The State v Browne
| Jurisdiction | Guyana |
| Judge | Haynes, C. |
| Judgment Date | 12 March 1977 |
| Neutral Citation | GY 1977 CA 6 |
| Docket Number | Criminal Appeal No. 103 of 1976 |
| Court | Court of Appeal (Guyana) |
| Date | 12 March 1977 |
Court of Appeal
Haynes, C.; Jhappan, J.A.; Massiah, J.A.
Criminal Appeal No. 103 of 1976
B. C. dos Santos for appellant.
D. J. Christian, Senior State Counsel for the State.
Evidence - Admission of depositions of absent witness — Admission treated as a matter of right and not of discretion — Depositions put in evidence and read before judge ruled them admissible — Whether depositions properly admitted — Evidence Act, Cap. 5:03, s.95
Criminal Law - Evidence — Depositions the only evidence implicating accused — Judicial caution should always be given where the only proof of material disputed evidence is a deposition.
The appellant, Albert Stanislaus Browne, was found guilty of armed robbery on each of a two-count indictment by a jury at the Demerara Assizes on 7th October, 1976. He was sentenced to six years' imprisonment on each count concurrently and to a whipping on the first one. He appealed against this conviction and sentence, and at the end of the submissions of counsel on both sides, it was clear that, regrettably, the learned trial judge had erred seriously in relation to two matters in his conduct of the trial, namely, the admission in evidence of a deposition and misdirection of fact relating to the appellant's defence.
The particular allegation of the State was that on 22nd December, 1975, the appellant and others, being armed with a knife, robbed two persons, John Gangadeen and Joyce Seenarine, in one incident of money, jewellery and other articles. According to the evidence, it all happened on the East Coast, Demerara, between 8 p.m. and 9 p.m. At an identification parade more than three weeks later, Joyce Seenarine positively identified the appellant as the man who actually held a knife to her throat and took off a wristwatch she was wearing then. In this state of affairs, on the depositions, his identification by Joyce Seenarine was the sole evidence on which the state could rely for a conviction. But this witness had left Guyana for foreign parts after the preliminary inquiry at which she had testified. So, unless the State could get her deposition read in evidence, there would be no case at all against the appellant to go to the jury. And so after all his available witnesses had concluded their evidence, the State Prosecutor moved to lay the evidential foundation for its admission in compliance with s.95 of the Evidence Act, Cap. 5:03.
He called two witnesses for this purpose. Pooran Seenarine (Joyce's brother) testified that on 4th May, 1976 (after she had made her deposition), his sister left Timehri International Airport for St. Martin, a Caribbean Island, and had not returned. And he purported to identify the signature on a deposition shown to him in the witness box as hers. The appellant, who was un-represented by counsel, cross-examined him. In answer to him the witness modified his identification-in-chief and said: “I say that the signature shown to me looks like my sister's signature.” The other witness was Sase Naraine, the then clerk of court to the magistrate who conducted the preliminary inquiry. What happened then is so important in this appeal that we shall set it all out as it is recorded in the notes of evidence, verbatim:
“Sase Naraine on his oath states:
I live at Enterprise, East Coast, Demerara, and I am clerk attached to Vigilance Magistrates Office.
I was a clerk when the case against Reis, Florimonte, Browne and Peters was heard at the preliminary inquiry at the Sparendaam Magistrate's Court by magistrate O. Small. I heard the witness Joyce Seenarine give evidence on oath and she was cross-examined at length by Mr. dos Santos, barrister-at-law, who was counsel appearing for Browne. The hearing took many days and I was present on each day to wit: 3rd March, 5th March, 12th March, 12th April and 21st April.
On each occasion after Joyce Seenarine gave her evidence-in-chief or in cross-examination the same was read over to her by the magistrate, and she was permitted to make any corrections and at the end of that session she signed her name in my presence to the depositions taken by her.
I now produce the depositions-in-chief and cross-examination given by the said Joyce Seenarine, tendered, admitted and marked Exhibit ‘H’. The accused was always present and heard what the witness said. The depositions were signed in his presence. Witness reads depositions.
Cross-examination by Browne: Declined.
By the Jury: Declined.”
