R v Harper

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Hercules, J.,Robinson, J.(Ag)
• Judgment Date: 16 November 1973
• Neutral Citation: JM 1973 CA 68
• Docket Number: Criminal Appeal No. 21 of 1973
• Date: 16 November 1973

Court of Appeal

Hercules, J. and Robinson, J.(Ag)

Criminal Appeal No. 21 of 1973

R.

and

Harper

Appearances:

Mr. Henderson for the crown

Mrs. Margaret Forte and Mr. R.I. McIntosh for the applicant

Evidence - Hearsay — Treatment by trial judge

JUDGMENT OF THE COURT:

1 This application was based entirely on the complaint of a procedural lapse on the part of Robotham J. Complaint was also made that the lapse was aggravated during the course of an otherwise admirable summing-up.

2 At the end of the hearing, when we ordered a new trial, we promised to put reasons for so doing in writing. In view of the order aforesaid we consider it undesirable to discuss the evidence in any detail in giving those reasons.

3 The applicant was convicted in the St. Mary Circuit Court on 20th February, 1973 of 2 counts: (1) burglary and (2) office breaking and larceny. The only evidence identifying the applicant as to intruder in the dwelling house of Joseph Pollock and in the adjoining Brainerd Post Office on the night of 22/23 September 1972, was that of the Postmaster, Monica Francis.

4 The defence was mistaken identity and alibi, as to which the applicant called 3 witnesses including Mr. Ted Harris.

5 The cross-examination of Monica Francis, taken from page 8/9 of the transcript, proceeded as follows:–

Q. Haven't you known Mr. Ted Harris for many years now?

A. Yes Sir.

Q. You have been to his home?

A. Yes Sir.

Q. You have been there when his wife is at home?

A. Yes Sir.

Q. At Richmond Road?

A. Yes Sir.

Q. You have stayed there?

A. Yes Sir.

Q. And you don't know that Mr. Harris has a shop? (Witness had said earlier on that she didn't know Harris had a shop).

His Lordship: What is the relevance of this?

Defence Attorney: The relevance will emerge in a little while from now.

His Lordship: I hope you are not just pulling straws out of the air you know.

Defence Attorney: No Sir I would never do that.

His Lordships: Whatever you are going to do I take it you can back it up.

Defence Attorney: I have never done nor do I intend to pull straws out of the air. You regard Mr. Harris as a good friend of yours?

A. Yes Sir.

Q. After this incident did you meet Mr. Harris and his wife at your father's house?

A. No Sir.

Q. Did you see him at your father's house after this incident?

A. Yes Sir, I saw Mr. Harris.

Q. There?

A. Yes Sir.

Q. And you spoke to him?

A. Yes Sir.

Q. And you spoke to him about this case?

A. Yes Sir.

Q. Now I am putting it to you that you, when you were talking to Mr. Harris at your father's house you began to cry?

A. I didn't cry.

Q. And that you told him………………………………..

Lordship: No hearsay is hearsay.

Defence Attorney: In certain circumstances.

His Lordship: No circumstance at all. I have always maintained that unless it falls within

one of the recognised exceptions it is hearsay. Was the Accused present?

A. No Sir.

His Lordship: Well it is hearsay.

6 At this stage, obviously in deference to the ruling of the learned trial judge, defence attorney desisted from trying to get from the star witness Monica Francis what she told Ted Harris. Be it remembered that Ted Harris was called as a witness for the defence, presumably for the purpose of affording the backing up about which the learned trial judge appeared somewhat apprehensive. However, since Monica Francis was prevented from giving the evidence, there was nothing for the witness Harris to back up. So the damage was done when Monica Francis was being cross-examined, but in order to complete the record we shall advert at once to what happened when Harris gave evidence-in-chief at page 15 of the transcript:–

Q. Do you know one Monica Francis?

A. Yes Sir.

Q. After this date, after this day you are talking about did you see her at all anywhere?

A. Yes Sir.

Q. Where you saw her?

A. I saw Miss Francis at her father's house in Platfield in the parish of St. Mary.

Q. When was this?

A: This was the Sunday.

Q. After Harper's arrest or after the breaking?

A. The Sunday morning after the incident.

Q. You saw her at Platfield at her father's house. You spoke to her?

A. Yes Sir.

Q. She spoke to you?

A. Yes Sir.

Q. She spoke to you concerning this case?

A. Yes Sir.

Q. What did she say to you?

Crown Attorneys: Object.

His Lordships: Remember that I warned you of this yesterday, Mr. McIntosh? Defence Counsel- M'lord, I would submit that it goes to the credit of the witness Francis. However you and she had a conversation, Mr. Harris?

A. Yes Sir.

Q. And during this conversation, did anything happen?

A. Yes she started crying.

7 Again defence Attorney desisted from trying to got evidence of what Monica Francis told Harris, in deference to the ruling of the learned trial judge.

8 The learned trial judge was moved merely by the general principles to the exclusion of hearsay evidence. Two of the reasons for excluding such evidence are (1) The Accused was not present and (2) It did not come within one of the recognised exceptions. (See Archbold Criminal Pleading Evidence and Practice 1071, 37th Edition). But Glanville Williams in his 3rd Edition of “The Proof of Guilt”...