Court of Appeal
Criminal Appeals Nos. 11 and 12 of 1982
SIR. JOHN SUMMERFIELD, P.
SIR. JAMES SMITH, J.A.
ALBERT L. STAINE, J.A.

Appeals against convictions and sentences of 7 years imprisonment imposed for the offence of dangerous harm - Evidence adduced inadvertently that accused were escapees from prison - Judge rightly exercised his discretion in allowing case to continue before the same jury - No reference to the defence put up by the accused in summing-up - Fatal defect - Issue of joint enterprise not fully dealt with in summing-up - No direction to jury on how to treat unsworn statements made by accused -Inappropriate to apply proviso in present circumstances - Appeal allowed - Convictions quashed - Sentences set aside - New trial ordered.

J U D G M E N T

The appellants and a co-accused who has not appealed were charged with attempted murder contrary to section 103 of the Criminal Code and Dangerous Harm contrary to section 78 of that Code. On the direction of the learned trial judge they were all acquitted of the offence of attempted murder. The Jury found them all guilty of dangerous harm and they were each sentenced to seven years imprisonment with hard labour.

They were all unrepresented at the trial and the two appellants were unrepresented on this appeal.

At the outset we indicated to learned Crown Counsel that three aspects were causing us concern. One was the fact that, in the course of a voire dire, the three accused persons had cross examined police officers who had been concerned with taking statements from them, suggesting the use of violence, whereas when the trial resumed before the jury there was no cross-examination by any of the accused of the relevant police officer (the accused's statements having been admitted as voluntary ones). We were concerned with whether the trial judge had brought to the notice of the unrepresented accused that the voire dire was separate from the trial before the jury and that if they wished to pursue the matter raised in the voire dire they should further cross-examine along those lines before the jury. We were assured by Crown Counsel that the trial Judge had in fact so advised the three accused and so that aspect need be pursued no further.

Another aspect related to the fact that it was inadvertently adduced in evidence in the course of the prosecution case that the three accused were escapees from prison. The introduction of this prejudicial evidence led trial judge to enquire whether the accused wished their case to be heard by another jury. All three indicated that they wished the case to continue before the same jury.
In the circumstances we cannot say that the learned trial judge wrongly exercised his discretion in allowing the case to continue before same jury, having directed the jury to disregard the fact so adduced in evidence, R. v Featherstone (1941) 28 C.A.R. 6.

The third aspect raised concerned the handling of the defence or, perhaps, more accurately, the failure to deal with the defence adequately in the summing up. Each of the accused chose to make an unsworn statement from the dock.

The first accused (now the first Appellant) made the following statement:

"Jury, as soon as you have heard the evidence of Medical Officer, his statement was that P.C. Choc condition after he discovered the stab on body of officer. Apart from those stab wounds there was no other sign of harm. I did not make any stab wounds to the officer. No way whatsoever did I cause harm to this man".

The second accused made the following statement:

"I Johnson Franklin, did not cause any stab wounds to Policeman. I did not have any intention of hurting Policeman. All what I was trying to do was to make way my escape".

The third accused (now the second appellant) made the following statement:

"I Nehru Sanker, I was beat up by Policeman who said I was the one who hurt Policeman. I hurt no one".

On our reading of the summing up the trial judge went fully into the general law applicable and the prosecution case and then came to a rather abrupt end and without any reference to the defence put up by the accused. At that point the summing up was brought to an end with the words "so, Gentleman of the Jury, that is really all, except …" and then the judge dealt with the possibility of a conviction of an alternative lesser offence of intentionally and unlawfully causing a wound.

There were later further directions at the request of the jury but they too contained no reference to the defences put up.

Learned Crown Counsel submitted that the defence had been put to the jury albeit it not elaborately in a passage to which he drew attention. It is appropriate to set out the whole paragraph in which the passage appears so that it can be seen in its proper context, namely:

"Now there are certain facts which are not in dispute. It is not in dispute that Choc received stab wounds in Mile 44, and it is not in dispute that at the time of the stabbing there were only the three accused, Choc and the taxi-driver. Now the defendants from the dock have said that they took no part in the stabbing. You've heard them. But you also got with you the voluntary statements that, as I said, you will take with you. It is evidence every time they admit something, but the weight you give to that is entirely up to you. I have ruled as a matter of law that they are admissible, but the weight you give to it is entirely up to you.

Now let me briefly deal with the evidence …." That passage follows general directions in law and, in particular, a direction concerning joint enterprise.

