–accused convicted
-Federal Supreme Court orders new trial
IN 1961, the Federal Supreme Court found that a High Court judge had misconstrued a defence objection to an alleged confession statement to mean that the lawyer was objecting on the grounds that the statement was not free and voluntary.

As a consequence, the trial judge sent the jury out of sight and hearing, and took evidence in their absence, during which time certain statements contained in the alleged confession were accepted by the judge and led in the main trial, in the presence of the jury.

The resulting effect was that the accused, Charles, was convicted and sentenced to a term of imprisonment.

He however took the matter to the Federal Supreme Court, then constituted by Sir Stanley Gomes, Chief Justice, and Justices of Appeal Wylie and Lewis. Senior Counsel, Mr. Rex Mc Kay appeared for the appellant, Charles, while Mr E Romao represented the Crown.

At the end of the trial, which lasted three days, the Federal Supreme Court found that the High Court had erred, and therefore set aside the conviction and ordered a new trial.

During the hearing, the Court discussed the Criminal Law: Evidence; Confession; Objection to admission of statement on the grounds that the accused had not made it; Objection treated as though made on the grounds that statement was not free and voluntary; Evidence heard in absence of jury; Statement admitted in evidence, and used to refresh memory of witnesses; and Statement read to jury and, in summing-up, treated as though never challenged.

That Court held, among other things, that important evidence, including the evidence of the accused on the question of whether or not he had made the disputed statement, had been received in the absence of the jury, and that the judge, by his ruling, had withdrawn the question from the jury. It decreed that this failing on the judge’s part, was a serious irregularity affecting the validity of the trial and the conviction could not stand.

Consequently, the appeal was allowed and a new trial ordered.

In delivering the judgment of the court, Justice AM Lewis said: “At the trial of this case, the prosecution tendered a statement which they alleged the appellant had made to the police, and which contained certain admissions. The appellant objected to its admissibility on the grounds that he had not made the statement.”

Noting that such an objection was not, in law, proper ground for attacking the admissibility of a statement and that it merely raises an issue which must be tried by the jury, Justice Lewis said that unfortunately, the trial judge not only treated the objection as though it were made on the grounds that the statement was not free and voluntary, but he also heard evidence in the absence of the jury, and then ruled that the accused had made the statement, and that it might be used for the purpose of refreshing the memory of the witness who took it.

Contending that in light of the foregoing developments, the statement was therefore read to the jury and dealt with as an exhibit, Justice Lewis said: “In his summing-up, the learned trial judge treated the statement as though it had never been challenged, and read to the jury certain pages from it which might be used as admission by the applicant.”

Continuing, he said: “In our view, the procedure adopted by the trial judge and his treatment of the statement in his summing-up amounted to the withdrawal from the jury of an important issue which was a proper one for them to try.

“An accused person is entitled to have all the evidence on the issues raised in the trial given in the presence of the jury. In this case, important evidence, including the evidence of the appellant himself on the question whether or not the appellant had made the disputed statement, was received in the absence of the jury, and the judge by his ruling withdrew this question from them. This was a serious irregularity affecting the validity of the trial and the conviction accordingly cannot stand.”

He concluded by saying: “In view of this decision, it is unnecessary to consider the other grounds of appeal. The conviction is quashed and the sentence set aside, and the court orders that there be a new trial. Appeal allowed; new trial ordered.”