Knights v. The Queen (Grenada)

Knights v. The Queen (Grenada) [1998] UKPC 24 (21st May, 1998)

Privy Council Appeal No. 34

of 1997

Donnason

Knights Appellant

v.

The Queen Respondents

FROM

THE COURT OF APPEAL OF GRENADA

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 21st May 1998

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Present at the hearing:-

Lord Nolan

Lord Clyde

Sir John Balcombe

Sir Andrew Leggatt

[Delivered by Lord Clyde]

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1. The appellant

Donnason Knights was convicted of the murder of one Cherrie-Ann Matthew in the

Supreme Court of Grenada on 2nd August 1995.

The prosecution presented a case of circumstantial evidence which, even

taken by itself, was undoubtedly strong.

But in addition to that evidence a deposition by one Aiden Jones was

admitted as part of the evidence for the prosecution. The appellant appealed to the Court of Appeal on a variety of grounds

which included the admissibility of the deposition but his appeal was refused.

He was thereafter granted special leave to appeal but in deciding to advise Her

Majesty in Council that leave should be granted their Lordships stated that the

only point which was of concern and on which the advice was to be tendered was

the point relating to the deposition.

2. The deposition

had been given by Aiden Jones who had given evidence on oath at a preliminary

inquiry on 29th October 1993. The

substance of it was of considerable importance. The appellant's defence was a denial of the crime, with an

account of a masked man who had attacked both Cherrie-Ann and the appellant,

causing the appellant to run away, and who had subsequently pursued and later

stabbed the appellant. In the most

critical passage of his deposition, however, Aiden Jones stated that he had

seen the appellant on the morning of 11th September 1993, some two days after

the murder, with a cutlass. The

deposition continued:-

"I

said to him `don't worry I with you I real sorry for what happen. Put down the cutlass and come let's chat

because I will not tell anybody' ... I said to him again `Don't worry I will

not tell anybody'. I asked him how he

manage to kill the girl the accused said that he did not go to kill her but she

pull the cutlass. I asked him if I

should tell his mother and he said I should not. He said he don't want the Police to hold him and before the Police

hold him he will kill himself ..."

3. Jones said that

he had again asked the appellant if he should tell his mother and that the

appellant after hesitating had said "yes". Plainly this evidence could be taken as a confession of the crime

and it was in direct conflict with the accused's line of defence.

4. During the

course of the trial, on 20th July 1995, the Crown led the evidence of Andre

Jones, the brother of Aiden Jones. He

stated that on 12th January 1995 Aiden had boarded an aeroplane bound for

Canada, that he did not have his address, that he had not seen him in Grenada

since that date and that he had spoken to him "through telephone in

Canada". Mr. Clouden, who was

appearing for the appellant, did not ask him any questions in

cross-examination. Later in the trial

the resident magistrate gave evidence and identified the deposition which both

he and Aiden Jones had signed on the day of the preliminary hearing. The magistrate stated that Mr. Clouden, who

had also appeared for the appellant at the preliminary hearing, was given a

full opportunity to cross-examine the witness and had in fact cross-examined

him, albeit, as their Lordships note, briefly. Mr. Clouden then took objection

to the deposition being admitted into the evidence.

5. The admission

of depositions is governed by a statutory provision which was formerly section

201 and later became section 198 of the Criminal Procedure Code. The relevant parts of the provision are as

follows:-

"201(1)

A deposition taken against or for an accused person may be produced and given

in evidence at his trial if it is proved, to the satisfaction of the judge -

....

(d)    that

the deponent is beyond the jurisdiction of the Court; and if

(i)        

the deposition purports to be signed by the Magistrate before whom it purports to

have been taken; and

(ii)       it

is proved by the person who offers it as evidence that it was taken in the

presence of the accused person or the prosecutor, as the case may be, and that

he, or his counsel, had a full opportunity of cross-examining the witness; or

...

(3)

If it is made to appear to the Judge that the witness who made the deposition

may, within a reasonable time, be capable of attending to give evidence, and

that the ends of justice require that the witness should be examined personally

before the jury, the Court may postpone the trial on such terms as may seem

proper."

6. The

admissibility of a deposition is very much a matter for the discretion of the

trial judge. This is evident from the

terms of subsections (1) and (3). It

was also accepted by the Court of Appeal that there is in any event a

discretion at common law whereby the judge may in the interests of securing a

fair trial refuse the admission of such evidence. That was affirmed in Scott v. The Queen [1989] 1 A.C.

1242, albeit under the somewhat different circumstances of a deceased witness

and in the context of a different statutory provision. The discretion under the Code in the present

case, however, only arises after the prescribed conditions have been satisfied. In the circumstances the judge was certainly

entitled to conclude from the evidence that the witness was beyond the

jurisdiction of the Court and there is no doubt that the provisions set out in

(i) and (ii) in section 201(1)(d) were met.

