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.