Shoukatallie & Mohamed Ali v R

• Jurisdiction: Caribbean States
• Judge: Hallinan, C.J.
• Judgment Date: 14 September 1960
• Court: Federal Supreme Court (West Indies)
• Date: 14 September 1960

Federal Supreme Court

Hallinan, C.J.;

Rennie, J.;

Marnan, J.

Shoukatallie & Mohamed Ali

and

R.

A. S. Manraj and Doodnauth Singh for the appellants.

G. L. B. Persaud, Solicitor-General (Acting), for the Crown.

Criminal Appellate Jurisdiction - Criminal law-Murder — Concert — Accessory after the fact.

Criminal law - Jury — . Prolonged strain — Strong adjuration by judge — Whether grounds of appeal.

Criminal law - Jury — Evidence that. jurors disagreed with verdict — Whether admissible on appeal.

Criminal law - Application to lead fresh evidence — Proposed witness shown to have been self — contradicted — Whether evidence might have affected verdict.

While in company with the appellant M.A., the appellant S shot R in the Mahaica River. S then cut a log of wood while M.A. twisted a vine and later hauled the body of R over to S. Five days later the body tied by a vine to a log of wood, was recovered from the river. Death was proved to have been caused by gunshot wounds and drowning.

The judge began his charge to the jury at 11.20 a.m. and finished at 4.45 p.m. when the jury retired to consider their verdict. They returned at 8.40 p.m. stating that they could not agree but needed no further direction. The judge, however, adjured them to “return to that jury room …and make up (their) minds one way or another”. The jury returned at 10 p.m. and asked for further directions “as to accomplices after the fact”. The judge did not address them on accessories after the fact but stated that if M.A. was present aiding and abetting he was guilty of murder but if merely present without participation then he must be acquitted. The jury returned at 1.35 a.m. with a verdict of guilty against both S and M.A. but with a strong recommendation of mercy in favour of M.A.

On appeal, application was made on behalf of the appellants to admit the affidavits of two jurors who stated that they never agreed to the verdict but that they had been threatened by other jurors and intimidated by the remarks of the judge into believing that they would be kept locked up until their verdict was unanimous, and that they were too afraid of the judge to voice their disagreement with the verdict declared by the foreman.

Application was also made to admit fresh evidence of one Ramdass but this evidence was contradicted by a previous statement which he had given the police and which was produced by the Crown.

Held: (i) the court does not admit fresh evidence unless it might have affected the verdict of the jury and Ramdass's evidence could not have done so;

• (ii) a juror is not allowed to give evidence of what occurred in the jury room or later to dissent from a verdict given in open court in his hearing and presence;

• (iii) the adjuration was too strongly worded and the jury had been subjected to prolonged strain but these were not sufficient grounds of appeal. Rather than subject a jury to prolonged strain it may be desirable for a judge to leave his concluding remarks until the following morning;

• (iv) the judge might have answered the jury's question about “accomplices after the fact” by saying that if they thought M.A. only assisted S after he thought R was dead, M.A. was not guilty of murder and that it was not their business to decide whether or not he was an accessory after the fact. As it was, the judge gave little or no assistance to the jury in resolving their doubt about M.A.'s guilt.

Appeal of first appellant dismissed.

Appeal of second appellant allowed.

1 Hallinan, C.J., delivered the judgement of the court: The appellants were convicted of the murder of Rampat, known as Peeka on February 10. The case for the prosecution was strongly supported by the evidence. The first appellant had had a dispute about a cow with the deceased; moreover, this appellant, some time before, had himself been, shot and he told the deceased's son, Pooran Rampat that his information was that the deceased had shot him. The witness, Moses, stated that the day before the deceased disappeared, the first appellant, while travelling with Moses, said that Peeka was on his mind and if he got a chance he would take it; another witness Ramdowar (called Toon Toon) who was with Moses at the time said that the first appellant had said, “Peeka's life is at stake and mine is at stake.”

2 The deceased and the appellants had their homes in the Mahaica River. The second appellant had his house at Karappa about 15 miles up the river, but being a surveyor's assistant or labourer was much away from home; his brother the first appellant lived about half a mile further up the river and farmed there. The deceased lived 10 or 12 miles down the river from Karappa but had an interest in land some miles higher up the river beyond Karappa in the Lama Creek.

3 On Tuesday, February 9, the deceased came up river and stayed the night with Ramdowar's wife Buska at Grass Hook about 2 miles downstream from Karappa. The next morning the deceased went up to Lama Creek in a dug-out canoe (in this country called a corial). The witness Samaroo who lives about 400 yards north of the first appellant's house went to the first appellant's landing place to recover a small craft called a ballahoo which he had lent the first appellant. He heard the report of a gun. This was about 9 a.m. He turned around and saw the first appellant with a gun in his hand in a corial and the second appellant steering the boat. He saw the deceased in another corial and heard him say, “Oh, Shoukat you shoot me.” The first appellant fired at him again and the deceased fell forward on his face. Samaroo then saw the appellants take the deceased's corial across to the left bank of the river. Samaroo was frightened and pulled swiftly away towards his home. Samaroo's brother Ramkarran, who about the same time had gone to herd cattle just north of the first appellant's house, stated he knew the voices of the first appellant and of the deceased well; he heard the report of a gun and he heard the deceased say, “Oh, Shoukat you shoot me,” and heard the first appellant reply, “Shut you rass, you not dead yet,” and then another shot was fired.

4 About half way between the houses of the appellants and on the opposite side of the river there is a small creek opening from the river. The witness Dindial was at the Rampersaud's landing at Joe Hook. about a half mile up river from the first appellant's house. Dindial is a brother of Rampersaud and an uncle of Samaroo and Ramkarran. He said this was about 9 a.m. and he was with his friend Ramjalall. Both these witnesses say they saw the deceased pass down river coming from Lama Creek. About half an hour later they heard the report of a gun. They went down stream. They heard a sound of chopping of wood and they saw from the river inside the small creek halfway between the appellants' houses, the two appellants with corials, the first appellant chopping wood and the second appellant twisting a vine. Another witness Seenarine Singh known as “Jack” stated that on that Wednesday morning, February 10, he was walking up from Big Biaboo Creek (about 101/2 miles from the mouth of the Mahaica River) up to Rampersaud's house at Joe Hook. His path took him in near to the small creek where Dindial and Ramjalall said they saw the appellants chopping wood and twisting vine. Jack says the appellants were cutting wood. He saw the second appellant haul a man with a khaki shirt and take him to Shoukat. The man with the khaki shirt was not making any movement. The second appellant came towards Jack with a cutlass and Jack ran away.

5 Diligent search was made for the deceased's body. Eventually a diver was employed on Sunday, February 14, and on Monday, February 15, about 12 feet out in the river opposite the entrance to the small creek, a skeleton tied to a log of wood by a vine was brought up and identified satisfactorily as the body of the deceased Peeka.

6 The defence of both appellants was a denial. They said that each one on February 10 was in his own house or garden and that the first appellant's corial had been lent to the second appellant's wife to take her child down river to Big Biaboo for medical treatment. They alleged that the evidence against them was fabricated mainly because of a charge that the appellants' father Jehangir had brought against the brothers Rampersaud and Dindial and their nephew Samaroo for killing 16 cattle and beating Jehangir's wife. The defence also sought to discredit the evidence of Jack. One...