CONTRADICTIONS & OMISSIONS.

LAW AND BACKGROUND REGARDING CONTRADICTIONS & OMISSIONS

Duncan Abeynayaka – LLB, Attorney At Law.

 

CONTRADICTION – CLEAR DIFFERENCE/ DISPARITY/DISTINCTION BETWEEN THE EVIDENCE GIVEN AT THE COURT AND THE PREVIOUS STATEMENTS.

OMISSION – A NEW FACT GIVEN AS A EVIDENCE IN A COURT, WHICH IS NOT IN PREVIOUS STATEMENTS.

 

CODE OF CRIMINAL PROCEDURE ACT NO 15 OF 1979

109 (1)             Every information relating to the commission of an offence may be given orally or in writing to a police officer or inquirer.

109 (2)             If such information is given orally to a police officer or to an inquirer, it shall be reduced to writing by him in the language in which it is given and be read over to the informant;…

110 (1)             Examination of witnesses by police officer or inquirer.        

…… The police officer or inquirer recording the statement shall append below each statement recorded by him the following certificate: -

"I .....hereby declare that I have faithfully and accurately recorded the statement of the above named ..... ".

110 (3)             A statement made by any person to a police officer in the course of any investigation may be used in accordance with the provisions of the Evidence Ordinance except for the purpose of corroborating the testimony of such person in court ;

Provided that a statement made by an accused person in the course of any investigation shall only be used to prove that he made a different statement at a different time.

110 (4)             Any criminal court may send for the statements recorded in a case under inquiry or trial in such court and may use such statements or information, not as evidence in the case, but to aid it in such inquiry or trial.

 

444 (1)             Every inquirer or officer in charge of a police station shall issue to every accused person or his attorney-at-law who applies for it a duly certified copy of the first information relating to the commission of the offence with which he is charged and of any statement made by the person against whom or in respect of whom the accused is alleged to have committed an offence.

444 (2)             In the course of a trial in a Magistrate's Court, the Magistrate may, in the interests of justice, make available to the accused or his attorney-at-law for perusal in open court the statement recorded under section 110 of any witness whose evidence is relied on by the prosecution in support of the charge against the accused.

 

EVIDENCE ORDINANCE

145 (1)             A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. (Cross examination
as to previous statements in writing.)

145 (2)             If a witness, upon cross-examination as to a previous oral statement made by him relevant to matters in question in the suit or proceeding in which he is cross-examined and inconsistence with his present testimony, does not distinctly admit that he made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or not he made such Ma statement. (As to proof of
previous statement.)

 

155 (C)            by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted; (Impeaching credit of witness)

157                  In order to corroborate the testimony of a witness, any former statement made by such witness, whether written or verbal, relating to the same fact at or about the time when the fact took place or before any authority legally competent to investigate the fact, may be proved.

05                    Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue, and of such other facts as are hereinafter declared to be relevant and of no others.

 

01. KEERTHI BANDARA V. THE ATTORNEY GENERAL [2000] 2 SRI.L.R 245

“We lay it down that it is for the judge to peruse the Information Book in the exercise of his overall control of the said book and to use it to aid the Court at the inquiry or trial. When defense counsel spots lights a vital omission, the trial judge ought to personally peruse the statement recorded in the Information Book, interpret the contents of the statement in his mind and determine whether there is a vital omission or not and thereafter inform the members of the jury whether there is a vital omission or not and his direction on the law in this respect is binding on the members of the jury. Thus when the defense contends that there is a vital omission which militates against the adoption of the credibility of the witness, it is the trial Judge who should peruse the Information Book and decide on that issue. When the matter is again raised before the Court of Appeal, the Court of Appeal Judges are equally entitled to read the contents of the statements recorded in the Information Book and determine whether there is a vital omission or not and both Courts ought to exclude altogether the illegal and inadmissible opinions expressed orally by police officers (who are not experts but lay witnesses) in the witness box on this point” (at page 258).

