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