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Sunday, 05 August 2018 - 17:04
Miscarriage of justice ?
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Though one of the biggest talking points at the moment is the execution of the Death Penalty to those on death row, it will be wise to reflect on the plight of such prisoners who have been wrongly convicted by Court.
 
This is all the more apt when one considers the special appeal petition filed by death row inmate Duminda Silva and three others who have been convicted of the murder of Bharatha Premachandra and three others. That appeal petition which was heard at the Supreme Court (SC) concluded recently.
 
The said case was filed against the convicted by the Attorney General (AG) at the Colombo High Court and the verdict on the special appeal petition filed against the High Court verdict by Silva and the other three is to be given by the Supreme Court shortly.
 
Details
 
To further apprise our readers on what transpired during the proceedings at the Supreme Court on 25 July, we give details below.
 
On the day of the PC polls held on 8 October 2011, two of the UPFA Kolonnawa electorate organizers Duminda Silva and Bharatha Premachandra had met in the Himbutana area.
 
The two politicians having alighted from their vehicles had proceeded to exchange words over a certain issue and Silva had slapped Premachandra’s neck area with his hand. And when Silva was about to leave the place, Premachandra’s security officer had fired gunshots in the direction of Silva’s forehead.
 
After that Silva had fallen unconscious to the ground and his security officers had then promptly taken him to the hospital in their vehicle.
Later, during the intervening period, Silva was forced to seek treatment in hospitals both here and overseas, while the CID was busy collecting evidence against Duminda Silva and his four security officers.
 
Then back in 2015, the CID filed a case against Silva and his security officers at the High Court on the advice of the Attorney General linking them to the murder of Premachandra and three others.
 
High Court Bench
 
The Chief Justice then formed a special three-Judge High Court Bench to hear the case against Silva and the High Court gave a divided verdict on the case on 8 August 2016.
 
One of the Judges in the case and current Appeal Court Judge, Justice Shiran Guneratne deemed that the suspects in the case should be acquitted from the charges levelled against them and be released from the case, as the AG had failed to prove any of the charges against the suspects beyond a reasonable doubt.
 
However, the other Judge Padmini Ranawaka in her verdict stated that she recommends the Death Penalty for the suspects.
 
Judge Ranawaka said that though the prosecution had failed to prove any of the charges against the suspects beyond reasonable doubt, as revealed during the Court case besides, the shooting at Himbutana, and taken into consideration two other crimes committed elsewhere, all of those had been part of the same crime wave, she would have no hesitation in recommending the Death Penalty for the defendants.
 
The other High Court Judge, M.C.B. Moraes did not announce his verdict and after he placed his signature to the verdict given by Judge Ranawaka, it became the majority verdict albeit being divided.
 
Lawyers for Silva and the other convicts told the three-Judge High Court Bench on that day that, they were not satisfied with the verdict given by the High Court and would appeal against it.
 
Appeal
 
Later, the Appeal filed by Silva was submitted by the High Court to the Supreme Court, as there was no provision for the Appellate Court to hear an appeal against the verdict given by a Trial-at-Bar of the High Court.
 As only provisions had been provided to hear a verdict given by a Trial-at-Bar of the High Court, to a five-Judge Bench of the Supreme Court, Chief Justice Priyasath Dep duly formed such a Bench to hear the special appeal petition filed by Silva and the other three against their conviction in the murder of Premachandra and three others by the High Court.
 
The first hearing of this petition took place on 27 November last year, before the five-Judge Supreme Court Bench comprising Chief Justice Dep and Justices Buwaneka Aluvihare, Priyantha Jayawardene, Nalin Perera and Vijith Malalgoda.
 
At the outset, Deputy Solicitor General Thusitha Mudalige, appearing for the Attorney General, told Court that the petition should be dismissed without even taking it for hearing, but the Bench rejected that request and set dates for the hearing of the petition.
 
Later, the petition was heard continuously on, 26, 27 March, 8, 10, 14, 18 May, 4, 6, 13, 18 June, 18, 20 and 25 July.
 
