– Alibi defence not put to jury

IN 1953, Samaroo and Ezaz, who were found guilty of robbery with aggravation, successfully contended that their alibi defences were not adequately put to the jury by the trial judge in his summing-up.
As a consequence, they were found guilty by the jury. They appealed and the Appellate Court constituted by ( Bell, C.J., & Justices of Appeal Boland and Wills ) heard the appeal.
That court held that it is of paramount importance that the judge, in his summing-up, must fairly put the defence of an accused to the jury and as that had not been done, in an otherwise careful and meticulous summing-up, the convictions and sentence must be quashed. Appeals allowed.
B.O. Adams, Q.C., for appellants.
G. M. Farnum, Solicitor General for respondent.
At the conclusion of the arguments the judgment of the Court was delivered by Bell, C.J.
Judgment of the Court: Bell C.J: These appeals which were heard together are appeals against convictions and sentences. The appellants had appeared before the judge and a jury on charges of robbery with aggravation. Learned counsel for the Appellants argued a number of points. He abandoned two of the points recorded 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. We are against the appellants on those two grounds.
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.
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 put the case for the defence, 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 C.A.R. ; Immer (1917) 13 C.A.R. and Dinnick (1909) 3 C.A.R.
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 that 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 witness 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 has 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, unquestionably, throughout the learned trial Judge’s summing-up he did make reference to statements which had been made by the two appellants, but we are of the opinion that he did so for purposes 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 a 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 that 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 this 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.
We feel that the appeal in each case must be allowed and the convictions and sentenced quashed.
That being so, we direct the discharge of the appellants. Appeals allowed.