The State v Nicholas A/C Akee A/C Blackboy
| Jurisdiction | Trinidad & Tobago |
| Judge | Baird, J. |
| Judgment Date | 28 July 2003 |
| Neutral Citation | TT 2003 HC 80 |
| Docket Number | 118 of 2001 |
| Court | High Court (Trinidad and Tobago) |
| Date | 28 July 2003 |
High Court
Baird, J.
118 of 2001
Miss. A. Teelucksingh and Miss A. Alexis for the State.
Miss S. Chote instructed by Miss N. Ashraph for the defence.
Practice and Procedure - Depositions of deceased witnesses — Application to have the deposition of two deceased witnesses read in evidence — Both witnesses had extensive criminal records which were not disclosed to the defense — It would be unsafe for the jury to rely on the depositions of the deceased as the reliability of their testimony was uncertain — Depositions excluded.
The accused Junior Nicholas otherwise called Akee otherwise called Blackboy is before this Court on an indictment which charges him with murder. A statement of case for the prosecution in summary, is that on 12th February 2001 around 2.00 a.m. the accused, by way of reprisal for what he considered disrespect shown to him on a previous occasion by the deceased Curtis Le Blanc, a homeless person, struck the deceased to the head with a large stone on some two to three occasions as the deceased lay asleep in Tamarind Square. The deceased died on the spot of massive blunt cranio cerebral traumatic injury.
The case for the prosecution relied wholly and completely on the evidence of two witnesses, Ken George and Wayne Selby Peters for buoyancy. Ken George died of natural causes on 25th October 2001, three months to the day after he testified at the preliminary enquiry. Wayne Selby Peters died on 10th July 2003, two weeks before the commencement of this trial, also of natural causes.
In a preliminary application made in the absence of the jury, before the opening of the case for the prosecution, State Attorney Miss Teelucksingh sought under section 39 of the Indictable Offences (Preliminary Enquiry) Act, Chap. 12:01 as amended, to have the depositions of the two deceased witnesses admitted into evidence. The application was resisted by Defence Attorney Miss Chote.
Miss Teelucksing relied on her skeleton arguments, which she amplified before the Court, in an endeavour to demonstrate that the depositions of the two witnesses satisfied the criteria laid down by section 39 for admissibility.
Miss Chote in resisting the application, relied on her skeleton arguments. She also submitted before the Court that the defence was conceding that the depositions met the statutory requirements for admissibility in that she accepted that the witnesses were dead and that the State had produced legally acceptable evidence of their death. The question was however, whether it would be safe for the jury to rely on the evidence in those depositions. Defence Attorney then went on to argue that there was several aspects of the case which could only have been evaluated by a “live assessment of the witnesses”. And she identified those aspects. The Court will now address those aspects identified, though not necessarily in the order in which they were presented.
Miss Chote contended that the quality of the evidence contained in the depositions was not good as Miss Teelucksingh had maintained. Miss Chote then went on to catalogue what she considered inconsistencies in the evidence of the witnesses.
The Court considered her arguments and was satisfied that these conflicts were of the species contemplated by Lord Griffiths in Barnes, Desquottes, and Johnson v. R; Scott and Walters v. R (1989) 37 W.I.R. 330, 340:
“It will of course be necessary in every case to warn the jury that they have not had the benefit of hearing the evidence of the deponent tested in cross examination and to take that into consideration when considering how far they can safely rely on the evidence in the deposition. No doubt in many cases it will be appropriate for a judge to develop this warning by pointing out particular features of the evidence in the deposition which conflict with other evidence and which could have been explored in cross examination……”
Accordingly this ground of the submission must fail.
Miss Chote next submitted that although the accused was represented by attorney, his attorney was absent on the day the two witnesses testified and the cross examination by the accused was ineffectual. She contended that the absence of attorney had the effect of curtailing, abridging or constraining the right of the accused to fully cross examine these witnesses.
The Court rejected this line of reasoning. On his return to Court, all defence attorney needed to have done was to apply to the Magistrate to have the two witnesses recalled for further cross examination. This he did not do.
Miss Chote also contended that the instant case could be distinguished from the cases of Barnes (ante) and Boodram v. The State (1997) 53 W.I.R. 352 in that the prosecution witnesses in those cases were killed in order that they might not testify at the trial. Their depositions were therefore admitted because of public policy considerations. In the case at hand the two witnesses died of disease, so public policy considerations did not arise; accordingly their depositions should be excluded.
The Court considered section 39 of the Indictable Offences (Preliminary Enquiry) Act, Chap. 12:01. Subsection 1 provides that where any person had been committed for trial for any offence, the deposition of any person taken before a Magistrate might, if the considerations set out below was satisfied, without further proof be read as evidence on the trial of that person, whether for that offence or for any other offence arising out of the same transaction or set of circumstances as that offence. The section then identifies the conditions. And (1) (a) states: “……the deposition must be the deposition either of a witness whose attendance at the trial is stated to be unnecessary in accordance with the provisions of section 21 (5), or a witness who is proved at the trial by the oath of a credible witness to be dead……”
Parliament was silent as to the circumstances which must attend the death of the witness and the Court cannot and will not, read any ancillary words into the section.
This ground of the submission must also fail.
The Court then considered the ground of disclosure argued by Miss Chote. Both sides relied, in the main, on the same legal authorities in support of their respective submissions.
In R v. Brown (Winston) [1994] 1 W.L.R. 1579, Steyn, L.J. delivering the judgment of the Court of Appeal stated (at p. 1606) that in the adversarial system, in which the police and prosecution controlled the investigatory process, an accused's right to fair disclosure was an inseparable part of his right to a fair trial. The first question was to determine the extent of the Crown's duty of disclosure. He then referred to R v. Keane [1994] 1 W.L.R. 746, 752 and to the adoption by Lord Taylor, C.J. of the test laid down by Jowitt, J. in R v. Melvin (Graham), unreported, 20th December 1993. He then stated that Jowitt, J. said:
“I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence the prosecution proposes to use; (3) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence which goes to ( 1) or (2)”
Steyn, L.J. then stated that that was a test which the Court of Appeal would also adopt but he went on to make some additions. The phrase “an issue in the case”, he said, must not be construed in the fairly...
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