R v Defreitas Also Called Maliket Al (record of Proceedings Only)
| Jurisdiction | Trinidad & Tobago |
| Judge | Re |
| Judgment Date | 25 February 1972 |
| Neutral Citation | TT 1972 HC 2 |
| Docket Number | No. 87 of 1972 |
| Court | High Court (Trinidad and Tobago) |
| Date | 25 February 1972 |
High Court
Rees, J.
No. 87 of 1972
Criminal Law - Murder — Evidence
| Offence: | Murder | |
| Plea: | Accused No. I says he is unable to plead his Counsel is not here | Attorney General, Roland Crawford and Gerald Stewart, Crown Counsel for Crown |
| Accused No. II pleads Not Guilty | ||
| Accused No. III pleads Not Guilty |
Dr. Aeneas Wills, Stanley with him for Stanley Abbott
Hannays, Sanguinette with him for Samuel Brown
Court is informed of cable by Malik.
Attorney General requests court to read out medical certificate
Court says it will not be read out but shown to both Attorney General and defence counsel
Certified copy of medical certificate shown to Malik
Attorney General says on 27 th June, 1971, Mr. Foster spoke to state counsel Stewart – purpose of that conversation is subject matter of affidavit.
Copies are handed to defence counsel for accused II and III and to Malik.
Court orders plea of Not Guilty to be entered on his behalf
Attorney General Ch. 4 No. 3 Sec. 39
Hannays says adjourned for one week but objecting three weeks.
Protection – Familiar ring
Will says he objects to adjournment
Familiar – Protection Adjourned to three weeks again
Malik says that will be satisfactory for today.
Adjourned to 17 th July, 1972
Mr. Kenneth Foster appears for accused Malik
Stephen Norman appointed by Crown consents to appear with him.
Instructed by Mr. Desmond Warner, solicitor
Dr. Aeneas Wills, Stanley with him for Stanley Abbott
Mr. Jessel Hannays, Lennox Sanguinette with him for Brown.
Prisoners called upon to plead.
Pleas: Counsel for Malik says that he is not prepared to plead because the Committal proceedings are irregular bad in law and therefore null and void.
(2) Accused Abbott Not Guilty
Brown Not Guilty
Court: Mr. Foster would you like the panel out of hearing.
Mr. Foster: I crave your indulgence by requesting that the panel be permitted to stay within the precincts and hearing as argument that is being led on points of law alone but when and if it becomes necessary for counsel to refer to the evidence that with your leave application would be made to court requesting panel be put out of hearing.
Mr Wills says he has no application to make in respect to this.
Mr. Hannays says he has no application to make in respect to this.
Mr. Attorney: I have nothing to say.
Mr. Foster submits: The accused Michael de Freitas also called Michael Abdul Malik says the court ought to take cognizance of this indictment against him because the committal proceedings in this matter commenced in the District Court on 18 th April, 1972, were irregular, bad in law and therefore null and void in which case the accused is asking that the Indictment be quashed. The grounds in support therefore are contained in the motion dated 16 th July, 1972, duly signed by the accused and as contained in his affidavit duly sworn and taken by Cyril Niles, Commissioner of Affidavits on the same day. The grounds are set out (1–5) in the statement submitted to court (marked A) Ground A-1.
Indictable offence (Preliminary Enquiry Ordinance Ch. 4 No.1) Sec. 10 (2)
“Shall be entitled as of Right should be construed as mandatory and not directory thereby giving meaningful effect to as intended in accordance with the spirit of the law and therefore any deviation from this would inevitably place the accused at a serious disadvantage more so taking into account the gravity of the charge with which Malik is charged. Re: case of Pett v. Greyhound Racing Association Ltd All E.R. [1968] 545. Matter went on appeal.” According to Law of Trinidad this is an express direction that accused is entitled to express representation.
Court: Your contention is that he was denied this right of legal representation.
A: Yes, my Lord
Pett v. Greyhound Racing Association Ltd All E.R. [1968] – 547 para. H.
Referring to the Instant Case.
Para. 3 of affidavit:
Counsel for defendant agrees that para. 5 is hearsay evidence refers to all of submission.
P. 122 of deposition committal warrant must stipulate the offence charged – learned magistrate merely referred to the foregoing charge. That does not indicate or clarify what offence.
R. v. Stockdale (1863) 1 Q.S.C.R. 110
Referred to at 226 Vol. 14 E. E. Digest
Court referred to R. v. Wooley [1909] 3 C.A.R. 57
Warrant of Committal must show the offence for which the offence is committed p. 460.
