republic of trinidad and tobagowebopac.ttlawcourts.org/libraryjud/judgments/hc/jmohammed/20… ·...

of 21

REPUBLIC OF TRINIDAD AND TOBAGO

IINN TTHHEE HHIIGGHH CCOOUURRTT OOFF JJUUSSTTIICCEE

H.C.A. No. 10 of 2008

Between

The State

Against

Dane Lewis

For Murder

BEFORE THE HON. MR. JUSTICE MARK MOHAMMED

APPEARANCES:

Ms. D. Seetahal, S.C. and Ms. J. Balkaran on behalf of the State

Mr. T. Guerra, S.C. on behalf of Dane Lewis

RULING

By way of preface this issue should properly have been argued at a point before I

gave my ruling on refusing to exclude the transcript in accordance with the Court's Common

Law discretion, explained in the case of Barnes and Desquottes. The point loomed large

and was brought into clearer focus when assigned State counsel considered the method of

putting in the document, that is the transcript, and this led to a call for further arguments, the

concretization of the objection by the Defence on this particular issue and the assignment of

Senior counsel on behalf of the State to have conduct of the State's legal arguments and the

application. Thus, to use a metaphorical aphorism, the cart was put before the horse, but only

for the reason of the peculiar way in which the issue gradually unfolded.

of 21

The State wishes to tender into evidence the verified transcript of deceased witness,

Abdul Rashid's evidence at the Preliminary Inquiry. That evidence was recorded by an audio

digital recording system and subsequently transcribed and verified by the certificate of a

person responsible for its accuracy consistent with the provisions of the recording of Court

Proceedings Act No. 1 of 1991.

Section 39 of the Indictable Offences Preliminary Inquiries Act, Chapter 12:01

provides for the admission as evidence at trial of the deposition of a witness upon the

fulfillment of stipulated statutory preconditions. This section does not provide, in terms, for

the admission as evidence at trial of a verified transcript of the electronically recorded

evidence of a witness, whose evidence at trial has become subsequently unavailable for one

of the reasons set out in Section 39, Subsection 1.

By Act No. 23 of 2005, the taking of evidence in a Preliminary Inquiry was permitted

to be done in addition to by way of writing, as traditionally had been the only method in the

form of a deposition by way of the recording of such evidence.

Section 16 of the Act, as amended, provides in its material parts as follows: 16(1)

says, as amended, "When an accused person is before a Magistrate holding a Preliminary

Inquiry, the Magistrate shall take or cause to be taken down in writing or have recorded the

evidence of the witness on the part of the Prosecution apart from each other." Subsection 3

of the amended Section 16 provides that if the evidence is being taken down in writing, the

following shall apply: Subsection a, "The evidence of each such witness shall be taken down

in the form of a deposition; and b, such deposition shall be read over to the witness and shall

be signed by the witness and the magistrate, or if the witness refuses to sign, or is incapable

of signing, then the deposition shall be signed by the magistrate and the accused person, the

witness and the magistrate shall be present together at the time of such reading and signing”;

and Subsection d, or rather Subparagraph d of Subsection 3 provides that: "The signature of

the magistrate shall be at the end of the deposition of each witness in such a form as to show

that it is meant to authenticate the deposition."

Subsection 4 of the amended Section 16 provides that: "If the evidence is recorded

by electronic audio recording, video recording or computer aided transcription, CAT, a

transcript of the recorded evidence shall be prepared and verified by the certificate of those

responsible for the accuracy of the recording of the proceedings, and of the transcript in

of 21

accordance with the recording of Court Proceedings Act 1991." So those are the relevant

terms of the amended Section 16.

A broader question which arises from this application is whether Parliament, under

the Indictable Offences Preliminary Inquiries Act, as amended, intentionally omitted from

reception as evidence at a trial the verified transcript of evidence electronically recorded at

the Preliminary Inquiry or, whether this is what is known as a legislative slip. If it is the

latter, can a judicial rectifying construction be applied or would an attempt to apply a

rectification construction be an example of judicial overreach with respect to a statutory

lacuna that may only be remedied by Parliament and not the Court?

The specific issue arising from the application is whether a verified transcript of a

witness' evidence given at the Preliminary Inquiry and recorded electronically, is capable of

being tendered in evidence at trial under Section 39 of the Indictable Offences Preliminary

Inquiries Act, as amended, in a case such as this where the witness has died before the trial.

The conundrum faced by the Courts in deciding whether to apply a rectification

construction is well captured by the following paragraph appearing in Bennion on statutory

interpretation, a code 4th Edition 2002, section 287 at page 751. "A flawed text has been

promulgated as expressing the legislative intention, this needs judicial correction, yet those

who have relied on it are entitled to protection. This raises a difficult conflict between literal

and purposive construction. The Courts tread a weary middle way between the extremes; the

Court must do the best it can to implement the legislative intention without being unfair to

those who reasonably expect a predictable construction. The five categories. The cases

where rectifying construction may be required can be divided into five categories, which may

overlap. These are: One, the garbled text, which is grammatically incomplete or otherwise

corrupt; Two, the text containing an error of meaning; Three, the text containing a casus

ommisus; Four, the text containing a casus male inclusus; And five, the case where there is

a textual conflict".

