DOCK STATEMENTS.

DECIDED JUDGEMENTS ON RIGHT OF AN ACCUSED TO MAKE A DOCK STATEMENT.

Duncan Abeynayaka – LLB, Attorney At Law

 

Though there is no statutory provision for it, the right of an accused to make an unsworn statement from the dock has been recognized by our Courts for many years and is now part of the established procedure in our criminal courts. (The Queen v. Kularatne)

 

01. The King v. Sittambaram (1918) 20 NLR 257

The prisoner may still if he prefers it, make an unsworn statement from the dock, instead of giving evidence from the witness box, and on this analogy he has the same right in Ceylon. The action of the District Judge would, therefore, appear to be an irregularity, and an irregularity of such a nature as necessarily to cause a failure of justice, in that it necessarily prejudiced the defence of the accused.

 

02. The Queen v. Mapitigama Buddharakhita Thera and 2 others (1952) 63 NLR 433

That the right of an accused person to make an unsworn statement from the dock is recognized in our law. That right would be of no value unless such a statement is treated as evidence on behalf of the accused, subject however to the infirmity which attaches to statements that are unsworn and have not been tested by cross-examination.

 

03. The Queen v. Kularatne 71 NLR 529

That when an unsworn statement is made by the accused from the dock, the jurors must be informed that such statement must be looked upon as evidence, subject however to the infirmity that the accused had deliberately refrained from giving sworn testimony. But the jury must also be directed that

(a) if they believe the unsworn statement it must be acted upon,

(b) if it raises a reasonable doubt in their minds about the case for the prosecution, the defence must succeed, and

(c) that it should not be used against another accused.

The dock statement of the 1st accused was dealt with in such a manner in the present case that it was likely that the jury thought that they were not called upon to pay any attention at all to that statement.

Though there is no statutory provision for it, the right of an accused to make an unsworn statement from the dock has been recognized by our Courts for many years and is now part of the established procedure in our criminal courts.

 

04. Somasiri v. Attorney-General [1983] 2 Sri L. R.225

The trial Judge had also not adequately directed the jury on the law pertaining to consideration as evidence of an unsworn statement made by an accused from the dock. He had instructed the jury that such evidence is subject to the infirmity that it is not tested by cross-examination but failed to mention to the jury that if they believe the unsworn statement it must be acted upon or if it raised a reasonable doubt in their minds about the prosecution case they must acquit the accused.

 

05. Kathubdeen v. Republic of Sri Lanka [1998] 3 Sri LR 107

It is settled law that an unsworn statement must be treated as evidence. It has also been laid down that if the unsworn statement creates a reasonable doubt in the prosecution case or if it is believed, then the accused should be given the benefit of that doubt.

 

06. Gunapata and Others v. The Republic of Sri Lanka [1994] 3 Sri L.R 180

(i) The jury must not only be informed that a statement from the dock must be looked upon as evidence subject to the infirmities which attach to statements that are unsworn and not tested by cross-examination, but they must also be directed that -

(a ) if they believe the unsworn statement it must be acted upon;

(b ) if it raised a reasonable doubt in their minds about the case of the prosecution, the defence must succeed; and

(c ) it should not be used against another accused.

(ii) Failure to give the jury such directions constitute a non-direction on an important aspect of the law relating to the evaluation of the evidence given by an accused in the form of an unsworn statement from the dock.

 

07. Ehelepola v. Officer-in-Charge, Police Station, Kandy and another (1998) 1 Sri LR 295

The Magistrate had misdirected himself when he stated that the dock statement made by the appellant had no evidentiary value.

On this matter the learned Magistrate has clearly misdirected himself. It is indeed well settled law that when an unsworn statement is made by an accused from the dock, that such statement must be looked upon as evidence subject however to the infirmity that the accused had deliberately refrained from giving sworn testimony.

Though there is no statutory provision for it, the right of an accused to make an unsworn statement from the dock has been recognized by our Courts for many years.

 

08. Sarath vs Attorney General (2006) 3 Sri L R 96

Dock Statement considered before considering the evidence of the prosecution. Would it affect the presumption of innocence?

There is no rule that a particular item/evidence should be considered first in the judgment. There is no prescribed sequence in analyzing evidence. The judgment analysed the entire evidence at the same time. Therefore the fact of considering the dock statement at the beginning of the judgment would not make any difference as the prosecution evidence was considered at the same time.

One must bear in mind that when a dock statement is considered anywhere in the judgment, the judge who heard the evidence is aware of the prosecution case and would always consider the dock statement while considering the prosecution story. One cannot consider the dock statement in isolation.

 

09. P.P. Jinadasa Vs. The Attorney-General CA 167/2009

Dock statement should be considered as evidence subject to the following two infirmities.

1) Dock statement is not tested by cross examination.

2) Dock statement is not made under oath.

 

10. Seepadalage Sumathipala Vs. Republic of Sri Lanka CA 136/2010

We find that the dock statement has to be evaluated in the light of the totality of evidence and should not be compartmentalized. The dock statement should not be compared with the evidence of the prosecution and the dock statement should not be considered as inferior evidence. In considering the dock statement one has to be mindful that if the dock statement is neither accepted nor disbelieved still if it is sufficient to create some doubt the benefit of the doubt should be given to the accused appellant. What is important here is to consider the dock statement in the light of the totality of the evidence and it cannot be considered by compartmentalizing the dock statement.

 

11. Kumara de Silva and 2 others vs. Attorney General [2010] 2 SRI LR 169

Dock statement is an unsworn statement lacking the probative value of formal evidence tested and filtered through cross examination it is still evidence of a lesser weightage recognized in our law.

Per Sarath de Abrew. J.

“Even though it is desirable that the Judge should have specifically stated her findings as to the credibility of the dock statements in my mind this alone has failed to constitute a failure of justice taking into consideration the direct evidence adduces against the accused”.