R v Rolle

• Jurisdiction: Bahamas
• Judge: Sawyer, J.
• Judgment Date: 02 September 1994
• Court: Supreme Court (Bahamas)
• Docket Number: No. 93/4 of 1994
• Date: 02 September 1994

Supreme Court

Sawyer, J.

No. 93/4 of 1994

R

and

Rolle

Appearances:

Mr. B. Turner & Ms. G. Archer for the prosecution

Mr. Michael H. Kemp for the accused

Criminal practice and procedure - Murder and attempted murder — Sub-section 124(1) provides that if a magistrate's court considers the evidence at the end of the preliminary inquiry sufficient to put an accused person on trial, the court shall commit him for trial at the next sessions of the Supreme Court unless such sessions are then being held in which case he may be committed to that session — Magistrate did not comply with that provision — Failure to inform defendant of his right to give evidence and to call witnesses at the preliminary inquiry is fatal to the committal -Magistrate was wrong to have made up his mind to commit defendant for trial at the close of the prosecution's case — Information quashed.

Sawyer, J.

1 On 7 ^th June, 1994, in the case of Regina vs. Allendo Dames, (Cr. No. 77/4/93), after the prosecution had closed counsel for the defendant submitted, inter alia, the information on which the trial had proceeded to the point, should be quashed because the committing magistrate had not complied with the provisions of sub-section 10 (3) of the Preliminary Inquiries (Special Procedures) Act, (Ch. 85) (“Ch. 85”). On that submission, Thorne J., ruled in the defendant's favour with the result that the information was quashed and the matter was remitted to the magistrate's Court

2 On 12 ^th and 13 ^th July, 1994, on the application of the prosecution, the information in over 200 serious criminal cases were quashed from that fact I draw the reasonable inference that the prosecution had accepted that Thorne J's. in the Allendo Dames' case was correct in law and on its facts. I also draw the inference that the prosecution, necessary implication, had accepted that ruling as being applicable to preliminary inquiries, which had been held under the Criminal Procedure Code Act, (Ch. 84) (“the CPC”) since, among the many information quashed there undoubtedly were some for alleged offences of murder.

3 A little less than a month after, the prosecution had applied to quash the information on12th and 13 ^th July, 1994, they filed the information, which is the subject matter of this application, (among others) against the accused, Desmont (“Rolle”).

4 At the outset, let me say that I have never seen the originals of any of the depositions in this case even though, as I understand section 134 of the CPC, the original depositions, among other things, are required to be transmitted to the Registrar of this Court without delay where a person is committed to this Court for trial — not a copy (an authenticated copy is to be supplied to the Attorney-General at the same time). I do not know where, or how or by whom that “practice” was developed but it must cease unless the CPC is to be completely revamped or repealed.

5 Having said that, I turn now to the record of the preliminary inquiry as it was presented before me.

6 On the face of that record, it appears that Rolle was purportedly committed to an undisclosed session of this Court for trial on one count of murder and two counts of attempted murder arising out of an incident, which allegedly occurred on 6th December, 1991.

7 Sub-section 124(1) of the CPC provides that if a magistrate's Court considers the evidence — at the end of the preliminary inquiry — sufficient to put an accused person on trial, the Court “shall commit him for trial at the next sessions of the Supreme Court unless such sessions are then being held in which case he may be committed to that session.

8 Clearly, from the record, the committing magistrate did not comply with that provision of the CPC.

9 It appears that on 4 ^th February, 1993, the depositions of a majority of the prosecution witnesses were taken by the magistrate in narrative form. That part of the record would have been in accordance with section 116 of the CPC, which reads as follows: –

• “116. — (1) When an accused person is brought before a magistrate's Court, whether on summons, warrant or otherwise, charged with an offence in respect of which a preliminary inquiry is to be held, the magistrate shall in the presence of the accused, take down in writing, or cause to be taken down in writing, the statements on oath of witnesses called in support of the charge by the prosecution. Such statements shall be deemed to be, and are hereafter in this Code referred to as, depositions, and shall ordinarily be taken down in narrative form, unless the magistrate deems it expedient in any particular case to record the evidence or any part of the evidence in the form of question and answer.

