R v Adidjah Palmer and Others [Circuit Court]


[2013] JMGCCDD 1



HCC 104/12

Adidjah Palmer
Lenburgh McDonald
Nigel Thompson


Sykes J

On July 16, 2013 a voir dire began after an application by the prosecution to have admitted into evidence statements given by two prosecution witnesses. The application was made under section 31 D (d) of the Evidence Act ( EA). On July 23, 2013, I excluded the statements. These are my reasons which have now been put into writing following oral reasons given. This judgment is much shorter than my oral reasons given on July 23, 2013.


I should point out that the trial commenced in the Circuit Court Division of the Gun Court, a court created by the Gun Court Act. Trials in this court, by virtue of the statute, are in camera, that is the public do not have a right of access. The purpose was to preserve the identity of the witnesses. In these reasons no witness will be identified by name and neither will any details of the evidence be given other than what is necessary to make the context in which the issues that arose for decision understandable.

The legal principles

Section 31 D (d) of the EA is as follows:

Subject to section 31 G, a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if it is proved to the satisfaction of the court that such person —

(d) cannot be found after all reasonable steps have been taken to find him;


It is well established that the strong general rule is that whenever the prosecution make applications of this nature the standard of proof is proof beyond reasonable doubt. This is so even though the words of the statute are “proved to the satisfaction of the court.” The understanding in this jurisdiction is that this means the criminal standard in respect of the prosecution and the civil standard in respect of the defence. The section can be utilised by both the prosecution and the defence although more often than not it will be the prosecution who will be seeking to rely on it.


This provision was introduced into Jamaica by an amendment to the EA in 1995 because there was and still is a serious problem in Jamaica with witness intimidation and, unfortunately, the murder of witnesses.


These provisions are statutory exceptions to the common law rule that “the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence” (R v Davis [2008] 1 AC 1128 [5] ). Since there is a departure from the general rule there would need to be adequate safeguards for the rights of the defence. One of those “is the requirement that all reasonable steps must have been taken to secure the attendance of the witness” ( Grant (Steven) v R (2006) 68 WIR 354 [21] (1) ).


The purpose of the section was explained by the Judicial Committee of the Privy Council inGrant (Steven) v R [11] :

The plain purpose of s 31D is to permit the admission of an unsworn statement made out of court, where the statutory conditions are met and subject to the exercise of any relevant judicial discretion when, but for the section, the statement would have been inadmissible as hearsay.


Despite this recognition the Board also stated at [14]:

The evidence of a witness given orally in person in court, on oath or affirmation, so that he may be cross-examined and his demeanour under interrogation evaluated by the tribunal of fact, has always been regarded as the best evidence, and should continue to be so regarded. Any departure from that practice must be justified.


From this the Board recognised that despite the statutory provision permitting to be admitted what would have been excluded, that possibility should not obscure the fact that the admission of statements under the section is not ideal and any evidence so admitted is not regarded as the best evidence.


Their Lordships also held at [21] (3) :

In any event, it is, in the opinion of the Board, clear that the judge presiding at a criminal trial has an overriding discretion to exclude evidence which is judged to be unfair to the defendant in the sense that it will put him at an unfair disadvantage or deprive him unfairly of the ability to defend himself.


What this means is that the trial judge may yet exclude a statement even if the statutory basis of admissibility has been met by the prosecution. In other words, the fact that the prosecution have proved beyond reasonable doubt that all reasonable steps have been taken to find a witness does not mean that the statement automatically comes in. Not only is there a discretion at common lawbut the EA under section 31L confers on the trial a statutory discretion to exclude the statements if the prejudicial effect is greater than or so out of proportion to the point that the evidence was used to prove that it would be unfair to the defendant if the statement were to be admitted.


The Privy Council expressly referred to the Court of Appeal's decision inR v Michael Barrett in two respects. First, the Board accepted that the Court of Appeal was correct to stress that the statute requires all reasonable steps to be taken to find the witness. Second, their Lordships agreed with the Court of Appeal's recognition of the discretion of the judge's power to exclude evidence if it will put the defendant “at an unfair disadvantage or deprive him unfairly of the ability to defend himself.” I will now turn to the relevant decisions of the Court of Appeal of Jamaica on this provision.


The first case in which a written judgment was produced by the Court of Appeal on the section is that ofMichael Barrett (1998) 35 JLR 468. In that case Rattray P stated that “[d]espite the legislative provision the admissibility of a statement is first determined by the trial judge who must decide whether in all the circumstances it is fair that [the] statement should be admitted” (470A) His Lordship indicated that “the requirement of all … reasonable steps being taken to find the maker of the statements” is the important pre-condition for admissibility” (470C) (emphasis in original). This statement of principle has not been modified down or departed from by any subsequent decision of the court. The Privy Council, in Grant, agreed with this approach.


In the case ofR v O'neil Smith SCCA No 113/2003 (unreported) (delivered December 20, 2004). The Court of Appeal stated that under section 31D (d) the prosecution must prove (a) the witness cannot be found; and (b) that all reasonable steps have been taken to find the witness. Smith JA, who delivered the judgment of the court, held if the prosecution “can satisfy the court that the deponent cannot be found after all reasonable steps have been taken to find [him], the court has a discretion to admit the deposition. That is to say, a statement may be excluded even if the prosecution meets the statutory test. An important feature of the case is that Smith JA held that “whether all reasonable steps have been taken must be assessed on the particular circumstances of each case” (slip op 11).


Smith JA was emphasising that it is really a case by case analysis, meaning that what may be reasonable in one case may well be inadequate in another if there are circumstances that suggest more ought to have been done before it can be said that all reasonable steps have been taken to find the witness.


The next case of significance is that ofBrian Rankin and Carl McHargh v Regina SCCA Nos 72 & 73/2004 (unreported) (delivered July 28, 2006). Panton JA stated because “the witness is not available for visual assessment by the jury, it has to be stressed that great care has to be taken to ensure that the requirements of the legislation are met before permission is sought, or granted for the documents to be read into evidence” [18A] . His Lordship stated:

In respect of paragraph (d) of section 31D of the Evidence Act, it is imperative that all reasonable steps be taken to find the witness. … The taking of all reasonable steps does not mean that every hospital and lockup in the country should be checked. What it means is that checks should be made at the places with which the witness has a contemporary connection, and contact made with known relative or friends with whom he would have been reasonably expected to be in touch. (emphasis in original)


Ten years afterBarrett, the Court of Appeal is insisting that all reasonable steps must be taken to find the witness. The latest case on this issue from the Court of Appeal of Jamaica has not altered this position ( Tate v R [2013] JMCA Crim 16 ).


The legal position is quite clear. All reasonable steps must be taken to find the witness. What is reasonable is to be assessed in the context of the particular case. What is reasonable in one case may well fall short in another. Applications under section 31D are intensely fact sensitive and so the resolution of such an application in one case cannot establish any general principle so far as the analysis of facts is concerned. Nonetheless, it is expected that enquiries would be...

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