Yaseen All E.R v The State

• Jurisdiction: Guyana
• Judge: Bishop, J.A.
• Judgment Date: 25 October 1990
• Neutral Citation: GY 1990 CA 2
• Docket Number: Criminal Appeals Nos. 38 and 39 of 1988
• Court: Court of Appeal (Guyana)
• Date: 25 October 1990

Court of Appeal

George, C. Bishop, J.A.; Churaman, J.A.

Criminal Appeals Nos. 38 and 39 of 1988

Yaseen All E.R.

and

The State

Appearances:

R. McKay, S.C. with B.C. De Santos for the applicants

I. Chang, Deputy Director of Public Prosecutions for the respondents

Evidence - Admissibility — Similar fact evidence not led at preliminary inquiry — Principles governing admissibility of evidence — Guidelines in R. v. Lunt (1987) 85 Cr. App. R. applied.

Bishop, J.A.

1 I concur in the order proposed by the Honourable Chancellor that the appeals should be allowed and a re-trial had. However, I am obliged to comment on the ruling of Bollers, J., as he then was, in R v. Gomes (1962) 5 W.I.R. 7. I do so because those who, at times, question the correctness of certain statements made in that judgment seem to have lost sight of, or have been inclined to understate, this important point: that the learned trial judge was required to rule on an objection, by the defence, to the admissibility of similar fact evidence, not led at the preliminary inquiry. Senior counsel for the prisoner therefore advanced a number of reasons which were likely to be consequences of the belated application by Crown counsel, if the similar fact evidence, which referred to events alleged to have taken place some twelve or fifteen months prior to the date of the charge on which the prisoner was arraigned, were received by the jury. Though the statement of the witnesses was in the possession of the police and she was available during the period the preliminary inquiry was conducted, she was not called.

2 The formal objections underscored the surprise of the prisoner at the Crown's belated application, and that he would suffer embarrassment and prejudice if, at that stage, he were to attempt to reorganize his defence, in the light of the similar fact evidence sought to be led: that witnesses and/or material, valuable to him in testing and disputing tat evidence might all have become unavailable through his failure duly to secure them because the case, as presented at the preliminary inquiry did not foreshadow that similar fact evidence was in the possession of the police or, even if so, that the author of the statement containing it was to be a witness for the Crown, at the trial. Looked at objectively, the objection was not farfetched.

3 In his judgment, Bollers, J. underscored the right of the prosecution to lead further and additional evidence on the giving of adequate notice in writing, a right enable by the common law. His Honour acknowledged that objections on the ground of embarrassment or surprise could be met by and adjournments, or, if justice so demanded, by a discharge of the jury without their being required to render a verdict and, of course, the arraignment process commenced de nove: The Criminal Law (Procedure) Act, Chapter 10:01, section 151 and 16. Further, Bollers, J. must be seen as accepting that in the ordinary case of fresh evidence, or new, fresh and additional evidence sought to be led by the prosecution, the trial judge could not refuse the application, provided the proposed evidence possessed the appropriate quality of relevancy and cogency, having regard to the matter in issue. That is my conclusion, based on his analysis of R v. Connor (1845) 1 Cox C.C. 233, R v. Hannagan and Higgins (1884) 15 Cox C.C. 403 and his obvious awareness of R v. Christie [1914-15] All E.R. Rep. 63 at p. 69 where Lord Moulton said:

“The law is so much on its guard against the accused being prejudiced by evidence which, though admissible, would probably have prejudicial influence on the minds of the jury which would be out of proportion to its true evidential value, that there has grown up a practice of a very salutary nature, under which the judge intimated to the counsel for the prosecution that that he should not press for the admission of evidence which would be open to this objection, an such an intimation from the tribunal trying the case is usually sufficient to prevent the evidence being pressed in all cases where the scruples of the tribunal in this respect are reasonable. Under the influence of this practice, which is based of an anxiety to secure for anyone a fair trial, there has grown up a custom of not admitting certain kings of evidence which is so constantly followed that it almost amounts to a rule of procedure.”

4 And so Bollers, J. being mindful of the principles of law and judicial practice governing the admissibility of evidence, stated his disquiet, at p. 8 of the report: –

“What we are concerned with here … is whether evidence which was available to the prosecution at the time of the preliminary inquiry can now be properly led at the trial.”

5 Clearly, the learned judge felt uncomfortable about the element of delay, hence his use of the adverb “now” and closer perusal of his pronouncements tends to suggest that he was unhappy about the conduct of the case at the preliminary inquiry and that seems to explain why he used the other adverb, “properly”, in reference to it. At all events he was reflecting on the basic objection to the leading of similar fact evidence belatedly. . As far as the report goes, no reason is disclosed for the omission to lead the similar fact evidence at the preliminary inquiry; but there is recital of cases and rationes decidendi reviewed by Bollers, J. underlining the law that the prosecution is under no legal obligation to call all its witnesses at the preliminary inquiry: R v. Connor, R v. Hannagan and Higgins;R v. Greenslade (1870) 11 Cox C.C. 412; that once adequate notice was given of the intention to call new and additional evidence, which was relevant, that evidence was receivable. That principle Bollers, J. considered to be the requirement in the “ordinary case of fresh evidence” and no criticism can be offered against his application of the law.

6 But more than once he express anxiety about the late stage at which the prosecution was seeking to introduce similar fact evidence against Gomes, and it is not insignificant that, before his lament, he spoke of evidence “deliberately withheld” at the preliminary inquiry and produced at the trial and, immediately after that comment, he proposed, and produced at p. 10 – letter H, that apart from leading evidence with a view to establishing a prima facie case against the prisoner, there was another obligation devolving upon the prosecution:

“I think [Lord Devlin] might have added that the inquiry also serves the dual purpose of making the prisoner aware of the case he has to meet and giving him the opportunity to probe it and counter it. The accused Gomes was denied that opportunity in respect of the available evidence.”

7 and Professor R. M. Jackson in his highly regarded book, The Machinery of Justice of England, 5th Edn. (1967), at p. 164, issues and even stronger statement than that of Bollers, J. when he states: –

“Committal proceedings have a number of different functions: (i) a review of the evidence of the prosecution to see if the case against the defendant is such that he ought to be put on his trial; (ii) to record the evidence so that (a) the defendant knows the case that he must meet, (b) and indictment can be drawn up and (c) the judge or chairman of the trial court can learn the nature of the case …”

8 That approach is ideally suited to the role of the prosecutor, in Guyana, when it borne in mind that the person committed to stand trial knows no more of the prosecution's case than what is recorded in the depositions. It provides and effective means of control, available to the trail judge, where he is satisfied that the manner, in which the preliminary inquiry was conducted has placed the prisoner at an unjustifiable and unfair disadvantage not curable by adjournment or discharge of the jury without their being required to give a verdict. This may cause the refusal of the prosecution's application to introduce an aspect of its evidence: that which was not led at the preliminary inquiry.

9 It is therefore not remarkable that Bollers, J. already disturbed by the surprise and embarrassment suffered by Gomes, cited another excerpt from Lord Devlin's esteemed work, Criminal Prosecution in England where the learned jurists and author, in discussing the power of a trial judge to control the conduct of a prosecutor, poses this question:

“How does the compulsion operate? Would not the advocate for the prosecution, if as tactically minded as his colleague for the defence, want to retain at least as much as he could of the element of surprise? Would it not be his object to disclose only as much of his evidence as was necessary to secure a committal and to keep some cards up his sleeves? The answer is that he is not permitted to do that.”

10 When, therefore, I...