Lasalle et Al v R
| Jurisdiction | Trinidad & Tobago |
| Judge | Fraser, J.,Georges, J.A.,Fraser, J.A. |
| Judgment Date | 27 January 1972 |
| Neutral Citation | TT 1972 CA 2 |
| Docket Number | Court-Martial Appeals Nos. 2-8 of 1971 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 27 January 1972 |
Court of Appeal
Phillips, C.J. (Ag); Fraser, J.A.; Georges, J.A.
Court-Martial Appeals Nos. 2-8 of 1971
Allan Alexander for Lasalle.
Desmond Allum and Frank Solomon for Shah.
Vernon De Lima for Lai Leung and Noray.
Arthur Lawrence for Guy.
Errol Roopnarine, Solicitor-General (Ag.) and Gerald Stewart for the Crown.
Practice and procedure - Separate trial for each plea in bar of trial — Summing up — Duty of judge — advocate to sum up facts and give directions on the law — Failure of judge — advocate to sum up — Substantial miscarriage of justice — Defence Act, 1962, ss. 31, 33, 93, 122, 131, 137 and 138 — Constitution of Trinidad and Tobago, ss. 2, 8 0 Supreme Court of Judicature Act, 1962, s. 44 — Rules of the Supreme Court 1946, O. 36, r. 21 — Theft Act, 1968, (U.K.) s. 8 — Army Act, 1955, ss. 31, 99, 134 — Rules of Procedure (Army) 1956, (U.K.) rr. 38, 56, 64, 80 and 106 — Rules of Procedure (Army) 1947 (U.K.), r. 36.
Military law - Court — martial appeal — Disobeying lawful command, escaping lawful custody, Comitting civil offence of robbery with aggravation — Rescuing a prisoner in custody — Plea in bar at trial — Condonation — Statutory definition — Effect of plea — Implied admission of offences.
Evidence - Burden of proof — Right to cross examine to impeach credit of witness — Application to call witness after close of case.
On April 21, 1970 a mutiny occurred in the 1st Battalion of the Trinidad and Tobago Regiment. It was inspired by the two named appellants Rex Lasalle and Raffique Shah (hereafter referred to as Lasalle and Shah) who were allegedly aided and abetted by other soldiers, including the three other appellants. All the appellants were convicted by a court-martial and sentenced to terms imprisonment. Their appeals are against convictions for mutiny and other offences connected with the mutiny.
The Trinidad and Tobago Defence Forces of which the regiment is a part, was established by the Defence Act, No.7 of 1962, (hereafter referred to as the Act) the provisions of which were substantially copied from the Army Act, 1955 of the United Kingdom. For example, s.33 of the Act whereby the offence of mutiny is created, except for minor textual changes, reads precisely the same as s.31 of the Army Act. The same can be said also of s.98 and its corresponding s.99 in the Army Act which provides that the rules of evidence to be observed in proceedings before courts-martial shall be the same as those observed in civil courts; and the same also might be said of s.122 corresponding s.134 which deals with persons not to be tried under the Act for offences already disposed of. Section 131 of the Act gives power to the Minister to make Rules of Procedure; but its subs. (8) provides that until such time as rules are made the matters with respect to which they may be made shall be governed by the Rules of Procedure, (Army) 1956 made under the Army Act, 1955 and hereafter referred to as the Rules. The whole scheme of the Act is designed to coincide with the provisions of the Army Act, 1955; and the Rules of Procedure (Army) 1956 of the United Kingdom control the affairs of the Trinidad and Tobago Defence Force. Because of the provisions of s.2 (e) and (h) of the Constitution, a soldier on trial by a court-martial has a right, which every other person has, to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations - s.2 (e); and has a right also to such procedural provisions as are necessary for the purpose of giving effect and protection to his right to a fair hearing- s.2 (h).
I shall deal with the points raised in these appeals in two parts. The first part will cover the cases of the appellants Lasalle, Shah and Noray who failed in their pleas of condonation in bar of trial; and the other part will relate to the appeals of the appellants Lai Lung, Noray and Guy on the trial of the factual issues.
Section 122 of the Act insofar as it is applicable to these proceedings reads as follows:
“122. (1) Where a person subject to military law under this Act
(a)…
(b)…
(c) has had an offence condoned by his commanding officer, he is not liable in respect of that offence to be tried by court-martial or to have the case dealt with summarily by his commanding officer or the appropriate superior authority.
