Particulars (a) and (b)
98 Having done so, his Honour proceeded to deal with the evidence of Ms Kaur, Amar Preet Singh and the other persons who were present at the Temple, in a way which is the subject of these two particulars.
99 His Honour began with a reference to Ms Kaur, noting that she was the "victim whose evidence occupied the Court for a longer time than any other witness." His Honour continued:
"However, I do not propose to go into any great detail in respect of her evidence and for good reason. It is of course true that the Crown Prosecutor yesterday read to you certain extracts from her evidence which would perhaps tend to support the Crown case but you will remember the events of last Tuesday when the witness Mrs Kaur was being cross-examined by Mr King. He spent a great deal of effort endeavouring to establish just what it was that she says now did happen at the temple. You might think that Mrs Kaur was an unsatisfactory witness . Certainly the trial was prolonged by her attempts to avoid directly answering counsel's questions. Eventually I thought it fair to intervene. Experience shows that sometimes when counsel is not getting the witness to answer the question, if the judge asks the question, then sometimes the witness will answer it.
Let me read to you what happened on this occasion. After a very long and unproductive series of questions, Mr King asked this:
'The first bang, the first bang of the gun was after you were all wrestling for the gun, correct?'. A. 'I was so scared that we tried to grab him and we got somebody's help to grab the gun off him.'
Now again that was no answer at all to what Mr King was putting so I intervened, not because I was trying to push the evidence one way or another but because I thought Mr King was entitled to have his question answered. I asked the next question;
'Q. You haven't answered Mr King's question. He wants to know which came first, the fighting for the gun or the first shot?'
And she answered this time,
'A. As soon as we grabbed him the shot was fired at me. The time we pushed him, the same time I got - I had been shot.'
And having heard that evidence Mr King, very wisely, left the matter alone so far as that witness was concerned.
…
So that Mrs Kaur was saying, at that point of her evidence anyway, that she and Amar, the youngest boy, had hold of the Accused before the important shot went off.
Now if that were the whole of the Crown case, the Crown would fail on this first count of wound with intent to kill because the Crown would not be able to exclude the possibility that the physical intervention of Amar and his mother might have caused the weapon to go off, rather that it be a deliberate act of the Accused. However, that is not the whole of the Crown case . There are a number of other witnesses who were called and, as I said to you earlier on, it is a matter for you to choose what evidence you accept and what you reject."
100 His Honour then reminded the jury of Amar Preet Singh's evidence, the effect of which he summarised in the following passage:
"So that you will note that Amar says that it was after he pushed his father that he heard the shot. He does not suggest that the mother was, in any way, involved in any exchange of physicality with the Accused. And you will note that Amar further says that he was not in contact with his father at the time that he heard the shot. Now it is a matter for you, but if you accept that evidence it would be open to you to find an act of the Accused causing the wound. And it would also speak to you of the Accused's intention."
101 His Honour then drew attention to the cross-examination of this witness, pointing out to the jury in relation to this segment of his evidence:
"Let me just emphasis there that again he is saying to Mr King, as he had said to the Crown, that it was after the pushing that he heard the gunshot."
102 After reference to some further questions and answers, his Honour said, by way of a summary of the evidence in chief, and in cross-examination, of this witness:
"On that evidence, if you accept it, it is open for you to find that there was no wrestle in progress before or at the time of the first shot. Amar says that he had pushed his father and then after that, 'I hear a loud noise'. You might think that Amar's evidence was unshaken in the course of cross-examination."
103 His Honour then reminded the jury of the evidence of Amar's elder brother (Satbir), noting that he had not seen the gun when the bullets were fired. He moved on to the evidence of Narinder, pointing out that she did not hear the shots, and that the first noise that she heard was "the yelling". So he said:
"she is in no position to assist you on the order in which events happened."
104 The relevant portions of Manjit Singh's evidence were next read, and in relation to the "hitting" sound that he described having heard, his Honour said:
"It would be open to you to think that what he was hearing there were the gunshots. And if you thought they were the gunshots, he then goes on to say that after that he heard the shouting. It is a matter for you, but it is open to you to find, on the evidence of Manjit Singh, if you accept him, that the shots were fired first and then the shouting came afterwards."
105 In introducing Harpreet Singh Chopra's evidence, his Honour said:
"He did not see a great deal. He certainly cannot help you on this issue of which happened first , the shots or the other activities."
106 Reference was next made to the evidence of Gurpreet Singh, Padan Deep Singh, Karanjit Singh, Kamaljit Meher, without any particular comment other than the observations that were made in relation to Kamaljit and Gurdev that they were of no assistance as to the sequence of events.