Could Parliament have reasonably and rationally intended that Section 39 of the

Preliminary Inquiries Act be only applicable to evidence recorded in writing, a, generally

speaking, less accurate and complete form of the recording of evidence and not be applicable

to electronically recorded evidence a superior form of the recording of evidence? Under

Section 39 what is being saved for presentation at trial is an appropriately certified record of

of 21

the witness' evidence at the Preliminary Inquiry with respect to a witness whose live

evidence has become unavailable at the trial because of certain reasons.

Various principles of statutory construction need to be considered in an attempt to

answer this question. The first is that there is a presumption that an updating construction is

to be given and I refer, again, to the Bennion on statutory interpretation, 4th Edition, 2002,

section 288 at page 762, which says: "It is presumed that Parliament intends the Court to

apply to an ongoing Act a construction that continuously updates its wording to allow for

changes since the Act was initially framed, that an updating construction. While it remains

law, it is to be treated as always speaking. This means that in its application on any date, the

language of the Act, though necessarily embedded in its own time, is nevertheless, to be

construed in accordance with the need to treat it as current law."

Another principle of statutory interpretation is that there should be an interpretation to

make due allowance for any relevant changes in technology and reference is again made to

the Bennion on statutory interpretation, section 288, pages 764, the last paragraph, to page

765 and I quote from the relevant parts of that extract. "In construing an ongoing Act the

interpreter is to presumed that Parliament intended the act to be applied at any future time in

such a way as to give effect to the true original intention. Accordingly, the interpreter is to

make allowances for any relevant changes that have occurred since the Act's passing, in law,

social conditions, technology, the meaning of words and other matters."

On page 765, under the same heading: "An enactment of former days is thus to be

read today in the light of dynamic processing received over the years, with such modification

of the current meaning of its language as will now give effect to the original legislative

intention. The reality and effect of dynamic processing provides the gradual adjustment. It

is constituted by judicial interpretation year in and year out, it also comprises processing by

executive officials." See also the cases of Mc Cartan, Turkington Breen v Times

Newspapers [2000] 4 All England Reports at page 913. And the case of Grant and

Another v South Western and County Properties Limited and Another [1975] One

Chancery, at page 185.

Turning to another principle of statutory construction. Where a question arises of

whether an ongoing enactment covers a legal entity not known at the date it was passed, the

key is whether it is of the same type or genus as things originally covered in the enactment.

of 21

In this case, in my view, the relevant genus is a record of the evidence at the preliminary

inquiry. Additionally, the Court will endeavour to look at the core characteristics or true

nature and substance or essential features of the thing in question. See R v Governor of

Pentonville Prisoner ex parte Zezza [1982], 2 Weekly Law Reports at page 1077. Also

Bennion on statutory interpretation, explaining the relevant principle, section 288, at page

769 and see also the cases of Lockheed-Arabia v Owen [1993], Queen's Bench page 806.

And the R.v South London Coroner ex parte Thompson and Others, [1982]. The Times

Law Reports of the 9th of July, 1982 at page 372.

Moving on. The presumption is that an Act of Parliament is intended to be an

ongoing Act, since this is the nature of statute law. An Act is always speaking, there must be

some reason adduced on account of which Parliament is taken to depart in a particular case

from this principle. I refer, in that regard to Bennion Section 288 at page 779.

The Courts, as well, seek to avoid a construction of an enactment that produces an

unworkable or impracticable or an absurd result, since this is unlikely to have been intended

by Parliament. In this regard I refer to the Bennion on statutory interpretation, Section 313,

pages 832 and 833, which I briefly read: "The Court seeks to avoid a construction of an

enactment that produces an unworkable or impractical result, since this is unlikely to have

been intended by Parliament. Sometimes, however, there are overriding reasons for applying

such a construction, for example, where it appears that Parliament really intended it or the

literal meaning is too strong. Comment, general presumption against absurdity" and

reference is made to another section of the code. "Unworkable or impracticable result”.

Parliament is taken not to intend the carrying out of it's enactments to be unworkable or

impracticable so the Court will be slow to find in favour of a construction that leads to these

consequences. This follows the path taken by judges in developing the Common Law. The

Common Law of England has not always been developed on strictly logical lines, and where

logic leads down a path that is beset with practical difficulties, the Courts have not been

frightened to turn aside and seek the pragmatic solution that will best serve the needs of

society, and a footnote reference is there contained to the case of the R v The Deputy

Governor of Camphill Prison ex parte King [1985] Queen's Bench, 735, speech of

Lord Justice Griffiths at page 751 from which that extract in the Bennion is contained.

of 21

Continuing with the extract from the Bennion at page 833: "Where the enactment is

grammatically ambiguous, the Court favours a meaning that is workable, even where it is

grammatically less apt. If the language is capable of more than one interpretation, we ought

to discard the more natural meaning if it leads to an unreasonable result and adopt that

interpretation which leads to a reasonably practicable result." and there appears a footnote

reference to the case of Gill v Donald Humberstone and Company Limited [1963], One

Weekly Law Reports, page 929 and the speech of Lord Reid, Judgment of Lord Reid at page

933, from which that extract is condensed in the Bennion.

See also the case of Derby and Company Limited v Weldon No. 9 [1991], One

Weekly Law Reports at 652.

