By: George Barclay

APPELLANT Lochan Arjune was convicted on two counts of falsification of accounts as a result of an error by a trial judge.
But on appeal the Appellate Court allowed the appeal on the basis of the judge’s directions to the jury in his summing up.
According to that court, the trial judge did not analyse the information in the statement of the accused for the benefit of the jury, or draw their attention to some matters and there was serious misdirection.
It was Held: In relation to some of the charges, the trial judge read over to the jury what the appellant said in his statement and did not analyse it for their benefit.
He also did not deal adequately with the defence – some matters ought to have been specifically drawn to the attention of the jury so that they could decide whether, having regard to all the circumstances, the Appellant was exercising his discretion properly in paying one person loss of earnings for 22 instead of 12 days .
In addition, there was a serious misdirection by the trial judge which was most damaging to the Appellant.
Appeal allowed, Convictions quashed and sentences set aside.
Twelve cases were referred to.
S.D.S. Hardyal, SC. for the Appellant.
Ian Chang, Deputy DPP (Ag.) for the State.
The Court of Appeal was constituted by Chancellor Keith Massiah and Justices of Appeal Charles Fung-a-Fat and Cecil Kennard.
Justice Kennard delivered the judgement.
Chancellor Massiah said about the judgment: For the reasons given by my learned brother Kennard, J. A., I too would allow the appeal, quash convictions and set aside the sentence, I add a few words of my own only by way of general comment.
The case for the State was structured largely on the evidence of accomplices, one of whom, a man called Latchman, proved to be wholly discreditable. In my opinion, in relation to the first count, the learned trial judge ought to have directed the jury to treat Latchman’s evidence as worthless and disregard it, in which case no question of corroboration could arise. See the speech of Lord Hailsham in Director of Public Prosecutions v. Kilbourne [1973] 1All E.R. 440, at p. 452, and that of Lord Morris of Borth-Y-Gest, previously expressed in Director of Public Prosecutions v. Hester, [1972] 3 WLR 910 at pp. 919- 920.

But this, although important, was not the main problem .The most significant, if astonishing, aspect of the entire case was the fact that the learned trial judge misunderstood the case for the prosecution and also the case for the defence. The prosecution appeared to have been launched on a basis which their own witnesses destroyed. The true system of the payment of witnesses at criminal trials emerged only during the cross-examination of Hetram Maraj, Weeley Simons, Lennox Kit and Edward Gibson, all State witnesses.

What they said differed fundamentally from the position conceived and argued for by the State Prosecutor. Those witnesses threw an entirely different light on the prosecution’s case. Their evidence was provocative and stimulated new perspectives.That the learned trial judge failed to appreciate this is evident upon his summation which covered nearly two days. There was also the same basic apprehension of the nature of the defence resulting in its inadequate treatment and judicial disillumination. The trial judge did not appear to realise that there existed in favour of the appellant, the fact that the defence could have been fitted within the schematic framework evidentially adumbrated by Hetram Maraj and the other State witnesses to whom reference has been made.

The jury ought to have been directed along those lines, but they were not. Those flaws contrived to deny the appellant a fair hearing of the case presented against him, and in themselves are sufficient to cause this court to allow the appeal in relation to the first count.

With regard to the fifth count of the indictment there was the same judicial failure to understand the defence, and consequently it was not adequately treated. There can be no doubt that the question of a mistake on the appellant’s part properly arose from what he said in his statement from the dock and from a careful study of the payment voucher which he was alleged to have falsified. It was a very important question and was never dealt with, save that the trial judge merely repeated what the appellant had already said.

The question of a retrial exercised my mind, but only for a fleeting moment. The thought was banished by the circumstance that the appellant served 16 months of a five-year sentence before bail was granted to him on 3rd September,1979.
There is to be considered also the fact that the trial took place seven years ago, and witnesses would now have to cast their minds back as far as 1973 and 1974, the years in which the respective offences were alleged to have occurred. In my opinion, this would be a daunting, if not superhuman, exercise and would hardly conduce to a proper hearing.

Mr. Chang argued for the employment of the proviso in relation to one of the charges. Two reasons militate against the application. First, I am not sure that a jury properly directed would inevitably have returned the same verdict. On this question see the opinion of Haynes, J. A. (afterwards Chancellor) in The State v. Kowshall Persaud [1975] 27 W.I.R. 82 at pp. 95-98. The second reason is that there appears to be a notion of the common law that the proviso ought not to be applied where misdirections relate to the burden of proof and to the defence. See the judgment of Crane, J.A., as he then was, in Frank Sookram v.The State [1971] 18 WIR 195, at pp.95-98. The second reason is that there appears to be a notion of the common law that the proviso ought not to be applied where misdirections relate to the burden of proof and to the defence. See the judgment of Crane, J. A., as he then was, in Frank Sookram v. The State [1971] 18nWIR 195, at p. 211. See also Keith Kebba Badjan [1966] 50Cf.App. R 141, at p. 144. All of this must now be considered in the light of R v.Edwards[1983] CLR 474 and of Melvyn Thomas Whitfield [1976]63 Cr.App. R. 39.

There are opposing views on the question whether the proviso ought never to be applied where there are misdirections relating to the burden of proof or the defence. Some see it as illogical that there should be degrees of misdirection, some misdirections being regarded as more crucial than others and rendering the case insusceptible of the employment of the proviso.

Others see nothing illogical in that approach and consider it to be sensible and practical as a matter of policy. My own tentative view is that the door to the use of the proviso should not be shut fast, but should remain open for entrance wherever the circumstances of the case permit.

The circumstances in the matter under instant consideration forbid such entrance. In the result the appeal must be determined as already stated. Justice of Appeal Fung-A-Fat : I concur.