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Drug suspect to stand trial for Cocaine possession – Part II

Former Solicitor Dwight Horsford – represented the Attorney-General in the court matter

High court judge Raulston Glasgow has dismissed an attempt by an individual charged for possession of illegal drugs to get the case dismissed on the grounds that the overseas witnesses in the Preliminary Inquiry was not present to give evidence during the hearing.

The accused Andre Thomas was charged by the Police in Grenada in January 2013 for a Cocaine-related matter involving a barrel.

The accused filed a constitutional motion before Justice Glasgow challenging the decision of the sitting Magistrate to commit him to stand trial on charges of trafficking and exporting cocaine.

His contention is that the committal should be declared a nullity, as the evidence on which the committal was based at the Preliminary Inquiry (PI) consisted mainly of written statements from overseas witnesses who did not attend the PI.

Lawyers for Thomas argued that the PI process was flawed and a breach of his constitutional right to a fair trial as guaranteed by section 8 of the Constitution of Grenada.

Guyana-born Darshan Ramdhani, KC and his wife Sabrita Khan-Ramdhani appeared for Thomas while the then Solicitor General Dwight Horsford, the current Attorney General in Anguilla along with attorneys Sasha Courtney and Maurissa Johnson appeared for the Attorney-General.

In his ruling handed down on March 28, 2024, Justice Glasgow dismissed the Constitutional Motion and paved the way for Thomas to face trial for his cocaine offence.

As a public service, THE NEW TODAY reproduces in full the Justice Raulston Glasgow findings on the Constitutional Motion:-

Discussion
[16] Mr. Thomas’ argument appears very attractive on first perusal, but a careful examination of the history of the CPC, and more particularly the law and procedure on the conduct of PIs in Grenada reveals a different interpretation than that presented by Mr. Thomas. The CPC was enacted on 20th January 1897, and it has undergone several amendments and revisions. What is revealed by research is that historically under the provisions of the CPC, only oral evidence was permissible at a PI. Section 105 of the CPC Cap. 77 provided that:

“(1) When the accused is before a magistrate at a preliminary inquiry, the magistrate shall take the evidence of the witnesses called on the part of the prosecution.

(2) The evidence of every witness shall be given in the presence of the accused; and the accused, or his counsel, shall be entitled to cross examine each witness.

(3) The evidence of every witness shall be taken down in writing by the magistrate in a legible hand, and on one side only of the paper, in the form of a deposition, and as nearly as possible in the witness’ own words.

(4) The deposition shall, at some time before the accused is called on for his defence, be read over to and signed by the witness and the magistrate; the accused, the witness and the magistrate being present together at the time of the reading and signing.

(5) Any witness who refuses, without reasonable excuse, to sign his deposition, may be committed by the magistrate holding the inquiry by a warrant to prison, there to be kept until after the trial, or until the witness signs his deposition before a magistrate;

Provided that, if the accused is afterwards discharged, any magistrate may order any such witness to be discharged.

(6) The signature of the magistrate may be either at the end of the deposition of each witness, or at the end of several or of all the depositions, in such form as to show that the signature is meant to authenticate each separate deposition.”

It is noteworthy that the aforementioned section 105 of CPC Cap. 77 has been reformulated verbatim into section 102 of the current CPC Cap. 72B of the 2010 revised laws of Grenada.

[17] The CPC predates the 1978 Act, which was enacted on 29th September 1978. The preamble of the 1978 Act reads: “An Act to amend the law relating to the proceedings of preliminary inquiries, including the law relating to evidence”. It is clear from a plain and ordinary reading of the preamble that the 1978 Act was enacted by the legislature, as it says, to amend or make adjustments to the manner in which PIs are conducted. In this regard, the 1978 Act specifically addresses the manner in which evidence is admitted. Of particular significance to this discourse and bears repeating, is the fact that up until that 1978 Act, the statutory criminal procedure only permitted oral evidence to be admitted at PIs under section 105 of CPC.

[18] In 1978, the 1978 Act added new statutory procedures with respect to PIs. Section 2(1) of the 1978 Act reads:

(1) “A magistrate holding a preliminary inquiry may, if satisfied that all the evidence before the court (whether for the prosecution or the defence) consists of written statements tendered to the court under the following section, with or without exhibits, commit the defendant for trial for the offence without consideration of the contents of those statements, unless –

  1. a) The defendant or one of the defendants is not represented by counsel or a solicitor;
  2. b) Counsel or a solicitor for the defendant or one of the defendants, as the case may be, has requested the magistrate to consider a submission that the statements disclose insufficient evidence to put that defendant on trial by jury for the offence;” (Bold emphasis mine)

Section 3 of the 1978 Acts reads:

“(1) In a preliminary inquiry, a written statement by any person shall, if the conditions mentioned in the next following subsection is satisfied, be admissible as evidence to the like extent as oral evidence to the like effect by that person.

