Politics
LEGAL WATCH
Final verdict on the Kamal Addararachchi case

By Nayana
In December 1997 film and television actor Kamal Addararachchi was convicted on charges of abducting and raping a teenage girl. At that time some commentators hailed the judgment of High Court Judge Shiranee Tilakawardena (as she then was) as a major breakthrough against what they saw as the inherently male-biased law governing rape cases and the exploitation of young girls by unscrupulous and well-heeled individuals.

However in December 2000, the Court of Appeal (Justices Hector Yapa and P. H. K. Kulatilleka) overturned the verdict and acquitted Addararachchi in a 39 page judgment that reversed practically every finding made by the High Court.

Last week, after hearing lengthy arguments from eminent Counsel on all sides, the Supreme Court refused the prosecution leave to appeal against the Court of Appeal judgment.

Addararachchi had been indicted in the High Court on two counts, namely abduction for the purpose of illicit intercourse in terms of Section 357 of the Penal Code and rape in terms of Section 363. The case was tried under the provisions of the original Code before the 1995 Amendment. The relevant portion of the definition of rape is as follows: "Sexual intercourse with a woman against her will or without her consent or with her consent when her consent has been obtained by putting her in fear of death or hurt."

The prosecution has to prove every ingredient of the alleged offence. When evaluating the oral testimony the trial court may take note of such factors as the witness’ demeanour and the probability or improbability of the story in the light of known facts.

Appellate courts do not lightly interfere with findings of fact but may do so if they consider that the judge’s evaluation of the evidence was so flawed that no reasonable court acting on such evidence would have reached such a verdict.

There was a conflict of testimony as to how the complainant aged 16-17, who had been residing with her married aunt and studying for her G.C.E. Ordinary Level examination, had found herself at Addararachchi’s residence, but it was common ground that she did in fact meet him there in the company of her aunt. It was also common ground that thereafter, she and Addarachchi had travelled in his car and ended up at a guest house in Colombo late at night where they shared a room.

It was the events in that room that gave rise to the case. The complainant admitted entering the room without protest but claimed thereafter to have been forced to have sexual intercourse with Addararachchi following a violent struggle during which she fell off the bed at one stage.

In her evidence at the non-summary proceedings in the Magistrate’s Court she claimed to have been raped twice, with some interval between the two incidents, during which time she apparently continued lying on the same bed as Addararachch. At the High Court trial she stated that only one act of intercourse took place. Although Addararachchi denied intercourse in his first statement to the Police, his evidence at the trial was that there were two acts of voluntary intercourse.

The girl’s first complaint of rape was made to the Police about 48 hours after the incidents in question.

It was argued on behalf of the complainant in the Supreme Court that the Court of Appeal had erred in holding that consent could be "tacit" or "implied" and also in holding that the absence of bodily injuries on the complainant was suggestive of consent.

On the first point the Supreme Court took the view that consent in such situations is seldom expressed in words and is therefore a matter to be inferred from the surrounding circumstances including the previous and contemporaneous acts of the complainant.

However on the second point - always a matter of controversy - the Court was careful to point out that absence of bodily injury is not invariably a sign of consent, but became relevant in this case because the complainant claimed to have struggled violently, even to the point of falling off the bed.

One of the most controversial parts of the Appeal Court judgment was an apparent reversion to the archaic principle that corroboration of the complainant’s evidence was mandatory in a rape case. This view was discarded by the Court of Appeal itself in two judgments in the 1980s.

In the present case Justice J. A. N. De Silva, writing the judgment in which the Chief Justice and Justice Shirani Bandaranayake concurred, stated as follows:

"In the Asian set up, refusal to act on the evidence of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. If the evidence of the victim does not suffer from basic infirmity and the probability factor does not render it unworthy of credence, as a general rule there is no reason to insist on corroboration."

The matter of corroboration was, the Court said, only a "rule of prudence" be kept in mind by the judge.

Another issue that arose was whether the trial judge had erred in treating certain falsehoods uttered by the accused as corroborating the complainant’s case. On this, the Supreme Court upheld the reasoning of the Court of Appeal and reaffirmed that the burden of proof requires that the prosecution’s evidence stand the test of credibility in its own right.

In this case several discrepancies in the complainant’s own evidence were cited as reasons that made it unsafe or impossible to base a conviction on her evidence.

It was also urged that the Court of Appeal had erred in holding that the trial judge was wrong to hold the trial in camera. The reasoning of the Court of Appeal was that the complainant had already given the same evidence in a crowded magistrate’s court during the non-summary proceedings and therefore need not have been accorded special treatment at the trial.

The record of proceedings disclosed a number of special concessions made to the accused including, at one stage, allowing her to leave the witness box and speak from the Registrar’s table. The Supreme Court was of the view that such measures justified the Court of Appeal’s criticism that the complainant had been "mollycoddled" at the trial.

However law reformers have long argued against having non-summary proceedings in cases of rape and other sexual offences. Such proceedings were done away with in cases of child rape (where the question of consent is immaterial) on the recommendation of the Child Protection Task Force that functioned during the mid-1990s. Others have urged the abolition of all non-summary proceedings on the grounds that they result in a waste of time and expenditure.

Ironically the Magistrate who heard the non-summary proceedings discharged the accused for lack of evidence. However following an outcry from women’s welfare groups, the Attorney-General decided to overrule the Magistrate and indict Addararachchi. The same thing happened in a case where a senior retired police officer was accused of raping a servant girl. He died while awaiting trial but subsequent events served to vindicate him.

While those who took up the cause of these two girls may have been motivated by a genuine desire to see that well-heeled or influential personalities should not escape the course of justice, the conduct of the Attorney-General in apparently bowing to public agitation rather than assessing the evidence impartially is disturbing.

The Court of Appeal, even while holding that Addararachchi’s conduct did not amount to rape, passed strictures on his behaviour in unscrupulously taking advantage of the teenage complainant. However, none of the courts that heard the case appear to have commented on the evidence that emerged of the serious neglect of a young girl by the adults who ought to have been responsible for her — her divorced parents and the aunt with whom she was residing.


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