Additionally, Courts are anxious to facilitate the smooth working of legal proceedings

provided no injustice is caused: See the Bennion, section 313, at page 836 and as well, in

criminal cases, the Court will lean against a construction which would render proof of guilt

impracticable: See the Bennion, section 313 at page 837.

There is a presumption as well, however, described by the Bennion as weaker in

modern Acts of Parliament because of the volume of statutory enactments on many issues

and subjects previously governed only by the Common Law that alterations of some

Common Law principles are presumed not to take place, unless explicitly stated by the

enactment or appearing by way of necessary implication and I refer to the Bennion, section

269 at pages 814, 815 and 816.

And I will return to this point about the relevant Common Law principles in some

detail later or during the course of this ruling.

Suffice that it be said at this point, that at Common Law it appears to be the position

that the deposition of a deceased witness is admissible at the trial at Common Law,

independent of any statutory provisions.

These are some of the main cannons of statutory construction that the State has

prayed in aid in its application. Counsel for the Defence has relied upon the principle that

there must be strict compliance with a jurisdiction conferring statute relative to a Court or

tribunal of statutory origin and limited jurisdiction and reference has been made to Craies on

Statute Law, which was referred to in the Judgment in Cadogan v R [1963], 6 W.I.R. at

page 292.

of 21

Senior counsel, Mr. Guerra, has also taken the Court through the cases of Latif Ali,

Inshan Ali, Vishnu Maharaj, Osman Ali v the State for kidnapping, and the ruling of

Justice Ibrahim as he then was, in No. 118 of 1990. And also the Judgment of the Court of

Appeal in Anthony Hutchins and John Roberts v the State, Criminal Appeals No. 67 and

71 of 1991.

Counsel's argument in this regard, is that Parliament should have directed itself on the

relevant strict principle of statutory construction applicable to Preliminary Inquiries

explained in Craies should have directed itself to the relevant case law as exemplified in the

three authorities cited in argument; and that if Parliament were desirous of including verified

transcripts of electronically recorded evidence within the terms of Section 39, it should have

done so expressly.

It was submitted that the Court would be effectively placed in an invidious position in

attempting to rectify any possible statutory lacuna even on the assumption that it might have

been one which defence counsel did not accept, arguing rather, that the omission was

intentional.

Respectfully, I do not derive assistance from the cases and the cannon of statutory

construction cited therein for the following three reasons: First of all, those cases deal with

the issue of the validity of committal proceedings. Secondly, they deal with instances of the

actual breach of a rule of statutorily prescribed Preliminary Inquiry procedure; and thirdly,

the actual breach in those cases was considered to be serious and, in effect, potentially

prejudice causing as opposed to being breaches of a trivial, minor and inconsequential nature.

The validity of the present committal which founds this indictment is not being

challenged on the ground of serious non-compliance with statutorily prescribed Preliminary

Inquiry procedure. The cases and the principle referred to therein and the relevant cannon of

statutory construction, while having the capacity to be wholly relevant to other types of

applications, in my respectful view, are of no real relevance and assistance in the context of

this particular application and the issues falling to be revolved in it.

The operation of the principles of statutory construction relied on by the State in its

argument, lead me to conclude that Parliament could not reasonably and rationally have

intended that Section 39 be only applicable to evidence recorded in writing in the specified

form of a deposition and that the admission of a record of evidence at the trial should depend

of 21

on the wholly coincidental and unrelated side wind of whether the record derives in writing

or electronically. Such a consequence will be absurd, impracticable, would impede the

smooth operation of the criminal justice system and would render evidential proof of guilt

impracticable, doing all of those things by the illogical introduction of a whimsical

differentiating factor.

In my view, there has been a legislative slip, or what has been termed "a legislative

slip" in the nature of what the Bennion classifies as a casus ommisus. The issue to be now

determined is whether this statutory lacuna is capable of judicial correction by reading into

the existing term "deposition," or by inserting, by way of rectification, new words after the

word "deposition."

I turn again to the presumption that rectifying construction is to be given and I return

to what was said the Bennion, at section 287, page 750, which says, "It is presumed that the

legislature intends the Court to apply a construction which rectifies any error in the drafting

of the enactment, where it is required in order to give effect to the legislator's intention. This

may be referred to as a rectifying construction."

A rectifying construction would often involve some level of a strained construction

where some violence to a statutory language has to be done. See Bennion, section 313 at

page 833. And also the Judgment of Lord Reid in Gill v Donald Humberstone and

Company Limited [1963], One Weekly Law Reports 929 at page 933.

In that case Lord Reid said that to avoid on unworkable result a strained construction

may be justified even where the enactment is not grammatically ambiguous. Lord Reid also

said that cases where it has properly been held that one word can be struck out of a statute

and another substituted, includes the case where, without such substitution, the provision

would be unworkable and reference is made in the Bennion to the case of Federal Steam

Navigation Company v The Department of Trade and Industry [1974] Volume 1 Weekly

Law Reports at page 509.

There, however, must be a limit to applying a strained construction and doing

violence to statutory language in order to judicially rectify even a self-evident statutory

lacuna that Parliament cannot, on any reasonable, possible reasonable view, have rationally

intended.

of 21

In Victor Chandler International Limited v Customs and Excise Commissioner

and another, [2000] One All England Reports at page 160. This is what Justice Lightman

had to say at page 167, letter J and continuing on to page 168: "I fully accept that a purposive

construction should be adopted of penal legislation, as of any other legislation and that, in

construing legislation on occasion, some violence to the words used may be justified to

achieve the obvious intention of the legislature and produce a reasonable result.

