POINT CAN BE ARGUED IN A DEFENCE CASE

Point to be argued  in a defense case

Unsatisfactory identification of the accused ,

“The Learned trial Judge erred in law and fact when he convicted the appellant on the basis of the uncorroborated evidence of a single identifying witness”. 

·          due to lack of lighting condition prevailed in the crime seen

·         Shocking condition in the crime seen,/feeding identification

·         seen was disturb by some element specialy when the witness moving

·         viewing angle of  the accused who was in the crime seen,

·         distance from the point of seen to the crime

·         things were wore by the accused when crime committed if  common descriptors, especially the earrings that are a popular shape and style, illustrate the weakness of Hyman's identification

·         only a dock identification done by witness that can bring miscarriage of justice so judges must not relied upon such evidence

·         dock identification must be adapted very  carefully

·         failure to consider and apply the  Regina vs turnabull guide lines in a mistake identification

·         even if the evidence is sufficient to show she was at the scene, there is no testimony establishing she engaged in assaultive conduct.

·         insufficient evidence to find them liable as aiders and abettors for assaults in which they did not personally participate.

·         identifications were not based on their independent recollection of the events. each witness merely relied on the police  statement she had given to an officer during the investigation

·         identifications are inherently unreliable because they were based on the clothing and jewelry worn by the suspects

·         if the witness glass user and  was not wearing glasses at the time of the assaults and had been drinking that night.

·         Is  witness defend on a dress many of the people on the street that  night were wearing orange color or same dress

·         witness had sustained severe injuries, suspect had no  blood on her clothing, no one else has

identified her.

·         identifications are further spoiled by the suggestive line-up procedure.

·         Credibility of a witness might slow down if her adamant desire not to be a witness.

·         Identifying witness who have not being  asked the describe her attackers prior to the identification parade

·         common descriptors, especially the earrings that are a popular shape and style, illustrate the weakness of Hyman's identification.

·         Sade alleges Alford's identification was physically impossible or inherently false

·         proving they were present in the general area of the assaults or associated with other participants is insufficient to establish they were aiders and abettors.

·         blood stains on the jeans has absolutely no probative value in this case and a lot of prejudicial value in this case; and if the court were to weigh the prejudicial value against the probative value, certainly the court would not find this evidence helpful.

Mis joinder of charge

1.       Once a person is convicted of theft he cannot also be found guilty of retention of stolen property. Receiving retention of  stolen property is a separate offence and a thief cannot at the same time be a receiver of stolen goods.

2.       Two person accused of sales of government arrack and possession charhed in a one charged is misjoinder of charge

Impeaching the witness

·         Contradiction commission and ,discripancies between the former statement made in the investigation and evidence given in the court, Lower court Evidence and high court evidence inert se and per se u/s 155c

·          Witness is a Bias witness example

·         short history given to the doctor she had not said all the details that I stated earlier. She had not even said that she was pushed to the floor of the bus. She had told the doctor that the sexual intercourse was committed whilst she was on a seat.

·         Prosecutrix is generally immoral character

·         The witness is bribed or any kind of offer

·         Bring a witness who know the fact about the  impeaching witness

            Wrongly marked the production

necessary ingredient for the charge has not been proved/established  by the prosecution

charge of conspiracy , agreement /common purpose participation is not establish

possession of stolen good

 soon after the theft is a presumption of theft but it should “soon after”

·         Two buffolows   found after  three years not soon

·         Two cattles         found after two years  not soon

·         Two cattles         found after one  years  not soon

·         Two cattles         found after four month    soon after

Witness are belated (if there is a justified and reasonable explanation  no harm)

So test of spontaneity and contemporarnety have not applied

Test of probability and improbability

Illicit arrack case

1.       The sample arrack  had not sent to the GA  after taking the order to send from magistrate

2.       Retaining the bottle raid in the police station for 10 dayes

3.       Thumb impression  set by the side of the bottle not in the top and easily  tampered

Defective charges

1.    `charge was defective, in that the provisions of section 187 (1) had not been complied with, as the requirements of section 151 (2) of the Code had not been observed. It was not curable under section 425

Defective sentence

2.    maximum default sentence that could be imposed for non payment of compensation under Section 364(4) of the Penal Code is two years. 

