AJITH
VS.
 ATTORNEY GENERAL (MATHUGAMA TRIPLE MURDER CASE)

COURT OF APPEAL
ANIL GOONERATHNE J.
SUNIL RAJAPAKSA J.
C.A NO. 208/2012
H.C KALUTARA 301/2003
ARGUED ON; 31.07.2014
DECIDED ON; 26.09.2014

Penal Code-Murder-Evidence of a small child-Criminal Procedure Code Section 420- Witness not in the Island-Evidence Ordinance Section 33- section 33(6)-Admission of deposition-Ellenborough principle-Test of Spontaneity- Contemporaneity promptness- Delay of recording statement-Fatal?

In this case - of triple murder - the prosecution relied on the evidence of a small child who was about 5/6 years at the time of the incident, after trial the accused was found guilty and sentenced.

In appeal it was urged that, there was a delay of about 21/2 years after the incident to record a statement of the child witness and the question whether a deposition of a witness in the non-summary inquiry could be admitted under Section 33 of the Evidence Ordinance.

Held,

1. Evidence Ordinance Section 33 is an exception to the hearsay rule and substantial evidence.

2. The accused has the right to be represented by counsel at a non-summary inquiry before the Magistrate and the right to cross