R v Richards (Frank)
| Jurisdiction | Jamaica |
| Judge | SYKES J. |
| Judgment Date | 03 September 2009 |
| Judgment citation (vLex) | [2009] 9 JJC 0303 |
| Court | Supreme Court (Jamaica) |
| Date | 03 September 2009 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CRIMINAL DIVISION
APPLICATION UNDER SECTION 31D (d) BY PROSECUTION UNDER THE EVIDENCE ACT — WHAT PROPONENT OF EVIDENCE MUST PROVE — BURDEN OF PROOF — STANDARD OF PROOF
CRIMINAL LAW - Murder - Application under Evidence Act, s. 31D - Burden of proof - Standard of proof
I have taken the somewhat usual step of producing a written judgment arising from a ruling made during the hearing of this case, after a voir dire, to exclude a post mortem examination report that the prosecution sought to admit under section 31D (d) of the Evidence Act. The ruling was made on July 27, 2009 after a voir dire held on July 23, 2009.
The background
Mr. Frank Richards was charged with the offence of murder in December 2007 arising from the stabbing death of Mr. Myers. A post mortem examination was done by Dr. Mynedi and it was the case for the prosecution that the doctor was no longer in the island and so the prosecution sought to have the report admitted under section 31D (d) of the Evidence Act.
The statute
Section 3ID (d)reads:
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(1) Subject to section 31G, 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 -
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(d) is outside of Jamaica and it is not reasonably practicable to secure his attendance
This provision is not unique to Jamaica. It was taken from section 23 of the Criminal Justice Act 1988 (UK). From this standpoint, cases decided on the equivalent English provisions can provide useful guidance on the interpretation and application of the Jamaican equivalent. The English cases are at best, persuasive. A number of those cases will now be examined to see what ought to be the proper interpretation of the provision.
The case of R v Carmenza Jiminez-Paez (1994) 98 Cr. App. R. 239, reminds us that the provision has two requirements. First, the witness must be out of the island, and second, it must not be reasonably practicable to secure his attendance.
The statute applies to both the prosecution and the defence. However, it quite likely the prosecution who will seek to rely on this provision most of the time. The significant difference between the use of the provision by the prosecution and the defence is the standard of proof. The case of R v Mattey [1995] 2 Cr. App. R. 409 addresses the issue of the standard of proof. The Court there held that where the defence wishes to use the provision, the standard of proof is on a balance of probability. The case also held that when the prosecution is relying on the provision the standard is proof beyond reasonable doubt.
When interpreting the statute careful attention must be paid to the actual words of the statute. In section 31D (d), the wording is "reasonably practicable to secure his attendance" and not "reasonably practicable for the witness to attend." This crucial fact was pointed out by Court of Appeal in R v Ernest French (1993) 97 Cr. App. R. 421, 425 – 426. It was necessary for the Court to make this point because the submission of counsel for the appellant was that the witness could have attended but chose not to do so. The importance of this point is that when an application is made under this provision, the Court is to focus on the effort made to have the witness attend and not whether it was practicable for the witness to attend.
The Court in French also stated that the relevant date is the date the application is made. The trial judge is not to look at the future but at the circumstances put before the court on the date of the application.
It is to be noted that in French , the court accepted that the prosecution had made considerable effort to secure the attendance of the witness which failed. The important principle emerging is that evidence of effort made to secure the attendance of the witness will be an important consideration in determining an application made under this provision.
In the case of R v Luis Castillo [1996] 1 Cr. App. R 438, the Court of Appeal again emphasised that whether it was possible for the witness to attend is beside the point. The question is whether it is reasonably practicable to secure the attendance of the witness.
There is one aspect of Castillo with which I do not agree. I shall set out that passage. At page 442 Stuart-Smith L.J. stated:
The judge has to consider a number of factors. First, he has to consider the importance of the evidence that the witness can give and whether or not it was prejudicial, and how prejudicial it would be to the defence that the witness did not attend. In this particular case, the attendance of Mr Tyler was simply to prove what he had been told by Mr Maciel whose evidence we are concerned with in this matter.
If his Lordship meant that in determining whether the statutory test was met the trial judge should...
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