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 the depositions of three absent witnesses because the State had been guilty of delaying justice to the 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, Ogle, and directed an acquittal in the man’s favour.
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 Mr Claude Massiah represented the accused.
The facts of the case disclosed that on 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 having 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, among other things, that:
(i) The word ‘may’ in Section 95 (i) of the Evidence Ordinance, Chapter 25, was 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 that when the time is long delayed between committal and trial, the burden is on the prosecution to satisfactorily explain the delay.   In the present case,  no explanation was proffered for what was clearly a long period of delay;
(iv)  When Article 10 was read in conjunction  with Section 71 of the Criminal Law (Procedures) Ordinance , Chapter 11, the words “next practicable sitting” of  the Assizes meant any subsequent sitting  at which the Crown  can conveniently  arraign the accused and not necessarily the very next sitting after committal; and that
(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.
In making his presentation, Justice Crane began thus: “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 having pleaded not guilty to all counts, the judge said, “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 are at the moment 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 sub-section  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 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 with his judgment, Justice Crane said: “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 yardstick, 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.”
Noting that “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,” Justice Crane said: “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 into evidence, Justice Crane said in closing:  “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 three years after he was committed  to stand trial, unless a very satisfactory explanation  for the delay be forthcoming from the prosecution.”