Mr. Nalin Ladduwahetti, Senior Defence Counsel appearing for former Army Commander Sarath Fonseka raised issue over two different positions taken by the Attorney General on the production of original documents and copies of originals when the High Court Trial-at-Bar on the 'white flag' case continued this week.
The former Army Commander and Presidential candidate is charged under the Emergency Regulations and the Penal Code for making a false statement in an interview on the eve of the Presidential election, to The Sunday Leader newspaper that Defence Secretary Gotabaya Rajapaksa ordered soldiers not to let LTTE cadres surrender but to shoot them instead, and thus aroused communal feelings by making these statements.
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| Defence Counsel Nalin Ladduwahetti leaving Courts . Pic. by J.Weerasekera |
Mr. Ladduwahetti said that in the case filed against Deputy Minister Abdul Cader who was acquitted this week in a forgery and criminal misappropriation of public funds case, the reason for his acquittal was based on the fact that the originals of the documents were not available, while in this particular case the State wants to continue the case without the originals of a video recording of an election speech made by Mr. Fonseka in Ratnapura.
The Bench is to decide whether extracts taken from a 45 minute speech made by Mr. Fonseka should be admissable evidence in the trial.
The Trial-at-Bar consists of Judge Deepali Wijesundara (President), Judge W.T. M. P.B. Warawewa and Judge M.S Razeen.
On Monday, when the case resumed, Mr. Ladduwahetti objected to extracts of the tape being accepted without the original.
Mr. Ladduwahetti inquired about the court order given to the Derana TV earlier by the Trial-at-Bar to produce the original tape.
The Derana TV news director, who is also a witness in this case, at this point informed court that the original copy was not available. He said after extracts were taken from the original video tape (containing the speech of Mr. Fonseka), the tape has been re-used for recording.
Deputy Solicitor General Wasantha Navarathna Bandara said that according to the Evidence Ordinance, evidence could be led even without the original tape. He said that a copy or a recording of it could be produced according to the Ordinance.
He said the Derana TV Ratnapura correspondent Kanchamal Kudagama had admitted that he recorded Mr. Fonseka’s speech in Ratnapura and handed over the tape to Derana TV.
He said he was calling the News Editor and the News Reader as witnesses to establish that the contents used was from a copy.
Mr. Bandara said copying from the original tape and distorting it are two different matters.
He said that the witnesses had admitted to the CID that the contents in the original tape were not distorted. “Court should be satisfied that the recording was accurate and that it is obtained from the original tape, which has not been distorted”, he said.
He said the tape helps to establish the evidence given by the first witness Frederica Jansz (The Sunday Leader Editor). He said that was the reason that the Defence Counsel was objecting.
He further said that if necessary, the tapes could be submitted to the Government Analyst or a specialist.
Mr. Ladduwahetti said that according to the Evidence Ordinance, it should be established that the recording had not been distorted. “My client was a strong Presidential candidate. He needed to explain to the public about what had been misreported in The Sunday Leader by Frederica Jansz. Therefore it was not only in Ratnapura, but at other rallies as well that he spoke explaining this matter. At Ratnapura, he spoke for 45 minutes. Therefore it cannot be said that taking an extract of one and a half minutes from a 45 minute speech is not a distortion”, he said.
Mr. Ladduwahetti said that the correspondent had been shown only a part of what had been recorded at the CID office. Therefore, the prosecution has not been able to pass the stage of proving the point that the tape had not been subject to distortion.
He requested that the prosecution should not be allowed to produce what has been broadcast in the Derana news bulletin.
“During the election rallies Mr. Fonseka had been mentioning that The Sunday Leader had not reported what he had actually told the newspaper. The meaning of what he had said had been distorted and broadcast. It would be disadvantageous to his client if that is permitted to be accepted as evidence in court,” he said.
He said that if the full tape is produced in court he was willing to accept it.
The Bench said that if there were further points to be made, both parties could file written submissions on the issue.
The next hearing will be on December 8 |
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