IN 1954, Lawyer R.H. Luckhoo, representing McLean, who was on trial for the theft of seven bags of padi, made a no-case submission on behalf of his client, and took no further part in the  proceedings after his no-case submission was overruled. Another man, charged jointly with McLean, gave evidence before the magistrate, who declared a prima facie case had been made out against the accused, and consequently incriminated both defendants.

McLean appealed against conviction and sentence; the other defendant did not appeal.

Mr. R.H. Luckhoo appeared for the appellant, whilst Mr. G.N.  Farnum, Solicitor General, represented the respondent.

The facts disclosed that the appellant and another man were charged with the larceny of seven bags of padi.
At the close of the prosecution’s case, counsel Luckhoo declined to lead evidence, and submitted that a case had not been made out against the appellant. The submissions were overruled.
The other defendant then gave evidence, which the magistrate regarded as incriminating the appellant. The appellant’s counsel declined to cross-examine the other defendant, or to take any further part in the trial after his submission had been overruled.

The Full Court of the Supreme Court of Judicature, constituted by Chief Justice Edward Peter Stubbs Bell and Justice Frederick Malcolm Boland, held that the evidence  of the defendant, when properly examined, did not incriminate the appellant, and that the appellant should have been found not guilty by the magistrate…

Turning to ‘Dicta’, the Full Court said that where a “no case” submission is made and overruled, if the defence leads evidence, the magistrate is entitled to look at the evidence as a whole; and if it supplies what was lacking and there is a conviction, the conviction will not be quashed.

Query: The Full Court held that where there is more than one defendant, and a magistrate declines to discharge one against whom there is no evidence, and the evidence of the other defendant(s) implicate(s) that one who refrains from taking any further part in the trial, should his conviction be quashed?

The appeal was allowed.

Chief Justice Bell, who delivered the judgment of the Court, said: “The Appellant Krisindath Mc Lean was charged together with a man named Chatterpaul Singh, alias Seewah, with the larceny of seven bags of padi valued at $44.10, the property of one Ramotar Singh.

“At the close of the case for the prosecution, Mr. R.H. Luckhoo, counsel for the Appellant, formally closed his case and told the learned magistrate that he did not intend to lead any evidence in defence, and submitted that no case had been made out against his client, the appellant.

“The record does not disclose, as it should have done, the ruling given by the magistrate on the submission of “no case”, but it can be inferred that he overruled it and called upon each accused for his defence.

“Thereupon, the accused Chatterpaul Singh, who has not appealed though he has been found guilty, gave evidence on oath, and stated amongst other things that he had “assisted the No.1 defendant (the appellant) in removing the padi from Ramotar’s rice field.

“We are not satisfied, however, that the evidence of Chatterpaul Singh, when examined as a whole, incriminates the appellant.  Chatterpaul Singh called no witnesses. The appellant, on the other hand, when called upon for his defence by the magistrate, did not give evidence on oath or affirmation, and indeed said nothing at all.

“Moreover, his counsel, Mr. Luckhoo, did not cross-examine Chatterpaul Singh, and in fact took no further part in the proceedings, after formally closing the appellant’s case and making the submission of “no case.”

“We are satisfied that, at the close of the case for the  prosecution, there was no case to answer; that is to say,  there was no reasonable evidence to support the charge of larceny against the appellant, and we are not satisfied that credence  should have been given to the evidence of the defendant  Chatterpaul Singh, whose evidence should, we feel, have been viewed with considerable suspicion as one who may have been seeking to exculpate himself.
“For that reason, we are of the opinion that the conviction and sentence cannot stand. We feel, however, that it will be useful if we say something about the consequences of making a submission of “no case” to answer.

“It is an accepted practice, when the case for the prosecution is closed, for the defence to submit that there is no case to answer; that is to say, that there is no evidence to support the charge.

“This submission means that there is no reasonable evidence (Avery v. Bowden (1856) 6 Ellis and Blackburn 953). It has been held that a “mere scintilla of evidence” ought not to be left to a jury (R.v’Smith (1855) I Leigh and Cave’s Crown Cases Reserved 607) and we consider that the same rule applies to summary proceedings.
In the absence, however, of a formal submission, a magistrate is not bound to stop the case, even where the defendant is not represented; but it is a proper procedure to do so when the magistrate is satisfied that there is in fact no case to answer. (R. v. A. George (1908 1Cr.  App. R. 169). But where the case is not stopped because the submission is either not made (R v. Jackson (1910) 5 Cr.
App. R 22) or rejected (R. v. Power (1919 14 Cr. App. 17), though in actuality there is no case to answer; the defence, by presenting a case, may prejudice their position, because, in presenting it, they may provide the missing evidence, as happened in R. v George (1908.) 1   Cr App. R. 169; 25 T.L.R. 66.”, Chief Justice Bell had declared in the judgment of the Court.

The appeal was allowed and the conviction and sentence were quashed.