Stronger criminal law needed - AG

Sarath Malalasekera

The rising incidence of crimes, is a concomitant of some structural drawbacks which prevail in our criminal justice. It is often said that if there are stronger criminal laws, crime prevention becomes easier to achieve, said Attorney General President’s Counsel Mohan Peiris.

He was speaking at the Asia Crime Prevention Foundation of Sri Lanka annual general meeting held at the Galle Face Hotel recently.

The meeting was presided over by former Chief Justice Parinda Ranasinghe.

The Attorney General said it is no exaggeration to state that Sri Lanka Criminal Law is weighted more in favour of the accused than the prosecution.

“When a prosecutor strides into a criminal court to prove his case, the dice is heavily loaded against him,” he said.

“Against this backdrop I propose to share with you the anxieties that torment us and some of the suggestions which might remedy the situation.”

Speaking on the burden of proof, the Attorney General said this term is used in different senses, “in one sense it connotes the obligation of a party to establish his case depending on whether it is civil or criminal.

As far as we are concerned, the term “burden of proof” means the overall burden of the legal burden that is incumbent upon the prosecution,” he said.

“It is my contention that our traditional view that the burden lies on an accused to prove a fact which is especially within his knowledge should be extended to cover Section 27 discoveries as well. There must be a positive declaration by the legislature that the burden lies on the accused in this situation to explain as to how he acquired this knowledge,” he said.

In fact Section 106 of the evidence ordinance states that whenever a fact is peculiarly within the knowledge of the accused, the burden of proof in respect of it is on the accused.

“This is a reproduction of a rule stated in the old English case of Turner (1816) 5 M and S 206”.

The Attorney General emphasised that England has since moved away from Turner but “we still say that the accused must prove a fact only when it is within his peculiar knowledge.”

The Attorney General dealing with Dock Statements said that dock statements are anomalous features that hamper our prosecutions.

“I propose that they be repealed and abrogated from our law. In England there was a time when the accused were prohibited from giving evidence because they were so indigent that they did not have the wherewithal to retain counsel.

“When they gave evidence unassisted by counsel, they virtually damage their cases and as a result English Law prohibited them from giving evidence.

“Instead English Law conferred on them the right to make a dock statement. This is the genesis of dock statements in England,” the Attorney General said.

Vice President D.G. Jayalath, D.P.S. Senanayake, I.T. Ganagaratnam and P.H.M. Ratnayake, senior and junior members of the Official and Unofficial Bar also participated.