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Sunday, June 15, 2014

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)



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