BEYOND REASONABLE DOUBT ?

THE KILLING OF A PRIME MINISTE

by Sanjiva Senanayake

PART II

WHO SHOT THE PM ?

The first point that had to be proved by the prosecution beyond any doubt was that Somarama actually pulled the trigger. Without that the entire case, conspiracy and all, would fail.

Despite the large number of people present that morning, only three ‘eye-witnesses’ were called by the prosecution to establish that Somarama was the actual shooter. They were :

(a) the Buddhist monk Niwanthidiye Ananda (NA)

(b) one of his acolytes from Polonnaruwa named Wedage Piyadasa (WP) and

(c) a teacher named Wijekoon Wickramasinghe (WW)

The evidence of NA :

Ven. Ananda said that the PM, after finishing speaking with him, took a few steps toward Somarama and then turned back to inquire if Ananda was satisfied. He then went over and worshipped Somarama, who remained seated, and asked why he had come. Then the PM took a step backward. Ananda had turned round and bent down to collect his belongings when he heard two rapid gunshots. Somarama then pointed the revolver at Ananda who closed his eyes in terror. He then heard some more shots but didn’t see Gunaratne being injured. When he opened his eyes, he saw Somarama holding a revolver, biting his lip and with bulging eyes, follow the PM as he stumbled into the house. The monk did not say he actually saw Somarama firing the gun. In the Magistrate’s Court he had said “I did not see the actual act of firing. As I turned, I saw the accused holding a pistol in his hands levelled at the PM”.

Ananda then jumped over some flower pots into the garden, ran up to the main gate and shouted at the sentry there, grabbing him by the arm. He told the sentry that the PM was being shot and to protect him. Then as Ananda returned to the house, he saw the injured Gunaratne stagger out bleeding and he took him to the gate and requested bystanders to send him to hospital. He said he then went into the bedroom where the injured PM was lying and spent a few moments in contemplation until he heard a commotion in the central corridor outside the room. When he came out, he found a bleeding Somarama on the floor being assaulted and joined in by kicking and hitting him with his slippers. Somarama wanted some water and Ananda asked one of the servants to bring some. Before he could give the water, Somarama vomited blood and fainted. Then, when Ananda and one of his acolytes (Yatawara) were tying Somarama’s hands together, DIG Sidney De Zoysa turned up and ordered them to stop. Ananda then left and went to his temple in Kollupitiya.

However, the police sentry, in his evidence, said that no monk ever came and spoke to him at the gate. Instead, he said that, when he came running toward the house on hearing the shots, an old gentleman pointed out Somarama as the assailant. Furthermore, DIG Sidney de Zoysa said under oath that there was no monk other than Somarama in the premises when he arrived. He also said that there were no signs of Somarama’s hands being tied, and that it was he who sent the injured Gunaratne to hospital.

The evidence of Wedage Piyadasa (WP) :

WP corroborated Ananda’s (NA) evidence on some of the main points including the version about alerting the sentry. WP had run out with NA soon after the shooting but then went out of the gate and did not return to the house thereafter. It is reasonable to expect WP to back up NA, a monk he was faithful to and on whose patronage he was dependent.

However, WP also said that Somarama deliberately aimed and fired at Gunaratne. It does seem strange though, that an assassin would take time off to shoot an innocent man while his prime quarry was getting away from him and escaping into the house. If the prosecution believed this story, they should probably have charged Somarama with the attempted murder of Gunaratne too.

The evidence of Wijekoon Wickremasinghe (WW) :

WW was standing in the other wing of the verandah from Somarama and his view was blocked by intervening bodies, including that of the PM. In the Magistrate’s Court, just a few months after the shooting, he had said, “I heard the shots from the direction where the Prime Minister and the monk in the corner were. I was unable to see anything at that time because my view was obstructed by the Prime Minister.”

However, his later evidence in the SC was very different. He said that, as the PM approached Somarama, the latter sprang up, took a few steps to his left (i.e. away from the garden) and started firing. By a happy coincidence, this alleged move by Somarama would have better placed him in WW’s line of sight. However, the likelihood of Somarama shooting after such a movement is cast in further doubt by forensic evidence, as explained below.

Furthermore, WW’s evidence in the SC contradicted the evidence of the other two, NA and WP, by saying that the PM did not reach, worship or speak with Somarama before the latter started shooting.

