R v Hart

• Jurisdiction: Bermuda
• Judgment Date: 30 May 2006
• Date: 30 May 2006
• Docket Number: Criminal Jurisdiction 2004 No. 43
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Greaves, J

Criminal Jurisdiction 2004 No. 43

BETWEEN:

The Queen

Plaintiff

and

Jamal K Hart

Defendant

Mr G Bannister for the Plaintiff

Ms V Pearman and Mr C Richardson for the Defendant

The following cases were referred to in the judgment:

Myers v DPPUNK [1964] 2 All ER 881

R v MartinUNK [1988] 3 All ER 440

Scott v RELR [1989] 1 AC 1242

Burrows v R (Bermuda Court of Appeal 1982)

Edwards v RUNK [2006] UKPC 23

Indictable Offneses Act 1929, s. 29

Admission of statements into evidence — Statements taken in contemplation of criminal proceedings — Author of statements deceased or ill and overseas

VOIR DIRE RULING of Greaves, J

1. Prosecutor, Mr. Bannister made application under Section 43A of the Evidence Act: 1905 to have the statement of DC Andrew Woolridge deceased, and the statement of Don Guerrazzi, an overseas witness, read into evidence on the grounds that DC Woolridge is dead, and Guerrazzi is sick and overseas.

2. Defence Counsel, Mr. Richardson has objected to the application on the basis that such statements ought not and cannot be admitted by virtue of Section 43A. He submitted inter alia, that statements taken in contemplation of criminal proceedings ought not to be admitted on the grounds stated by the prosecution and he has pointed out the historical and legal reasons for his submission. He relied upon the cases of Myers v DPPUNK[1964] 2 All ER 881 and in particular the case of R v MartinUNK[1988] 3 All ER 440. He further submitted that on the basis of Martin, the statements ought not to be read under Section 29 of the Indictable Offences Act 1929, since as he put it, ‘they are not depositions.’

3. After hearing these submissions the court adjourned its decision and invited both Counsel to revisit Section 29 of the Indictable Offences Act together with Section 19 thereof and the other relevant provisions of that Act.

4. On resumption overnight, the prosecution rightfully, in my opinion, abandoned his application under Section 43A of the Evidence Act and reframed it under Section 29 and 19 of the Indictable Offences Act, requesting in particular that the depositions of the two witnesses be read into evidence for the reasons earlier stated. In support of his application Counsel for the crown relied on the Privy Council's decision in Richard Scott v The QueenELR[1989] 1 AC 1242 and the Bermuda Court of Appeal decision in Keith Burrows v the QueenENR No. 11 and 12 of 1982.

5. I think that the submissions of Defence Counsel based on Section 43A would be correct if the Prosecution was seeking to have the statements of the witnesses admitted as statements or depositions. However, if the prosecution is seeking to have the statements admitted as depositions under Section 29 read with Section 19 of the Indictable Offences Act, and they are indeed depositions, then the defence's objections cannot be upheld. I think with the defence's reliance upon the case of Martin for the propositions he has taken, it appears to have led him into the same conceptual error as the Trial Judge did in that case.

6. In that case, the Trial Judge, as their Lordships pointed out at page 46, seem not to have appreciated that there was a difference between ‘statements’ sought to be admitted under Section 68(i) of the Criminal Evidence Act 1965, (equivalent to Section 43A of our Evidence Act) and ‘depositions’ sought to be...