Test of probability

best case to understand this concept is  very famous bus rape done to a katunayaka garment girl (Savinda v. Republic Of Sri Lanka - SLR - 32, Vol 1 of 2010 [2010] LKCA 1; (2010) 1 Sri LR 32 (21 January 2010)

THE IMPORTANCE OF DNA EVIDENCE IN THE FIELD OF CRIMINAL LAW IN SRI LANKA

THE IMPORTANCE OF DNA EVIDENCE IN THE FIELD OF CRIMINAL LAW IN SRI LANKA

(This is article prepared by miss U.A.T Udayangani i publish here for the benefit of law student and other members in the society with the due curtsey  to  U.A.T Udayangani)

 

 

 

Background

The development of the technology leads to the application of DNA (Deoxyribose Nucleic Acid) as a scientific evidence in the field of Criminal Law. Using DNA is an improvement of the traditional system of criminal investigations. Considering on the uses of DNA profiling in Criminal Law are convicting the guilty and exonerating the innocent, excluding suspects and identifying victims of mass murders and assassinations. At present, it is thoroughly recognized that DNA profiling is a very powerful diagnostic technique, which has proved to be highly useful in establishing guilt or innocence.

The importance of DNA is that DNA is unique to each person. In the DNA typing process, the DNA pattern or profile of an individual is first obtained from a tissue sample. This DNA profile is compared with the profile obtained from a sample taken from the scene of crime. If the two profiles match witheach other, it can be said that the sample taken from the scene of the crime came from the individual who was being tested.DNA can be identified from analysis of cells, including from tiny samples of blood, saliva, semen, skin or even sweat.

The existing legal framework in Sri Lanka deals with DNA evidence is figuring out Section 122 of CPC amended by 14 of 2005. In addition, the Section 45 of the Evidence Ordinance provides the legal acceptance for DNA evidence in Sri Lankan courts.

This paper attempts to specifically identify following issues with relating to the importance of DNA evidence in the field of Criminal Law. What are the difficulties in the existing procedural, evidentiary and substantive laws in dealing with DNA evidence in court and during the investigation stage? How to tackle these difficulties in other jurisdictions?

What kind of defenses can be raised by the suspects in relying on DNA evidence in court and can prosecution use in countering such defenses? What are the offences can be used DNA evidence in Criminal Law? Concerning on Sri Lankan experience, Hokandara Murder Case was the first case in Sri Lanka in which DNA profiling has been used. Aftermath of the Hokandara case, some of the significant incidence such as Sarath Ambepitiya Murder Case and Royal Park Murder Case can be identified as landmark cases in terms of using DNA profiling as expert evidence.

 

 

 

Methodology

The main sources of the research are secondary resources such as library research and internet that include books, journal articles, cases and other related statutes. In addition the author has also interviewed lawyers who had experienced in DNA evidence and doctors who had experienced in DNA profiling examinations, especially in terms of its practical applicability in Sri Lanka. For the purpose of providing recommendations for Sri Lanka, a comparative study was done by the author other jurisdictions including U.K., U.S. A. and India.

Results

It is clearly shown that Sri Lanka has no specific legislation or rules and regulations for governing on DNA evidence other than the section 45 of the Evidence Ordinance and Section 122 of CPC as amended by 14 of 2005and there are certain difficulties in the existing procedural, evidentiary and substantive laws in dealing with DNA evidence .Therefore forensic scientist can also limited by law enforcement officers legal inability to obtain suspects non intimate or intimate body samples for testing.

As well Sri Lanka does not have adequate facilities to deal with DNA experiments and police officers have not adequate technical knowledge to conduct an investigation by obtaining DNA evidence. In addition there are some limitations on using DNA. An adequate amount of under graded and uncontaminated DNA must be extractable from the crime scene. Concerning on sexual offences, most of rape victims do not report the crime or it is reported too late for effective vaginal smears to be obtained.

It reduces the use of DNA profiling. Lack of standardization limits is another problem. It leads to emerge a doubt on reliability of evidence. According to the study, failing to establish a National Database on DNA has caused to minimize the usage of DNA evidence in the field of Criminal Law. Privacy issues have arisen and there is a question need to be addressed that how to balance the necessity of using DNA and right to privacy of the suspect, victim and other related parties.

