The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 34 of 1997

 

Donnason Knights Appellant

v.

The Queen Respondents

 

FROM

 

THE COURT OF APPEAL OF GRENADA

 

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 21st May 1998

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Present at the hearing:-

Lord Nolan

Lord Clyde

Sir John Balcombe

Sir Andrew Leggatt

  ·[Delivered by Lord Clyde]

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1. The appellant Donnason Knights was convicted of the murder of one Cherrie-Ann Matthew in the Supreme Court of Grenada on 2nd August 1995.  The prosecution presented a case of circumstantial evidence which, even taken by itself, was undoubtedly strong.  But in addition to that evidence a deposition by one Aiden Jones was admitted as part of the evidence for the prosecution.  The appellant appealed to the Court of Appeal on a variety of grounds which included the admissibility of the deposition but his appeal was refused. He was thereafter granted special leave to appeal but in deciding to advise Her Majesty in Council that leave should be granted their Lordships stated that the only point which was of concern and on which the advice was to be tendered was the point relating to the deposition.

 

2. The deposition had been given by Aiden Jones who had given evidence on oath at a preliminary inquiry on 29th October 1993.  The substance of it was of considerable importance.  The appellant's defence was a denial of the crime, with an account of a masked man who had attacked both Cherrie-Ann and the appellant, causing the appellant to run away, and who had subsequently pursued and later stabbed the appellant.  In the most critical passage of his deposition, however, Aiden Jones stated that he had seen the appellant on the morning of 11th September 1993, some two days after the murder, with a cutlass.  The deposition continued:-

 

"I said to him `don't worry I with you I real sorry for what happen.  Put down the cutlass and come let's chat because I will not tell anybody' ... I said to him again `Don't worry I will not tell anybody'.  I asked him how he manage to kill the girl the accused said that he did not go to kill her but she pull the cutlass.  I asked him if I should tell his mother and he said I should not.  He said he don't want the Police to hold him and before the Police hold him he will kill himself ..."

 

3. Jones said that he had again asked the appellant if he should tell his mother and that the appellant after hesitating had said "yes".  Plainly this evidence could be taken as a confession of the crime and it was in direct conflict with the accused's line of defence.

 

4. During the course of the trial, on 20th July 1995, the Crown led the evidence of Andre Jones, the brother of Aiden Jones.  He stated that on 12th January 1995 Aiden had boarded an aeroplane bound for Canada, that he did not have his address, that he had not seen him in Grenada since that date and that he had spoken to him "through telephone in Canada".  Mr. Clouden, who was appearing for the appellant, did not ask him any questions in cross-examination.  Later in the trial the resident magistrate gave evidence and identified the deposition which both he and Aiden Jones had signed on the day of the preliminary hearing.  The magistrate stated that Mr. Clouden, who had also appeared for the appellant at the preliminary hearing, was given a full opportunity to cross-examine the witness and had in fact cross-examined him, albeit, as their Lordships note, briefly. Mr. Clouden then took objection to the deposition being admitted into the evidence.

 

5. The admission of depositions is governed by a statutory provision which was formerly section 201 and later became section 198 of the Criminal Procedure Code.  The relevant parts of the provision are as follows:-

"201(1) A deposition taken against or for an accused person may be produced and given in evidence at his trial if it is proved, to the satisfaction of the judge - ....

 

(d)    that the deponent is beyond the jurisdiction of the Court; and if

 

(i)         the deposition purports to be signed  by the Magistrate before whom it purports to have been taken; and

 

(ii)       it is proved by the person who offers it as evidence that it was taken in the presence of the accused person or the prosecutor, as the case may be, and that he, or his counsel, had a full opportunity of cross-examining the witness; or ...

 

(3) If it is made to appear to the Judge that the witness who made the deposition may, within a reasonable time, be capable of attending to give evidence, and that the ends of justice require that the witness should be examined personally before the jury, the Court may postpone the trial on such terms as may seem proper."

 

6. The admissibility of a deposition is very much a matter for the discretion of the trial judge.  This is evident from the terms of subsections (1) and (3).  It was also accepted by the Court of Appeal that there is in any event a discretion at common law whereby the judge may in the interests of securing a fair trial refuse the admission of such evidence.  That was affirmed in Scott v. The Queen [1989] 1 A.C. 1242, albeit under the somewhat different circumstances of a deceased witness and in the context of a different statutory provision.  The discretion under the Code in the present case, however, only arises after the prescribed conditions have been satisfied.  In the circumstances the judge was certainly entitled to conclude from the evidence that the witness was beyond the jurisdiction of the Court and there is no doubt that the provisions set out in (i) and (ii) in section 201(1)(d) were met.