Laws of Trinidad and Tobago Vol.1 Ch. 4 No.1 Sec. 23 S.S.2
Reads out Warrant of Commitment
A copy of the Warrant of Committal ought to be in the proceedings and as it not it is tainted. Ground a (III):
It is a duty of the learned magistrate to adjudicate fully, properly and to consider all submissions submitted on behalf of accused and in consideration he should function judiciously and that the reasons given as appeared in the affidavit and in the motion are tantamount to a refusal to exercise his jurisdiction. He declined jurisdiction.
Vol. 10 3 rd Edition p. 363 para. 663
R. v. Grant [1944] 2 All E.R. 511
Affidavit – Testimony of Parmassar would not have been allowed if the learned magistrate had ruled or merely said – Objection overruled or had considered the objection or did respectfully submit a submission. I would have no complaint the magistrate would have functioned properly. The reason given by the learned magistrate is extraneous to the law. If the magistrate gives a ruling which is extraneous to the law it vitiates the proceedings. It is a nullity.
Refers to Shamrock & ors. [1948] 1 All E.R. 145
Refers to Page 85 of deposition
Mr. Foster objects to witness testifying on ground that witness is incompetent. The reasons are stated in the affidavit but not on the deposition.
Para. 7 of affidavit page 2 referred to criticising magistrate's conduct and the completeness and accuracy of the notes taken by the magistrate's clerk.
Refers to page p para. 7 (II) Page 5 of deposition 6 th line may held this is preliminary enquiry.
Page 3 of affidavit evidence given by Fitzroy Nelson.
This is not a trial but a preliminary enquiry.
Page 7 (IV) of Affidavit – No Ruling to objection at page 31.
Page 33 at line 19 from bottom quoted R. v. Stevenson 1 All E.R. [1971] 617.
Magistrate say, “This is for the other Court. Boys v. Blaken
The times 25 th June, 1968.
Refusal of magistrate to look at text book
Refers to page 106 of deposition.
Mr. Foster objects to the evidence – No Ruling
Grounds Para. A IV of the submission
Prejudice Newspaper Report
Mr. Foster says at this stage he would like the panel to be out of hearing.
Mr Attorney: Before my learned friend proceeds to ground IV would my learned friend point to the record which includes the affidavit of accused which makes any mention whatsoever of the matter contained in the said ground 4.
Mr. Foster: My friend would be seised of the knowledge and is entitled to take judicial notice of matters commonly known in the community and that this must not necessarily be by an affidavit and it is for my friend to show allegations are not true and correct.
Phipson in Evidence 11 th Edition page 57 sec. 59.
“Notorious Facts”
At this stage every member of panel is ordered to be sent to the Jury Room and out of hearing.
Roll Call:
1 All E.R. [1968] R. v. M – Refers to D&E at page 584
Mr. Foster says that A5 is withdrawn
Foster applied to file supplementary affidavit in support of the motion.
Adjourned at 11:30 a.m. for lunch.
Resumed at 1:30p.m.
Panel of jurors ordered out of hearing.
Court to Mr. Foster: Under Ground 1A you referred to six consecutive days. Will you be kind enough at your convenience later this afternoon to point out the days to which you refer in the deposition.
Mr. Attorney: Mr. Foster is seeking leave to hearing a supplemental affidavit re: Ground A (IV) – Attorney thinks – No useful purpose will be served by granting it – The form of the printed motion is rather strange. Re: Ground (IV) this motion is non sequitur and completely irrelevant to the motion.
First the court is asked not to take cognizance of indictment – then goes on that proceedings irregular. A fair trial verdict the meaning of which is dubious – No connection between committal proceedings and question of a fair trial verdict – No connection whatsoever – Matters in (IV) could be probably raised. It would not be on a motion to quash Indictment for committal proceedings.
Foster: As regards to (IV) Archbold 37 th Edn. Page 119 para. 430 – This is a plea to the jurisdiction.
Mr. Foster says could make it as (b) list.
Court asked Mr. Foster if by making an application to file a supplemental he is not conceding that he has not done all that he ought to have done, thereby asking the court to exercise its discretion in his favour. Whatever may be Mr. Attorney's view on the matter in hand what you are asking the court to do is to exercise its discretion in your favour. I think is to file a supplemental affidavit.
Mr. Wills says he has nothing to say.
Mr. Hannays – I have nothing to say.
Attorney General says he will reply to Grounds (I) (II) and (III)
Court asked Mr. Foster to refer to the six consecutive days referred to on Ground A1 before Mr. Attorney replies.
Mr. Foster says the dates referred to at 1A of the Submission are as follows:
Court says:
It's not consecutive days but six consecutive hearings.
Court asks: Your contention is twofold.
(I) Challenging the Accuracy of the Record in so far as 3/5/72
((() Challenging the Accuracy of the Record on 4/5/72
(((() Under 8/5/72...
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