It is clear that that passage, with a summary of what the accused had said, was not intended as a direction relating to the defences even if that were the proper place to deal with the defence - i.e. in the course of the prosecution case.

In any event, it was an incomplete summary of the defence as read with the statement to the police. It was purporting to deal with facts not in dispute. The reference to what was said in the dock was brought in by way of contrast to what was said in the statements to the police. It was held out as being in contrast but that is not the case in relation to all of the accused. However, that aspect need not be pursued. What is patently clear is that it was not putting the defence of each accused (even if it were appropriate to deal with three some what differing defences in an omnibus way) and it was obviously not intended as a direction putting the defence of each accused. There is no other reference to what each accused said in his own defence.

With respect, that is a fatal defect. The case against the accused was a strong one. It was a particularly nasty case involving a vicious attack on a police officer. That naturally outrages one. But it must not obscure fundamental principles in the due administration of justice. Every person faced with a serious charge is entitled to have his defence laid before the jury in a form that the jury can appreciate.

A crucial issue in the case was whether the three accused (or two of them) were acting in concert in this attack on the police officer. It would appear that he was only stabbed by one of them. But if they were acting in concert each would be as guilty of the offence as the person who actually stabbed the officer. This aspect was important because the prime motive was escape, and the attack was a means to that end. It was a spontaneous move on the part of one or more of them to effect an escape. Indeed, the learned judge had given a very full direction on the question of a common purpose and had explained to the jury that if one or more accused was not taking part in a joint enterprise and was not the person who actually stabbed the officer then he should he acquitted.

Implicit in the statements made from the dock was that the accused making the statement was not acting in concert with the others. That was never put or analysed.

As the Lord Chief Justice said in R. v Dinnick (1909) 3 Cr. App. R. 77 at page 79:

"But there is a principle of our criminal law which we think has been violated in this case - namely; that when a defence, however weak it may be, is raised by a person charged, it should be fairly put before the jury. The Appellant, during the trial, raised the defence that he had a right, as an officer of this church, to object to the proceedings which were going on. It may have been very foolish and unfounded, but that defence ought to have been put before the jury - this is a paramount principle of our criminal law - so that they could judge whether in doing what they did, he was, "wilfully and maliciously" or "contemptuously" disquieting or disturbing the meeting. Mr. Wethered has said that even assuming he was an officer of the church and had a right to object, he did it in such a way that he was rightly convicted. But the question in that case for the jury would have been whether he had done it in a "Contemptuous" way or "wilfully and maliciously." The Recorder no doubt felt very strongly that appellant's conduct had been improper but from the beginning to the end of the trial the Appellant's defence was not put before the jury; and under the circumstances we think that the conviction must be quashed."

That is fundamental. It is unnecessary to elaborate on such a fundamental point but reference can also be made to R. v Mills (1936) 25 Cr. App. R 138 and R. v Hamilton (1972) C.L.R. 266 as supporting authorities.

That is not an end to the matter. The learned trial judge should have explained to the jury how they should approach those unsworn statements. This is fully explained in Archbold 40th Edition paragraph 583 as follows:

"Where a defendant makes an unsworn statement from the dock, the judge need not read out the statement to the jury, but he should remind them of it and tell them that though it is not sworn evidence which can be the subject of cross-examination, nevertheless they can attach to it such weight as they think fit and should take it into consideration in deciding whether the prosecution have proved their case. Such a statement is "certainly more than mere comment, and in so far as it is stating facts, it is clearly something more than different from the comments in counsels' speeches"; R. v Frost and Hale (1964) 48 Cr. App. R. 284".

That was dot done. While it is unnecessary to read those statements to the jury at least the gist of the defence in each case should nave been explained to the jury and put to them for their consideration - however weak the trial Judge may have considered it. Otherwise the accused cannot be said to have had a fair trial.

It is impossible to say what the outcome would have been had the accused had their defence fairly put to the jury and if the approach to the unsworn statements had been explained - particularly with regard to whether one or other had or had not acted in concert in the main attack, whether his mind and conduct was in tune with the attack by the principal assailant.

We cannot see any alternative to allowing the appeal. Application of the proviso would be inappropriate.

Accordingly, the appeal is allowed, the convictions of the two Appellants are quashed and their sentences set aside.

We consider a trial de novo appropriate in the circumstances of this case and so order.

The Appellants will be remanded in custody pending trial without prejudice to the power of the Supreme Court to grant bail on appropriate terms it that Court determines that course to be appropriate.

Arrangements will be made to have this judgment brought to the notice of the convicted co-accused who did not appeal. It will be for him to decide whether he will make application for leave to appeal out of time.

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