The evidence given by eye-witnesses, especially in circumstances where they themselves are in danger, and probably taking evasive action, can be somewhat unreliable. However, if the accounts of several eye-witnesses are also inconsistent with one another on major points, then the evidence becomes dubious. The reader can decide on the credibility of the evidence of these three eye-witnesses. There is plenty of authoritative material on the internet about the pros and cons of eye witnesses.

In summary, no clear, consistent, unambiguous eye-witness evidence was produced in the Supreme Court to definitively establish that anyone actually saw Somarama firing the weapon. The prosecution did not call more eye-witnesses from the long list of people interviewed by the police in order to establish guilt beyond any doubt and close the case out. It’s fair to assume that there were no such ‘reliable’ witnesses.

THE FIRST BULLET

The forensic evidence that was presented at the trial, which is not dependent on any witness’s testimony, also raised a vital question. ASP Tyrrell Goonetilleke of the CID, who was at the scene within one hour of the shooting, made precise notes of the physical damage caused by the bullets in addition to other relevant facts. He noted that one bullet travelled almost at right angles to the line of the verandah, and went into the house. It pierced a glass pane of a French window separating the verandah from the hall inside, at a height of only 4 feet 3 inches above the verandah floor and hit the back wall of a second living room, well inside the house, at a height of 13 feet. Blood and fragments of flesh were found where it hit the wall confirming that it had struck the PM. Several people who were present had mentioned that the PM jerked his hand and cried out in pain soon after the first gunshot was heard.

The Judicial Medical Officer, Dr. W.D.L. Fernando, who examined the PM’s injuries on the day of the shooting described the related wound as follows –

1. A punctured lacerated wound on the back of the left wrist – an entrance wound

2. A punctured lacerated wound on the back of the left hand – an exit wound

Injuries (1) and (2) corresponded and were caused by the same bullet which passed only skin deep through the hand.

This was a relatively minor wound and, naturally, most of the attention was focused on the three bullets that entered the torso of the PM leading to his death. However, it is the first bullet fired that created most doubt about Somarama’s guilt. The injury caused by that first bullet, and its trajectory, is only compatible with the shot being fired from the garden outside, which was at a lower level than the verandah. There was never any suggestion of a scuffle, a second gunman or a second gun and the Government Analyst established that all six bullets were fired from the same revolver that was recovered at the scene.

The crucial question is, how could Somarama have fired that bullet from where he was seated and caused that injury to the PM, who was facing him in worship?

As for Wickremasinghe’s (WW’s) evidence, if Somarama stood up and moved to his left as the PM approached before shooting, the height and trajectory of the first bullet would be absolutely impossible for Somarama to achieve.

SOME LEGAL ASPECTS

It is important to bear in mind that the onus is on the prosecution to prove beyond reasonable doubt that the accused are guilty. Defence counsel do not have to prove that their clients are ‘not guilty’. The benefit of doubt goes to the accused. The accused are not even required to give evidence and, in this case, only Newton Perera testified, for reasons decided as advantageous by his counsel. However, Somarama made a statement from the Dock on which he was not open to cross-examination.

The process that prevailed was for the prosecution to submit a list of names of witnesses at the beginning of the trial. If the prosecution chose not to call a witness in their list, the defence could do so, if it saw a specific advantage. However, the defence would then have to lead the evidence and lose the opportunity to re-examine the witness following examination by the other counsel. It was a risky move because there was no opportunity for the defence to counteract impressions created in the minds of the jury through the testimony of that witness during examination by the other counsel.

As the counsel representing Buddharakkitha said in his summing up –

“Although Mr. Chitty has told you that the defence could have called any prosecution witness it liked, there is a big difference between the prosecution calling such a witness and the defence doing so. The defence has no access to the information book or to statements made by witnesses to the police. Is it not a terrible risk for the defence to take, to call a prosecution witness when it has no access to these statements and no opportunity of examining the witness in advance?

Further, when the defence calls a prosecution witness, it cannot cross-examine him, as it could do if he were called by the prosecution.”

(Weeramantry – page 296)

It’s important to note that only the Judge and prosecution counsel had access to the police investigation notes (Information Book), which also included statements made by various individuals to the police.

