Lie in court, end up in jail

by Justice P.H. K. Kulatilaka

The object of this paper is to make the reader understand the gravity of the evidence one gives in a court of law. The weight of it goes to produce in the mind of the judge a belief to the existence or non - existence of certain facts which would enable him to find an accused guilty or not in a criminal case, or to come to a finding as to the rights and liabilities of parties in a civil dispute.

The judge has to explore the truth to arrive at the right decision. Norton in his book on Evidence said that it is by the medium of evidence that the judge separates wheat from the chaff among the mass of facts that are produced before him.

Apart from giving false evidence in court there are two other methods by which a person could be charged. Firstly, for issuing or signing a false certificate.

Secondly, for making of a false statement in any declaration which is receivable in law as evidence. In certain circumstances refusal to answer by a witness a question which is material to the question in issue may amount to contempt of court. To prove a case whether criminal or civil there should be proof. In a criminal case the burden of proof is beyond reasonable doubt, while in a civil case in a balance of probability. Proof is the effect of evidence.

'Declare and affirm/ take oath solemnly, sincerely and truly that I speak the truth, the whole truth, nothing but the truth'. This is how you are called upon to give evidence in a court of law. The aforesaid affirmation or oath make you legally bound to state the truth. What you should remember is that the judges have a better sight and longer sight than others. They are well trained to decide whether you are telling the truth or deliberately telling lies. In coming to such a conclusion the judge will give his mind to the accuracy of the witness's original observation because there is the risk of mistake. He will be mindful of the correctness of the witness's memory.

Forgetfulness

There can be the risk of forgetfulness. In such situations the witness is exonerated because he did not have the intention or knowledge that he was uttering falsehood.

Truthful evidence is a sine qua non to see that trials and inquiries are fairly conducted to keep the streams of justice pure and clear. I do personally believe that the children should be taught at school about a citizen's legal duty of telling the truth if and when they are summoned to give evidence in a court of law. In fact there have been instances such as child abuse cases where children were called upon to give evidence.

Their testimony would be decisive. There are special provisions in the statute book to elicit their evidence in court even without causing an oath or affirmation administered. Why rely on oral evidence?

Humans prefer to speak the truth rather than inventing lies. It is the natural tendency, memory being prompter than invention. That is the natural sanction. This is why section 444 of the Code of Criminal Procedure Act permits a certified copy of the first information relating to the commission of the crime or the victim's statement to the police to be led as prima facie evidence of the fact that such information was given or such statement was made.

Then there is the religious sanction preventing a person telling lies. eg. Uttering falsehood is one of the Five Precepts expected of a Buddhists to abhor.

It is so in other religions as well. Finally there is the moral sanction, the infamy attached to the fag 'liar'. A witness may speak by word of mouth not only what he saw. It may be what he perceived by his five senses, namely, what he saw with his eyes, what he heard with his ears, what he smelt with his nose, eg.

Smell of liquor or gun powder, what he tasted with his tongue, what he touched, eg. I grabbed the knife from Sena's hands. But a lay witness is not allowed to speak of his opinion. A witness is not permitted to speak of what another person said because it is hearsay. There are exceptions to this hearsay rule as well, as provided by the Evidence Ordinance.

Witness

In a civil case what is testified to by a witness who is a party to the case may be recorded as an admission of the fact that he asserts. A civil case can be tried upon affidavits. Evidence is the mechanism by which a judge decides what is just and what is unjust, so that he could 'render each man his due'. [Justinian].

The effect of it would be for you to live honestly and not to injure your neighbour. A witness must know that every word of mouth he utters from the witness box is recorded. The stenographers take down what witnesses testify in court.

In civil cases it is a mandatory requirement for the sitting District Judge to take down notes of the evidence given by a witness. If a witness utters falsehood he is stuck and he will be left with no leg to stand.

Hence a witness cannot escape from liability after giving false evidence in court. Witnesses to a case are either truthful and reliable or they are not. In our system of trial evidence is elicited by examination and cross examination.

It provides the means of demonstrating the character and quality of a witness. Giving false evidence / 'perjury' What is meant by giving false evidence is defined by section 188 of the Penal Code. As stated above when a witness makes oath or declaration from the witness box he becomes legally bound to tell the truth. If he makes any statement which is false and which he either knows or believes to be false or does not believe what he says to be true he gives false evidence.

A person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.

What happens if giving false evidence was not detected? In a criminal case a crime doer even though he was charged or indicted may leave court scot free.

In the alternative in a rare case an innocent person may get convicted for an offence he did not commit. Eg. In a case of murder in the Magistrate's Court the only eye witness Wimal testified, that he was chatting with the deceased Nimal at his boutique while having a cup of tea. That point of time Banda who was the accused in the case, came armed with a sword and cut Nimal.

In the High Court trial under cross-examination the witness changed his original position and said he never went to the deceased boutique that day. His utterance would damage the case for the prosecution.

The witness must know that what he had told the Magistrate previously had been recorded and what he uttered before the High Court is also on record. The end result would be the accused will go scot free. Nonetheless the witness would be charged for giving false evidence.

False evidence

In a civil claim a witness by giving false evidence may help a false claimant to get a decision in his favour. Albeit if it was detected that the witness had lied in court he will get stuck for giving false evidence.

The legislature in its wisdom has crafted laws to punish him. Punitive Sections If a witness gives false evidence in open court within the meaning of section 188 of the Penal Code summarily sentence such witness under section 449 of the Code of Criminal Procedure Act and sentence him as for a contempt of court.

If the offence had been committed in the Supreme Court, Court of Appeal or High court he will be ordered to imprisonment either simple or rigorous for a period not exceeding two years or to a fine not exceeding one thousand rupees.

If such court is an inferior court he will be ordered to imprisonment simple or rigorous for a period not exceeding three months or to a fine not exceeding five hundred rupees.

In lieu if such court thinks fit transmit the record to the Attorney General's Department.

On the other hand in a trial before the High Court if a witness on any material point contradicts the evidence previously given by him at the non- summary inquiry in the Magistrate's Court, upon the conclusion of the High Court trial acting under section 448 of the Code of Criminal Procedure Act such witness will be arraigned and tried on an indictment for intentionally giving false evidence. Until such time the witness will be remanded by the judge.

The law says it is sufficient to prove that the accused [witness] made the contradictory statement alleged. Any way it has been decided that the prosecution must commit itself to a specific statement which it alleges to be false, and prove that the statement was false to the knowledge of the person making it - see [Ananthan v Saiado 21 NLR 407].

The end result would be the accused in the trial will go scot free while the witness who gave false evidence will become the accused in the second trial. He finds that he had run out of road. Once the case is proved he will end up in jail.

The writer is a former Director, Sri Lanka Judges Institute