Three convicted of attempted murder lose appeal

Appellate Court refused 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 on 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: 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, Mr. E.V. Luckhoo for the appellant Bharat. Pooran conducted his own defence.
Crown counsel, Mr. E.A. Romao appeared for the Crown and 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 have been heard on the same ground.
In addition, Bharat applied to call fresh evidence which if admitted, his counsel submitted, would be grounds upon which the court might order a new trial.

Counsel for Seetal intimated that if Bharat’s application is 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 disclosed, counsel for the parties abandoned all grounds of appeal, except that as to sentence.
The circumstances upon which the application to admit fresh evidence is based, relate to the identification of Bharat by Stephens and the witness Ibrahim. Stephens was a ranger on Plantation Lusignan and Ibrahim assisted him. Part of his duty was to prevent cattle trespass in the cane fields.

Stephens and Ibrahim were attacked on a railway line about 5.30 p.m. by three assailants with sticks and cutlasses, and from statements made by the assailants, during the attack they were seeking to kill Stephens because he had impounded cattle belonging to them or their relatives.

Ibrahim escaped, but Stephens was very badly beaten and wounded. At the trial, Stephens and Ibrahim identified the appellants as the assailants. Stephens said that he had known all three since working on the estate for the past three years; Ibrahim said he had known them since they were small –about 14 years.

Going on, the chief justice had said, in order to attack the credibility of Stephens’ identification of the appellants, this court is asked to consider two matters which are mentioned in Stephens’ deposition at the preliminary inquiry (PI), but which were never mentioned at the trial.

Continuing his judgment, Chief Justice Hallinan said that the deposition shows that at the end of the cross-examination by counsel for Bharat, the counsel, (by leave of the court) changed Bharat’s position in the dock.
Stephens went 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 well and 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: Seetaal and Bharat had met Ibrahim and himself driving cattle to be impounded and Seetall had attacked him with a stick and took away two cows.

The prosecution at the trial never led evidence of this incident nor was Stephens 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. Apparently, this record had been destroyed and all the police could supply was an entry made by Constable Campbell in the records dated May 25, 1959, recording a complaint made by Stephens against one Maga, and an unknown man, and spoke of blows with a stick and a threat to shoot.
The appellant Pooran is known as Maga, and counsel submits that this report weakens Stephens’ credibility, as the previous incident in May concerns Maga and someone unknown, and did not concern Seetal and Bharat.

Chief Justice Hallinan said that the attack on the credibility of Ibrahim’s identification is based on the fact that Ibrahim gave the name of Roopchan also called Rama as the name of one of his assailants – 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.

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 seeks 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 has 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, the Chief Justice had said, “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.”

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