(2) For the purposes of this section,
(a)…
(b)…
(c)…
(d) an offence shall be deemed to have been condoned by the commanding officer of a person alleged to have committed the offence if, and only if, that officer or any other authorised by him to act in relation to the alleged offence has with knowledge of all relevant circumstances informed him that he will not be charged therewith;
(3)…
(4) Subject to this section proceedings for an offence against this Act (whether before a commanding officer or appropriate superior authority or before a court-martial) shall not be barred on the ground of condonation.”
The wording in these subsections is exactly the same as appears in s.134 (1)(c), (2)(d) and (4) of the Army Act, 1955.
The doctrine of condonation is familiarly known in the law of divorce and, perhaps, the law of master and servant; but evidently it is not widely known to be applicable in military law and this would seem to be so even among military personnel. In his evidence on the plea of condonation made by Lasalle, Brigadier Serrette, the Commander of the Trinidad and Tobago Defence Force, was asked whether he knew he had power to condone a military offence when, for the second time in a military career spanning more than 30 years, he assumed command of the regiment on April 24, 1970. The Brigadier said he did not know he had such a power and added that he actually learned for the first time that he had the power to condone military offences only when the plea of condonation was made by the appellants in bar of trial at the court-martial in November, 1970 and he then looked it up in the Manual of Military Law. In the light of that evidence, I think that some consideration might usefully be given to history of the doctrine as it applies to military law. In vol.1 p.173 of C.M. Clode's treatise on Military Forces of the Crown (1869) the doctrine is stated as follows:
“The principle of condonation far criminal offences is peculiar to the Military Code, and is of comparatively modern origin. Sir Walter Raleigh served the Crown under a special commission, giving him Supreme Command, with the power of life and death over others, but he was afterwards executed upon his former conviction - the doctrine then laid down being ‘that the king might use the service of any of his subjects in what employment he pleased, and it should not be any dispensation for former offences.’ The rule is not so now, as applied to Military offences. ‘The performance of a duty of honour or of trust, after the knowledge of an offence committed, ought,’ said the late Duke of Wellington, ‘to convey a pardon for the offence.’ And such is the case. ‘When any offence has been committed by an officer or soldier, and that offence not punished or forgiven, but advisedly overlooked, the person implicated being continued in his employment - these circumstances are held to be a good plea of condonation and a bar to further proceedings.”
In Simons on Courts-Martial, 7th ed. (1875) in the chapter dealing with pleas in bar of trial the following appears in paragraphs 564-567:
“ 564. A pardon may be pleaded in bar of trial; if full, it at once destroys the end and purpose of the charge, by remitting that punishment, to inflict which the prosecution is set on foot; if conditional, the performance of the condition must be shown; thus a soldier arraigned for desertion may pled a general pardon offered by the Sovereign, and prove that he surrendered himself within the stipulated period.
565. The same principle applies to the condonation or formal overlooking of an offence by a superior, having authority to dispose of the case, with a knowledge of the circumstances. At a general court-martial of which Major General Sir Colquhoun Grant, K.C.B., was president, Private ---- of the ---- Hussars, was arraigned for desertion. ‘The court are of opinion that the forgiveness of the prisoner by his commanding officer of this same crime of desertion now preferred against him, and the prisoner having been ordered to do his duty as a soldier in the regiment subsequently to such forgiveness, does amount to a pardon of the delinquency charged against him; which opinion has been confirmed by the field marshal. Private ---- is, therefore, to be released from his confinement, and to return to his duty.
566. The Queen's Regulations of 1859 laid down that ‘the act of placing arms in the hands of a prisoner far the purpose of attending parade or performing any duty, absolves him from trial or punishment for the offence which he has committed.’ This rule has been modified in the last edition of the regulations, which provide that if ‘by error’ an ‘offender has been permitted to perform any duty, he shall not thereby be absolved from liability to punishment far his offence; but may, if the proper authority shall think fit, be summarily punished or be brought to trial before a court martial according to the circumstances of the case.’
567. It had, however, been previously held that the principle applied only in those cases where an offence has been advisedly overlooked or forgiven by competent authority, These pleas do not apply where a prisoner has been released under a wrong impression as to the extent of his misconduct, or released without due authority, or without any, by a subordinate. It was laid down at the judge advocate general's office, with reference to a case where a prisoner had been released from his arrest, that if, when the...
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