Pallebedda Premalatha murder case:

Appeal Court set aside death penalty: orders re-trial

Wasantha RAMANAYAKE

There was no burden whatsoever on the accused to prove an alibi to any degree of probability, observed Justice W. L. R. Silva, Judge of the Court of Appeal delivering the judgment in a murder appeal, recently.

The court set aside the conviction and the death sentence imposed on an accused for committing the murder of U.B. Premalatha at Pallebedda on March 15, 1999. The court also ordered a re-trial with the Deputy Solicitor General (DSG) conceding since the court believed that the prosecution had led “very” cogent evidence.

Delivering the judgement Justice W. L. R. Silva with Justice Sisira de Abrew agreeing, noted that the Ratnapura High Court after a trial by jury, convicted and sentenced appellant G. A. Nimal Piyaratne alias Kassippu Nimal for committing the murder.

He observed that there were “three unpardonable serious and grave misdirections of law had been made by the trial Judge in his address to the Jury.”

Justice Silva citing several judgements held that there was no burden whatsoever on the accused to prove an alibi to any degree of probability.

Counsel Nimal Muthukumarana for the appellant argued that the trial judge had erroneously misdirected the Jury that the accused should prove his alibi on a balance of probability as in a civil case.

Justice Silva dealing with the second contention of the appellant’s counsel with regard to the misdirection i.e. that if the jury was to consider and believe the version of the prosecution to be more credible than the defence, the jury should disbelieve the version of the defence and the vise versa, would be tantamount to casting an equal burden of proof on the prosecution and the defence. “which is inconsistent and wholly contrary to the basic norms and principles of criminal law,” he observed.

“In his address to the jury the trial judge had made another mistake that the accused had not led evidence to prove his alibi, these are very serious and grave misdirections, especially so because the misdirections are made in the address to the jury thus the jury had been misdirected on the law,” Justice Silva noted.

Justice Silva further noted that from the very inception the Judge had erred with regard to the burden of proof and that the judge had started his judgement on the footing that the prosecution has proved the case beyond reasonable doubt.

Nimal Muthukumarana appeared for the accused-appellant. Deputy Solicitor General Kapila Waidyaratne appeared for the Attorney General.