107 His Honour finally came to Usha Singh and read relevant extracts from her evidence, both in chief and in cross examination, observing at the conclusion that:
"Members of the jury, if you accept the evidence of Usha Singh, the noise of the shots comes before the other noise, the yelling and so on, that you might think goes with the struggle between the Accused on the one hand and the mother and son on the other. Usha Singh gives the most comprehensive description of these events, you might think.
Most of these twelve witnesses, however, throw no light on the sequence of events. Four of them do. Amar, the youngest son, Usha Singh, whose evidence I have just dealt with and Manjit Singh and Harpreet Singh Chopra. Especially Amar and Usha. Both of them have the shot preceding (any wrestle) or yelling. Amar does say he had pushed his father, but he goes on to say that there was no contact between them when the gun went off. Usha, you might think, is independent. You might think she was an intelligent, an impressive witness. She clearly puts the shots as being in advance of the yelling.
You will remember that I told you that the Crown must negative that Amar executed any force that caused the gun to go off. That is a central issue in this case and that evidence that I have just read to you, some of it tells you nothing about that issue, but other witnesses, I suggest to you, particularly Amar and Usha, will enlighten you on that issue. "
108 His Honour then turned to an aspect of the defence address concerning the forensic evidence, which is the subject of separate complaint to be considered later, observing:
"Yesterday in the course of his final submissions, Mr King of counsel said something, which I do not think he really meant to say. He had been dealing with the forensic evidence, or the lack of it, the fingerprint, DNA, gunshot material, or lack of it. I do not propose to go into all that material. We would be here all day if I dealt with all the evidence. But having dealt with that evidence, Mr King was entitled to argue that there was nothing in the gunshot, fingerprint, DNA evidence that demonstrated that the Accused fired the gun. However, as I said, he said something that I do not think he meant to say . What he did say, having dealt with that evidence, that there is no evidence before you that the Accused fire the gun and that the Crown might like there to be such evidence. Well, of course, that is not a valid submission . What he says about the lack of the gunshot et cetera, material, might well be the truth, you might think, but when he says there is no evidence before you that the Accused fired the gun, that is simply not so. The evidence of Usha, in particular, and Amar, and of the other two gentlemen that I mentioned, is evidence that the Accused fired the gun. It is not the whole of the evidence, of course, it is for you to determine what you accept."
109 It was submitted on behalf of the defence, correctly, that his Honour erred, in so far as he had suggested that Harpreet Singh Chopra had given evidence, which threw light on the sequence of events. He gave no such evidence, although that almost certainly would have been apparent to the jury who had heard him in the witness box, and had shortly before this observation received the benefit of his Honour's reading of it, and of his express observation that he "certainly cannot help you on the issue of what happened first, the shots or the other activities" (by which latter expression he presumably meant the wrestling and or shouting).
110 It is unfortunate that this error was not immediately corrected by trial counsel, although by itself, the obvious nature of it, would not have led to a miscarriage of justice.
111 More importantly, however, so far as the defence argument on appeal is concerned, is that his Honour placed considerable emphasis on the argument that if the shots had occurred before any yelling or shouting, then that assisted the Crown on the central issues in the case, namely, whether it was the Appellant or Amar Preet Singh who took the gun to the Temple and commenced the incident, and whether the gun was discharged accidentally in the course of a struggle over it.
112 What this submission involved was the proposition that the shouting must have accompanied the wrestle for the gun, so that if the shots preceded the shouting, then the gun must have been discharged before there was any fight over it, thereby suggesting that Amar Preet Singh's version was correct, while that given by Ms Kaur in cross-examination was incorrect.
113 There are a number of problems with this. First, and most obviously, it was not an argument that the Crown Prosecutor advanced, and the defence had no opportunity of meeting it. Secondly it did not confront the possibility that when the struggle over the gun commenced, none of those involved, or any bystanders yelled out, leaving open the possibility that there had been a struggle before the first shot was fired.
114 Thirdly, there was no clear evidence, except perhaps from Amar Preet Singh, dealing with the precise time that the shouting began in relation the commencement of the struggle, yet it was in support of his account that this argument was developed by his Honour. While his Honour suggested that Usha Singh also placed the shot as preceding the wrestle, in fact she said that she had been walking down the driveway when she heard the shots followed by the yelling. She had not been in a position to see when the wrestle began.
115 Fourthly, these observations to the jury effectively blurred the issue whether the gun went off while Amar Preet Singh and the appellant were struggling over it, with the issue whether there was any shouting before the shots were fired.
116 In substance, his Honour was advancing an argument based on a gap between the shots and the shouting, as circumstantial proof in support of the critical issues in the case, without having given consideration to any other rational inference that was open, and in a situation where neither counsel had addressed it. It had also followed upon his criticism of Ms Kaur as an unsatisfactory witness, an observation that did not assist the defence since her description of the manner in which the gun discharged accorded with its case; as well as upon his observation to the jury that they might think that Amar Preet Singh's evidence had been unshaken in cross-examination.