-Court refuses application to call fresh evidence
IN 1960, Seetal, Bharat and Pooran, charged with attempted murder, were convicted and sentenced to imprisonment.   On trial, no use was made of matters contained in the depositions to impugn the reliability of certain witnesses’ identification of the persons charged with the offence.

After conviction  and on appeal, application was made to call fresh evidence, touching the matters disclosed in the depositions.

The Federal Supreme Court – Criminal Appellate Jurisdiction constituted by Chief Justice Hallinan, and Justices of Appeal  Rennie and Marnan which heard the appeal, held:  That the material that formed the subject matter of the application  was available at the trial and it is unusual  for an appeal court to entertain an application  because of the lack of professional skill with which the defence was conducted.

The application was refused.

Mr. Shakoor Manraj, Attorney-at-law, had appeared for the appellant, Seetal, and Mr. E.V. Luckhoo for the appellant Bharat.   Pooran conducted his own defence.

Crown counsel, Mr. E.A. Romao appeared for the Crown,

Chief Justice Hallinan delivered the judgment of the court.    According to him, the three appellants were convicted of the attempted murder of Alfred Stephens on June 21, 1959.

Seetal and Pooran, who are brothers, were sentenced to 12 years’ imprisonment,  and Bharat to 10 years.   All three appealed against sentence and were heard on the same ground.

In addition, Bharat applied to call fresh evidence which, if admitted, according to his counsel, would be grounds  upon which the court might order a new trial.

According to Justice Hallinan, Counsel  for Seetal intimated  that if Bharat’s  application were allowed, then Seetal would apply to amend his grounds of appeal so that he too would ask the court to order a new trial for him also.   Apart from the grounds which the application for fresh evidence disclose, counsel for the parties abandoned all grounds of appeal, except that as to sentence.

The circumstances upon which the application to admit fresh evidence was based, Justice Hallinan said, related to the identification of Bharat by Stephens and the witness, Ibrahim.

Stephens  was a ranger on Plantation Lusignan, and Ibrahim  assisted him. Part of the former’s duty was to prevent cattle from trespassing in the cane fields.

One day, Stephens and Ibrahim  were attacked on a railway line  at about  5:30pm by three assailants with sticks and cutlasses , and from statements made by the assailants during the attack, they were out to kill Stephens  because he had impounded  cattle belonging to them or their relatives.

Ibrahim escaped the attack, but Stephens was very badly beaten and wounded.  At the trial, Justice Hallinan said, Stephens and Ibrahim identified the appellants as the assailants.   Stephens said that he had known all three men from working on the estate; Ibrahim, on the other hand, said he had known them since they were small — about 14 years.

In order to attack the credibility of Stephens’  identification of the appellants, he said, the Appeal Court was asked  to consider two matters mentioned in Stephens’  deposition  at the preliminary inquiry,  but which were never mentioned at the trial.

Continuing with his judgment,  Justice Hallinan said the deposition in question showed that at the end of the cross-examination by counsel for Bharat, said counsel (by leave of the court) changed Bharat’s position in the dock.

Stephens did go up to the dock, but apparently, because of his impaired vision, due to the attack on him, he said he could not see the appellants’ faces very well and as such could not identify them.

In his deposition Stephens, probably as evidence of motive, referred to an incident which occurred before the attack the subject of the charge, namely, that Seetal and Bharat  had met  Ibrahim  and him  driving cattle to be impounded, and that Seetal had attacked him with a stick  and took away two cows.

But the prosecution, at the trial, never led evidence of this incident, nor was Stephens ever cross-examined about it.  After the trial, the appellant asked the police for a copy of the complaint which Stephens had made to the Police about the incident.

But apparently, this record  had somehow been destroyed, and all the police could supply was  an entry made by one Constable Campbell in their records dated May 25, 1959, recording a complaint made by Stephens against one ‘Magga’ and an unknown man, and referencing blows with a stick and a threat to shoot.

Noting that the appellant, Pooran, was also known as ‘Magga’, Justice Hallinan said counsel submitted  that the report at reference weakened Stephens’ credibility  as the incident in May  concerned ‘Magga’ and some unknown, and not Seetal and Bharat.

He said the attack on the credibility of Ibrahim’s identification was based on the fact that Ibrahim gave the name of Roopchan, also called ‘Rama’, as the name of one of his assailants, and that this was on the day he was attacked, June 28.   “The next day, in a further statement, he corrected this, saying that it was not Roopchan but his brother Bharat, and the mistake arose through his knowing Bharat as ‘Rama’, a name by which Roopchan is called.”

Continuing with his summation, Justice Hallinan said: “In a statutory declaration,  Roopchan,  since the trial , has stated  that on the morning  of June 29, Ibrahim saw Roopchan in the lock-up and affirmed that it was he, Roopchan, whom he   had seen attack him.

“The first thing to be determined on an application of this kind is to enquire how much of the material by which the defence seek to attack  the credibility of  Stephens and Ibrahim was available at the trial.

“The depositions of both these witnesses were,  of course,  available for the defence.  It could have been put to Stephens that he failed to identify the appellants when in the dock at the preliminary inquiry.  Stephens  at the trial never repeated his allegation that Seetal and Bharat had attacked him on another occasion prior to June 2.

“Since the trial, the defence have procured the report recorded by Constable Campbell on May 26, but we cannot say that this report is correct, or whether it refers to the same incident  as that to which  Stephens referred in his deposition.

“The prosecution were under no duty to supply unasked a copy of this report; indeed,  since it was not a statement  required to show the inconsistency of anything Stephens said at the trial, we do not think the police were obliged to supply Constable Campbell’s record even when asked to do so.” 

Dismissing the appeals, Justice Hallinan said in closing: “The attack, the subject matter of the charge, was savage and unprovoked;   Stephens,  with 15 wounds , was left for dead by his assailants.   He spent  four-and-a-half months in hospital, and his sight is permanently impaired.   Seetal and Pooran each received two years imprisonment more than Bharat; the reason being that Seetal was the ringleader, and Pooran has had many previous convictions, two of which were for wounding.”