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  • Sahan Kulatunga

Innocent Until Proven Guilty

Updated: May 2, 2022



Article 13(5) of the Constitution of Sri Lanka provides that “Every person shall be presumed innocent until he is proved guilty: Provided that the burden of proving particular facts may, by law, be placed on an accused person.”


This means that every person is deemed to be innocent until a prosecution proves, beyond reasonable doubt, that it was the said person who committed the offence/s, and it was adjudged to be so by a competent Court.


To really understand what this means I will place the below events before you and whether or not the presumption actually protects a person who has been charged with an offence will be for you to decide.


The following is based on a matter which is now in appeal before the Court of Appeal and as such no sensitive information will be disclosed so as to protect the privacy of the accused appellant and not jeopardize the integrity of the appeal.


The accused in this case was a public servant and himself a member of an investigative body. He was first arrested by the police in April 1992 and produced before a Magistrate for committing the offence of murder. The Magistrate held an inquiry which was completed in June 1999 and thereafter, in November 2003 the Hon. Attorney General indicted the accused in the High Court for the offence of murder.


The accused pleaded not guilty and the case proceeded to trial before a Judge. At the end of the prosecution case in February 2012 the accused made a statement from the dock and on the same day the learned Trial Judge delivered Judgment and proceeded to convict the accused and sentenced him to death.


As the accused loses the protection of the presumption of innocence once he is convicted, for the purposes of our assessment we will only be considering the above period. However, for clarity the current status of the matter is as given below.


The accused appealed to the Court of Appeal against his conviction and sentence and the Court of Appeal in February 2016 proceeded to set aside the conviction and sentence pronounced by the learned Trial Judge and ordered a re-trial. The second trial of the accused commenced in July 2016 and the accused pleaded not guilty and sought to be tried by a jury and the case proceeded to trial.


The second trial of the accused before a jury concluded in December 2017 and after 25 minutes of deliberation the jury returned with a verdict of guilt and the Judge proceeded to sentence the accused to death. The accused appealed to the Court of Appeal against the aforesaid conviction and sentence and the matter is yet to be argued.





Was he protected?


The incident occurred and the accused was first arrested in April 1992. Since his arrest, he was interdicted from his employment and could not secure similar paying employment in the same locality and was shunned by his friends and family for being accused of murder.


Even though same is not borne out in the record available to me, after being arrested the accused would have been remanded by the learned Magistrate for lack of jurisdiction to grant bail and the accused would only have subsequently been enlarged on bail by the High Court.


Thereafter, the accused would have had to secure representation and appear before the Magistrates Court for the inquiry for a period of 7 years from 1992 to 1999.


Having been indicted in 2003 the accused would then have had to secure representation and appear in the High Court for his first trial a period of 9 years from 2003 to 2012. Furthermore, it is borne out from the record that the accused was in remand custody during the latter part of the trial which would have meant that he would not have been able to be gainfully employed and thereby have the funds necessary to retain experienced Counsel.


It is now for the reader to decide whether the accused really had the benefit of being presumed to be innocent, from 1992 to 2012 (20 years), considering that he had already been in remand custody for a considerable period, lost his employment, been shunned by society, been unable to secure meaningful employment, expended his entire estate on legal representation etc during this period. What do you think?


 

Sahan Kulatunga

LL.B (Hons) (London)

LLM (Specialising in Company and Commercial Law) (Queen Mary) (University of London)

Attorney-at-Law


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