Convicted murder accused goes free on appeal
IN 1960, the Federal Supreme Court allowed the Baldeo Dihal murder appeal, set aside the conviction and death sentence, and ordered a new trial in the interest of justice, after finding that the trial judge had misdirected the jury in his summing-up by not relating the law to the facts of the case.

The accused, who had a reasonable defence of self-defence, had appealed the matter on the grounds that his defence was not properly put to the jury.
The Federal Supreme Court, in its Criminal Appellate Jurisdiction, was constituted by Justices Rennie, Archer, and Wylie.

That court held that on a trial of a person charged with murder, the judge should relate the law to the facts in the case. It was pointed out also that when dealing with the question of provocation, mention should not be made of cooling time, particularly if the evidence clearly shows that no time had elapsed between the provocation and the retaliation, and, moreso, where any such mention of cooling time may cause confusion in the mind of the jury; and that it was the duty of the trial judge, in his summing up, to deal adequately with the evidence relating to self-defence.

On appeal, the accused was represented by Mr. SDS Hardyal, while the Crown was represented by Mr. W Persaud.

Delivering judgment, Justice Rennie contended that while the grounds for appeal were numerous and somewhat wide in scope, with the exception of the ground of misdirection, he and his colleagues saw no merit in any of them.

“Exception was taken to the form of the directions when dealing with the question of self-defence and provocation. It was submitted to us that the law was laid down in one compartment, so to speak, and the facts were referred in another, and no attempt was made to relate the one to the other.  The directions do seem to deserve this criticism,” Justice Rennie said, adding:

“The law of self-defence was meticulously explained as a lecturer might well explain it to a class of students, but nowhere in the directions are the jury told what facts they should take into account when considering this aspect of the case. The nearest they got to hearing the facts related to self-defence is the statement that when considering self-defence,  it would be relevant for them  to compare the wounds on the body of the deceased with the injuries on the appellant.

“This statement, however, deals with one factor of self-defence — whether there was the necessity to use such force.”

On the question of self-defence and the directions concerning it, Justice Rennie said: “We shall have more to say at a later stage of these reasons, but now return to the matter under consideration. The jury were told by the trial judge if in all the circumstances as a reasonable man, he feels that he is in danger — serious danger, he is entitled to take steps to defend himself .. If necessary to the extent of killing,  but, though he can do that , it is his duty  to retreat if he can reasonably do so in all the circumstances.

You may think that it is not a very manly thing to do, to run away if a person is attacking you or threatening to attack you. But it is the law.”

Explaining what he meant by the foregoing statement, Justice Rennie said: “Nowhere in the directions were they (the jury) told what facts they should take into account in determining whether or not to retreat was reasonable.  The evidence, if accepted, would seem to suggest that retreat was not possible, and it must be confusing to a jury in such circumstances to be told that although  it may be considered  not manly to retreat,  the law nonetheless requires it if  the person attacked  can reasonably do so.

“As in the case of self-defence,” he said, “so in the case of provocation:  No assistance was given to the jury by relating the evidence to the law.  We can see a possibility of some confusion being caused in the minds of the jury by this failure to relate the one to the other.  Such a confusion could have been caused by reason of their being told by the trial judge:

‘If there was time for cooling between the time that the provocation was given  and the time the killing was done, then,  of course,  you cannot get the benefit of provocation  to reduce the offence from murder to manslaughter.’ And on another occasion:

‘But, as I told you,  the question of time for cooling is important in considering provocation. If there was time after the provocation was given within which a reasonable person would regain control of himself, then you cannot say that the accused was acting under the impulse of provocation.’”

According to Justice Rennie, these directions were given in spite of the fact that the evidence , if believed, showed that no time elapsed  between the provocation  and the retaliation.
In another case, he contended, “such an excess of direction in law might not have confused the jury, but, in the present case, where evidence was given  of the relationship  that existed between the deceased and the appellant ‘s mother  as a motive for the alleged offence, the jury might very well have found themselves in the position where they would ask themselves the question: What did the judge mean when he referred to cooling time? Had he in mind the relationship between the deceased and the appellant’s mother?  There was nothing else in the case, apart from the encounter, that might have affected the appellant’s mind. And if there could  have been no question of  cooling time with regard to the encounter, the jury must necessarily have wondered why they have been told about cooling time.”

At this stage, Justice Rennie said: “Having  considered the misdirections , we then  considered whether this was a case in which  the proviso to Section 10  (1) of the Federal Supreme Court  (Appeals)  Ordinance 1958, No. 19 of 1958, ought to be applied , and if it should not be applied, what course the Court should take.

“In our view, the proviso may be applied, and an appeal dismissed if the court is satisfied that the jury would, or must, inevitably have arrived at the same verdict if they had been properly directed.

“For the court to be so satisfied, there must be no room for doubt, however remote, as to the facts the jury accepted.   In this case, the jury could have returned a verdict of guilty of murder by either rejecting the evidence of the attack o
n the appellant, or by accepting that evidence. But coming to the conclusion on the directions they received that the necessity had not arisen for the appellant to defend himself as he said he did.

“In these circumstances, it seemed clear to us that the proviso should not be applied, and that the appeal should be allowed and a new trial ordered.”