Judge’s rejection of depositions of missing witnesses

1968 acquittal of Edwin Ogle
IN 1968, Justice Victor Crane, observing that justice delayed is justice denied, and that an accused must be afforded a fair trial within a reasonable time, refused to admit depositions of three absent witnesses because the State had been guilty of delaying justice to accused Edwin Ogle.The depositions, being the body and soul of the case against the accused, having been rejected, the prosecution offered no evidence against the accused and directed an acquittal in favour of Ogle.
Ogle’s case came up for hearing for the first time three years after he had been committed to stand trial. His lawyer thought this delay to be lengthy.
State Counsel Mr. R. Sharma appeared for the Crown, while lawyer Mr. Claude A. Massiah represented the accused.
The facts of the case disclosed that on the March 25, 1965 the accused was committed to stand trial at the next sitting of the Criminal Assizes for Demerara, for certain offences of forgery alleged to have been committed between August 13 and 26, 1964 .
Some twelve assizes later, on May 6, 1968 , the indictment containing 10 counts came on for trial. On his arraignment, the accused pleaded not guilty to all the counts. The prosecution , after opening their case, sought by the usual method to lead evidence with a view to have admitted into evidence the deposition of a witness who was then resident abroad, and had intended to adopt the same procedure with regard to two other witnesses.
Counsel on behalf of the accused objected and arguments were heard in the absence of the jury.
It was held: (i) the word ‘may’ in section 95 (i) of the Evidence Ordinance Chapter 25 is permissive and not mandatory.
(ii) in exercising that discretion a court must look at both sides of the picture.
(iii) under article 10 (i) of the Constitution it is mandatory that an accused person have a fair hearing within a reasonable time , and when the time is long delayed between committal and trial, the burden is on the prosecution satisfactorily to explain the delay. In the present case, no explanation has been proffered for what was clearly a long period of delay.
(iv) when article 10 is read in conjunction with section 71 of the Criminal Law (Procedures) Ordinance , Chapter 11, the words “next practicable sitting” of the Assizes means any subsequent sitting at which the Crown can conveniently arraign the accused and not necessarily the very next sitting after committal.
(v) taking all the circumstances into consideration , to permit the depositions of the three absent witnesses to be read would operate to the prejudice of a fair trial.
The objection by defence counsel was sustained.
However, after the trial judge’s ruling, the prosecution offered no evidence and an acquittal was directed.
In his judgment, Justice Crane had said “on the presentment of the Director of Public Prosecutions the accused, Edwin Ogle , stands indicted on ten counts. They charged him with various offences alleged to have been committed between April 13, 1964 and August 29, 1964, and involve allegations of forgery of certain receipts for money purporting to be receipts of the Guyana Airways Corporation , with an intent to defraud , contrary to section 257 of the Criminal Law (Offences) Ordinance, Chapter 10.
“The accused pleaded not guilty to all counts , thereupon the prosecution opened the Crown’s case and sought to call evidence to prove the deposition of a witness who is now resident abroad. Mr. Massiah for the accused, immediately objected to the course proposed, intimating that what he intended to say would apply equally to the case of two other depositions which the Crown would also seek to prove in the course of the trial. The jury accordingly withdrew.
Mr. Massiah then submitted that the depositions of the three witnesses, Gordon, Pugh and Phillips, who were resident in England , and who testified at the preliminary inquiry constitute, as he put it “the body and soul” of the case against the accused, meaning that the prosecution had no chance of success without them.
He referred to section 95 (i) of the Evidence Ordinance , Chapter 25 by virtue of which the Crown sought to put in those depositions , and urged that the word “may” in the subsection gives the court a discretion as to whether it ought or ought not to admit depositions of witnesses who are out of the country.
He submitted that the court is not bound to admit them and that it would be an injustice and prejudicial to the accused to receive them in evidence in the circumstances of this case, notwithstanding the conditions for their admissibility had been observed at the preliminary inquiry.
Continuing his judgment Justice Crane disclosed that “Counsel for the Crown has stressed with vigour that section 95 (i) is specific and that it must be carried out and that no manifest injustice can occur by putting in the depositions. On reflection, however, it seems to me that the sub-section does indeed give the court a discretion in the matter.
“The word ‘may’ I interpret in a permissive and not mandatory sense, and in the exercise of my discretion I do so in a judicial manner. I must weigh the pros and cons of the application to admit the deposition by looking at both sides of the picture. Now, taking this approach as my yard-stick, what do I have here?
When I look at the date of committal of the accused for trial I see that it was as long ago as the 25th March, 1965 – just over three years ago. I must, therefore, ask myself what excuse does the Crown have for having kept them so long awaiting his trial, when Section 71 of the Criminal Law (Procedure) Ordinance, the heading of which reads: ‘Committal for Trial’ lays it down that:
“If upon the whole of the evidence the magistrate is of the opinion that a sufficient case is made out to put the accused person upon his trial, he shall, subject to the provisions of section 9 of this Ordinance, commit him for trial to the next practicable sitting of the Court for the county in which the inquiry is held.”
Justice Crane went on to say, “It is commonplace that the interests of justice demand that a trial should be speedily conducted for it has been truly said that ‘justice delayed is justice denied.
“In conformity with this principle, therefore, when an examining magistrate commits an accused person for trial after declaring that there is a sufficient prima facie Case made out, the law as above started, directs him to ‘commit him for trial to the next practicable sitting of the court for the county in which the inquiry is held.’ This provision must, however, be read in the light of article 10 (i) of the Constitution of Guyana, the supreme law of the Sate which reads:
“If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law..”

Refusing the application to admit the depositions in evidence, Justice Crane had said “In my view the accused cannot be said to have been ‘afforded a fair hearing within a reasonable time’ if he is now called upon to defend himself by having depositions read in evidence on behalf of the Crown more than 3 years after he was committed to stand trial, unless a very satisfactory explanation for the delay be forthcoming from the prosecution.’

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