Having the last word is of great value in court, as it is in life. This principle is also of great importance when it comes to deciding the order of the final addresses to the jury by counsel, which is then followed by the charge to the jury by the Judge. The process applicable in 1961 is succinctly explained by Weeramantry in his book as follows –

“The Ceylon Criminal Procedure Code lays down that counsel for the accused ordinarily enjoys the right of reply to the Crown. If, however, counsel for an accused calls evidence for the defence other than that of the accused himself, he loses that right and must address the jury before the Crown does so. Counsel for the 3rd, 4th and 5th accused, having called evidence on behalf of their respective clients, had therefore lost their right of reply and had, in consequence, to address before the Crown. Counsel for the 1st and 2nd accused, however, having called no evidence on behalf of his clients, preserved his right of reply.”

(Weeramantry – page 232)

Thus, the counsel who represented Buddharakkitha and Jayawardena had the opportunity to listen to the final summing up of all the other counsel and then tailor his address accordingly to have maximum impact on the minds of the members of the jury. It was a strategic decision that he took.

The final line up to address the jury, in order, was –

1. Counsel for Anura de Silva, the 3rd accused (K. Shinya).

2. Counsel for Talduwe Somarama, the 4th accused (Lucian Weeramantry)

3. Counsel for Newton Perera, the 5th accused (Nadesan Satyendra)

4. The Crown (George Chitty)

5. Counsel for Mapitigama Buddharakkitha and H.P. Jayawardena, the 1st and 2nd accused respectively (Phineas Quass)

THE RETURN OF THE HANGMAN

The debate on the pros and cons of capital punishment during that period casts some light on the attitude and approach of the decision-makers on justice within the government toward the accused in this particular case.

PM Bandaranaike was firmly opposed to the death penalty. In May 1956, within weeks of his inauguration, a Bill titled Suspension of Capital Punishment was presented in Parliament and passed overwhelmingly with just one vote against it. However, it was defeated by a slight majority in the Senate. Bandaranaike persisted and finally the Suspension of Capital Punishment Act No. 20 of 1958 took effect on May 9, 1958. It was still ‘suspension’ and not ‘abolition’.

A Commission was then established in October 1958 by the Governor General to study and report on the advisability of the death penalty. It was headed by Dr. Norval Morris, an academic from Australia who was internationally known in the field of criminal law. The Morris Commission held intensive interviews and consultations, analysed relevant data regarding the efficacy of capital punishment in reducing crime and considered broader social and economic issues and implications. The subject even came up during the SC trial, and Justice T.S. Fernando himself mentioned that he appeared before the commissioners in strong support of the death penalty. The Commission’s report, recommending continuation of the suspension was issued in that fateful month – September 1959.

On October 2, 1959, within seven days of Mr. Bandaranaike’s passing, the suspension instituted by him was removed by an extraordinary gazette. Subsequently, the Suspension of Capital Punishment (Repeal) Act No. 25 of 1959 was passed in Parliament and took effect on December 2, 1959, even before the magisterial inquiry on the assassination had commenced. This new law reinstated the death penalty, retrospectively, for those found guilty of murder and repealed the previous legislation.

It is ironic that the death penalty was brought back specifically to hang the assailant for whom the PM had called for clemency from his death bed.

That was not all. By an oversight, the death penalty was only reintroduced for murder, and not conspiracy to murder, which meant that the first and second accused could not be executed. Thus, although death sentences were pronounced in the SC, the Court of Criminal Appeal altered their sentences to life imprisonment.

The government then came up with the Capital Punishment (Special Provisions) Bill which was scheduled for discussion in Parliament on January 18, 1962. It sought to retrospectively include the death penalty for conspiracy to murder, and annul the sentences of the Court of Criminal Appeal on Buddharakkitha and Jayawardena. Since it was clearly targeting the accused in the assassination of the PM, and not based on any general legal policy or principle, there were massive protests and opposition. Colvin R. De Silva called it ‘murder by statute’. Under pressure, the government withdrew the Bill one week later, on January 25.

The abortive coup d’état of January 27, 1962 followed a couple of days later and the government’s legal campaign shifted to another arena, where retrospective legislation was once again used.

However, Somarama’s fate had been sealed one week after the PM died, and he was hanged on July 6, 1962.

TO BE CONTINUED …..

The writer can be contacted on this subject at skgsenanayake@gmail.com