Persaud v Ramsumeer
| Jurisdiction | Guyana |
| Judge | Crane, C. |
| Judgment Date | 22 June 1981 |
| Neutral Citation | GY 1981 CA 3 |
| Court | Court of Appeal (Guyana) |
| Docket Number | Criminal Appeal No. 37 of 1980 |
| Date | 22 June 1981 |
Court of Appeal
Crane, C., Persaud, J.A., Baburan, J.A.(Ag)
Criminal Appeal No. 37 of 1980
Mr. D.C. W. Weithers, acting Deputy Director of Public Prosecutions, for the appellant.
No appearance of Attorney-at-Law or the respondents.
Administrative law - Judicial discretion — Magistrate discharged three defendants who were arraigned before him on an indictable information upon oath that he had elected to deal with summarily under the Administration of Justice Act — Whether the decision was erroneous in point of law in that the learned magistrate exercised his discretion injudiciously when he dismissed the case on improper and/or insufficient grounds — Court held that the failure of the magistrate to grant the prosecution at least on adjournment to produce both the absent witnesses was a denial of justice and an error of law of his own creation — Appeal was allowed — Case was remitted to be dealt with de novo by another magistrate.
Save for the fact that the forum was at a lower level, much the same problem arises for decision in this case as in The State v. Douglas James.
James's case came to us by way of reference from the Director of Public Prosecutions under s. 32A of the Court of Appeal Act, Cap. 3:01, as amended, and the first and main question was, whether a trial judge does have a discretion to direct an acquittal where the prosecution fails to produce a witness whose name appears at the back of the indictment. We answered in the affirmative with the proviso that such a discretion does exist when failure of the prosecution to produce the witness will result in a denial of justice.
The problem in this case, very much like in Douglas James, is concerned with the exercise of judicial discretion, and it arose in this way:
At the close of the case for the prosecution, a magistrate of the Essequibo Magisterial District discharged the three defendants who were arraigned before him on an indictable information upon oath that he had elected to deal with summarily under the Administration of Justice Act. The prosecution's case was that the defendants, between the 19 th and 29 th days of June 1978, stole from the dwelling-house of Zaimoon Shaffie of Zeelandia, Wakenaam, a quantity of jewellery including two gold neck chains, a churia, two pieces of broken gold bangles and a gold brooch, all to the value of $3,640.00.
The three defendants were caught red-handed as they were in the act of disposing of their booty, the abovementioned pieces of jewellery, to a jeweller called Dharamdeo Mohan at his shop at Lombard and Harrel Streets, Georgetown. They were arrested, taken to Kitty Police Station and held there pending transfer to Sans Souci Police Station, Wakenaam. In the meanwhile, they were interrogated by Detective-Inspector Jagmohan to whom they glade caution statements.
During the summary trial which took place at Wakenaam five witnesses testified, including Zaimoon Shaffie, the complainant, who identified the abovementioned pieces of jewellery as part of the property stolen from her home at Wakenaam. Evidence was also given by one Kubrath, her jeweller he also identified the same pieces as his own handiwork which Shaffie had engaged him to make for her. But in order to complete the presentation of its case and to put in evidence the caution statements of the defendants, the prosecution required two more witnesses, namely, Detective-Inspector Jagmohan who interrogated the defendants at Kitty Police Station, and Dharamdeo Mohan aforesaid, to whom the three defendants had offered the jewellery for sale. Accordingly, a request was made by the prosecutor for a postponement in order that he might produce these two persons as witnesses at the next sitting of the court as they were, vitally necessary for the conduct of the prosecution's case. And the reason given for requesting the adjournment was that Dharamdeo Mohan had not yet been served with a subpoena to attend court, and that Detective-Inspector Jagmohan was busy attending another court in Georgetown as a witness.
Counsel for the defendants thereupon submitted no satisfactory reason was given for the absence of the two witnesses and the court adjourned at 11. 30 a.m. On the afternoon's resumption, the Magistrate ordered each of the names of the absent witnesses to be called out three times, and when no reply was forthcoming, he recorded “Case for Prosecution” in his notebook. Thereupon counsel for both defendants submitted ‘no case to answer’ because possession of the jewellery was not established in the defendants. With this submission the learned Magistrate agreed and immediately dismissed the case against all three defendants for the reason that a prima facie case had not been made out against them.
On appeal before us the magistrate's discretion was called in question on the following grounds:
“The decision was erroneous in point of law in that the learned magistrate exercised his discretion injudiciously when he dismissed the case on improper and/or insufficient grounds as follows:
(i) It was explained to the learned magistrate that the absence of one of the witnesses was due to the fact that on that said day he was attending a court in Georgetown and that the absence of mother was because the summons had not been served on him.
(ii) The case was by any standards a new one and thus ought not to have been so hastily dismissed.
(iii.) No fewer than five...
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