Outar v The State
| Jurisdiction | Guyana |
| Judge | Crane, C.,Gonsalves-Sabola, J.A.,Massiah, J.A. |
| Judgment Date | 02 July 1982 |
| Neutral Citation | GY 1982 CA 15 |
| Docket Number | No. 27 of 1980 |
| Court | Court of Appeal (Guyana) |
| Date | 02 July 1982 |
Court of Appeal
Crane, C.; Gonsalves Sabola J.A.; Massiah, J.A
No. 27 of 1980
B. O. Adams, S.C., M. Bacchus with him, for the appellant
G. H. R. Jackman, Deputy Director of Public Prosecutions,
T. Ragnauth with him for the State.
Criminal practice and procedure - Evidence — Appeal against conviction for murder and sentence of death — Circumstantial evidence — Accused last seen with deceased — Judge's notes missing, only summing up available to Court of Appeal — Identification of clothing by various individuals of deceased — Appellant not helpful with investigation — Appellant and deceased constantly argued — Evidence was sufficient for the jury to have sustained a verdict of guilty of murder — No merit in grounds of appeal — Appeal dismissed and conviction affirmed.
A nigh unprecedented situation has arisen in this appeal. We have not before us for adjudication the trial judge's notes of evidence, he having vacated the Bench and emigrated since 1980. His notebook cannot be found, search as we may for it. A copy of his summation to the jury certified by the Supreme Court reporter, as “a complete and correct transcript of the shorthand note of the summing-up” is all we have before us. What are we to do in the circumstances? Are we to do as suggested by senior counsel for the accused - remit the case for retrial?
There is legislation requiring the judge's notes of proceedings to be furnished on appeal, by the trial judge to the Registrar of the Supreme Court in accordance with rules of court, somewhat after the fashion of s.8 of the Criminal Appeal Act 1907 (U.K.) and rules made thereunder. It is to be found in s. 21, Part III, captioned CRIMINAL APPEALS in the Court of Appeal Act, Cap. 3:01, which provides as follows:
“The judge of any court before whom a person is convicted shall, in the case of an appeal under this Part against the conviction or against the sentence, or in the case of application for leave to appeal under this Act, furnish to the Registrar of the Supreme Court in accordance with rules of court, his notes of the trial; and shall also furnish to the Registrar of the Supreme Court in accordance with rules of court a report giving his opinion upon the case or upon any point arising in the case.” (Emphasis mine.)
And directions as to the forwarding of copies of proceedings in the court below to us are to be found in rule 7(1), (2) and (3) of 0.3 of the Court of Appeal Rules, Cap. 3:01. These are as follows:
“(1) The Registrar when he has received a notice of application or a notice of application for leave to appeal, or a notice of application for extension of the time within which under these Rules or the Act such notice shall be given, shall prepare four copies of the proceedings in the court below and if any record has been made of the summing-up or direction of the judge of the court below, four copies thereof or if no such record has been made, a statement giving to the best of such judge's recollection the substance of the summing-up or direction. He shall also prepare the original exhibits in the case as far as practicable and any original depositions, information, inquisition, plea, or other documents usually kept by him, or forming part of the record of the court below.
(2) One copy of the proceedings and one copy of the summing-up shall be sent by the registrar to the Director of Public Prosecutions at the same time he complies with paragraph (1) of this rule.
(3) For the purpose of this rule copies of proceedings shall contain –
(a) the indictment or charge and the plea
(b) the verdict, any evidence given thereafter and the sentence;
(c) notes of any particular part of the evidence or cross-examination relied on as a around of appeal; and
(d) such other notes of evidence as the registrar may direct to be included in the copies of proceedings.” [emphasis mine.]
Accordingly, r.7(1), above, clearly has in contemplation the situation where there is no record of the judge's summing-up because he has not summed-up, and gives directions to meet that eventuality. However, the rule is silent in the cause where there are no judge's notes of the trial from which copies of the proceedings may be prepared. It appears to me the reason for this is clear: it is not obligatory on a trial judge to sum up the evidence in every case to the jury. [See R. v. Attfield, [1961] 3 All E.R. 243.] It will depend on the nature and complexity of the case in hand and be left to the judge's discretion to say whether he would sum-up the evidence for the jury's benefit, particularly as the rule above allows him the alternative facility of giving his recollections on any direction given at the trial. In a simple case the judge may even invite the jury to say they do not want one. [ Newman, (1914) 9 Cr. App. R. 136.]