Conclusions

There is no doubt that DNA is used as evidence in relation to many offences in Sri Lanka. But it can be clearly identified that there are substantial and procedural. There is a necessity to enact separate legislation to deal with the issues of governing DNA related experiments, for instance in obtaining samples and governing DNA database of convicted and suspected criminals. In that case, law should be able to establish a balance between rights of victims, suspects and other related parties and necessity of obtaining DNA samples for criminal cases. Therefore the author suggests that obtaining DNA samples with the consent of suspect in minor offences is a necessity and incase of grave offences, there should be a provision to deal with the issue of obtaining samples without the consent of suspects. Police should be trained for using new techniques and how to investigate of crime scene without contaminates DNA evidence. Therefore, the requirement of giving updated technical knowledge to the law enforcement officers is emphasized. In addition to that the government has a responsibility to improve the facilities with relating to DNA experiments, since the reliability of the evidence is based on the quality and the accuracy of DNA samples. Furthermore establishing a National DNA Database in Sri Lanka is much important , since it will help not only to identify criminals and to exclude the innocence by matching the evidence of the Crime Scene with existing DNA data, but also to prevent criminals from having many opportunities to commit these crimes such as murder, rape and robbery

WHAT IS CONTRADICTION AND OMMISSION

Contradiction and omission

In criminal justice system, contradiction and omission is very important among the lawyers than the other tool what they used. To prove the guiltiness of accuse prosecution has to prove all ingredients  required for the offence beyond all reasonable doubt. Evidence of prosecution is fundamentally emerges from investigation. Our criminal justice delivery system defend on mainly four organs, those are,

A) Investigation by police or inquiry by court.

B) leading Prosecution evidence.

C) leading  Defense evidence.

D) Judgment after the proper analysis

All these fields are inter-depended. And as we accepted longstanding legal maxim ‘Audi Alterum Partem – hear the other side’, at all stages other party gets opportunity to check evidence given by the  either side . To block culprit behind bar whole evidence adduced in the course of prosecution must be enough and well-established moreover it also proved on the touchstone of firmness and truthfulness of witnesses.

We have adopted three stage of oral evidence in our evidence taking procedure these are 

1) Examination in chief, 

2) Cross Examination

3) Re Examination if required. 

To inquire trustworthiness and truthfulness of witness contradiction and omission are very important. It helps defense and also to prosecution when particular witness turn over from his previous statement been given during investigation or inquiry and not support prosecution case.

MEANING

What is term ‘contradiction’ and ‘Omission’?

As per oxford dictionary term ‘contradict’ (verb) means

‘1. denies (a statement).

2. deny a statement made by (a person).

3. be in opposition to or in conflict with. [contradiction noun].

Term ‘Omission’ emerges from verb ‘omit’ means:

1) Leave out; not insert or include

2) leave undone.

3) (foll. by verbal noun or to + infin.) fail or neglect. [Latin omitto omiss-]

Omission -

1) omitting or being omitted.

2) Thing omitted.

   

So, if we took plain meaning if word ‘contradiction’ and ‘omission’ as per dictionary meaning with reference to our concern of prosecution evidence contradiction means ‘Person who turn over from his previous statement and submits differently which effects his truthfulness and trustworthiness of testimony. While ‘omission’ means person skip something very important previously when he giving statement.(about omission very well explanation and law have been discussed by the court in the case of keerthi bandara vs ag 2000 2 slr 245)

Relevant law

 Evidence Act- Sec-145(i)(ii) these section explain how prove the contradiction.section   155(c), explain ways of impeaching the witnesses . Code of Criminal Procedure Sec110(i,ii,iii,iv) also important in this regard  because statement recorded under his section can be used

A provision regarding cross examination of the witness as to previous statements in writing has been embodied in Ceylon  Evidence ordinance Sec-145(i)(ii).

During investigation concern witness is examined by police,section 110 of Cr.P.Code. Use of Statement which is recorded under the section 110 is governed by sec. 110(3) of Cr.P.C.

What is amount to contradiction?

Word ‘contradiction’ found its roots in ‘Bible’ the holy religious book of Christianity.  Means that two antithetical propositions cannot both be true at the same time and in the same sense. In classical logic, a contradiction consists of a logical incompatibility between two or more propositions. It occurs when the propositions, taken together, yield two conclusions which form the logical, usually opposite in versions of each other. Illustrating a general tendency in applied logic, Aristotle's law of non-contradiction states that "One cannot say of something that it is and that it is not in the same respect and at the same time."

But, here with reference to law of evidence we have to understand word ‘contradiction’ and ‘omission’. To simply comprehend contradiction we should consider Cr.P.C 161,110(3) and sec.145,155(c) of Evidence ordinance altogether.

During investigation, police officers will records the statements of witness which are record under the power of section 110 Ccp. Purpose of recording statements is to gather evidence against accused. While police submits charge sheet u/s 136 of CPC. certified copy of all statements also supplied as well its copy to accused. And on the basis of this statements court frame charge and took cognizance against accused. While witness whose statement has been earlier recorded is examined in the court ,defense attorney  can questioned his truthfulness as it is provided u/s 145 of evidence act. Letter portion of this section describe how to contradict witness.