In his charges to the jury the learned trial judge said (p. 42 of the record):
“…The State prosecutor pointed out to you that Joyce Seenarine was no longer in Guyana but that under our law, and I read to you the appropriate sections, it is possible to have her depositions tendered if the State establishes that she is out of the country and that she has not returned, and as a matter of law I admitted the depositions because I was satisfied that the State has established that she was out of Guyana.”
It is a settled rule that when the admissibility of a deposition is in question, all relevant conditions of fact must be determined by the trial judge alone. Technically, what he has to do is to conduct a site on the question whether or not the conditions of admissibility are satisfied. Admittedly, it is the practice to take all the evidence in the presence and hearing of the jury; but this is done only because no question of prejudice can arise. Just as in the case of the admissibility of a confession in writing, a deposition cannot legally be put in evidence and read to the jury during the voire dire and not until the judge rules it admissible and lets it in. And he should do so in a case like this only after he heard all the admissible evidence the prosecution puts forward the accused has cross-examined all the witnesses (if he wishes to do so) and has been afforded the opportunity (again if he wishes to do so), to give or call evidence to contradict the proof for the prosecution, and both sides have made submissions (if any). It did not happen so in this case. The deposition was read in evidence to the jury by the clerk of court in his examination-in-chief before the accused had an opportunity to cross-examine this witness, before the prosecution closed its case and before the defence (if they were able and wished to do so) could contradict the State's evidence in support of the application to read the deposition in evidence.
As a result of this procedural error, the evidence was admitted prematurely, that is, before it was duly proved admissible. Admittedly, the appellant did not object or cross-examine the witness or put any evidence in disproof. But these omissions could not in this case amend the error, for the appellant was unrepresented and the trial judge neglected to inform him (as he ought to have done) of his right to object to the evidence being put in when it was put in, or at all, or of his right to contradict the prosecution's case on the application. The appellant might well leave thought his only right, once the deponent's signature was verified, was to challenge the evidence itself. In the circumstances, the irregularity here was of such a nature that the admission of the deposition when it was read must be faulted judicially. But this was not the end of the matter for in other respects also inadvertently the law on the subject was overlooked.
If the statutory conditions of admissibility are satisfied, then, as enacted by s.95, the deposition “may be read in evidence” at the trial. The trial judge appears to have treated the admission of the deposition then as a matter of right and not of discretion. He admitted it “as a matter of law”; he made no reference whatever to the exercise of any “discretion” in so doing; and did not record that he addressed his mind to the question of any possible injustice. There is judicial thinking in support of the admission of a deposition as a matter of right if the conditions are satisfied. In Reg. v. Hendy, (1850) 4 Cox 243, the trial judge admitted the deposition of a material witness where the clerk testified he had taken down only what the magistrate thought material and nothing was taken down as cross-examination. Erle, J, said he had “no discretion” as the requisites of the statute (the Indictable Offences Act, 1848, s.17) had been complied with. In A.G. of New South Wales v. Jackson, [1906] 3 C.L.R. 730, where the High Court of Australia ruled that a deposition which allegedly omitted material evidence was properly to be admitted, the defect (if any) going to the weight or value of the evidence and not to its admissibility, none of the distinguished judges spoke of the power to admit as discretionary. All the judgments suggest that the only relevant consideration is, whether or not the statutory conditions are satisfied. But the most direct authority on this point is The King v. Ferguson, [1950] N.Z.L.R. 583, a judgment of the Court of Appeal (Northcroft, J., Finlay, J. and Gresson, J.). A witness, a Mrs. Harrap, gave evidence at a preliminary hearing in a police court on October 26, 1949, when her depositions were taken, admittedly regularly, and with full opportunity cross-examination by counsel for the appellant. She was, in fact, so cross-examined. She gave evidence of an incident happening her presence amounting to an attempt to steal, the charge upon which the accused was convicted. Mrs. Harrap left New Zealand for England on January 18, 1950, and there was evidence that she contemplated an absence of at least five years. The trial commenced on February 14, when evidence was given of her departure for England. Upon the application of the Crown prosecutor, the trial judge directed that her depositions be read to the jury. It was submitted for the appellant that the judge had a discretion to exclude the evidence, which he should have exercised in the circumstances of this case....
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