 

7. Much of the challenge presented by the appellant before their Lordships related to the requirements for a postponement under section 201(3) of the Code.  While it is not immediately evident from the record that Mr. Clouden had expressly argued before the trial judge for a postponement under subsection (3) and not simply a refusal to have the deposition admitted into the evidence their Lordships accept that that course was one which was put before the judge for consideration.  The appellant however submits that the material before the judge was not sufficient to enable the judge to form a view in particular with regard to the matter of the likelihood of the deponent returning to give evidence in person.  It was suggested that the judge should have required further information, in particular on the whereabouts of the deponent, on the efforts, if any, made to have him return, and on the contact or contacts by telephone which may have been made with him.  It may be observed that the judge would in any event have been entitled to conclude on the material before him that the deponent was still in Canada.  Moreover the appellant's counsel could at least have endeavoured to seek some further information in cross-examination if he had thought fit.  But however that may be, the Court of Appeal concluded that on the evidence before the judge it could not have appeared to him that the deponent could have within a reasonable time been capable of attending to give evidence. Their Lordships find no reason to question the conclusion at which the Court of Appeal arrived.

 

8. Counsel for the appellant also developed a criticism which had been advanced by Mr. Clouden before the trial judge that no good or sufficient reason had been given to the Court as to the whereabouts of the witness and he directed a particular criticism to a passage in the note of the judge's decision where the judge recorded the view that the case of Scott, to which their Lordships have already referred, and that of Garth Henriques v. The Queen [1991] 1 W.L.R. 242 "support the contention that the Crown does not have to advance reasons for the absence of the witness".  Counsel pointed particularly to the latter case where certain factors were identified which, it was held, the judge in that case should have taken into account in exercising his discretion.  Among these was the consideration that no evidence had been led by the Crown as to where the witness was and whether it would be practicable for him to return to give evidence within a reasonable time.  The views expressed by their Lordships in that case were in the context of a differently worded statutory provision whereby in the case of an absent deponent the consent of the judge was required before the deposition could be read in evidence.  In that context it may well be that the Crown, wishing to have the consent of the Court to the admission of the deposition, would require to lead evidence on these particular matters.  But in the present case, if the matter is to be approached as one of onus, it could well be contended that it was for the appellant to make it appear to the judge that the deponent was capable of attending within a reasonable time.  But in any event the advancing of reasons for the absence of the deponent, which was the precise point with which the trial judge was dealing in the passage in question, does not appear as an essential factor for the exercise of the judge's discretion in the cases to which he refers.  His conclusion might have been more happily expressed to the effect that those cases do not support the contention that the Crown has to advance reasons for the deponent's absence, but the substance of the judge's meaning is sufficiently clear.

 

9. A separate ground for the refusal of the admission of the deposition was also presented on behalf of the appellant to the effect that it had been unfairly obtained in respect that the deponent had tricked the appellant into giving it on the assurance of not disclosing what he might say and that he had then, as was submitted, treacherously disclosed it.  Their Lordships are not persuaded that on the material before him the judge was not entitled to take the view that on the general basis of fairness the evidence should be admitted and they find no ground for interfering with his admission of it in that respect.  In his summing-up the judge followed the guidance given in Barnes, Desquottes and Johnson v. R. (1989) 37 W.I.R. 330 in a way which cannot reasonably be faulted.  Counsel for the appellant advanced one criticism to the effect that the judge had not reminded the jury in this context that the appellant's case was that he was not the person who had killed the girl.  But their Lordships do not regard that as a fatal omission.  The appellant's case had been fairly and fully placed before the jury in the course of the summing-up.

 

10. Whether the decision by the trial judge is approached as an exercise of his discretion under the provisions of the Code, or as more generally an exercise of his common law discretionary power, their Lordships are not persuaded that there are any grounds for interfering with the decision which he reached.  It is not to be forgotten that, as was stated by Lord Griffiths in Gayle v. The Queen (Privy Council Appeal No. 40 of 1995, Judgment delivered on 12th June 1996), "it is not the function of the Judicial Committee to act as a second Court of Criminal Appeal".  Only in an exceptional case would their Lordships interfere in a matter which rests not only on an assessment of the quantity and weight of evidence but on the exercise of a discretion.

 

11. When indicating that the special leave would be given on the sole ground of the matter of the deposition it was asked that the point should be investigated before the hearing of the appeal.  Their Lordships note that that has been done, but that the result has been to disclose a considerable conflict of evidence about the activities of and the communications between the parties in anticipation of the trial.  Having heard the submissions made on behalf of the appellant their Lordships find it unnecessary to have these matters further investigated.  For the reasons given they will humbly advise Her Majesty that the appeal should be dismissed.

 

© CROWN COPYRIGHT as at the date of judgment.