Unlike 0. 2 r.10 (3), dealing with CIVIL APPEALS, which contemplates the situation where a judge does not make notes at the trial r.7(1) above does not contemplate that a judge would make no record of the proceedings before him. A judge is obliged to make notes in the trial of a criminal case. In other words, while there is an undoubted discretion in a judge to say whether by would sum-up in the particular case, no such discretion is left him as to whether he should keep notes of the trial; he must do so; it is obligatory on him to make a record of the proceedings. But does this mean an appeal is automatically aborted if a judge in a criminal case has a made no record or proper note of the proceedings or when, as appears to be the case here, his notes of the trial are misplaced or stolen. Surely, it cannot mean in every case where notes of evidence are missing, the appeal must necessarily be allowed and a remit for rehearing be made as suggested. That is what we are called upon to consider in this appeal.
In the present appeal while a copy of the indictment and plea together with the verdict and sentence are before us as required by 0. 3 r. 7(3)(a) and (b), above, para. (c) is missing; there are no “notes of any particular part of the evidence or cross-examination relied on as a ground of appeal” or any other notes of evidence what ever before us. In the absence of a record of the evidence and cross-examination, there are no means by which the points taken in the grounds of appeal that have been filed, can be tested. This difficulty was one of the first to be perceived by us when the hearing first began and in order to overcome it, we advised learned counsel on both sides that we considered it could best be resolved, in the absence of the trial judge, if they collaborated with each other and, by their concerted efforts by means of an exchange of written submissions, tried to identify areas on which they were in agreement and disagreement with the objections taken in the grounds of appeal. In that way, counsel were informed, they could, in the absence of the trial judge's comments, give assistance by making submissions to us.
It was also agreed that though the depositions taken before the examining magistrate are available, these could only have limited, if any value at all, in helping to resolve the matter, for the obvious reason that it cannot be said with certainty the evidence contained in those depositions is identical with that led at the trial on the matters in issue.
There is no dearth of authority to show that it is within the jurisdiction of a Court of Appeal to adjudicate notwithstanding the record of proceedings may be incomplete or defective; for example, when there is no written but only an oral judgment or decision. It is clear we can adjudicate in that case because an appeal is from the decision itself and not from the reasons given therefor. An appellate court is quite competent to review the decision from an examination of the record of proceedings so as to see whether the right conclusion has been arrived at by the judge, the absence of reasons notwithstanding.
And I think the converse case also holds good: if there is a summing-up, but for one reason or another there are defective notes, or no notes of the trial, a Court of Appeal can still adjudicate so long as the co-operation of learned counsel is forthcoming; and it is in this respect that counsel's “prior and perpetual retainer on behalf of truth and justice” is in evidence. [See per Crompton, J. in Reg. v. O’Connel, (1844) I.L.R 261, at p.313.] I am pleased to say with much satisfaction, we have secured co-operation in the manner mentioned above. Written submissions were preferred by both sides and the grounds of appeal examined on the understanding, that the summing-up is to prevail as, a matter of practice over any areas of disagreement, just as the under-mentioned note indicates in R. v. Beauchamp, (1909) 2 Cr. App. R. 40, at p. 41. There, it appeared from the shorthand notes that in summing-up the learned chairman had referred to facts as being in evidence which were not reported by the shorthand writer in the examination of the witness.
“Mr. Justice JELF: It is not right that the shorthand reporter should omit anything from the witnesses’ examinations. In the case of a discrepancy the court will prefer the judges note.
THE LORD CHIEF JUSTICE: That is the practice of the court.” (Emphasis mine.)
It was in this manner the hearing before us proceeded in the absence of the trial
judge's notes of evidence - in accordance with what the lord Chief Justice declared [See 0. 1 r. 11 of our Court of Appeal Rules, Cap. 3:01.]
But I think the criminal appeal of Reg. v. Nowaz, [1976] 1 W.L.R 830, C.A. is very apposite, illustrating as it does that it is quite permissible for us to proceed, if the interests of justice so demand, to hear an appeal in the absence of both the transcript of evidence and the judge's summing-up. In Nowaz, the sentence on the accused...
To continue reading
Request your trial