-Judge disagrees DPP acted blindly to Committal Order
IN 1967, a lawyer brought a motion to quash an indictment on the grounds that the magistrate committed a man to stand trial for murder without evidence, and that the Director of Public Prosecutions had followed blindly by indicting the accused for murder.
The court ruled that the DPP was acting within his jurisdiction, and dismissed the motion. The accused in question was one Compton Alfred.
At the trial, counsel for the accused, Mr. Claude A. Massiah, moved to the Court to quash the indictment on the grounds that the DPP had no authority to prefer an indictment because, on the evidence as shown in the depositions, the offence of murder was not disclosed, as there was no evidence of the cause of death. And further, the only evidence on which the committal was based was the unsworn  and uncorroborated evidence of a child, and, under Section 71 of the Criminal Law ( Procedure) Ordinance , Chapter 11 (now Section 71  of the Criminal Law  (Procedure) Act, Chapter 10:01), the accused  could  only have been properly convicted  of murder  if the evidence  established  a case for murder.
The judge, Justice Arthur Chung, held that the DPP was acting within his jurisdiction when he indicted the accused for the same offence for which the magistrate had committed him, and it was not competent for a Court to go beyond the indictment and look at the evidence in the depositions to see whether in fact the evidence had established a case of murder.
In arriving at his ruling, Justice Chung had relied on three cases:
R. v.  Chairman of London County Sessions, ex parte Downes (1953)
R.v. Mc Donnell (1965) 3 W.I.R 1138
R. v. Manning (1959) L.R.B.G  272
At the hearing, Senior Crown Counsel, Mr.  G. A. G. Pompey represented the Crown, while Mr.  Claude Massiah appeared for the accused.
Delivering his ruling Justice Chung said: “In the present case, the accused has been committed by the magistrate to stand trial for the offence of murder, and has been indicted by the Director of Public Prosecutions for the offence of murder.
“Counsel for the accused now moves the Court to quash the indictment on the grounds that the Director of Public Prosecutions has no authority to prefer an indictment against the accused for murder, as under Section 71, Chapter 11, the accused could only have been  properly committed for murder  if the evidence establishes a case of murder.
“He is alleging that the evidence, as shown in the deposition, does not disclose the offence of murder as there is no evidence of the cause of death.  Therefore, the committal was improper.   
“He also contends that the only evidence upon which  the committal was based was on the evidence of an unsworn witness, Grace Alfred,  and that under  Chapter 25,  as amended by Ordinance 29 of 1961, Section  5 (b), no person can be convicted upon  the uncorroborated and unsworn evidence of a child.
“He argues that if there was no evidence to commit for murder, then the Director of Public Prosecutions has no jurisdiction to prefer an indictment, as Chapter 11, Section  113 (1) reads:
‘On receipt of the documents relating to the preliminary inquiry, the Director of Public Prosecutions, if he sees fit to do so, shall at any time institute those  criminal proceedings in the court against the accused person which, to him, seem legal and proper.’
“He submits that the words, ‘if he sees fit to do so’ and ‘which to him seem legal and proper’ means that the Director of Public Prosecutions must exercise a judicial mind.
“Counsel for the Crown, in answer to the motion, says that the court cannot go beyond the indictment and look at the evidence in the deposition to see if the evidence in the deposition  supports the charge where a person has been indicted  for another offence other than that for which he has been committed, the court can look at the deposition to see whether the evidence establishes the offence for which he has not been committed.”
The question as to whether or not the court can look at the deposition to see whether the evidence establishes the change has long been settled, the judge declared, and cited a number of cases to prove the point.
In one of the cases cited, the Lord Chief Justice was quoted as saying: “I know of no power   in the court to quash, because it is anticipated that the evidence will not support the charge.   The only ground on which the court can examine the depositions before arraignment is to see where, if a court is included for which there has been no committal, the depositions or examination taken before a Justice in the presence of the accused.”
In another case, it was said:  “A court is not entitled to quash an indictment on the ground that the evidence as disclosed in the depositions does not appear to it sufficient to justify a conviction on any count.”
In conclusion, Justice Chung said the arguments put forward by counsel for the accused seem impressive, but that in view of the above, “I have no doubt  that once a magistrate has exercised his discretion  in committing a person to stand trial for an offence, and the Director of Public Prosecutions has indicted  a person  for the same offence of which he has been committed, the Director of Public Prosecutions is acting within his jurisdiction, and the court cannot  go beyond the indictment and look at the evidence in the deposition to see if an offence has been established.”
So saying, he ruled: “Motion to quash indictment dismissed.”