• “(2) The accused person or any legal practitioner appearing on his behalf shall be entitled to cross-examine any such witness and the answers of a witness thereto shall form part of the deposition of such witness.

• “(3) If the accused person is not represented by a legal practitioner, the magistrate shall, at the close of the examination of each witness for the prosecution, ask the accused person whether he wishes to put any questions to that witness.

• “(4) As soon as the deposition of a witness taken down under this section is completed, it shall be read over to him in the presence of the accused and subject to the provisions of subsection 5 of this section, shall if necessary, be corrected.

• “(5) If any witness denies the correctness of any part of the deposition whew the same is read over to him, the magistrate may, instead of altering the deposition as written down” make a memorandum, thereon of the objection made to it by the witness and shall add any remarks as to the matter as he thinks necessary.

• “(6) If a statement is made by a witness in a language other than that in which it is taken down and the witness does not understand the language in which it is taken down, it shall be interpreted to him in a language which he understands by an interpreter who shall be sworn in accordance with the provisions of the Oaths Act, and the identity of the interpreter shall be recorded thereon by the magistrate.

• “(7) The deposition of each witness shall upon completion be signed by the witness, or attested by his mark, and by the magistrate before whom it was taken.”

10 The final deposition (which is that of the investigating police officer) as well as the rest of the preliminary inquiry was recorded verbatim by a Court reporter and “authenticated” by her.

11 When verbatim Court reporting was introduced in the Supreme Court in 1989/90, it was found necessary to amend the Supreme Court Act, (Ch. 41) so as to permit the authentication, of the record by a Court reporter — see e.g. s. 45(5) and (8) of Ch. 41. Sub-section 45(8) of Ch. 41 purports to apply to “any other law”. However, that provision cannot apply in derogation of the specific provisions of s. 116 of the CPC, which expressly deals with the taking of depositions.

12 It is unclear when, or how, the practice of using Court reporters started in the magistrate's Courts for preliminary inquiries. Whenever and however the practice started, no amendment was made to either the CPC or Ch. 85 to permit the record to be “authenticated” by either the presiding magistrate or a Court reporter. If Court reporters' e.g., s. 120(3) of the CPC and 10(3) of Ch. 85.

13 In Rex v. Gee, Bibby and Dunscombe, (1934–36) 25 Cr. App. Rep. 198 the Court of Criminal Appeal in England had to consider whether the appellants had been legally committed for the trial in light of section 17 of the Indictable Offences Act (England) (“the 1848 Act”) in relation to the depositions by magistrates.

14 The material part of s. 17 of the 1848 Act, which is comparable to s. 116 of the CPC reads: –

…“to take the statements of witnesses on oath or affirmation and to ‘put the same into writing, and such depositions shall be read over to and signed respectively by the witnesses who shall have been so examined, and shall be signed by the justice or justices taking the same…”

15 At p. 202–203, Lord Hewart, L.C.J., sitting with du Parcq, J., and Goddard, J., in giving the judgment of the Court said this: –

“The point was taken ‘before the Recorder on January 7, and he expressed some doubt whether he was not bound to try the indictment placed before him, but he remanded the appellants on bail and gave them the opportunity of moving by certiorari to quash the indictment. They did not take that course, and at the next sessions the same objection was taken before the Recorder. He thought that he could not give effect to it and that he was bound to try the indictment. In the opinion of the Court that was wrong. Though the appellants might “‘have moved by, certiorari to quash the indictment, the fact that they did not do so did not make a bad indictment a good one. The Court is of opinion that the objection taken on behalf of the appellants was valid.

“The result is that there has been what is sometimes called a mistrial, though it would be more accurate to say that there had been no trial at all. Under the decision in Crane v. Director of Public Prosecutions, ( 15 Cr. App. R. 183; [1921] 2 A.C. 299) this Court has power to order that a proper trial should take place, and in that case the proceedings would recommence from the point where they broke down. This Court also has power in such circumstances, and has acted on it on several occasions in cases where it was held that the interests of justice so required, to quash the conviction and allow an appellant to be discharged. In all the circumstances of the present case the Court is of opinion that that is the proper order to make. The appellants “have been in custody for about three months before trial; they were then held to bail for three months, and have been nearly two months more in custody since conviction. If the Court were to order that the...