7. Much of the

challenge presented by the appellant before their Lordships related to the

requirements for a postponement under section 201(3) of the Code. While it is not immediately evident from the

record that Mr. Clouden had expressly argued before the trial judge for a

postponement under subsection (3) and not simply a refusal to have the

deposition admitted into the evidence their Lordships accept that that course

was one which was put before the judge for consideration. The appellant however submits that the

material before the judge was not sufficient to enable the judge to form a view

in particular with regard to the matter of the likelihood of the deponent

returning to give evidence in person.

It was suggested that the judge should have required further information,

in particular on the whereabouts of the deponent, on the efforts, if any, made

to have him return, and on the contact or contacts by telephone which may have

been made with him. It may be observed

that the judge would in any event have been entitled to conclude on the

material before him that the deponent was still in Canada. Moreover the appellant's counsel could at

least have endeavoured to seek some further information in cross-examination if

he had thought fit. But however that

may be, the Court of Appeal concluded that on the evidence before the judge it

could not have appeared to him that the deponent could have within a reasonable

time been capable of attending to give evidence. Their Lordships find no reason

to question the conclusion at which the Court of Appeal arrived.

8. Counsel for the

appellant also developed a criticism which had been advanced by Mr. Clouden

before the trial judge that no good or sufficient reason had been given to the

Court as to the whereabouts of the witness and he directed a particular

criticism to a passage in the note of the judge's decision where the judge

recorded the view that the case of Scott, to which their Lordships have

already referred, and that of Garth Henriques v. The Queen [1991] 1

W.L.R. 242 "support the contention that the Crown does not have to advance

reasons for the absence of the witness".

Counsel pointed particularly to the latter case where certain factors

were identified which, it was held, the judge in that case should have taken

into account in exercising his discretion.

Among these was the consideration that no evidence had been led by the

Crown as to where the witness was and whether it would be practicable for him

to return to give evidence within a reasonable time. The views expressed by their Lordships in that case were in the context

of a differently worded statutory provision whereby in the case of an absent

deponent the consent of the judge was required before the deposition could be

read in evidence. In that context it

may well be that the Crown, wishing to have the consent of the Court to the

admission of the deposition, would require to lead evidence on these particular

matters. But in the present case, if

the matter is to be approached as one of onus, it could well be contended that

it was for the appellant to make it appear to the judge that the deponent was

capable of attending within a reasonable time.

But in any event the advancing of reasons for the absence of the

deponent, which was the precise point with which the trial judge was dealing in

the passage in question, does not appear as an essential factor for the

exercise of the judge's discretion in the cases to which he refers. His conclusion might have been more happily

expressed to the effect that those cases do not support the contention that the

Crown has to advance reasons for the deponent's absence, but the substance of

the judge's meaning is sufficiently clear.

9. A separate

ground for the refusal of the admission of the deposition was also presented on

behalf of the appellant to the effect that it had been unfairly obtained in

respect that the deponent had tricked the appellant into giving it on the

assurance of not disclosing what he might say and that he had then, as was

submitted, treacherously disclosed it.

Their Lordships are not persuaded that on the material before him the

judge was not entitled to take the view that on the general basis of fairness

the evidence should be admitted and they find no ground for interfering with

his admission of it in that respect. In

his summing-up the judge followed the guidance given in Barnes, Desquottes

and Johnson v. R. (1989) 37 W.I.R. 330 in a way which cannot reasonably be

faulted. Counsel for the appellant

advanced one criticism to the effect that the judge had not reminded the jury

in this context that the appellant's case was that he was not the person who

had killed the girl. But their

Lordships do not regard that as a fatal omission. The appellant's case had been fairly and fully placed before the

jury in the course of the summing-up.

10. Whether the

decision by the trial judge is approached as an exercise of his discretion

under the provisions of the Code, or as more generally an exercise of his

common law discretionary power, their Lordships are not persuaded that there

are any grounds for interfering with the decision which he reached. It is not to be forgotten that, as was

stated by Lord Griffiths in Gayle v. The Queen (Privy Council Appeal No.

40 of 1995, Judgment delivered on 12th June 1996), "it is not the function

of the Judicial Committee to act as a second Court of Criminal

Appeal". Only in an exceptional

case would their Lordships interfere in a matter which rests not only on an

assessment of the quantity and weight of evidence but on the exercise of a

discretion.

11. When indicating

that the special leave would be given on the sole ground of the matter of the

deposition it was asked that the point should be investigated before the

hearing of the appeal. Their Lordships

note that that has been done, but that the result has been to disclose a

considerable conflict of evidence about the activities of and the

communications between the parties in anticipation of the trial. Having heard the submissions made on behalf

of the appellant their Lordships find it unnecessary to have these matters

further investigated. For the reasons

given they will humbly advise Her Majesty that the appeal should be dismissed.