I also accept that the 1981 Act should be treated as always speaking and accordingly

construed by continuously updating its wording to allow for changes since the 1981 Act was

written. But the wording for this purpose must be wide enough, fairly to embrace the

changes in question. Parliament has, in this case, perfectly reasonably laid down as a

constituent of the criminal offence, the issue circulation or distribution of a document and not

the doing of what is the equivalent or achieve the same mischief. The statutory language is

not apt to the embrace what modern technology can achieve, namely the dissemination in

non-documentary form of information, which on receipt, is reduced to written form. This

case reveals a lacuna in the legislation. The lacuna has arisen because modern technology

has enabled VCI to advertise without the need for any document covered by Section 9. It is

not possible to fill that lacuna by updating of the statutory language. What is needed for this

purpose, is not construction, but reconstruction of Section 9. The lacuna is for Parliament

and not for the Court to fill, most particularly, since this is a case of a statutory provision,

creating a criminal offence." And at the end of the Judgment, "it is for Parliament to decide

whether to fill the gap in the 1981 Act by a legislative amendment to the like effect." End of

quote from the case Victor Chandler.

So to use the language of Justice Lightman, the statutory wording under consideration

must, therefore, be wide enough fairly to embrace the changes in question. If it is not

possible to do so, the lacuna is for Parliament and not for the Courts to fill.

I turn now to a case of Re EHS Deceased and others citation 2000, Three Weekly

Law Reports at page 1910, where, in giving the Judgment of the Court of Appeal,

Lord Justice also had this to say, and I quote and -- that was in the context of a case that dealt

with administration of estates and the Administration of Estates Act of the UK and the

Intestates Act of the UK. "We have not had to be taken through the Parliamentary history of

Sections 46 and 47 of the Administration of Estates Act, 1925, which was, of course, a

of 21

consolidating statute, but it is probably, that at no stage of its life did either the drafter or

Parliament consider what was to happen if the Lineal successor became disqualified from

taking would just as problematically disclaimed. Had that useful analogue of the officious

bystander, the alert back bencher intervened in the debate to ask, the minister would have had

to undertake to consider the matter and to return to the house with proposals. For this

appears to be a cassus ommisus, a gap in the Act and one which, subject to another

possibility, which I consider below, Parliament would most probably have filled in the way I

have suggested. But it does not follow that the Courts may simply write in what they surmise

Parliament has left out. A rectifying construction is one thing, Bennion statutory

construction, 3rd Edition, 1997, pages 623, to 624, section 268 gives instances where this

mode of construction has been used to supply omissions. But against this, see pages 675,

686, section 287 of the Bennion, gives instances cases where the gap is too large for it to be

constitutionally possible for the Courts to fill it.

See Duo and Osbourne [1992] One Weekly law Reports 611. R v Horseferry

Road Magistrate Court ex parte K [1997] Queen's Bench at 23.

To close the present gap, in fact, would require us to go further than mere infilling, it

would involve cutting back the provision which is very plainly there that a grandchild cannot

inherit while his or her parent is alive. To this it may very well be replied that the entire

disqualification of a son who kills his intestate parents is a judicial interpolation in a statute

which says nothing whatever on the subject. So that, to limit the effect to the killer and to

preserve the policy of preferring the less to the more remote, by treating his disqualification

as equivalent in law to his prior death, is not nearly so invasive of Parliament's role as first

appears.

To take this course, however, would require an examination of the operation of the

equivalent role in the law of wills and involve a sweep of argument much greater than we

have heard."

See also the case of Duo and Osbourne, 1992, One Weekly Law Reports at page

611. Also R.v Horseferry Road Magistrates' Court ex parte K [1996], Three Weekly

Law Reports at page 68. And see the case of McDonald v Advocate General for Scotland

P.S. and Governing Body of Mayfield School [2003], UK House of Lords page 34,

alternatively cited in 2004, One All England Reports at page 339.

of 21

In that last case of McDonald Lord Hobhouse of Woodborough said of the Sex

Discrimination Act of the UK, [1975], at pages 106 to 107 of the All England Report

citation: "There has been a tendency by Courts to treat the 1975 Act as having made greater

strides than it did, that it included sexual orientation, that it prohibited sexual harassment.

The tendency is understandable, since the conduct in question is every bit as objectionable as

that covered by the Act or even more objectionable. But the tendency is erroneous and has

led to further errors.

Proper regard must be had in the construing an Act of Parliament to the words

actually used. It is they which define the effect of the legislation. The now abandoned

argument that the phrase "on the ground of her sex" can mean, on the ground of her sexual

orientation fails to respect the language of the statute. The two things are not the same. The

use of different words gives the phrases different meanings."

As superficially tempting, though it may be, for the Court to endeavour to remedy the

defect, the statutory lacuna here involved, in my view, is too large to be constitutionally

possible of filling for the following reasons: One, the term "deposition", although having a

wider meaning, for example, see the Oxford Concise Dictionary has a particular definition in

the context of the Preliminary Inquiry Act, which is, "A record of evidence taken down in

writing by the designated officer of the Court." It would be impossible, therefore, to read or

imply into the term "deposition" as used in the Act something which it cannot properly mean

under the Act.

