In The Supreme Court of Sri Lanka

SC Appeal No; 104/99
SC (Spl) LA No 238/99
C.A. No; 80/95
H.C. Panadura No; 534/99
Danwatte Liyanage Wijepala v The Attorney General
Before; Fernando, J., Wadugodapitiya, J., Ismail, J.
Decided On; December 12, 2000
Judgement of; Ismail J and Fernando J (with Wadugodapitiya J. agreeing)

Material Facts

The appellant Wijeyapala and his brother Carolis (respectively the 1st and 2nd accused) were charged on indictment with the murder of Don Sarath Sirilal at Batagoda. The sole eye witness to the attack on Sirilal was his father whose evidence was accepted by the trial judge. The 1st accused was convicted of the lesser offence of culpable homicide not amounting to murder and sentenced to 10 years rigorous imprisonment. The 2nd accused was acquitted. The 1st accused-appellant appealed against his conviction to the Court of Appeal but his appeal was dismissed. He then appealed to the Supreme Court against this dismissal.

Matters for Determination

Is the Court of Appeal entitled to engage in a re-appraisal and re-trial on questions of fact which have come up before the judge in his capacity as the "trier of facts", in a trial before a judge sitting alone?

Relevant Areas of the Law

Criminal law- corroboration-Section 134 of the Evidence Ordinance-misdirection by trial judge- Sections 147 and 159 of the Code of Criminal Procedure Act No 15 of 1979-fundamental rights

Propositions of Law Established in the Decision.

(1) The evidence of a single witness, if cogent and impressive, can be acted upon by the Court but whenever there are circumstances of suspicion in the testimony of such a witness or is challenged by cross-examination or otherwise, corroboration may be necessary.

per Ismail, J.

(2) In a trial before a judge sitting alone, while his decision on questions of fact based on the demeanour and credibility of witnesses carry great weight, an appellate court has a duty to test the evidence by a careful and close scrutiny and if it entertains a strong doubt as to the guilt of the accused, the benefit of that doubt must be given to him.

per Ismail, J.

(3) The failure to disclose to an accused, the existence and contents of the first information will result in a violation of Article 13(3) which is the right to a fair trial by a competent court.

per Fernando J.

Decision of the Court

The trial judge has failed to appreciate that the evidence of the deceased's father has not been supported by any other item of evidence and the Court of Appeal has erred in affirming the conviction without adequately testing the evidence of the father of the deceased. Appeal allowed and appellant acquitted.

Appeal also allowed on the additional ground set out by Fernando J.

"...the failure to disclose to an accused, the existence and contents of the first information-which might have cast serious doubt on the informant's credibility-may well result in a miscarriage of justice. Rule 52 of the Supreme Court (Conduct of and Etiquette for Attorneys ?Vat-Law) Rules, 1988, requires an Attorney- at-Law appearing for the prosecution to bring to the notice of the Court "any matter which, if withheld, may lead to a miscarriage of justice." That is a professional obligation founded on a right to a fair trial."

per Fernando J.

Authorities Referred to in the Judgement
(1) King v Endoris, 46 NLR, 498
(2) Jagathsene and Others v G.D.D. Perera, Inspector, CID and Mrs Bandaranaike, 1992, (1) SLR, 371
(3) Phato v AG (1994) 3 Law Reports of the Commonwealth, 506
(4) R v Stinchcombe (1992) Law Reports of the Commonwealth (Crim.) 68
(5) State vs Botha, 1994, (4) SA 799