66 NLR 350

APPEAL from the Judgment of the High Court of Colombo. Neranjan Jayasinghe for the Accused-Appellant.

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

cur. adv. vult.

October 29, 2019

P. FERNANDO, J.

01. The Accused Appellant (Appellant) in the above numbered case was indicted in the High Court of Colombo for committing an offence punishable under section 462 to be read with section 455 of the Penal Code. According to the particulars of the alleged offence as mentioned in the charge is that the Appellant had in his possession a police clearance certificate knowing that it was a forged document.

02. After trial the learned High Court Judge found the Appellant guilty as charged and sentenced the Appellant to 7 years imprisonment. Being aggrieved by the said conviction and sentence, the Appellant preferred the instant appeal. The grounds of appeal urged by counsel for the Appellant in his written submissions are;

1. Learned High Court Judge failed to consider the infirmities in the prosecution case.

2. Learned High Court Judge failed to address his mind whether the prosecution has proved the Mens Rea of the offence beyond reasonable doubt.

Both grounds of appeal 1 and 2 will be considered together.

03. Facts revealed that there had been two ways to request for police clearance reports for the migrants. Normal procedure would take about a month to issue a clearance report. Special

procedure had been on a personal recommendation of an officer whose rank is Senior Superintendent of Police or above, where the clearance certificate can be obtained without delay. In this instance, Police Constable 77256 Gayan (PW6) had received this personal recommendation of SSP Upul Kumarasiri from the Appellant. Appellant had been a Police Constable attached to the office of the Senior DIG at Police Headquarters that had been in the same building on a different floor. On being suspicious of the genuineness of the documen