R v Daniels
Jurisdiction | Bermuda |
Judgment Date | 07 June 2005 |
Date | 07 June 2005 |
Docket Number | Criminal Jurisdiction 2004 No. 63 |
Court | Supreme Court (Bermuda) |
In The Supreme Court of Bermuda
Kawaley, J
Criminal Jurisdiction 2004 No. 63
Mr. Carrington Mahoney & Mr. Wayne Caines for the Crown
Mr. John Perry Q.C. and Mr. Llewelyn Peniston for the Defendant
H v Schering Chemicals LtdWLR [1983] 1 WLR 143
R v JonesWLR [1978] 1 WLR 195
R v CaseUNK [1991] Crim LR 192
R v MartinWLR [1988] 1 WLR 655
R v IqbalWLR [1990] 1 WLR 756
Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BVWLR [1984] 1 WLR 271
R v Barrett [unreported : Jamaica]
R v Wizzard [unreported : Jamaica]
R v NichollsUNK (1976) 63 Cr App R 187
Re Lonrho (Contempt Proceedings)ELR [1990] 2 AC 154
Evidence Act 1905, s. 43
Admissibility of evidence — Television broadcast recording — Whether recording forms part of a record — Definition of ‘record’
On May 23, 2005, after the Defence had opened its case, Mr. Perry forewarned the Court that an application would be made after the May 24 public holiday to adduce video evidence. This evidence, based on a February 16, 2004 Fresh TV broadcast, is referred to in Detective Sergeant Glasford's witness statement served by the Prosecution as additional evidence on or after May 5, 2005.
This application was based on section 43A of the Evidence Act 1905, which provides a modern exception to the common law prohibition against the admission of hearsay evidence to prove the truth of reported statements. It was vigorously opposed by the Prosecution on various grounds. A voir dire was conducted on May 25, 2005 on the admissibility of the video evidence and submissions made by Counsel. During the course of argument, I was swayed both in favour of admitting the evidence and against, and took the view that I could not properly determine admissibility without reviewing the documentary evidence itself.
Firstly, I grappled with the most difficult question of whether the television recording was a document forming part of a record compiled by someone acting under a duty based on information supplied by someone who had or who might reasonably be viewed as possessing direct knowledge of the matters in question. This is the primary precondition for admissibility under section 43A(1)(a). Contrary to the provisional view I confidently expressed during argument, after reserving judgment overnight, I eventually concluded that this primary threshold test had not been met by the Defendant.
This was not because the Defendant failed to satisfy me that the film was recorded by someone acting under a duty from information supplied by someone who had or might reasonably be supposed to have direct knowledge of the reported facts. I found that the documentary evidence sought to be adduced was not, in the requisite statutory sense, shown to constitute a ‘record’ or to ‘form part of a record’.
Secondly, I considered the more prosaic and largely factual question, in case I were to be later held wrong in my first finding, of whether all reasonable efforts had been taken to find the witnesses whose filmed evidence it is sought to adduce within section 43A(2)(c) of the 1905 Act. This question had a legal gloss, because the Defendant's Counsel referred me to authority which appeared to cast doubt on the ability of the Court to take into account the contents of the relevant document when considering this secondary level of the admissibility test. Taking into account the fact that the persons in the film appear to be persons known to the Defendant, it seems to be clear that all reasonable steps to find the witnesses have not been taken by the Defence. They fail to meet this limb of the admissibility test.
In case I were held to be wrong to have had regard to the contents of the film for this purpose, I further ruled that I would have found that absent such reference, all reasonable steps had been taken. This is because the steps taken as described in the voir dire evidence were reasonable, bearing in mind the likely resources available to a defendant in custody and the overriding duty of the Court to ensure a fair trial for the Accused. This assumes that the application was made in relation to witnesses who were unknown to the Defendant, and could not reasonably have been found save for the rather formal means utilized by the process server retained in this regard.
Because it was impracticable to adequately set out the process of analysis which led me to the above conclusions in the midst of the trial, I gave my decision on May 27, 2005 and indicated that I would give reasons later. These reasons are set out below.
Part III of the Evidence Act provides in salient part as follows:
PART IIIA DOCUMENTARY EVIDENCE IN CRIMINAL PROCEEDINGS Evidence from documentary records43A (1) Subject to this section, a statement contained in a document shall be admissible in any proceedings as evidence of any fact stated therein of which direct oral evidence would be admissible if—
(a) the document is or forms part of a record compiled by a person acting under a duty from information supplied by a person (whether acting under a duty or not) who had, or may reasonably be supposed to have had, personal knowledge of the matter dealt with in that information; and
(b) any condition relating to the person who supplied the information which is specified in subsection (2) is satisfied.
(2) The conditions mentioned in subsection (1)(b) are—
(a) that the person who supplied the information—
(i) is dead or by reason of his bodily or mental condition unfit to attend as a witness;
(ii) is outside Bermuda and it is not reasonably practicable to secure his attendance; or
(iii) cannot reasonably be expected (having regard to the time which has elapsed since he supplied or acquired the information and to all the circumstances) to have any recollection of the matters dealt with in that information;
(b) that all reasonable steps have been taken to identify the person who supplied the information but that he cannot be identified; and
(c) that, the identity of the person who supplied the information being known, all reasonable steps have been taken to find him, but that he cannot be found.
(3) Subsection (1) applies whether the information was supplied directly or indirectly but, if it was supplied indirectly, only if each person through whom it was supplied was acting under a duty; and that subsection applies also where the person compiling the record is himself the person by whom the information is supplied.
(4) Where a document setting out the evidence which a person could be expected to give as a witness has been prepared for the purpose of any pending or contemplated proceedings, and that document falls within subsection (1), a statement contained in it shall not be given in evidence by virtue of this section without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice, having regard—
(a) to the circumstances in which leave is sought and in particular to the contents of the statement; and
(b) to any likelihood that the accused will be prejudiced by its admission in the absence of the person who supplied the information on which it is based.
(5) Where in any proceedings a statement based on information supplied by any person is given in evidence by virtue of this section—
(a) any evidence which, if that person had been called as a witness, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings;
(b) evidence may, with the leave of the court, be given of any matter which, if that person had been called as a witness, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and
(c) evidence tending to prove that that person has, whether before or after supplying the information, made a statement (whether oral or otherwise) which is inconsistent with that information shall be admissible for the purpose of showing that he has contradicted himself.
(6) A statement which is admissible by virtue of this section shall not be capable of corroborating evidence given by the person who supplied the information on which the statement is based.
(7) In deciding for the purposes of subsection (2)(a)(i) whether a person is unfit to attend as a witness the court may act on a certificate purporting to be signed by a registered medical practitioner.
(8) Any reference in this section to a person acting under a duty includes a reference to a person acting in the course of any trade, business, profession or other occupation in which he is engaged or employed or for the purposes of any paid or unpaid office held by him.
(9) This section does not apply to any document to which section 43B applies.
Evidence from computer records43B [omitted].
Provisions supplementary to ss. 43A and 43B43C (1) Where in any proceedings a statement contained in a document is admissible in evidence by virtue of section 43A or 43B, it may be proved—
(a) by the production of that document; or
(b) (whether or not that document is still in existence) by the production of a copy of that document, or of the material part thereof,
authenticated in such manner as the court may approve.
(2) For the purpose of deciding whether or not a statement is admissible in evidence by virtue of either of those sections the court may draw any reasonable inference—
(a) from the circumstances in which the statement was made or otherwise came into being; or
(b) from any other circumstances, including the form and contents of the document in which the statement is contained.
(3) In estimating the weight,...
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