Two, alternatively, the term "deposition" would have to be explicitly broadened or

widened.

Thirdly, the insertion, by way of purported rectification of new words would be

necessary after the term "deposition" appearing in some parts of Section 39, those new words

being "verified transcript."

And four, for avoidance of doubt and ambiguity, there may need to be an expressed

suspension of the application of Sections 39, Subsection (1)(b) and (c), like in the case of

Section 16, C, Subsection 8 of the Act in the case of written statements used as a form of --

or as a record of original evidence -- let me rephrase that -- written statements used as a

record of evidence.

of 21

In my respectful view, too much linguistic cutting and pasting would be required, and

if that is attempted, it resembles an exercise of statutory reconstruction and not of proper

judicial construction. These reasons point me to the view that the lacuna is one that can only

be remedied by Parliament.

I turn now to the State's alternative argument. The State's alternative argument is that

the transcript of the witness' evidence is admissible at Common Law. It has often been

assumed in this jurisdiction, that the only route for the admission of a Magisterial deposition

is the statutory one. Whether that assumption is correct, requires a detailed look at the case

law. But a useful starting point in that examination, is a consideration of the true purpose of

taking depositions, which was explained in the case of the R. v Ward [1848] Two

Carrington and Quwan,(Phonetic) page 759 in the summing-up of Justice Crestwell who

said: "The learned counsel for the prisoner is in error in supposing that the depositions are

taken for the purpose of a affording information to the prisoner. The object of taking the

depositions is, that if any of the witnesses whose evidence is given before the magistrates

should be unable to attend at the trial, or die, there should not, by reason of this, be a failure

of justice. That is the real ground on which the depositions are taken."

In the case of R. v Peter Barnabas Hall [1972] Volume 3 Weekly Law Reports, at

page 974, this is what is said in the headnote: "R gave evidence for the Prosecution at the

trial of the defendant, which ended in the disagreement of the jury. Before the retrial R died.

At that trial the defence sought to put in evidence, the transcript of R's evidence at the first

trial, but the judge ruled the evidence to be hearsay and inadmissible. The defendant was

convicted. On appeal against conviction, held, allowing the appeal, that at Common Law,

the deposition of a witness who had died before trial, was admissible in evidence. And since

both a deposition and a transcript of evidence given at a trial recorded the sworn evidence of

a witness given in the presence of the defendant, and that evidence had been subject to

cross-examination, there was no reason, in principle, to distinguish a deposition from a

transcript, provided the latter had been duly authenticated and in the exercise of the judge's

discretion, the transcript was admissible in evidence. Accordingly, the judge had wrongly

ruled that the transcript of R's evidence was inadmissible."

In the course of giving the Judgment of the UK Court of Appeal, Justice Forbes

traced the history of the Common Law principle and had this to say: "These arguments

of 21

apply, of course, equally to evidence in civil as in criminal matters. Although there is no

direct authority relating to the admissibility of evidence given at a previous criminal trial, it is

possible, we think, to extract a principle from a consideration of some of the older cases. It is

convenient, we think, to refer at the outset to note 8 to article 33 of Stevens Digest on the

Law of Evidence, 12th Edition 1936, page 199, which concerns evidence in former

proceedings. In reference to this subject, it has been asked whether this principle applies

indiscriminately to all kinds of evidence in all cases. Suppose a man were to be tried twice

upon the same facts, example, for robbery after an acquittal for murder, and suppose that in

the interval between the two trials, an important witness, who had not been called before the

magistrates were to die, might his evidence be read on the second trial from a reporter's

shorthand notes? This case might easily have occurred if Horton had been put on his trial for

forgery, as well as for perjury. I should be disposed to think, on principle, that such evidence

would be admissible, though I cannot cite any authority on the subject. The Common Law

principle on which depositions taken before magistrates and then chancery proceedings were

admitted seems to cover the case."

The Common Law principle to which that judge referred can be deduced from a

number of cases of which the earliest appears to be the King v Radbourne [1787] One

Leach 457. In that case, a lady called Mrs. Morgan was severely wounded by her servant,

the accused. In view of her serious condition, her deposition was taken in the presence of the

accused before two magistrates in accordance with the statutes, which are referred to 1554,

and 1555 statute. These statutes provided machinery for the taking of such depositions, but

did not, themselves, provide for reception in evidence of the depositions so taken.

Sometime after the taking of the depositions, Mrs. Morgan died and Radbourne was

charged with petty treason and murder, she was acquitted of the former offence but convicted

of murder. Much of the argument in the case turned upon whether the acquittal for the petty

treason necessarily involved an acquittal for the murder also.

But one of the important pieces of evidence at the trial had been Mrs. Morgan's

deposition, which Prosecuting counsel had contended was admissible, either as a dying

declaration, or on information taken on oath before a regular magistrate under the statutes of

Phillip and Mary.

of 21

The Court of trial had admitted the deposition, and the question of its admissibility

was one of the matters referred to for the consideration of the twelve judges.

