The State v Singh et Al

• Jurisdiction: Guyana
• Judge: Kennard, C.
• Judgment Date: 23 June 2000
• Neutral Citation: GY 2000 CA 8
• Docket Number: Reference No. 1 of 1999
• Court: Court of Appeal (Guyana)
• Date: 23 June 2000

Court of Appeal

Kennard, Chancellor;

Perry, J.A.

Persaud, J.A.

Reference No. 1 of 1999

The State

and

Singh et al

Appearances:

R. George, Asst. Director of Public Prosecutions for the State.

D.A. Trotman for the respondents.

Criminal practice and procedure - Reference by DPP on a point of law — Trial judge quashing indictment due to failure of magistrate to inform accused of right to call witnesses — Statute — Court of Appeal Act, s. 32 — Power of DPP to refer point of law to Court of Appeal following acquittal of an accused — Finding that reference did not come within ambit of section or there had been no trial and acquittal but merely quashing of an indictment.

Kennard, C.

1 This is another reference brought by the learned Director of Public Prosecutions under section 32A (1) of the Court of Appeal Act, Chapter 3:01, as inserted by section 8 of the Administration of Justice Act, 1978 (No. 21 of 1978), seeking the opinion of this court on a point of law which arose in the case of the State against the present respondents in their criminal trial at the High Court.

2 There have been several references brought to this court previously, namely, Director of Public Prosecutions' Reference (No. 1 of 1980) under the name of Owen Alleyne (1980) 29 W.I.R. 94; Director of Public Prosecutions' Reference (No. 2 of 1980) under the name of Douglas James (1980) 29 W.I.R. 154: The State v. Alvin Mitchell (1984) 39 W.I.R. 185: Director of Public Prosecutions' Reference No. 1 of 1981 (Re Levine) & Director of Public Prosecutions' Reference (No. 2/94) Re James Baker.

3 Section 32A (1) of the Court of Appeal Act provides:

“Where a person tried on indictment has been acquitted (whether in respect of the whole or any count thereof), the Director of Public Prosecutions, may if he desires the opinion of the Court of Appeal on a point of law which has arisen in the case refer that point of law to the court and the court shall in accordance with this section consider the point and give their opinion on it.”

4 I must point out that the above section is similarly worded as section 36 of the UK Criminal Justice Act, 1972, save and except that the “Attorney General” appears in that Act instead of the “Director of Public Prosecutions.”

5 In the instant matter the learned Director of Public Prosecutions is seeking the opinion of this court on two points of law and the reference was framed in these words:

• (a) Was the trial judge correct in law when she ruled that the committal proceedings had been vitiated by the Magistrate's failure to inform the accused persons, who were unrepresented by counsel, of their right to call witnesses in accordance with section 66(1) of the Criminal Law (Procedure) Act, Chapter 10:01?

• (b) Was the trial judge correct in law in ruling that it was the duty of the prosecution to lead evidence to show that section 66(1) of the Criminal Law (Procedure) Act, Chapter 10:01 had been complied with, where the defence failed to adduce evidence to the contrary?

6 In order to appreciate the importance of section 66(1) of the Criminal Law (Procedure) Act, Chapter 10:01 it is necessary for me to set out both sections 65 & 66 of the said Act.

7 Section 65(1): After the examination of the witnesses called on the part of the prosecution has been completed and after the depositions have been signed as aforesaid, the magistrate, if of the opinion that the evidence has established a prima facie case against the accused shall address him in these words or to the tike effect: “Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so but whatever you say will betaken down in writing and may be given in evidence upon your trial.”

8 (2): Whatever the accused person says in answer thereto shall betaken down in writing, as nearly as possible in the accused person's own words, and shall be signed by the accused person, if he will, and by the magistrate and kept with the depositions of the witnesses and dealt with as hereinafter mentioned.

9 Section 66(1): After the proceedings required by the preceding section are completed, the magistrate shall ask the accused id he wishes to call any witness.

10 (2): Every witness called by the accused person who testes to any fact relevant to the case shall be heard, and his deposition shall be taken, signed and authenticated in the same manner as the deposition of a witness for the prosecution.

11 However, before dealing with the legal issues it is necessary for me to refer very briefly to the history of the matter.

12 The two respondents were charged indictably with the offence of attempt to commit murder, contrary to section 143 of the Criminal Law (Offences) Act, Chapter 8:01.

13 The particulars of the offence read thus: ‘Accused on Saturday 15th March, 1997 at Mon Repos, East Coast Demerarain the East Demerara Magisterial District, County of Demerara, Guyana, Unlawfully and Maliciously wounded Haymant Hardin with Intent to Murder.

14 The evidence on the depositions clearly established the charge that was laid. Consequently, the magistrate committed both accused persons for trial for the said offence. Subsequently, the learned Director of Public Prosecutions preferred an indictment for the offence of attempt to commit murder.

15 When the trial came on before Madam Justice Claudette La Bennett, counsel appearing for the two accused, namely, Mr. B.C. DeSantos SC and Mr. D.A. Trotman, moved the court for the quashing of the indictment on two grounds, namely, (1) the information on oath was not signed by the police officer who had brought the charge (2) the magistrate did not ask either of the accused persons whether they wished to call any witness at the Preliminary Inquiry. Counsel submitted that the magistrate had failed to comply with section 66(1) of the Criminal Law (Procedure Act) which is mandatory in terms. The trial judge overruled the first submission but upheld the second submission and quashed the indictment. In her ruling the trial judge had stated inter alia: “I viewed the absence of the note in the record in the instant case as a reflection of nonfeasance and not being satisfied that the magistrate had complied with the provisions of section 66(1) of the Criminal Law (Procedure) Act, Chapter 10:01 upheld the motion to quash.”

16 At the commencement of the hearing of this matter before us both Mr. Trotman and Mr. B.C. DeSantos SC., who was here for a short period, had submitted that this court has no jurisdiction to entertain this reference as there has been no trial of the respondents on the indictment nor has there been an acquittal of the accused persons. In this case the Jury was discharged without being called upon to return a verdict after the indictment was quashed. The accused could have been charged again as there has not been an acquittal in the sense that law requires. If they were acquitted, they could not be re-arrested and charged again for the same offence. Acquittal to my mind involves a verdict by a jury, and includes a formal verdict of not guilty by the jury. An accused can only be found not guilty (acquitted) by a verdict of the jury. In all the...