(2) The said conditions are:-

  1. a) the statement purports to be signed by the person who made it;
  2. b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he willfully stated in it anything which he knew to be false or did not believe to be true;
  3. c) at least 2 days before the statement is tendered in evidence, a copy of the statement is given, by or on behalf of the party proposing to tender it, to each of the other parties to the inquiry; and
  4. d) none of the other parties, before the statement is tendered in evidence at the preliminary inquiry, objects to the statement being so tendered under this section.

(3) The following provisions shall also have effect in relation to any written statement tendered in evidence under this section –

  1. a) if the statement is made by a person under the age of eighteen it shall give his age;
  2. b) if it is made by a person who cannot read it, it shall be read to him before he signs it and shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read; and
  3. c) if it refers to any other document as an exhibit, the copy given to any other party to the inquiry under paragraph (c) or the last foregoing subsection shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof.” (Bold emphasis mine)

[19] Mr. Thomas relies on section 2 to posit that the 1978 Act only allows written statements to be used to ground a committal where ‘all’ the evidence consists of written statements, or more properly put, in instances of paper committal. Counsel for Mr. Thomas argues that it is only in the instance of a paper committal that written statements can be admitted in lieu of oral evidence, and further that there must not be a mix of the paper committal and PI procedures. Counsel relies on the case of The Queen v Rawle Searles where counsel cites a ruling to the effect that – “to start a PI by taking oral evidence and then to switch to a paper committal halfway through was a misapplication of the paper committal provisions, and the indictment was accordingly quashed.” The court was not provided with a copy of this authority for its own assessment.

[20] From the foregoing exposition of the history and development of the law, I deduce, and it seems clear to me that magistrates in Grenada were allowed, for the first time in 1978, to commit defendants on written statements. Such evidence could be admitted at PIs by virtue of section 3(1) of the 1978 Act once the conditions of admissibility set out in sections 3(2) and 3(3) of the 1978 Act were satisfied. Importantly, the 1978 Act is pellucid that evidence admitted by virtue of section 3(2) of the1978 Act is to be treated to the like extent as oral evidence. As stated before, oral evidence was provided for under section 105 of the CPC, Cap 77, now section 102 of the CPC Cap 72B.

[21] Equally for the first time in 1978, a magistrate obtained the ability to commit a defendant based on these written statements, without an actual oral hearing in accordance with section 2 of the 1978 Act, which is now known in law as a paper committal9. I do agree with the learning in The Queen v Rawle Searles that a magistrate should not begin an oral hearing, then switch to a paper committal, as this would clearly be in breach of the provisions of section 2 of the 1978 Act. Notwithstanding, I do not believe or find that this is what transpired in Mr. Thomas’ case.

[22] What is not evident, and I do not agree with learned counsel, is that the procedure set out in section 3 of the 1978 Act was exclusively for cases where the magistrate was seeking to conduct a paper committal. The reasons are myriad but the following few may suffice to make the point –

(1) Nowhere is such a parliamentary intention evident. However, as I have stated above, the Act itself in its preamble alludes to its intent to address, among other things, the admissibility of evidence at a PI broadly.

(2) The terms of section 3 itself debunks such a conclusion. See for instance section 3(4) of the 1978 Act which reads:

“Notwithstanding that a written statement made by any person may be admissible in a preliminary inquiry by virtue of this section, the court before which the inquiry is held may, of its own motion or shall on the application of any party to the inquiry, require that person to attend before the court and give evidence.” (Bold emphasis mine).

Section 3(4) clearly envisions a PI hearing taking place, as it would be absurd to conclude that a magistrate would be obliged to call oral testimony on the application of a party or of their own motion when conducting a paper committal.

(3) See for further reference section 3(5) of the 1978 Act which reads:

“So much of any statement as is admitted as evidence by virtue of this section shall, unless the court commits the defendant for trial by virtue of the last foregoing section (being section 2) or the court otherwise directs, be read aloud at the hearing, and where the court so directs an account shall be given orally of so much of any statement as is not read aloud.” (Parenthesis and Bold emphasis mine).

