We reproduce below a letter written by an Attorney-at-Law, Mr. W.J. Basil Fernando, on behalf of Ms. Padma Wickramaratna, the widow of Gerald Perera. This letter sums up the grounds on which an appeal may be lodged against this judgement. The letter was addressed to the Deputy Solicitor General, Mr. Shavindra Fernando who prosecuted the case.
Dear Mr. Fernando,
I am writing this as the Attorney-at-Law for Padma Wickramaratna of 52/B/2 Mihindu Mawatha, Iddagodalla, Gonagaha, the widow of the late Gerald Perera who was the victim who was subjected to torture referred to in this Case No. 326/03. I am writing to you on her instructions and on further legal advice by her Attorneys-at-Law.
The purpose of this letter is to request you to appeal from the judgement of acquittal in this case and the basis on which this request is made is as follows:
1. You prosecuted this case on the legal basis that once the arrest, custody and control of the victim, Gerald Perera, was proved to be by the accused the responsibility for his torture will be attributed to those officers unless they are able to give an explanation to court as to why they are innocent of the charge. The High Court judge in this case, in the entirety of her judgement, does not refer to or come to a finding on this most fundamental element of your case. The High Court judge has not considered your case at all. Kindly see the judgement (which is attached) and you will find no reference at all to this most fundamental basis of the prosecution case.
We feel that it is reasonable to believe that you as the prosecutor in this case believed in the legal position on which your case was based. As this position has not even been considered it is logical to conclude that your case was not considered by the High Court judge at all. This is not just an error of law but an error of law of the most fundamental type. It is therefore your obligation to appeal on the basis of this fundamental error of law. Not to appeal would mean that it is not a matter of importance that the very basis on which you rested your prosecution is completely ignored by the High Court judge.
Kindly also note that this is not an instance in which the High Court judge rejected the legal position on which you based your prosecution. If it was a matter of such rejection it was possible to consider the legality of the reasoning on which such rejection was based. However, in this present case the High Court judge does not consider the most important aspect of your prosecution. Therefore, there can be no reasoning about the rationality of such rejection to not look at the prosecution case at all.
This is the most fundamental defect of the judgement but there are other serious defects as well.
2. At the very core of the prosecution case was the fact that after Gerald Perera was brought to the Wattala police station sometime in the afternoon until the next day morning he was kept inside the station and that the torture had taken place during that time. None of the accused makes any explanation in their dock statements about how they are innocent of the manner in which the accused came about his injuries during that period of time from the afternoon to the morning of the next day. They all keep silent on this issue.
The trial court judge fails to draw any conclusions from the silence of the six accused on their responsibilities and their actions during this relevant period of time. This aspect is completely omitted in the judgement. This omission amounts to a material omission and an error of law leading to misinterpretation of facts.
3. The High Court judge does not assess the dock statement of the accused and in fact adopts them as true in her judgement. In contrast, the Supreme Court rejected the version given by the respondents.
It was the duty of the trial court judge to direct herself into the legal implications of a dock statement. She should come to a finding as to whether she accepts the version given by the accused in their dock statements. After assessment she must come to a finding as to whether she believes in the truth of these statements. Not making as assessment as to whether dock statements can be believed amounts to a non-direction or a misdirection on the part of the trial judge.
4. The High Court judge in her judgement does not make a summary of the prosecution case at any stage. In the judgement one cannot find what, in totality, was the prosecution case. Bits and pieces of statements from witnesses are taken on various issues and the High Court judge often constructs a story by putting some statements of the prosecution witnesses together with the statements of the accused. For example on the circumstances of arrest the prosecution witness, Patma Wickramaratna, the wife of the torture victim, has given one version of the arrest which is quite in contrast of the manner in which the arrest took place according to the accused. The High Court judge taking bits of evidence from the prosecution witness and the accused constructs her own version of the story.
The failure on the part of the High Court judge to give a summary of the prosecution case in totality and faithfully amounts to a misdirection or a non-direction of law. Whatever be the final finding of the High Court judge it is her duty as the trial judge to faithfully record a summary of the totality of the prosecution case as lead by the prosecution. This failure has resulted in the trial court judge acting more like a reporter than a trial judge who has to consider the totality of evidence given by two parties and assess the two versions on the basis of the principles of law.
5. The trial judge misdirects herself on the issue of the conclusions she must draw on the basis of a legal principle in contrast to those conclusions that must be drawn on the basis of evidence. The prosecution position in this case was that once the arrest, the period in custody and those who are responsible for the arrestee during that period has been proved, the court must act on the basis of the Ellenborough principle which reads as follows:
……No person accused of crime is bound to offer any explanation of his conduct or of circumstances of suspicion which attach to him, but nevertheless, if he refused to do so where a strong prima facie case has been made out and when it is in his power to offer evidence, if such exist in explanation of such suspicious appearances, which would show them to be fallacious and explicable consistently with his innocence, it is a reasonable and justifiable conclusion that he refrains from doing so only from the conviction that the evidence so suppressed or not adduced would operate adversely to his interest.
Lord Ellenborough, in Rex V Cochrane (1814 Gurneys Report 499)
You, in your final submission to court stated as follows:
Inability to explain how within the short time that he was in police custody he came about such a change and such a physical condition brings to operation Ellenborough principle, proving a serious crime against the accused.
