Appellate court freed appellant on trial judge’s misdirection

IN 1967 robbery accused Mintra Chand was sentenced to two years and 18 months for robbery with violence but was freed by Appellate Court on the trial judge’s misdirection.
The Appellate Court headed by Chancellor E.V. Luckhoo with Justices of Appeal Guya Persaud and Cummings quashed the conviction following critical comments by trial judge about bare denial made by the accused after being cautioned in presence of victim.
The appellant was cautioned by a policeman in the presence of the victim, Mahadeo Sukdeo, whom it was alleged he and another man had robbed two days previously .
After the appellant was cautioned he said “I don’t know anything about that.” In his statement to the police, the appellant alleged that at the relevant date and time he was at a nearby cinema with another man and denied robbing ‘B’, the victim. In his statement from the dock at his trial in the High Court, the appellant said that himself and ‘B’ had a fight in front of the cinema which his friend had parted.

The trial judge failed to remind the jury that when a person is cautioned he is not obliged to say anything, and he told the jury that one would have expected that the appellant would have told the police about the fight which the jury were hearing for the first time and that such an incident might have been a motive why ‘B’ had made a false allegation against him.

The Appellate Court held – (1) it is not always that “silence is golden”; a judge may properly , in certain circumstances , invite a jury to consider an accused person’s silence as a relevant factor in determining what weight should be given to any defence which he may subsequently raise, but it would amount to a misdirection were he to invite them to treat the accused’s silence as evidence against him;
(ii) to avoid the danger of depriving an accused person of the protection which he has a right to expect from the implication of the words
That he is not obliged to say anything not contained in the caution, it may well be that when an accused person makes no answer at all or makes some observation which in itself is not in the nature of an explanation, then the trial Judge should make no observation on it ;
(iii) here the trial judge’s directions clearly offended these principles and the result of his drastic and destructive comments, made it difficult for the jury to resist coming to the conclusion that because the story of the fight was not told at the first opportunity it could not be true: was not in fact true, ought not to be believed and should be discarded. Such comments could not be described as fair and proper and did not take cognisance of the paramount importance of not allowing the usual police caution to become a trap to the unwary.
Appeal allowed – Conviction and sentence quashed.
K. Zaman Ali for the appellant.
G.A. G. Pompey. Senior Counsel for the respondent.

LUCKHOO, J. A : We have already allowed this appeal, quashing the conviction and setting the sentence aside. We now give our reasons for so doing.

The appellant and another man, Mahadeo Sukdeo were convicted on the 12th January, 1967 ,for the offence of robbery with violence, Contrary to Section 222 (a) of the Criminal Law (Offences) Ordinance, Cap. 10, for which they were sentenced to two years and 18 months, respectively, and from which they both appealed, but the latter, somewhat unfortunately (in view of the conclusion at which we have arrived ) chose to abandon his appeal before hearing .
No doubt, his position will be reviewed by those charged with the responsibility to allow him to have, in justice, the benefit of what the appellant herein has derived from this decision.