On page 462 of the report, "Mr. Recorder, on the first day of the December session

following reported, that it was the unanimous opinion of eleven judges, Lord Mansfield

being absent, that the learned judge did right in admitting the information of Hannah Morgan

to be received in evidence, and that the prisoner was legally convicted of murder on the

indictment and in position for petty treason." It is not clear, of course, whether it was held

admissible as a dying declaration or on an information on oath, but this matter is referred to

in later cases, which I shall deal with in a moment.

The next case is The King v. Smith [1817]. Here, again, a deposition was taken

from the deceased before he died, though at that time the defendant was only charged with

assault. The main argument put forward in objecting to its admission, was the it was taken

on another charge. It appears to have been conceded by counsel for the defence that it would

have been admissible on the same change. Again, the matter was referred for consideration

of the judges whose opinion is recorded at page 341: "In Michaelmas Term 1817, eleven of

the judges met and considered the case Gibbs CJ, being absent. Ten of the learned judges

thought the conviction right and that the deposition had been properly received in evidence.

Abbott J thought the evidence ought not to have been received. Dallas J, Graham B, Richard

CB, and Lord Ellen Barrow stated that they should have doubted of the admissibility of the

evidence, but for the case of The King v. Radbourne."

Following that, there is the important case of The King v Beeston, [1854]. Here

again, a deposition was taken from the victim of a violent assault in the presence of the

accused, who was, at that time, charged with wounding with intent. On the death of the

victim, the accused was charged with murder and counsel for the Prosecution offered in

evidence the deposition. Despite objection, the deposition was admitted and the defendant

was convicted. The matter was referred for the opinion of the Court of Criminal Appeal.

The argument for rejection of the evidence was in part, again, that the deposition was taken

on a different charge. But defence counsel also argued that the deposition was not

admissible, independently of the statute.

That statute was Section 19 of the Indictable Offences Act 1848, and provided, in

terms, for the admission of depositions at a subsequent trial, if the deponent was inter alia,

of 21

dead. Jarvis CJ had this to say at page 411: "We are unanimously of the opinion that this

deposition was, under the circumstances, admissible in evidence against the prisoner.

Notwithstanding the decision in The King v Ledbetter, it is quite clear that before the

passing of the Indictable Offences Act 1848, the deposition would have been admissible and

on this point the cases are all one way," and then Radbourne is referred to.

A bit further down in the Judgment, this is what is said: "Be that as it may, the judges

at all events held themselves bound by the previous decision in Radbourne and there is no

reason why we, fortified as we are by a second decision, should depart from the convenient

rule of abiding by decided cases, therefore, independently of the statute, we think that the

deposition in this case, would have been admissible.

Martin B and Crowder J, in their Judgments at pages 414 both expressly say that the

deposition was clearly admissible at Common Law. In that case the fact that the decision in

Ledbetter did not indicate whether the deposition was held admissible as a dying

declaration, or as an information on oath, was referred to by counsel in argument, and by

founding themselves on The King v Radbourne, the judges must be taken to have rejected

the former possibility. The former possibility being that of a dying declaration."

A bit further down in the Judgment, reference is made to the case of Edmunds [1909]

and the case of Lee and the Court in Hall concluded on this point as follows: "From this line

of authorities, we think it plain that a deposition, properly taken before a magistrate, on oath,

in the presence of the accused, and where the accused has had the opportunity of

cross-examination was, at least since 1554, admissible at Common Law in criminal cases, if

the original deponent was dead, despite the absence of opportunity to observe the demeanour

of the witness. The only difference between such a deposition and the transcript of evidence

given at a previous trial, is that the transcript is not signed by the witness. Provided it is

authenticated in some other appropriate way, as by calling the shorthand writer who took the

original note, there seems no reason to think that such a transcript should not be equally

receivable in evidence."

Reference in Hall was made to the case of Beeston, which appears in Deers 405 at

page 782 and the relevant statute is set out there in footnote A, of page 782 and I refer very

briefly to what was said by Martin B. "The deposition in this case was clearly admissible at

the Common Law and our decision is in accordance with the cases of Radbourne and

of 21

Smith. The statute was not intended to restrict the operation of the Common Law" and

Crowder J had this to say, "I am also of opinion that the deposition was admissible in

evidence at Common Law and under the statute. The object of the statute was rather to

extend the operation of the Common Law than to restrict it."

The case of the Hall was applied in the local case of The State v Aroon Ivan

Mohammed, Beemal Ramnarace and Sheldon Roach. The First Instance ruling of Justice

Volney No. 4 of 1995. In a published ruling, where reference was made to the case of Hall

and to the case of Ward, which set out the true purpose for the taking of depositions and the

learned judge there concluding at page 8 of the published ruling that the transcript of

evidence of a witness who had died between the time of a first trial and the retrial, was

admissible in evidence.

In the Court of Appeal Judgment in that case, in Criminal Appeals No. 7, 8 and 9 of

1999, although the matter did not arise directly for consideration, this is what the Judgment,

written by Justice of Appeal Sharma, as he then was, said, at the bottom of page 29 and the

top of page 30, "A further complaint was that the learned trial judge had stopped counsel for

the appellant during her cross-examination of the reporter who produce the computer record

while she was attempting to probe an issue of the general functioning and reliability of the

computer from which the transcript was obtained. Both the trial judge and counsel were of

the view erroneously, we think, that the transcript was being tendered under the 1996 Act.

