IN 1962, British Guiana High Court Judge Harold Bollers upheld a defence objection to the prosecution introducing prejudicial evidence at the rape trial of an accused, Gomes. The judge found that the ‘similar facts’ evidence which was available to the prosecution at the  preliminary inquiry was not led then; and that such evidence which they now attempted to lead at the trial at the Supreme Court was inadmissible.

Allowing the objection, the judge observed, “At any time before the sitting of the court to which the accused person has been committed for trial, however, the Director of Public Prosecutions may, under Section 77 of the Criminal (Procedure) Ordinance, Chapter 11 [B.G.], cause the preliminary inquiry to be reopened for the purpose of taking such evidence.”

At the hearing, Mr. J. Gonsalves-Sabola represented the Crown. Mr. J.O.F. Haynes, Q.C., appeared for the defence.

Delivering his ruling, Justice Bollers said in part: “In this indictment for rape, insofar as the case against the accused Gomes was concerned, the prosecution sought to adduce evidence of similar facts, to which objection was taken by the defence.
“In dealing with the issue, it is not necessary for me to state the details of the evidence proposed to be led; it is sufficient for me to say that the new and additional evidence was, of course, highly prejudicial.

“ Preliminary investigation  of the matter took place on the following days in August and September, 1962: August 29 and 30; and September 10, 11, 12, 13, 14, 19, 20,  culminating in the committal  of the accused on September 21, 1962. And the statement of the witness whose evidence the prosecution proposed to adduce was dated  August 8, 1962, and referred to events alleged to have taken place some 12 or 15 months before the date of the alleged offence.

“It was conceded then in court on both sides that, at the time of the preliminary inquiry into this matter, the prosecution was in possession of the statement of the witness, and that the witness was available for the purpose of giving the necessary evidence.

“This important point was therefore argued on that basis, and proceeded on the footing that the witness was available to the prosecution at the time of the preliminary inquiry.

“It was submitted by counsel for the defence that the evidence which the prosecution proposed to lead was inadmissible by reason of the fact that it was available to the prosecution at the time of the preliminary inquiry, and
they failed to make use of it; and as a result, it would be contrary to the notions and principles of British justice and fair play if the prosecution were allowed at this late stage to introduce the evidence, the main effect of which would be to cause embarrassment and surprise to the accused person, who, if he denied the incident, would have to commence searching for witnesses and other material in setting up the defence of alibi.

“He argued that if the evidence were led, it would defeat the very object of the preliminary inquiry, the purpose of which was to make the accused aware of the case he was called upon to meet.

“Counsel for the Crown, on the other hand, urged that there could be no element of surprise or embarrassment to the defence, as notice in writing of the evidence and a copy of the statement of the witness had been served on the prisoner at least one week before the date it was sought to be adduced; and even if there were (surprise and embarrassment), the position could be cured by granting the necessary adjournment of the trial.
“It is clear that this section does not create the right to the prosecution to lead additional or further evidence at the trial of an accused person, where that evidence does not appear on the depositions. The section assumes and recognizes the existence of that right, but sets out the procedure to be adopted where the right is exercised by the Crown, and emphasizes the importance of an adjournment to avoid the element of surprise.

“This right to lead further  or additional evidence is not to be found in any section of our Criminal Law  (Procedure) Ordinance; and indeed, as stated by Lord Goddard in R. v. London Quartere Sessions  (Chairman), Ex p. Downes (5), there is no statutory  authority for leading new and additional evidence, but such a right exists at common law founded on practice.”

Continuing his ruling, Justice Bollers said, “The head note to this case is most interesting. It speaks to the production of fresh evidence on behalf of the prosecution (not known or forthcoming at the preliminary investigation; and previous to the trial, not communicated to the other side), which may be ground for a postponement of the trial if it appears necessary to justice.

“To my mind, the words in parentheses explain the meaning of new, fresh and additional evidence. The  evidence which the prosecution seeks to lead in this case, and which was available to them at the time of the preliminary inquiry, was in reality not new or additional evidence, but a stale evidence based on a statement in their possession at least three weeks before the preliminary inquiry, and as such,  inadmissible.

“I must not be understood as having decided that, in all cases where the prosecution may be in possession of material or a statement from a witness at a preliminary inquiry, if they fail to make use of such material, they cannot properly do so at the trial.
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To my mind, the answer as  to whether they would be  prevented from so doing at the trial depends upon the availability of the material of the evidence. It may be that they may be in possession of a statement, but the witness at the relevant time may be abroad, or his whereabouts may be unknown, or he may be too ill to travel; in which case, on notice being given that they intend to rely on this evidence, it might be led at the trial.

“I have come to the conclusion, therefore, that the contention of counsel for the accused is sound, and it would be wrong, unfair and contrary to the principles of British justice and fair play to admit this evidence sought to be introduced by the prosecution at this stage, even though notice in writing of it was served on the accused person one week before the application for leave to lead the evidence was made; and I rule that they are not competent so to do.

“In any event, even if my opinion is wrong that this evidence is not admissible, in the exercise of my discretion, I would exclude it in the circumstances. I would consider that its prejudicial effect at this late stage would greatly outweigh its probative value. Objection allowed!” Justice Bollers declared.