Judge fails to put defence meticulously to jury
IN 1953, Samaroo and Ezaz, having been convicted for robbery with aggravation, appealed on the grounds that their alibi defence was not adequately put to the jury by the trial judge in his summing-up. The Supreme Court of Criminal Appeal, constituted by Chief Justice Edward Peter Stubbs Belle, Frederick Malcolm Boland, and Joseph Lyttleton Wills, allowed the appeal and set aside the conviction and sentence.

The Appellate Court held that it was of paramount importance that the judge, in his summing-up, must fairly put an accused’s defence to the jury, and since that had not been done in an otherwise careful and meticulous summing-up, the convictions and sentence must be quashed.

Queen’s Counsel B O Adams, appear for the appellants, while then Senior Counsel and Solicitor General, Mr G M Farnum, represented the respondent.

Justice Belle, in delivering the judgment, outlined that the appeals, which were heard together, were appeals against conviction and sentence. The appellants, he said, had appeared before judge and jury on charges of robbery with aggravation. Learned counsel for the appellants had argued a number of points, but abandoned two on the grounds of application for leave to appeal.

“We are against him on two other points, namely, that there was no proof of what the grounds of appeal call ownership, and that the possession of the stolen goods, the money, was not fully established,” Justice Belle said, adding:

“The main grounds argued were that the learned Trial Judge failed to include  in his summing-up the defence as led, and that the learned Trial Judge failed in his summing-up  to deal fully with the evidence of the prosecution particularly with the  cross examination of the witnesses.  We have had the benefit of considerable argument by learned counsel for the appellants, to which the learned Solicitor General replied.”

Warming to the topic, Justice Belle said: “Now, it is clearly settled law that it is of paramount importance that the summing-up must fairly put the case for the defence, whatever it may be.  No matter how trivial or stupid or unlikely the defence may be, it is of paramount importance that the judge, in his summing-up, must fairly put that defence to the jury. If authority were needed  for that proposition, there is plenty of it in the books, for instance, the cases of Totty (1914), 10 CAR, and Dinnick (1909)  3  CAR.

“But while it is settled law that the summing-up must fairly put the case for the defence, there is no need for the judge to go into every detail of the case, nor is there any need for him to put the defence in technical language.  For instance, if the defence is an alibi, there is no need for the judge to put the defence to the jury under the name, or to use any technical names for the defence offered.  There is no need, as we understand the law, that the judge should put the defence at any particular stage of his summing-up.

“He can deal with it as he deals with the witnesses for the prosecution, but there are obvious advantages of emphasis and orderly arrangement that the judge should put the defence story to the jury, after he had finished with the story for the prosecution, and that is the mode that we would certainly recommend.

“It is also quite clear that it is sufficient if the defence is put substantially, that is to say, if it emerges from an examination of the summing-up as a whole that the issues in the case were, in substance, put to the jury by the judge.

“Now, as regards this particular case, we have come to the conclusion that in an

otherwise meticulous and careful summing-up by the learned Trial Judge, who is careful and meticulous, it cannot fairly and reasonably be said that the defence of either of the appellants was put to the jury clearly, or in such a way that their attention was sufficiently and emphatically drawn to the nature of that defence.   It cannot be enough, we feel, merely to assume that because the jury have heard both sides of the case, they are cognisant of the defence which is put forward. Something more than that is necessary;    something must be done to emphasise to the jury the defence which an accused person is offering.

“Now, unquestionably,  throughout the learned Trial Judge’s summing-up,  he  did not make reference to statements which had been made by the two appellants,  but we are of the opinion that he did so for a purpose other than  the purpose of putting the defence  to the jury in the way we feel  it ought to be put.  It would not be enough, we feel, to say:  ‘Well, when these statements were being dealt with  by the learned Trial Judge, it must have been apparent to the jury that the statements raised  the defence of an alibi in each case.’  Something considerably more than that was required in our view, so we are left, in the result, with the view that at no stage can it be said that the defence, as put forward by the appellants, was sufficiently clearly and emphatically put to the jury and we are forced to the conclusion that that very vital principle has been infringed.

“It must be, we feel, the duty of the Court to ensure that judges trying cases with juries do not overlook that important principle.  We would reiterate that it is the function  of the Court  to make sure  that a judge sitting with a jury never loses sight of the fact  that at some stage of his summing-up, and in some language and method,  he must alert the jury to the defence which has been offered to them by the accused.  That is a very fundamental duty which we as a Court of Appeal would fail in, if we did not emphasise it.

“Now, we have given very earnest consideration to the question whether the proviso to the Criminal Appeal Ordinance should be applied in this case, and after that careful thought  and consideration, we have come to the conclusion that it would not be a proper case in which to apply the proviso.  We have been unable  to satisfy ourselves on the principles laid down in the cases of  Haddy (1914)  KB Stirland (1944) and R v Farid, that had  there been proper direction, the jury would have come to the same  conclusion as they did ,  which is really the test that we must apply.

“For these reasons, we feel that the appeal in each case must be allowed  and the convictions and sentences quashed. That being so, we direct the discharge of the appellants.   Appeal allowed.”