The Negombo High Court last week acquitted the accused in a torture case where a Sub Inspector of Police was charged with an offense under the CAT Act (Act No. 22 of 1994) punishable with seven years of rigorous imprisonment. As the basis of acquittal the court stated in the written judgement, If the suspect was assaulted on the soles of his feet, particularly if he was assaulted for about thirty minutes, there should be severe injuries on the soles of the feet. But the according to the medical report there is no mention of any injuries to the soles of the feet. For the suspect to have been struck on the soles of the feet for thirty minutes without any signs of injury is truly wondrous.
In contrast to this finding by the High Court judge the medical report of the Assistant Judicial Medical Officer (AJMO) Dr. Kumudu Kumari Jusa, stated the feet as injuries nos 9 & 10.
8. Contusion 2 inches x 2 inches on the sole of the left foot;
9. Contusion 2 inches x 1 inch on the sole of the right foot; and
.
The AJMO gave detailed evidence on injuries Nos 8 & 9 and explained in detail the nature of these injuries and stated categorically that these injuries could not have happened in any other way except by way of assault.
“Q. You came to a conclusion on the basis of injury no. 10 and injuries no’s 8 & 9?
A. It can be said that this is due to an assault. Injuries nos 8 & 9 which are injuries to the soles of the feet cannot happen in any other way.
Q. Why is that?
A. Having injuries on the soles of the feet like injuries nos 8 & 9 specially, can happen due to assault on the soles of the feet. It can happen also if a person falls from a height to the ground. If it is not like that there is no way for there to be injuries on the soles of the feet.
Q. If a person falls from a height injuries like this can happen?
A. Yes. If you fall from a height there would be bone fractures and accompanying injuries.
Q. Did you observe a fracture of the bones?
A. No.
Q. After examining this patient what is the conclusion you came to?
A. That the injuries are due to an assault.
Q. To come to that conclusion, injuries nos 8 & 9 contributed a lot?
A. Yes.”
(From a certified copy of the proceedings).
Therefore the wonder is, not as to how there could be no injuries on the feet despite of a claim of the assault on the soles of the feet, but how the High Court judge failed to read the medical report and see injuries nos 8 & 9 and the AJMOs evidence on this injury. This conclusion of the High Court judge is even more shocking because in the latter part of her judgement she quotes from the medical report all the ten injuries recorded by the AJMO. This included injuries nos 8 & 9. Thus the finding of the High Court judge about injuries nos 8 & 9 are in contradiction with the facts recorded in the same judgement.
The State Counsel in this case was Anupama De Silva, Attorney-at-Law. In her lengthy submission she emphasized in very great detail, the content of the medical report and the evidence of the AJMO, as well as two other doctors about these injuries. There is no way for the High Court judge not to be aware of these injuries and the evidence of the doctors, since these submissions were made orally in her presence. If due to the time lapse, she had forgotten this evidence and the submission, she had the written record of the case where the medical report, the doctors evidence and the oral submission of the State Counsel was recorded. How did she then miss this evidence which is so vital to the offense of torture which was the crime being prosecuted before this judge?
In the submissions by the lawyer for the aggrieved party the medical report was also fully quoted and commented upon. Therefore, reading the lengthy submission made on behalf of the aggrieved party consisting of an analysis of all aspects of the case, including injuries nos 8 & 9, the High Court judge could not have stated that these injuries had not been found in the medical report.
The Defense Counsel, who made his oral submission taking several days of postponements over a period of three to four months, stated to court that there was no record in the medical report about the injuries to the soles of the feet of the torture victim. Did the High Court judge allow herself to be mislead by the submission of the defense counsel whose oral submission falsified the evidence that was before court through statements and documents?
Had the High Court judge come to the only conclusion that she could have come to on the basis of the evidence, that the claim of the torture victim about the assault on his feet was collaborated and confirmed by the medical report and the evidence of the AJMO, there would have been no option for her but to convict the accused. Thus, it was the result of her finding that no injuries to the soles of the feet of the torture victim, despite of his claims that he was assaulted, lead to the acquittal.
This amounts to a blatant error on the face of record. It has also caused a grave miscarriage of justice to a victim who suffered extremely serious injuries including a brain injury which kept him unconscious for 16 days in hospital. The judgement comes after a trial that lasted six years. Even the UN Human Rights Committee concluded that this particularly trial had been too long and constituted undue delay. The committee held that there was a violation of the victims fundamental rights under article 2 (3) of the ICCPR (Communication No, 1250/2004). Thus, the torture victim has made every effort to get justice. He also stayed away from his home village in a faraway place for over five years in order to avoid being a victim of threats by the perpetrators of this case. However, due to a blatant mistake regarding the facts, made by the High Court judge he has been deprived of justice.
This is not the only area where the High Court judge has misrepresented the facts in the case. Injury no 10 is a cerebral contusion. Two doctors including a specialist who treated the torture victim during the 16 days when he was semi conscious, stated very clearly that the cerebral contusion caused edema to the brain. According to the evidence of the doctors, this could have occurred either due to a severe assault to the head or due to a viral infection. The doctors very clearly and consistently stated that whether it was due to an assault needs to be considered in the light of the circumstances under which this has happened.
The circumstances of the injury were described by the torture victim in his evidence to court.
“Q. What was done after that?
A. I was taken out, books were placed on my head and the books were struck.
Q. How many books were kept?
About three books were put on my head and hit. They tied my hands.