A witness may be cross-examined as to previous statement made by him in writing or reduced in to writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradicting him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

How to record contradiction during trial?

The portion of the statement recorded under section 110 by investigation officers or deposition recode red in inquest or non summery trial at magistrate court  which is supposed to be used for contradicting the witness most of the time. first of all attention must  be brought to his notice and he should be questioned about it. Let us take example of trial where an accused person is being prosecuted for causing grievous hurt to one A with an axe. During prosecution evidence witness stated that accused assaulted him with axe in such a way that the metallic head of the axe come in to contact with his arm causing fracture, and if in the  course of the investigation he has stated in his statement under the section 110 of the ccp that accused has beaten by the stick portion of the axe.

To contradict the witness exact passage occurring in his statement under sec 110 should be read out and put to the witness whether the witness admits having made such a statement before police officer, the exact statement which was read out to the witness should be incorporated verbatim in deposition within inverted commas. If the witness admits having made that statement there is no need to further proof of contradiction that can be easily seen by the trial judge when he writing his judgment and further this contradiction can be brought to the notice of the judge time of final submission

 If on the other hand the witness denies having made such a statement, thereupon it should be mention in the deposition itself in brackets (the certified copy we have taken well in advance from the relevant police station). By this process the contradiction is merely brought on record but yet to be proved. Thereafter when police officer who has recorded the statement is examined in the court the passage marked for the purpose of contradiction should be read out to him and he should be asked if the witness had stated as mentioned in that exhibit. It is only when investigating officer answer in affirmative that the exhibit can be deemed to have been properly proved.

What is amount to omission?

As like contradiction some times the witnesses might not have mentioned an important circumstance or point  in the course of his evidence recorded the court. Such material omissions also fall within the category of contradictions and they too have to be proved.

For example in the case above mentioned, if the A had stated before the court that he was beaten by the accused with not only on the arm but also on the leg and if he did not mentioned these further injury to a police officer under the section 110, it is a material omission which is amounts to contradiction. Procedure to prove the material omission is same as the procedure to prove contradiction.

When PROSECUTOR can contradict his own witness?

How?

Under the section 154 of evidence ordinance t it is laid down that, court may permit at its own discretion any person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. When any witness not support the party who calls him, person who calls him should be given chance to put him suggestive question and also to contradict him as it is provided in Sec 145.

A witness is generally expected to be in favor of the party by whom he is called. In certain cases the witness turns hostile and gives evidence against the person who called him. In such cases the evidence of a witness, who has been cross examined by his own party is not to be rejected as untrustworthy or incredible. The court can rely upon that testimony which inspires the confidence and credit.

Therefore, when any witness whose statement has been previously recorded u/s 110 by police or any other previous statement relevant in the matter and subsequently if he turn over in his testimony before court prosecution may permit by court to put all question which could be asked in cross-examination.

Essentials to attract procedure u/s 145 of contradiction or omission.

A) Previous statement made  u/s 110 of  cr.p.c or any other statement made by him in writing or reduced in to writing.

B) That previous statement must be relevant to matter in question.

C) Contradiction or omission should me material. And for the intention to contradict him.

D) Contradiction or omission must be proved.

How to judge contradictions and omissions? How far they are material?

The duty of court is to discover the truth and to find out whether the accused is guilty or not. Facts come before the court by way of oral testimony of witness and other documents. As human being is not free from certain error moreover with different perception power of senses and different intellect i.e. fanatical reasoning, mental status etc. Therefore it is not possible to lay down strict rule or straight jacket formula in appreciation of all contradictions and omissions. So every contradiction or omission must therefore be judged by reference to various factors.

Sometime due to this very nature of human intellect and perception of senses contradictions and omission occurs. Real and truthful eyewitness may sometime make genuine mistake in statement before police and court. At that time it must be remembered that contradictions and discrepancies are natural and inevitable in the testimony of even truthful witnesses. So then “when the evidence is discrepant or exaggerated allowance has to be made for the idiosyncrasies of the class from which the witnesses are drawn, their powers of observation, strength of memory and facility of description with a discount for possible bias or prejudice” 

CONCLUSION

Contradiction and omission are very important part in during criminal trial. Proved contradictions and omissions are very valuable if it is relevant and material, and goes to the root of the case it definitely affects veracity and trustworthiness of witness. To take contradiction and omission on record defense counsel or Public Prosecutor as may be the case, ought to carefully study statement of concern witness and investigation should also brought material facts of statement to the notice of Public Prosecutor. It is also duty of court to record properly all contradictions