JAYATISSA V. HON ATTORNEY GENERAL

JAYATISSA V. HON ATTORNEY GENERAL

SUPREME COURT
J. A. N. DE SILVA, C. J.,
SRIPAVAN, J. AND
IMAM, J.
S.C. (SPL) L.A. NO. 229/2009
H.C. (CHILAW) NO. 6/2000
C. A. NO. 27/2004
FEBRUARY 9TH ,2010

Evidence Ordinance - Section 11 Section 105 - When facts not otherwise relevant are relevant?- relevancy of facts which is inconsistent with a fact in issue or relevant fact - defence of alibi - facts which make the existence or non-existence of any fact in issue or relevant fact highly improbable or highly probable

The Appellant, with two others, were indicted before the High Court on a charge of attempted murder. After trial, the 2nda nd 3rd Accused were acquitted and the Appellant was convicted. The Appellant appealed against the judgment of the High Court and the Court of Appeal dismissed the appeal.

The Appellant thereafter appealed to the Supreme Court mainly on the ground that the Judge of the High Court acted on the premise that the defence of alibi raised by the Appellant must be proved by the Appellant.The learned High Court Judge had held that the burden of proof of the defence of alibi is always with the Accused.

Held

(1) The word 'inconsistence' referred to in Section 11 of the Evidence Ordinance indicates the physical impossibility of the co-existence of two facts at any given time.

(2) Plea of alibi is not an exception to penal liability. Hence there is no burden of proof on the Accused to prove a plea of alibi section 105 of the Evidence Ordinance has no application Evidence of alibi has merely to be weighted in the balance with the prosecution evidence.

(3) When the defence sets up an alibi, the prosecution is entitled to lead evidence in rebuttal.

(4) When an Accused takes up an alibi as a defence, three positions could arise;

(a) If the evidence is not believed the alibi fails,

(b) If the evidence is believed, it succeeds,

(c) If the alibi evidence is neither believed nor disbelieved, but would create a reasonable doubt as to the prosecution case on identity, the Accused is entitled to get the benefit of the doubt.

(5) There are certain fundamentals to be observed when an alibi is set up as a defence -

(a) If an alibi is established by unsuspected testimony, that will be satisfactory and conclusire.

(b) An alibi should cover the time of the alleged offence so as to exclude the Accused's presence at the crime scene at the relevant time.

(c) The credibility of an alibi is greatly enhanced, if it was set up at the time the accusation was first made and was constantly maintained. If it is taken up belatedly-the effect of the alibi will be less.

(d) An alibi can be falsified by mistaken identity and the difference of time in the clocks. A few minutes will make all the difference.

(6) A false alibi will weaken the defence case and strengthen the prosecution case.

Held further -

Per J. A. N. De Silva, C. J., -

    ". . . the trial judge has gone on the wrong assumption that burden of proof of alibi is on the defence. Having considered the evidence relating to alibi we are of the view that if proper evaluation was canied out by the trial judge she could have rejected this defence and still convicted the appellant."

Cases referred to:

1. King v. Marshall - 51 N.L.R. 157
2. Yahonis Singh v. Queen- 67 N.L.R. 8
3. Punchi Banda v. State - 76 N.L.R. 293

APPEAL from the Court of Appeal.

Dr. Ranjith Fernando for the Petitioner-Appellant
Ms. Ayesha Jinasena S.S.C. for the Respondent.

Cur.adv. vult.

February 9th,2010
J.A.N. DE SILVA, C.J.

    The learned counsel for the petitioner heard in support of this application. We formerly granted leave to proceed on the questions set out in paragraph 7 (a) (b) and (c) of the petition. Thereafter the court decided to proceed with the appeal with
the consent of both parties.

    Dr. Ranjith Fernando senior counsel for the appellant submitted that in the Court of Appeal judgment too the court has recognized the

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