Q. How were these books kept?
A. They were simply kept on my head.
Q. How many people hit?
A. Those two persons (the accused police officer and another).
Q. Was hit on the books?
A. Yes.
Q. Then what happened to you?
A. My head became disorientated.”
Thus, even on the grave injury of the brain, injury no. 10, the High Court judge completely mislead herself and came to the wrong conclusion because the facts that were placed before her in the trial and were available on the written record were ignored.
What is involved in this case is not merely a wrong judgement but in the very least a case of clear incompetence. In Sri Lanka a High Court is the highest court of first instance regarding criminal trials. High Court judges are expected to have the required qualifications, competence and are expected to act without negligence. All judges are also expected to be fair and impartial.
We urge everyone to write to the Attorney General of Sri Lanka and request him to appeal in this case. He was the prosecutor and the state counsel who prosecuted did an excellent job in this case. It is a now a legal and a moral obligation to appeal in this case and give justice another chance. The AG also has the legal power to appeal from this judgement. The contact details of the Attorney General are as follows:
Mr. Priyasath Dep – Acting Attorney General
Attorney General’s Department
Colombo 12
SRI LANKA
Fax: +94 11 2 436 421
The letter written by the AHRC to the Attorney General is attached.
Dear Mr. Dep,
Re: Request for Appeal against the judgement of the High Court judge of Negombo bearing case No. 259/2003, relating to the torture of Sundara Arrachige Lalith Rajapakse
We are writing to request you to appeal from the judgement made by the High Court judge of Negombo on 9th October 2008 acquitting the accused in this case under the CAT Act, Act No 22 of 1994. We are making this request because our perusal of the judgement clearly indicates that the judgement is wrong on the very face of record. In the attached draft appeal we have stated in detail the major grounds on which this judgement needs to be considered as wrong in law and fact.
In fact, it is a very strange judgment because the finding of the judge regarding material facts is contrary to what is in the proceedings. Just to give you one example of the many that are set out in the appeal the learned High Court judge came to the conclusion that the virtual complainants claim that he was beaten on the soles of his feet cannot be believed because there is nothing to indicate any injuries to his feet in the medical report which was marked P1. In fact, the injuries No. 8 & 9 in the medical report are injuries to the soles of the feet of the virtual complainant and they are:
8. Contusion 2 inches x 2 inches on the sole of the left foot;
9. Contusion 2 inches x 1 inch on the sole of the right foot; and…
The AJMO Dr. Kumudu Kumari Jusa, gave detailed evidence on injuries Nos 8 & 9 and explained in detail the nature of these injuries and stated categorically that these injuries could not have happened in any other way except by way of assault. (Kindly see the details of evidence in the draft appeal).
It is a very strange case where the learned judge has not read the evidence recorded in the proceedings and the documents before coming to a finding that there was no injury to the soles of the victims feet.
If the judge came to a finding that there was injury on the soles of the feet of the victim that alone would have sufficed to convict the accused. The conviction was avoided by holding that the evidence of the injury to the soles of the feet of the victim was, in fact, false evidence. This was probably based on the learned High Court judge basing herself on the oral submission of the defense counsel without checking the veracity of the factual information by comparing it with what was, in fact the evidence recorded in the case.
Regarding injury No. 10 which is a brain injury which kept the virtual complainant unconscious for 16 days, which according to the virtual complainant was due to the accused placing books on his head and then beating them with a pole. According to the learned High Court judge the brain injury was probably due to a viral infection and not a result of assault on the head. In fact, the learned High Court judge omits the evidence given on the assault to the head in this manner from the judgement. It is completely contrary to the evidence of three doctors including a specialist who gave evidence on this matter.
There are numerous other errors of fact and law in this judgement which are not on the basis of evidence recorded in the case and which are very contrary to the conclusions that could have been arrived at if these facts were properly narrated in her judgement.
Clearly not at least being accurate on the recording of facts on the basis of the existing record is not mere error of law but in the very least, it implies incompetence. A judge is expected to maintain basic professional standards and the judgement fails in that regard.
The complainant in this case who suffered serious injuries thereafter spent six years pursuing this case despite of extremely serious threats. Out of that six years he spent over five years away from his village in Kandana, living in Kandy to avoid the pressures which were trying to silence him.
If the case was lost due to a problem of evidence or prosecution that is not a matter that anyone is entitled to complain of. However, when a case is lost on the basis of blatant incompetence and the causing of errors on record by the judge people have a right to request you as the prosecutor to use your right of appeal.
Anupama De Silva, the State Counsel, who prosecuted this case extremely intelligently and bravely knows the details of this case. The aggrieved party also made a long submission consisting of 92 pages (a copy of which is sent herewith) which dealt with all aspects of the case. Had the learned judge read the submissions of the Sate Counsel and that of the aggrieved party instead of relying entirely on the falsified submission of the defense counsel she would not have made the blatant errors that are found in this judgement.
We urge you to consult the state counsel and file an appeal as this is the least that can be done in order to justify your role in prosecuting this case and also to recognise the effort of the complainant and the dangers he has faced, thereby giving justice another chance.
We hope that you will do what is professionally appropriate in terms of the office of the Attorney General under the present circumstances.
Thank you
Yours sincerely,
MOON Jeong Ho
Asian Human Rights Commission
Attached: A copy of the judgement of the High Court judge
The draft appeal of the aggrieved party, and
A copy of the written submission of the aggrieved party.