Section 3(5) acknowledges that in cases where written statements are admitted at a PI, the magistrate is obliged to read out such statements aloud except in cases where the written statement is admitted under the paper committal process pursuant to section 2. There would be no point in reading aloud the written statements when a paper committal is being conducted since by definition, there is no hearing when such paper committals are conducted by the magistrate.

[23] The long and short of the foregoing is that I do not find that the 1978 Act was enacted to address admissibility of written evidence at a paper committal only. I find that the 1978 Act was specifically enacted to address the issue of admissibility of written evidence to found a committal. I think that Mr. Thomas has conflated sections 2 and 3 of the 1978 Act to arrive at the conclusion that the 1978 Act only speaks to admissibility of written statements when the magistrate is conducting a paper committal. This is an erroneous assessment of the law.

[24] Under a paper committal, a magistrate is determining whether to commit the defendant only on the written statements before him or her. Section 2 of 1978 Act contemplates such a scenario, where it empowers the magistrate to commit the defendant where all the evidence consists of written statements. As I have explained however, section 3 of the 1978 Act speaks to the admissibility of written statements generally, either during the paper committal process, or during the usual PI process where the evidence is considered, and in either instance, the magistrate determines whether to commit the defendant if a prima facie case is made out.

The happy marriage between the CPC and the 1978 Act

[25] When one examines the terms of section 102 of the CPC and the sections following, as I have indicated above, there was no power residing in the magistrate to admit written statements as part of a PI during an oral hearing, prior to 1978. The 1978 Act was enacted to address the specific question of the admissibility of written statements as part of the committal process and other matters, and thereby introduced a new regime. The CPC itself acknowledges that this can be done in certain circumstances when in its section 4, it provides that:

“(1) Unless the contrary is expressly provided by any statute, the provisions of this Code shall extend and apply to all proceedings which may be taken after the commencement of the Code in respect of summary and indictable offenses.

(2) The provisions of this Book shall, unless the contrary is expressly provided or by necessary implication appears to be intended, apply generally to proceedings under this Code.” (Bold emphasis mine)

[26] It therefore follows that the CPC provisions apply when dealing with oral evidence at a PI, and the 1978 Act applies when dealing with written statements at a PI. Having concluded, erroneously, that the 1978 Act only applies to paper committals, counsel for Mr. Thomas then argues that the CPC is the governing statute in cases where the magistrate is conducting an oral hearing at a PI. This, with respect to learned counsel, cannot be the correct conclusion.

[27] From a plain reading of the 1978 Act, the magistrate conducting an oral hearing at a PI can receive written statements along with oral testimony as long as the written statements meet the conditions set out for admissibility in section 3 of the 1978 Act. Once the magistrate finds that the written statements are admissible and has admitted the written statements, they are treated in the same manner as the oral evidence admitted under the CPC, that is as depositions. This is what sections 3(7) to 3(9) of the 1978 Act provide –

“(7) Section 201 of the Criminal Procedure Code (admissibility of depositions as evidence in certain cases) shall apply to any written statement tendered in evidence in a preliminary inquiry under this section, as it applies to a deposition taken in such an inquiry, but in its application to any such statement that section shall have effect as if subparagraph (ii) of subsection (i) thereof were omitted.

(8) In sections 110, 113(1). 114. 118(4), 120, 125, 139 (4), 148. 154. 169 (1) and 201 of the Criminal Procedure Code a reference to ‘depositions’ shall be construed as including a reference to any such written statement as aforesaid.

(9) A person whose written statement is tendered in evidence in a preliminary inquiry under this section shall be treated for the purposes of section 111 of the Criminal Procedure Code as a witness who has been bound over by the magistrate to give evidence at the trial of the accused before the court. “

There is no incongruity between the 2 statutes which leads to an absurd result. Indeed, for the reasons I have herein stated, the 2 statutes can be happily read together.

The case of the Evidence Act
[28] Counsel for Mr. Thomas’ interpretation of the law on the question of admissibility of written statements at a PI led him to further suggest that the Evidence Act sits unhappily within the requirements of the law on the matter at hand. I think that Mr. Thomas is correct when he says that the general terms of the Evidence Act ought not to be utilized to sidestep or ignore the express provisions of the 1978 Act and the CPC on the procedures for the conduct of PIs. I agree with his assertion of the principle generalia specialibus non derogat, but I do not find that the principle applies to this case.

