BIG businessman Rudolph Baichandeen was, in 1979, jailed for five years for setting fire to his home with intent to cause injury and defraud. He appealed the sentence.

Taking cognizance that the trial judge had: (i) unlawfully consented to proceed with 11 jurors instead of the 12, and (ii) so as to give the Deputy Fire Chief leave to lead expert evidence before having him deemed an expert, The Appellate Court allowed Baichandeen’s appeal, and set aside his conviction and sentence.

The appellant was charged indictably with setting fire to his house with intent to injure and defraud.

His trial began before a jury of twelve persons on 17th April 1978, but, the next day, it was discovered that a female juror was absent. The case was briefly adjourned, but when it resumed, the juror was still absent.

Thereupon, it was agreed between counsels for the prosecution and the defence, with the judge’s consent, that trial should proceed with 11 jurors.

Later, in the course of the trial, the judge recorded from information he gained from the foreman and one other member of the jury that the absent juror was experiencing transportation difficulties, and he accepted and recorded an apology for her absence, evidently on that account.

He also recorded the fact that he had excused her for the remaining part of the case, and the trial proceeded with only 11 jurors, who unanimously found the appellant guilty as charged.

The direct and circumstantial evidence against the appellant was overwhelming. On 17th November 1974, his house was seen to be on fire between 5.30pm and 6.30 pm; he was seen about 5.30pm on the same day by his neighbour, Malwantee Edwards, to be moving around his house, pulling together blinds and closing windows in a suspicious manner. And after he drove away in his motor car, shouts of ‘Fire!’ were heard by Asquith Scotland, who shouted to the appellant that his house was afire.

Though close enough to hear that his house was on fire, the appellant paid Scotland no heed, but drove away.

Isha Seepersaud, another witness, also shouted to the appellant that his house was on fire when he was reversing his car.

Above all, there was the damning evidence of Deputy Fire Officer Norton, a fireman of 28 years’ experience, whom the trial judge considered an expert witness, although there was neither record nor ruling on the point.

According to the judgement of the Appellate Court,  Norton’s evidence was to the effect that the fire was caused by some highly inflammable material  deliberately placed around the inside of the house.  Norton was, however, forced to concede under cross-examination that if someone were to take samples of materials from the debris and submit them to chemical analysis, that person would be in a better position to determine the cause of the fire than one who did not do so. And that was something which Norton himself had omitted to do.

On appeal, it was contended  that the trial judge had no jurisdiction to continue the trial on or after the second day, when there were only eleven jurors present; and that if indeed the trial had proceeded with only eleven jurors present, the conviction was unsupportable; that in any event, the judge erred,  firstly in receiving the Deputy Fire Officer’s evidence as expert proof of the cause of the fire, and secondly, in his directions  on the quality or weight of that evidence, and how the jury were to deal with it.

Also, if it is correct that the judge did so err, the question would then arise as to whether the proviso should be applied to the case.

The Court of Appeal held:
(i)  (per curiam)   The trial judge had no jurisdiction to discharge the absent juror at the time that he did, for the greater part of the trial was by a judge and eleven jurors, contrary to law; and it may therefore be said that the purported discharge was a nullity and not a mere irregularity.
(ii)  The appellant had a fundamental right to every juror’s individual determination of the issues prescribed in the statutory mandate. “In every case, the jury shall consist of twelve persons.”
(iii)  Judge, counsel and accused cannot effectively get together and agree that a  rule  which is fundamental to a fair trial  will not be observed . In such a case  the proviso  is inapplicable  because  the mere breach  is itself  an injustice  and can result in a  miscarriage in Law, however strong the proof of guilt may be.
(iv)      On the authorities  the conviction  cannot be allowed to stand even though the court  might have thought  the proof of guilt  overwhelming if the full panel had sat  throughout the trial or the single juror  had been  legally discharged.
(v)      The trial judge must be taken to have impliedly ruled that Deputy Fire  Officer  Norton was an  expert  witness though he did not  expressly so rule.  Proof was sufficient  to deem him an expert witness , but the judge ought  to have given counsel for the accused  an  opportunity to cross-examine  Norton on his qualifications  if he wished to do so  before making a ruling  on the point; but counsel himself  raised no objection nor did he indicate  any wish to question  the witness  after  the  voir dire  on his competence.   Furthermore, as there was no objection after the cross-examination of Norton generally,  that his evidence should be struck out  as inadmissible, there was no  injustice whatever, even though it could be said counsel’s  two objections were technically sound.
(vi)       The failure of the judge to direct the jury on Norton’s omission to take samples of the debris and submit them to chemical tests so as to determine  the cause of the fire, was a  relavent matter  when considering  what weight  the jury ought to  give  to his expertise  and the quality of his opinion

(vii) The trial judge’s direction that the jury must have good reasons why  they should not accept  Norton’s testimony  before  rejecting it was an erroneous approach, as it is suggestive of a rebuttable presumption in favour of acceptability of expert evidence,

(viii)  The interests of justice do not warrant a retrial in the circumstances of the case.

In coming to its conclusion, the Court of Appeal, constituted by Chancellor Haynes and Justices of Appeal Jhappan and Massiah, referred to eight cases.

The appeal was allowed, and the conviction and sentence were set aside.