The High Court judge blames the prosecution for not leading more direct evidence on the actual torture. In fact the core of the judgment is that since this is a matter of great importance it is not enough to rely on circumstantial evidence but the prosecution should have lead some evidence on the actual torture that is more cogent and direct. The High Court judge spends a lot of time on this issue and in fact, bases her entire finding on this issue.
However, the prosecution position was that once the arrest, the period of arrest and those who were responsible for the custody has been proved the burden shifts to the accused to give a reasonable explanation which will demonstrate their innocence. Thus, the prosecution relied on a shift of the burden of proof after certain basic elements were proved by the prosecution. The trial court judge misdirected herself by trying to look for evidence when in fact what she had to do was to draw a legal conclusion on existing facts. Therefore, the most important aspects of her judgement are based on a misdirection on an issue of law.
In an Indian judgement the task she faced has been explained as follows:
… The admitted facts are, that Suman Behera was taken in police custody on 1.12.1987 at 8 a.m. and he was found dead the next day on the railway track near the Police Outpost Jeraikela, without being released from custody, and his death was unnatural caused by multiple injuries sustained by him. The burden is, therefore, clearly on the respondents to explain how Suman Behera sustained those injuries which caused his death. Unless a plausible explanation is given by the respondents which is consistent with their innocence, the obvious inference is that the fatal injuries were inflicted to Suman Behera in police custody resulting in his death, for which the respondents are responsible and liable
Nilabati Behera alias Lalit Behera vs. State of Orissa and others, (Case No. 1993 AIR 1960 1993 SCR (2) 581. 1993 SCC (2) 746 JT 1993 (2) 503, 1993 SCALE (2)309 24.3.1993, date of judgement 24/03/1993).
6. The High Court judge does not refer at all to the very material evidence of the prosecution to the effect that the arrest of Gerald Perera was done by a team of police officers lead by the first accused who were working directly under the control of the ASP of the area and this team was only using the premises of the Wattala Police Station. This material evidence that the prosecution relied on has not been mentioned in the judgement at all. This aspect of the evidence has been omitted from the judgement.
The omission of this important part of the evidence regarding the special team, which consisted of the accused, amounts to a material omission causing serious prejudice influencing the wrong conclusions of facts arrived at by the trial court judge. It was the duty of the trial court judge to mention the evidence relating to the special team under the control of the ASP, to assess that evidence and then come to a conclusion as to whether she believes in that evidence or not. The trial judge does not do any of these things. Therefore she has caused an irreparable damage in the cause of the assessment of the prosecution case. It was not simply possible for her to assess the prosecution case without taking into consideration the evidence lead on this matter.
7. The High Court judge mentions only parts of the evidence of Inspector Sena Suraweera, a defense witness, who revealed some important matters relating to the arrest and the custody of the torture victim. That part of the evidence of this witness has been omitted when the trial court judge refers to the evidence of this witness. The trial court judge mentions some part of his evidence such as the Supreme Court case in which this witness also was a respondent and the circumstances of the release of the torture victim, Gerald Perera, as given by this witness. But, the evidence given by this witness repeatedly stating that the team which arrested Gerald Perera which consisted of the six accused, lead by the 1st accused was not working under his command or direction but in fact, they were acting on directions given by the Assistant Superintendent of Police who was an officer in a higher command position than the OIC. This is certainly a part of material evidence. By omitting this part of the evidence the trial court judge omits a very important part of the prosecution case and also the evidence of this witness. The trial court judge was under the duty to include this part of the evidence in her judgement and then come to an assessment as to whether she believes in this evidence or not. The trial court judge is unable to assess this evidence as she has not included this part of the evidence in her judgement. The omission is a misdirection of law and the consequence is a misdirection regarding the interpretation of facts.
8. The trial judge comments on Inspector Suraweera being removed from the list of accused. This may be a matter that the Attorney General’s Department should look into as the judges comments to the effect that she was shocked by this amounts to a criticism of the department. However, this is only a passing comment and the trial judge is not entitled to draw conclusions of innocence of the six accused on the basis that the seventh has been dropped. There may be many criminal cases in which not all accused are brought to trial for various reasons. If it were to conclude that the mere dropping of an accused from a group makes the other accused innocent of the charges this would be an absurd legal proposition. The trial court judge at no stage states as to how the case against the six accused is disproved because the seventh has been dropped. There is no reasoning on that issue at all in the judgement.
All this and many other grounds clearly establish a duty on your part to appeal in this case. My client is of the view that justice has been denied to her through a mistrial resulting from the factors that I have mentioned above. You are quite well aware during the time of the prosecution that the chief witness had been killed and there was also consensus at that time that the benefit of this killing should not go to the accused. It was clearly expected of you to prove this case without the evidence that was lost due to the murder of my clients husband. In fact, if you felt that that was not possible you should not have prosecuted this case at all. In fact, you adopted a legal strategy under the circumstances which was completely correct in law. However, your case has been completely ignored in the judgement and besides this, there are many serious errors in this judgement. It is on that basis that my client requests you to appeal in this case.
Further submissions on this issue can be made by us if required.
Thank you.
