Dear Editor,
I refer to the caption ‘Magistrate adjourns matter without allowing witness to sign deposition’ on the front page of the Kaieteur News of Saturday, August 20 and also at page 3 of that date’s issue.
The fact that the Magistrate recorded the evidence on sheets of paper is not contrary to the law. A Preliminary Inquiry is governed by the provisions of the Criminal Law (Procedure) Act, and Chapter 10:01. Section 64 (3) of that Act provides that the evidence shall be taken down in writing in the form of a deposition.
For the past 40 years (I can speak to that) depositions have been taken on sheets of paper and at the end of the Preliminary Inquiry those sheets are bound together by the Clerk of Court and sent to the Registrar and the Director of Public Prosecutions (DPP). There is no requirement for the evidence to be taken down in a book. In fact, no book is provided to magistrates for the purpose of taking the evidence at a Preliminary Inquiry.
Further, the fact that the Magistrate did not read over the evidence of the witness and cause him to sign the depositions immediately after the taking of that witness’s evidence, is not and was never an illegality.
The Magistrate did not act contrary to law as is implied in the article. Once the depositions are signed sometime before the accused is called upon for his defence, it is lawful and the deposition would be regular and admissible in evidence if that need arises at the trial. Section 64 (4) reads:
“The deposition shall, at some time before the accused person is called on for his defence, be read over to and signed by the witness and the magistrate; the accused person, the witness, and the magistrate being all present together at the time of the reading and signing.”
It follows that if the depositions are not signed immediately after they are taken, the witness or witnesses can be re-called on any date prior to the close of the prosecution’s case to sign.
I agree it would be prudent to have the depositions signed immediately after the evidence is taken down. Nevertheless, that is a far cry from saying that the Magistrate’s omission at that stage is questionable. In any event, if that is not done, the trial in the High Court can still go on once the depositions were signed before the close of the prosecution’s case, that is, before the accused is called upon for his defence.
I also wish to offer my comments on the caption ‘Magistrate evicts public and journalist from the courtroom’ on page one of the Monday, August 22, 2016, issue of the Kaieteur News.
Article 144(9) of the Constitution which was enacted in 1980 provides-
“Except with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other tribunal, including the announcement of the decision of the court or other tribunal, shall be held in public.”
Nevertheless, paragraph (10) of that article gives the judge or magistrate discretion to exclude the public under certain conditions. That article reads:
“Nothing in the preceding paragraph shall prevent the court or other tribunal from excluding from the proceedings persons other than the parties thereto and their legal representatives to such extent as the court or other tribunal-
“(a) may by law be empowered so to do and may consider necessary or expedient in circumstances where publicity would prejudice the interest of justice or in interlocutory proceedings or in the interests of decency, public morality, the welfare or persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceedings; or
“(b) may by law be empowered or required so to do in the interest of defence, public safety or public order.”
Moreover section 62 (d) of the Criminal Law (Procedure) Act, permits the Magistrate to:
“order that no person, other than the officers of the Magistrate’s Court, the persons engaged in the prosecution, and the accused person, and his counsel (if any), shall have access to or remain in the room or building in which the inquiry is being held (which shall not be deemed an open court) if it appears to him that the ends of justice will be best answered by so doing.”
It follows that nothing is wrong with a Magistrate “clearing the court” of members of the public if he feels that the ends of justice would be better served by doing so.
One may wish to make the argument that the constitution is the supreme law and any other law inconsistent with article 144 is void to the extent of such inconsistency. However, there is a valid counter argument and that is, Section 62(d) is a pre-existing law and is saved by the saving provisions of the constitution itself: (Attorney General v James Ramlochan -civil appeal No. 40 of 2011). In other words Article 144 does not and never did make section 62(d) of the Criminal Law (Procedure) Act obsolete.
Yours faithfully,
Murseline Bacchus