The transcript, in our view, would have been admissible, both by statute, the Court

Proceedings Act 1991, and by the exercise of the trial judge's discretion at Common Law."

Subsequent to the case of Hall in the United Kingdom there is the case of Thompson

[1982], Queen's Bench 647, the head note of which is brief, and I shall read: "The appellant

was charged with a number of offences, including Attempted Robbery and Blackmail. A

witness gave evidence of identification and was cross-examined. The trial was aborted. At

the second trial the defence accepted that the witness was unable to travel to court by reason

of her medical condition, but objected to the transcript of her evidence at the first trial being

put in evidence before the jury. The judge ruled that as matter of law, the transcript was

admissible, and after a trial within a trial relating to events which had occurred at two

identification parades, he ruled, in his discretion, that the transcripts should go before the

jury. The appellant was convicted. On appeal against conviction it was held that a transcript

of 21

of evidence of a witness was admissible on a retrial of the same defendant, on the same

change, if the witness was unable to attend the retrial through death or illness, or if the

witness was incapable of being called." For other reasons the conviction, the verdict was

regarded as being unsafe and unsatisfactory and was ultimately quashed.

The Judgment of Lord Justice Dunn is referred to. Identifying the issue, first of all, at

page 6, which says: "The applicant now appeals against conviction by leave of the single

judge and the first ground of appeal is that the judge erred in law in allowing the Prosecution

to read the transcript of evidence of Mrs. Brailsford at the trial. This ground raises the

question of whether a transcript of evidence of a witness is admissible in evidence on a retrial

of the same defendant on the same charge, if the witness is too ill to travel to court on the

second trial. The modern text book writers say that such evidence is an exception to the

hearsay rule and is admissible on a retrial if witness is unable to attend the retrial through

death of illness. See Cross on evidence 5th Edition 1979, at page 568. Or if the witness is

incapable of being called. See Phipson on evidence 12th Edition 1976 page 581. Mr. Right

for the appellant in this Court says that the text book writers are wrong."

Page 7, Lord Justice Dunn said: "Although admitting that some of the older

authorities were inconsistent with that view, Mr. Wright said that by 1851 the Common Law

was settled and that it was now too late to make further exceptions to the hearsay rule, which

could only be done by Parliament. He referred us to Myers v the DPP [1965] Appeal Cases

1001, where the House of Lords held, by a majority, that the recognised exceptions to the

hearsay rule were closed and that it was for Parliament and not the judges to extend them.

Mr. Wright also referred us to the decision of this Court in R. v Hall [1973], Queen's Bench

496, where it was held that a transcript of the evidence of a witness who had died, was

admissible at a retrial. Many of the older cases were referred to by the Court and Mr. Wright

pointed out that all these cases were cases where the witness had died. R. v Hall, said

Mr. Right, was entirely consistent with the Common Law rule laid down in R. v Scaife and

the importance of R. v Hall was that it applied the reasoning that had Common Law been

applied to depositions taken on oath to transcripts of evidence taken on oath.

We do not think that the Common Law was nearly as clear in 1848 when Jervis's Act

was passed, as Mr. Wright suggested. The power to take depositions on oath was first

introduced in 1553 by two Acts of Phillip and Mary, but there were no statutory provisions as

of 21

to their use at the trial and that was developed by the judges over the years as a matter of

practice. While we accept that rulings, as to the admission of evidence before the Revolution

of 1688 are unreliable, by the end of the 18 Century, the books show that the general rule

against hearsay evidence had been established, and that many exceptions to the rule were

also recognized.

Although Comms Digest stated that a deposition was not evidence at law, except

where the witness was dead or could not attend by reason of sickness or could not be found,

Starkee in his treaties on evidence of 1824 was more doubtful."

And at page 8 of the judgment in Thompson this is what Lord Justice Dunn

concluded on this issue: "the preponderance of view in the early 19 Century seems to have

been that if the illness was only temporary and his attendance at court could be secured by an

adjournment of reasonable length, then the deposition was not admissible. But if his illness

was such that he was unlikely to be able to attend court within a reasonable time then the

deposition was admissible. Jervis' Act merely clarified the position by providing the simple

test, that if the witness was too ill to travel then his deposition should be admissible. In

holding this to be the law, we think that Schedule 2 to the Criminal Appeal Act 1968, does no

more than state the law ex abundanti cautela, we believe this to have been the law for, at

least, the last a hundred and fifty years and we are not seeking to make any new exception to

the hearsay rule, or to extend any existing exception, we are merely clarifying a well

established exception. We think that the modern text book writers are right in the way in

which they state the law. And in our view, therefore, the judge was right to admit the

transcript of Mr. Brailford's evidence as a matter of law." End of quote from Thompson.

In the case of Thompson, therefore, it was implicitly accepted as the correct position,

that by way of a Common Law exception to the hearsay rule, a transcript of evidence of a

deceased witness is admissible in evidence on a retrial of the same defendant on the same

charge.

Having reviewed the case law, I must now address the issue of whether there is any

reason as to why the Common Law of Trinidad and Tobago should be different to that of the

United Kingdom on the issue. I can identify none.

Additionally, Section 72 of the Criminal Procedure Act, Chapter 12:02 allows inter

alia of the issues of admissibility of evidence to be determined by the law enforced in

of 21

England as of August 30, 1962.