 

02. BANDA AND OTHERS V. THE ATTORNEY GENERAL [1999] 3 SRI. L.R, 168-174

The right to mark omissions and proof of omissions is related to the right of the Judge to use the Information Book to ensure that the interests of justice are satisfied. Omissions do not stand in the same position as contradictions and discrepancies. The rule in regard to consistency and inconsistency is not strictly applicable to omissions. Judge who has the care of the information ought to use this Book to elicit any material and prove any flagrant omissions between the testimony of the witness at the trial and his Police statement in the discharge of his judicial duty and function.

 

03. THE QUEEN v. H. H. ALADIN 61 NLR 07

Where it is sought to contradict a witness by proving a portion of his statement made to a police officer and reduced by the latter to writing, section 145 (1) of the Evidence Ordinance requires that the witness's attention must first be called to those parts of the statement which are to be used for the purpose of contradicting him.

 

04. TIKIRI BANDA v PATHUMA BEEBEE AND OTHERS [1998] 3 Sri LR. 46

Attention of the witness was not drawn to this portion of the statement to enable her to explain the discrepancy. It is to be noted that section 145 (1) of the Evidence Ordinance requires that attention of a witness must be drawn to any portion of a statement which is inconsistent, to enable the witness to explain the inconsistency before such portion could be produced as a contradiction. It is regrettable that this procedure was not followed when Pathuma Beebe gave evidence in the District Court.

 

05. RENUKA SUBASINGHE v ATTORNEY-GENERAL 2007 1 Sri LR 224

“The entire case for the prosecution rests on the Credibility of the witness Sivakumari the victim in this case. In this regard the principles enunciated by Lord Roche in (Bhojraj v Sita Ram - AIR 193) are very pertinent. Lord Roche observed in the above mentioned case I quote "How consistent is the story with itself? (Consistency per se) How does it stand the test of cross-examination? (Stability under cross examination) How far does it fit in with the rest of the evidence and the circumstances of the case (consistency inter se).”

 

06. WICKRAMASURIYA V DEDOLEENA AND OTHERS [1996] 2 SLR 95

This is a characteristic feature of human testimony which is full of infirmities and weaknesses especially when proceedings are led long after the events spoken to by witnesses. A judge must expect such contradictions to exist in the testimony. The issue is whether the contradictions go to the root of the case or relate to the core of a party’s case.

If the contradicton is not of that character the Court ought to accept the evidence of witnesses whose Evidence is otherwise cogent having regard to the Test of Probability and Improbability and having regard to his demeanour and deportment manifested by witnesses. Trivial contradictions which do not touch the core of a party's case should not be given much significance, specially when the probabilities factor echoes in favour of the version narrated by an applicant.

 

07. ATTORNEY GENERAL V POTTA NAUFFER AND OTHERS 2007 2 SLR 144

Therefore, court should disregard discrepancies and contradictions, which do not, go to the root of the matter and shake the credibility and coherence of the testimonial as a whole. The mere presence of such contradictions therefore, does not have the effect of militating against the overall testimonial creditworthiness of the witness, particularly if the said contradictions are explicable by the witness. What is important is whether the witness is telling the truth on the material matters concerned with the event.”

 

08. THE ATTORNEY GENERAL VS. SANDANAM PITCHI MARY THERESA S.C. APPEAL NO. 79/2008 - 06.05.2010

Whilst internal contradictions or discrepancies would ordinarily affect the trustworthiness of the witness statement, it is well established that the Court must exercise its judgment on the nature tenor of the inconsistency or contradiction and whether they are material to the facts in issue. Discrepancies which do not go to the root of the matter and assail the basic version of the witness cannot be given too much importance (Vide, Boghi Bhai Hirji Bhai v. State of Gujarat, AIR 1983 SC 753).

09. DHARMASIRI VS. REPUBUC OF SRI LANKA [2010] 2 SR1L.R. 241

Court of Appeal has power to peruse the Information Book only when contradiction or omission was brought to the notice of the trial Court, and this power too should be exercised in order to check the correctness of the omission of contradiction marked at the trial and not to come to a conclusion with regard to his credibility upon the contents of this statement made to the Police.

See - SUGATHADASA V STATE 1988 1 SLR 405

K.K. Anura Alias Marrai v The Attorney General CA 200/2005 - 8.11.2012