Structural drawback prevails

Sarath MALALASEKERA

The rising incidence of crime, is a concomitant of some structural drawbacks which prevail in our criminal justice system. It is often said that if there are stronger criminal laws, then crime prevention becomes easier to achieve, said Attorney General President’s Counsel Mohan Peiris, at the High Court Judges Colloquium held at the Galadari Hotel recently.

The meeting was presided over by Chief Justice Asoka de Silva, Legal Aid Commission Chairman (LAC) S. S. Wijeratne, High Court Judges association secretary Kumudini Wickramasinghe senior and junior members of the Official and Unofficial Bar also participated.

The Attorney General said it is no exaggeration to state that in Sri Lanka Criminal Law is weighted more in favour of the accused than the prosecution. When a prosecutor strides into a criminal court with the sole view to proving his case, the dice is heavily loaded against him.

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 Burden of proof - the Attorney General emphasised that what is in effect burden of proof? Though 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.

The famous case of WOOLMINGTON established what is known today as the golden thread principle.

It states that the prosecution must establish the guilt of the accused beyond reasonable doubt. Having defined the term “Proof” in Section 3, the evidence ordinance gives guidelines in Chapter 9 as to how the several burdens have to be discharged. The same Chapter deals with presumptions that a court may draw based on primary facts established by the prosecution.

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.

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. Look at the illustrations to this section -”A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.”

The cases on this section state that the prosecution must lead some prima facie evidence before the accused sets out to prove that he had a ticket -iI was said so in the case of Sanitary Inspector vs Thangamani Nadar 55 NLR.

In England the cases do not insist on prima facie evidence being led. In Oliver (1944) KB 68 it was stated that the prosecution need not lead even prima facie evidence.

The modern trend in England is not to restrict the burden of the accused only to cases where he had peculiar knowledge. He has to prove a fact even when the prosecution could have knowledge of that fact. The defence cannot resile his burden merely by showing that the prosecution has also peculiar knowledge of the same fact, the Attorney General said.

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 where 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.