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J. B. Jeyaretnam
Reports in the local press fail miserable to convey to the readers the very grave issues before the court. The application to the court was a complaint to the court that there was a real possibility, not a fanciful possibility, that Vignes may have been convicted on evidence which had all the trappings of having been fabricated and which has led to a very serious miscarriage of justice with great and tragic consequences for the family.
There was also the complaint that he did not have a fair trial in that he was not allowed to change his Counsel during the trial with whom he was dissatisfied and to appoint another Counsel in his place. The Constitution gives every accused the right to be defended by Counsel of his choice and this must mean the right to discharge any Counsel and to appoint another Counsel because the first Counsel had ceased to be Counsel of his choice.
These were two (2) very important issues that went into the root of justice.
His Counsel in the applications raised not only these two grave issues but a number of other issues before the court.
But in reporting the proceedings, the local press lost sight of these issues and concentrated their reports on the exchange between Counsel and the court to give the impression that the applications were all misconceived and should never have been made.
Mr. Ravi did more than what was required of him and he should be commended for his efforts to try to avert a very possible miscarriage of justice.
The evidence which Vignes complained was fabricated was a note made by the CNB decoy of an alleged conversation between him and Vignes at the time Vignes handed over the paper bag to the CNB officer.
This note was NOT produced at the Preliminary Inquiry. Under our law, the
Prosecution is required to produce all the evidence in their possession against the accused at the Preliminary Inquiry. If they have any evidence which was not produced at the Preliminary Inquiry and they intend to produce it at the trial, application should be made to the court to adduce this further evidence and adequate notice given to the accused. All this was not done and the note (of the conversation) was produced at the trial when the maker of the note,that CNB officer, began his evidence.
An immediate question that arises is why was the note not produced at the PI if, according to the CNB officer, he had made the note on the same day that the paper bag was handed to him. There are a number of other very serious questions that arise and all these should have been put to the CNB officer before the note was admitted.
It was unfortunate for Vignes that his Counsel did not object immediately to the admission of the note but he had no notice at all that the Prosecution would be producing the note.
The Judge himself should have immediately questioned the non-production of the note at the PI but the Judge allowed the note to be admitted without any questioning.
The second issue was that Vignes applied to the court at quite an early stage that he wished to discharge his Counsel and appoint another Counsel.
The Trial Judge told him he could but that the case would be carried on the next day and his new Counsel had to be present, ready to take on the case. This was to place an impossible burden on Vignes and it is no wonder that the next day Vignes informed the court that he would allow his Counsel to carry on.
After his appeal, the father of Vignes submitted a petition to the President together with an opinion given by me raising two issues and stating my view that there was a very grave risk of a miscarriage of justice.
The President’s reply did not come for four (4) months. I was told that the petition was being considered by the Attorney-General who is responsible for the Prosecution. So it had taken the Attorney-General, if not four months, at least two months to consider the
views I had given in the opinion and to advise the Cabinet.
Upon rejection, the father of Vignes instructed Mr. Ravi to bring the matter before the court.
The first application was set down for hearing within three days. This did not give Counsel any time at all considering that the Attorney-General had taken two months or so to study the matter.
Mr. Ravi had to peruse the record and satisfy himself of the truth of the matters stated in my opinion but his application was heard within three days and dismissed.
The second application was also set down for hearing immediately and dismissed.
Then an appeal from the second refusal to the Court of Criminal Appeal was heard again within one week.
Despite Mr. Ravi’s heroic efforts in not having the time to prepare his case, Mr. Ravi, as I said earlier, presented all the issues – did everything he could to prepare himself and presented all the arguments for a re-trail to the best of his ability.
Why this unseemly haste?
It was reported that the Court of Criminal Appeal had sat very specially within 24 hours – something which it had never done before – to hear the appeal because execution had been set for the next day. In a normal criminal report appeal the appeal would note be heard for at least 4 – 6 weeks to enable Counsel to file their arguments.
The court’s primary duty is to serve justice and note serve administrative convenience.
No amount of administrative inconvenience should deflect the court from its primary and sole purpose which is to do justice to all those who come before it. If indeed a date had been set, it should have been postponed immediately proceedings in court were started to await the decision of the court.
I see that the Chief Justice said the reasons for the dismissal would be given later but from reading the reports, one is left with the impression that courts, both the High Court of Criminal Appeal itself, the courts had no more power over the case.
I find this very difficult to accept.
If the court is right, then after a man has been convicted and sentenced to death, if it is discovered before his execution that it was another man who committed the murder, then despite this finding, the man who was convicted and sentenced to death should be hanged.
I find this very difficult to understand and it must be very disturbing to the community if that is so and the matter needs to be corrected immediately.
But I do think that is the position.
Judicial power is vested in the Supreme Court under the Constitution and it is within the power of the court at any time to set right anything that has been done wrong.
Under the Constitution – Article 9 – No person shall be deprived of his life or personal liberty save in accordance with the law.
And by paragraph (2): Where a complaint is made to the High Court or any Judge thereof that a person is being unlawfully detained, the Court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the Court and release him.
Here the man is complaining that his detention flows from a wrong conviction him – that the evidence, which is inadmissible, was admitted and he was convicted on the evidence alone – so he was being unlawfully detained for execution. Under that article, it is the duty of the court to investigate the complaint thoroughly.
It is not as if these issues had been adjudicated upon by the court at the trial or in the appeal by the Court of Criminal Appeal.
At the trial questions about the admissibility of that note was never adjudicated upon. It was admitted without any question when justice required that there should have been further investigation on that note.
Secondly the point about the refusal to grant Vignes an adjournment to engage new Counsel was never raised before the Court of Criminal Appeal. So these issues were new – not something which the court had already adjudicated upon and the court should had given the prisoner adequate time to present his case to decide on the complaint.
Quite apart from the Constitutional provisions, the court has inherent power to correct injustice and do justice. It has now been held for more than a century that a court can set aside any judgment or verdict which has been obtained by fraud.
Here the complaint was one of fraud, that the note had been fraudulently prepared to secure a conviction. The court should have enquired into that complaint.
Again, it has been held for more than a century that if fresh evidence is discovered which showed that the judgment was wrong, then it could be set aside provided the fresh evidence was credible material and affected the decision of the court.
So I find it very difficult to understand the decision of the courts that it had no power. It is of the absolute essence that justice is not only done but must be manifestly be seen to be done. I am afraid in this particular case justice was not manifestly seen to be done. If it is the law that the courts are powerless to do anything to correct an illegal conviction, it is of the utmost importance that steps should be taken immediately to put that right.
In the United Kingdom, after a number of cases in which criminal convictions were set aside – the Guildford Four and Birmingham Six and other cases, the UK government set up a Criminal Cases Review Commission consisting of independent persons to consider any complaint of miscarriage o justice.
If that is not possible, then the present practice of referring any complaint to the President about the trial – referred to the Attorney-General – should be stopped and should be referred to Senior criminal lawyers for the views. The Attorney-General does not possess judicial power. Judicial power is vested in the Supreme Court and the Attorney-General having prosecuted should note be called upon to advise whether any complaint is justified or not. He cannot be a judge in his own court. It should be left to a third party.