Key points

The key points raised by the defence, during the hearing of this special appeal petition are:
 
The Attorney General had also accepted that from the first gunshot fired at Silva, he had fallen to the ground like a corpse. The Attorney General had also accepted before the High Court that the altercation between the factions of Silva and Premachandra had started as a result of the latter’s security officer Gamini having first fired at Duminda Silva.
 
The catastrophe had escalated due to the Premachandra faction attempting to gun down Duminda Silva.
 
President’s Counsel Anuja Premaratne concluding his submissions to the Supreme Court on 25 July, on behalf of the defence, had noted that a mere exchange of words which could have been settled amicably between the two factions had escalated into brutal murder and the loss of several lives following the firing of gunshots targeting Silva by Premachandra’s chief security officer.
 
After that Counsel, Premaratne turned towards DSG Mudalige and asked whether the evidence given before the High Court is opposed by the prosecution.
 
Mudalige then replied that he could not accept the evidence given before the High Court.
 
When a charge has to be proved beyond reasonable doubt in Court against a suspect before he or she could be convicted of that charge, can anyone be convicted on contradictory evidence in 62 instances? The lawyers for the defence Anuja Premaratne, Anil Silva and Anura Meddegoda, making submissions to the Supreme Court said that out of 126 evidences placed before the High Court and from the medical reports of 62 witnesses and other reports it had been proved that the Silva faction had not precipitated the altercation in the Himbutana area, it was beyond them as to how Judge Ranawaka could deem that Silva had brought about the demise of Premachandra and three others and even by reading the entire case over a 100,000 times they cannot fathom the genuine reasons behind the said Judge’s verdict.
 
The defence lawyers argued that during the proceedings held at the High Court, that only the 27th witness in the case, Sanjeewa Prasad had claimed that it was Silva who had begun to fire first at Premachandra.
 
Defence lawyers argued that witness Prasad had been prompted to give such evidence by Premachandra’s daughter, Hirunika and he had given such a statement to the CID at his house, six days after the incident.
 
The defence lawyers argued before the Supreme Court, that witness Prasad had lived for a lengthy period of time with the family of the deceased former MP, and that Prasad had by and by obtaining a job through the intervention of Premachandra at the Sri Lanka Ports Authority (SLPA).
 
Defence lawyers told the Supreme Court that on many times when witness Prasad was cross-examined by them at the High Court, he had been unable to give convincing answers and charged that Judge Ranawaka had seriously considered the evidence given by Prasad when she ought to have dismissed his evidence en-masse.
 
Defence lawyers also told the Supreme Court that the third suspect in the case, on the request of the CID had been arrested in India and had been deported on 13 October 2011.
 
They told Court that when handing over the suspect to airport officials, the handing over of the suspect’s passport and travel documents had been carried out by the Captain of the Airline. Defence lawyers argued that the CID was concocting a new tale behind it then submitted details to Court stating that the suspect had been arrested near the 18th-mile post in Katunayake.
 
Defence lawyers argued that the CID had concocted such a tale to suggest that the weapons were found in the suspect’s possession warranting his arrest and the CID had told Court that one weapon had been located from the overhead tank of his rented house and another weapon from his kitchen.
 
They argued before the Supreme Court that the CID failing to call residents of that rented house to seek evidence before Court, clearly proved that the tale had been made up by the CID to tackle Silva and to derail his political career by being convicted of the said murder.
 
They told the Supreme Court that all submissions made, clearly proved that not a single member of the Duminda Silva faction had precipitated the clash in the Himbutana area on the aforementioned date.
 
They further told Court that after being fired at by the security officers of the Premachandra faction, Silva’s security officers had returned fire to protect the then MP Silva and themselves resulting in the demise of Premachandra and three others.
 
Defence lawyers also argued before the Supreme Court that the defendants were not motivated with the thought of committing a murder in Himbutana and that such an impression had been given due to fabrication and the two instances where evidence had been concocted or made up.
 
By Kamal Mahendra Weeraratne

(Ceylon Today)

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