It happened in 1953… Appellate Court frees two convicted robbers – because of defective summing up by trial judge
THE Court of Criminal Appeal in 1953 freed convicted robbers Samaroo and Ezraz on the ground that the trial judge’s summing-up to the jury was defective.
Samaroo and Ezaz had faced jury trial for robbery with aggravation, and had led an alibi defence, but were convicted by the jury. They, however, appealed the convictions and sentences, and the Appellate Court quashed the convictions and sentences after concluding that the trial judge did not adequately put the case to the jury.
Chief Justice Bell, with Justices F.M. Boland and J.L. Wills, had concluded thus: “It is of paramount importance that the judge, in his summing-up, must fairly put an accused’s defence to the jury, and as that had not been done in an otherwise careful and meticulous summing-up, the convictions and sentences must be quashed.”
The appeals were allowed.
Senior Counsel, B.O. Adams, appeared for the appellants while Solicitor General, G.M. Farnum, represented the respondent.
At conclusion of the arguments, the judgment of the court was delivered by Chief Justice Bell of the Supreme Court of Criminal Appeal. According to the Chief Justice, “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 called ownership, and that the possession of the stolen goods, the money, was not fully established.
“We are against the (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 name for the defence offered. There is no need, as we understand the law, for the judge to put the defence at any particular stage of his summing-up. He can deal with it as he deals with the witnesses 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 model 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, as regards this particular case, we have come to the conclusion that, in an otherwise meticulous and careful summing-up by the learned trial judge, who is careful and meticulous, it cannot fairly and reasonably be said that the defence of either of the appellants was put to the jury clearly, or in such a way that their attention was sufficiently and emphatically drawn to the nature of that defence.
“It cannot be enough, we feel, merely to assume that because the jury have heard both sides of the case, they are cognisant of the defence which is put forward. Something more than that is necessary. Something must be done to emphasise to the jury the defence which an accused person is offering.
“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 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 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 this 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,” Chief Justice Bell disclosed in the judgment of the court.
Other judges of the court — F.M. Boland and J. L. Wills — concurred with the judgment, allowing the appeals and quashing the convictions and sentences.
By George Barclay
