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IN 1967, High Court Judge, Mr Arthur Chung, who later became President of this country, was called upon by the defence to quash an indictment against murder accused, Compton Alfred. The defence’s contention was that the Director of Public Prosecutions (DPP) had no authority to prefer an indictment against the accused, since the evidence, as shown in the depositions, did not disclose murder.
The motion, brought by well-known lawyer, Mr. Claude A. Massiah, counsel for the accused, was dismissed by the judge, who held that the Court was not competent to take such an action as recommended by counsel.
The accused, Alfred, was committed by a magistrate to stand trial for murder, and was indicted by the DPPfor murder.
At the trial, counsel for the accused moved the Court to quash the indictment on the ground 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 upon which committal was based was the unsworn and uncorroborated evidence of a child. And under Section 71 of the Criminal Law (Procedure) Act/Chapter 10:01, the accused could only have been properly convicted of murder if the evidence had established a case of murder.
It was held that the DPP was acting within his jurisdiction when he indicted the accused for the same offence for which the magistrate had committed, and it was not competent for a Court to go beyond the indictment and look at the evidence in the depositions to see whether the evidence had in fact established a case of murder.
Three cases were referred to by the judge. Senior Crown Counsel, Mr. G. A. G. Pompey appeared for the Crown. Mr. C.A. Massiah appeared for the accused.
Delivering the judgment, 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 to the Court to quash the indictment on the ground 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 the evidence of an unsworn witness, Grace Alfred, and that under Chapter 25, as Amended by Ordinance 29 of 1961 s.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, s. 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, seems legal and proper.’
“He submits that the words ‘if he sees fit to do so’ and ‘which to him seems legal and proper’ mean that the Director of Public Prosecutions exercises 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 (in cases) where a person has been indicted for the same offence for which he has been committed.
“He admits that where the 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 charge has long been settled. In the case of R. v The Chairman of London County Sessions ex-parte Downes (1953) 37 C.A.R., it was held that:
‘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 in any count.’
“At p. 152, the Lord Chief Justice stated: ‘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 arrangement is to see where if a count is included for which there has been no committal, the depositions or examination taken before a justice in the presence of the accused disclose that offence.’
“In R. v. Manning (1959) L.R.B.G., 272, Justice Date said: ‘Counsel’s main argument in this court was that the words which to him seem legal and proper appearing in s., 113 of Chapter 11 do not entitle the Attorney General to indict for anything he may think legal and proper, but only for what is legal and proper, which is a matter to be determined by the Court; and that what is legal and proper has to be discovered from the other provisions of the Ordinance, due regard being paid to the provisions of the 1846 Ordinance when those words first appeared in our laws.’”
In conclusion, Justice Chung said:
“The arguments put forward by counsel for the accused seem impressive, but 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.
“The motion is therefore dismissed.”
The motion, brought by well-known lawyer, Mr. Claude A. Massiah, counsel for the accused, was dismissed by the judge, who held that the Court was not competent to take such an action as recommended by counsel.
The accused, Alfred, was committed by a magistrate to stand trial for murder, and was indicted by the DPPfor murder.
At the trial, counsel for the accused moved the Court to quash the indictment on the ground 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 upon which committal was based was the unsworn and uncorroborated evidence of a child. And under Section 71 of the Criminal Law (Procedure) Act/Chapter 10:01, the accused could only have been properly convicted of murder if the evidence had established a case of murder.
It was held that the DPP was acting within his jurisdiction when he indicted the accused for the same offence for which the magistrate had committed, and it was not competent for a Court to go beyond the indictment and look at the evidence in the depositions to see whether the evidence had in fact established a case of murder.
Three cases were referred to by the judge. Senior Crown Counsel, Mr. G. A. G. Pompey appeared for the Crown. Mr. C.A. Massiah appeared for the accused.
Delivering the judgment, 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 to the Court to quash the indictment on the ground 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 the evidence of an unsworn witness, Grace Alfred, and that under Chapter 25, as Amended by Ordinance 29 of 1961 s.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, s. 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, seems legal and proper.’
“He submits that the words ‘if he sees fit to do so’ and ‘which to him seems legal and proper’ mean that the Director of Public Prosecutions exercises 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 (in cases) where a person has been indicted for the same offence for which he has been committed.
“He admits that where the 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 charge has long been settled. In the case of R. v The Chairman of London County Sessions ex-parte Downes (1953) 37 C.A.R., it was held that:
‘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 in any count.’
“At p. 152, the Lord Chief Justice stated: ‘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 arrangement is to see where if a count is included for which there has been no committal, the depositions or examination taken before a justice in the presence of the accused disclose that offence.’
“In R. v. Manning (1959) L.R.B.G., 272, Justice Date said: ‘Counsel’s main argument in this court was that the words which to him seem legal and proper appearing in s., 113 of Chapter 11 do not entitle the Attorney General to indict for anything he may think legal and proper, but only for what is legal and proper, which is a matter to be determined by the Court; and that what is legal and proper has to be discovered from the other provisions of the Ordinance, due regard being paid to the provisions of the 1846 Ordinance when those words first appeared in our laws.’”
In conclusion, Justice Chung said:
“The arguments put forward by counsel for the accused seem impressive, but 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.
“The motion is therefore dismissed.”
