SOMASIRI
VS.
 ATTORNEY GENERAL

SUPREME COURT
MOHAN PIERIS, PC CJ.
EKANAYAKE, J.
DEP, PCJ.
SC APPEAL 79/2009
SC SPL LA 190/2008
CA CASE NO. 75/2002
HC ANURADHAPURA 31/2000
APRIL 29, 2013

Constitution Article 138 - Penal Code Section 334(1) Section 364(2) (e) - amended by Act 22 of 1995 - Convicted of rape -Dock statement - Procedure in evaluating a dock statement - Failure - Could Court apply Section 334(1) and proviso to article 138 - Miscarriage of justice - Does Section 334 apply only to Jury trials?

The Accused Appellant was indicted for committing rape on one T under Section 364(2) e Penal Code and was convicted - sentenced to term of 10 years rigorous imprisonment. The Court of Appeal accepted the position that the High Court did not adopt the proper approach in evaluating the dock statement, however, acted under Section 334 Criminal Procedure Code and the proviso to Article 138 and held that there is no miscarriage of justice and dismissed the Appeal.

On Appeal to the Supreme Court,

Held:

(1) When a dock statement is made, the jurors must be informed that such statement must be looked upon as evidence, subject however to the infirmity that the accused had deliberately refrained from giving sworn testimony. The Jury must also be directed that (a) if they believe the unsworn statement it must be acted upon, (b) if it raises a reasonable doubt in their minds about the case for the prosecution, the defence must succeed, and (c) that it should not be used against another accused.

(2) It is abundantly clear that the High Court failed to adopt the correct procedure in evaluating the statement. The Court of Appeal also held that the approach was erroneous nevertheless applied the Proviso to section 334 read with Article 138.

Per Priyasath Dep, PC J.

"I agree that the trial judge failed to adopt the correct approach in relation to the dock statement. He had rejected the dock statement as false and thereafter considered the prosecution case and held that the prosecution had proved the case beyond reasonable doubt. When considering the facts of this case there is credible and sufficient evidence to convict the accused."

(3) The proviso to section 334(1) is based on sound reasoning that in a case where there is overwhelming evidence the court should not allow the appeal if there is no miscarriage of justice. There is no impediment to apply the same rationale in non jury trials.

Per Priyasath Dep, PC J.

"Court of Appeal should take into account the general practice adopted by the appellate courts over the years. If the judgment is unreasonable and cannot be supported having regard to the evidence, the judgment shall be set aside. This is a general principle adopted by appellate courts setting aside judgments on the basis of unreasonableness or inadequacy of evidence. When there is a wrong decision on any question of law or miscarriage of justice it may be a ground to set aside the judgment. However before doing so the court should consider what effect the wrong decision or miscarriage of justice had on the judgment. If it has no impact on the judgment, the appellate court could disregard those factors and affirm the judgment. In cases though there was a wrong decision on a question of law or miscarriage of justice, the appellate court if satisfied that the prosecution case was proved beyond reasonable doubt it could affirm the judgment instead of ordering a retrial which entails delay and expense. There is 'no substantial miscarriage of justice or which has not occasioned a failure of justice' are the concepts adopted to justify this course of action."

(4) There is credible and sufficient evidence to establish the case beyond reasonable doubt.

APPEAL from the judgment of the High Court of Appeal.

Cases referred to:

1. Queen V. Kularatne 71 NLR 529 at page 53

2. Somasiri Vs. AG- 1983 SLLR 225

3. Lionel Vs. AG- 1988 (1) SLLR 4

4. Gunapala Vs. Republic of Sri Lanka - 1994 (3) SLLR