THE ATTORNEY GENERAL V SANDANAM PITCHI MARY THERESA

THE ATTORNEY GENERAL V.
SANDANAM PITCHI MARY THERESA

SUPREME COURT
SHlRANEE TlLAKAWARDANE, J.
SRIPAVAN, J., AND
IMAM, J.
S.C. APPEAL NO. 79/2008
S.C. (SPL.) L.A. NO. 153/2008
C.A. NO. 161/2004
M.C. COLOMBO NO. 818/2004
DECEMBER 10TH, 2009

Poisons, Opium and Dangerous Drugs Ord - Section 54(a)(c) Evidence Ordinance -  Judicial evaluation and assessment of evidence in criminal cases· Section 3 -Relevant facts - Probative value - Receivability, materiality, relevance and admissibility - Credibility of a witness is a question of fact, not law . Judicial discretion· Duty to secure a fair trial - Code of Criminal Procedure Act- Section 351(a)  - Supplementary power of an Appellate Court to order production of any document Connected with the proceedings -  Section 329 - Calling fresh evidence by an Appellate Court or direct it to be taken Evidence Ord- Section 114- Falsus in uno - Falsus in ominious .

An application for Special Leave to Appeal was preferred by the Respondent - Petitioner - Appellant (Appellant) against the Judgment of the Court of Appeal dated 20.05.2008 wherein the conviction and the sentence imposed against the Accused - Appellant - Respondent (Respondent) was set aside.

The Supreme Court granted Special Leave to Appeal on the following questions of law.

1. Did the Court of Appeal err in law by holding that "there was no reason to reject the evidence of the defence witness Matilda?"

2. Did the Court of Appeal err in law by holding that the prosecution has not proved its case beyond reasonable doubt without considering the prosecution evidence?

3. Did the Court of Appeal err in law by the failure to evaluate and consider the prosecution evidence and or the submissions made on behalf of the prosecution (State) in the Court of Appeal?

4. Did the Court of Appeal err by relying upon observations made by their Lordships of the demonstration conducted by an Officer of Court in the Court of Appeal?

    In this appeal, the Supreme Court dealt with the proper analysis, evaluation and assessment of evidence.

Held:

(1) A key test of credibility is whether the witness is an interested or disinterested witness. The relative weight attached to the evidence of an interested witness who is a near relative of the accused or whose interests are closely identified with one party may not prevail over the testimony of an independent witness.

(2) The overall consistency of evidence is a further test of creditworthiness. Consistency is not just limited to consistency inter-se but also consistency with what is agreed and clearly shown to have occurred.

(3) Credibility is a question of fact and not law. Appellate Judges have repeatedly stressed the importance of trial Judges' observations of the demeanour of witnesses in deciding questions of fact. Demeanour represents the trial Judges' opportunity to observe the witness and his deportment.

(4) Whilst internal contradictions or discrepancies would ordinarily affect the trustworthiness of the witness statement, it is well established that the Court must exercise its judgment on the nature of the inconsistency or contradiction and whether they are material to the facts in issue. Discrepancies which do not go to the root of the matter and assail the basic version of the witness cannot be given too much importance.

Witnesses should not be disbelieved on account of trifling discrepancies and omissions. When contradictions are marked, the Judge should direct his attention to whether they are material or not and the witness should be given an opportunity of explaining the matter.

(5) It is dangerous to presume or assume that because when two witnesses contradict each other, one of them must be a false witness and reject the testimony in its entirety. The Judge has a duty to probe in to whether the discrepancy occurred due to a lack of observation or defective memory or a dishonest motive.

(6)

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