The Common Law position has not been explicitly revoked or revoked by way of

necessary implication within the exiting terms of Section 39 of the Preliminary Inquiries Act

or the scheme of the entire Act, as amended.

Can the same Common Law principle, therefore, which governs the admission of

magisterial depositions of a dead witness at a trial, and which also governs the admission of

appropriately verified transcripts of the evidence of a deceased witness from a first trial at a

retrial, be appropriately expanded to include and accommodate the admission of a verified

transcript of electronically recorded evidence at a Preliminary Inquiry, at a trial in a case

where the witness had since died?

Five consideration are capable of answering this question: One, the true purpose of

the recording of depositions, and I refer to the summing-up of Justice Cresswell in the case of

the R.v Ward already referred to.

Two, the only difference between a deposition and a transcript, is that the transcript is

not signed by the witness. See the case of the R.v Hall, which saw no material distinction

between the two, Hall having been applied in this jurisdiction.

Three, as a matter of a general practical consideration, transcripts of electronically

recorded evidence capture verbatim the questions and answers, and are capable of providing,

generally speaking, a more comprehensive and contextually accurate record than the

longhand recording of a court officer, which cannot practically, because of the limited pace

of writing, incorporate the note of evidence in a question and answer form throughout.

Four, there is, in my view, no legitimate distinction capable of being drawn between a

Preliminary Inquiry and a trial and between a trial and a retrial, so as to serve to insulate and

compartmentalize the Common Law principle explained in Hall.

And five, Act No. 23 of 2005, specifically provided for the electronic recording of

evidence at a Preliminary Inquiry and the verification of the transcript.

These five considerations and the case law, which I have attempted to go through in

detail to explain the development of the law, impel me to the view that the existing Common

Law principle expostulated in Hall can be appropriately and legitimately expanded to include

of 21

the admission of an appropriately verified transcript of electronically recorded evidence at a

Preliminary Inquiry with respect to the evidence of a witness who has died after the

Preliminary Inquiry.

This is not the making, it is important to state, of any new Common Law exception to

the hearsay rule and neither is it any inappropriate extension of any existing Common Law

exception to the hearsay rule contrary to Myers v The DPP where the House of Lords held,

by a majority, that recognized exceptions to the hearsay rule were closed and that it was for

Parliament, and not judges to extend them.

Rather, this is the clarification of an established Common Law, an existing Common

Law exception to the hearsay rule by the application of the same reasoning that extends at

Common Law to the admission of depositions of a deceased witness at trial.

The scope of that established and existing Common Law exception to the hearsay

rule, is liable to be appropriately wider, once the same reasoning that governs the original

Common Law rule to begin with, applies to the present situation without meaningful and

material distinction. It does apply, in my respectful view, and that has been the Common

Law position relative to verified transcripts of electronically recorded evidence since 2005,

and in particular, from the date of assent of the Act, which was 15th September, 2005.

Accordingly, for these reasons, I am of the view that the verified transcript of the

evidence of the deceased witness, Abdul Rashid, may be admitted in evidence under the

Common Law.

With respect to the Common Law discretion to exclude by parity of reasoning, the

same principles that apply in Barnes and Desquottes to depositions, would apply to

transcripts and for reasons already given earlier in this trial, there is no proper basis which

justifies the Common Law exclusion of the transcript.

This, in conclusion, is a summary of my ruling:

One, a lacuna exists in section 39 of the Preliminary Inquiries Act.

Two, it is as result of a legislative slip and cannot reasonably and rationally have been

intended by Parliament. This conclusion is borne out by an examination of the true and real

purpose behind the taking of depositions, the Act itself and several relevant statutory

presumptions and principles.

of 21

Three, there is, however, no proper scope for the application of a strained rectifying

judicial construction doing some violence to the statutory language, because the lacuna is too

large to be constitutionally possible of filling it, in that sense, and the Court would be

overreaching in this particular case if it did so. What is required is statutory reconstruction

and not a rectifying judicial construction. The lacuna is for Parliament to fill, if it chooses to

do so, by way of a short simple amendment.

And four, at Common Law, however, the transcript is admissible on the same

principle and reasoning which governs the principle that at Common Law, by way of an

exception to the hearsay rule, a deposition of a deceased witness is admissible at trial and the

transcript of evidence of a deceased witness from a first trial admissible at a retrial. There is

no breach of the judicial injunction contained in Myers v the DPP. This is not an extension

of the existing Common Law, this is a clarification of a established and existing Common

Law exception to the hearsay rule, by the application of the same reasoning that extends at

Common Law to the admission of depositions of a deceased witness at trial. And the scope

of that established and existing Common Law exception to the hearsay rule, is liable to be

appropriately wider, once the same reasoning that governs the original rule, to begin with,

applies to the present case without meaningful and material distinction. In my view, it does,

and that has been the Common Law position relative to verified transcripts of electronically

recorded evidence at the Magistrates' Court since the amendment of 2005.

It remains for me to thank counsel for their considerable assistance on an important

issue that extends well beyond the boundaries of this particular case.

MARK MOHAMMED

Judge

DATED THE 2ND

DAY OF APRIL 2009

republic of trinidad and tobagowebopac.ttlawcourts.org/libraryjud/judgments/hc/jmohammed/20… ·...

Documents