• The trial Judge had failed to consider the fact that the child victim was tutored (taught) by the mother of the child during the video recording

By Lakmal Sooriyagoda   

In a landmark judgement pertaining to the use of video evidence in a child abuse case, the Court of Appeal has recently set aside the conviction with a 16-year jail term imposed against the father of the victim child on the basis that accused was denied a fair trial by presenting incorrect transcript of the video interview pertaining to the child’s evidence conducted by the Child Protection Authority.   

The Court of Appeal further upheld the position taken by the defence that the trial Judge has failed to consider the fact that the child victim was tutored (taught) by the mother of the child during the video recording.  

With Court of Appeal Justice Sampath Abayakoon agreeing, Justice P. Kumararatnam observed that the prosecution had not proven the case beyond reasonable doubt. Therefore, the accused father was acquitted from the charges.  

The victim boy was four years old at the time of the incident and his father was indicted by the Attorney General at the Colombo High Court for committing two counts of Grave Sexual Abuse punishable under Section 365B (b) 2 (b) of Penal Code and Sexual Harassment punishable under Section 345 of the Penal Code between in 2012. The accused had been handed a 16-year prison term by Colombo High Court.The father of the victim child filed an appeal before Court of Appeal against the conviction and sentence.  

The Child Protection Authority had video recorded the statement of the victim under Section 163(c) of the Evidence Ordinance (Special Provisions) Act No. 32 of 1999 and marked as a production item and the translated script was marked as a document in the trial.  

During the appeal Senior Counsel Darshana Kuruppu appearing for the defence contended that the High Court Judge has failed to consider the fact that the child victim was tutored by the mother of the child during the video recording and his client was denied a fair trial by presenting incorrect transcript of the interview conducted by the Child Protection Authority. He requested the Court to play the video during the argument, stating that the transcript of the evidence produced before the Court was very much different to the video recorded evidence of the child. During the appeal, defence submitted the transcript and it was manifestly clear that mother who was present with the child victim had intervened and induced the victim to speak against the father. The Appeal Court observed that it clearly reflects the mala fide intention to fix the accused to the crime.  

It was further revealed that the mother of the victim child had made several complaints against the accused regarding domestic violence which existed between them. The Court of Appeal observed that it appears that mother of the child had a strong motive to fabricate a case against the accused through the victim. Hence, the Court of Appeal concluded that accepting and considering the video recording evidence of child against the accused father had caused great prejudice which certainly vitiates the outcome of the case.   

Defence further argued that the wife of the accused is not competent witness to give evidence as far as the charges are concerned. As per Section 120(2) of the Evidence Ordinance, wife is not a competent witness to give evidence against the husband.  

The Court of Appeal further observed that in order to make wife or husband a competent witness under the Children and Young Persons Ordinance, the first schedule should have been amended by adding Sections 365 (b) 2 (b) and 345 of the Penal Code to the 1st schedule. But the Legislature has not yet brought such an amendment to make the wife or husband a competent witness when the husband or wife ischarged under Sections 365(b) 2 (b) and 345 of the Penal Code.   

The Court of Appeal further held that by allowing wife as a competent witness against the husband, the High Court Judge had misdirected herself and illegally used the said evidence against the accused and thereby denied a fair trial to the accused.  

The Court of Appeal further observed that it compelled to examine the methods and rules established in other jurisdictions for recording such video interview as evidence since there is no well-defined guidelines for recording video evidence in Sri Lanka.  

Senior Counsel Darshana Kuruppu with Sahan Weerasinghe and Dineru Dundara appeared for the defence. Deputy Solicitor General Maheshika De Silva appeared for the Attorney General.