[29] When one examines the Evidence Act, it is apparent that it also applies to the admission of written statements into evidence, once the conditions of admissibility of those written statements set out in that Act are satisfied. Section 36C of the Evidence Act expressly governs the admissibility of written statements in criminal proceedings. Section 36C provides:

“(1) Subject to this section, in any criminal proceedings, a written statement by a person shall, if the conditions specified in subsection (2) are satisfied, be admissible in evidence to the same extent and effect as direct oral evidence by that person.

(2) The conditions referred to in subsection (1) that –

  1. a) the statement purports to be signed by the person who made it;
  2. b) a copy of the statement and a notice of intention to tender the statement in evidence are served on all other parties to the proceedings by or on behalf of the person seeking to tender the statement in evidence, at least twenty – one days before the hearing at which the statement is to be so tendered.
  3. c) none of the other parties to the proceedings or their attorneys-at-law have, within ten days from the service of the copy of the statement, served a counter – notice on the party seeking so to tender it, objecting to the statement being tendered in evidence and requiring the attendance of the maker of the statement as a witness at the hearing.
  4. d) notice of the intention to tender the statement in evidence is accompanied by a declaration by the person who made it to the effect that it is true to the best of his or her knowledge and belief and that he or she made it knowing that, if it were tendered in evidence, he or she would be liable to prosecution if he or she willfully stated in it anything which he or she knew to be false or did not believe to be true.”

[30] When one examines in particular the conditions for admissibility of written statements in criminal proceedings, one sees that the provisions of section 36C(2) of the Evidence Act are indeed consistent (save a minute difference in the notification timeline on intention to tender the statement)10 with section 3(2) of the 1978 Act. Whereas the CPC stipulates the process for the admission of oral evidence at a PI, the 1978 Act and the Evidence Act deal with the process for the admission of written statements or hearsay evidence. The CPC, the 1978 and the Evidence Act may thus be viewed together as part and parcel of a comprehensive code that permits the magistrate conducting a PI to admit both oral and written material on which a defendant may be committed.

[31] Counsel for Mr. Thomas complained that the Evidence Act does not state that the written statements admitted pursuant thereto become depositions. I agree with counsel for Mr. Thomas on this point, but I find that there is a simple explanation for this. The Evidence Act was not enacted to address this matter but rather was enacted to address the admitting of evidence generally. It is the CPC (which deals with oral hearings at a PI) and the 1978 Act (which deals with admitting written statements at a PI) that specifically address depositions.

[32] Moreover, given the specific terms of the 1978 Act on admitting written statements, I do not envisage a scenario where the magistrate needs to have recourse to section 36C of the Evidence Act. However, where a magistrate cites section 36C of the Evidence Act as the basis for admitting the written statements, once those statements meet the requisites of admissibility set out in the Evidence Act, one cannot say that the statements were not properly admitted, and the committal is thus flawed. In this regard, it can be safely concluded that the Evidence Act and the 1978 Act on admissibility are consistent in their terms on the question of admissibility of evidence at a PI and there is no conflict or incongruity as argued by Mr. Thomas.

Whether the magistrate was permitted at law to admit the written statements of the overseas witnesses at PI

[33] The law provides that a committal can be quashed by the court if it is based largely on inadmissible evidence, as the admission of inadmissible evidence is not a harmless technical error but rather an irregularity which has substantial adverse consequences for the applicant11. Given the finding that counsel for Mr. Thomas was wrong in the assessment of the exclusive application of the CPC to the conduct of PIs, I will now consider whether the written statements met the test of admissibility as stipulated by law. The magistrate indicated in her notes that the statements were admitted pursuant to the Evidence Act. For the written statements to be admissible, they must meet some minimum criteria as set down under section 36(C) of that Act.

[34] Firstly, the AG’s submits that the written statements were admissible under section 36D(c) of the Evidence Act. Section 36D of the Evidence Act reads:

“…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 or her would be admissible if it is proved to the satisfaction of the Court that such person –

(a) Is dead;

(b) Is unfit, by reason of his her bodily or mental condition, to attend as a witness;

(c) Is outside of Grenada and it is not reasonably practicable to secure his or her attendance;

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

(e) Is kept away from the proceedings by threats of bodily harm and no reasonable steps can be taken to protect the person.”

[35] With respect to learned counsel, I find that the conditions for the admissibility of the written evidence in criminal proceedings are actually addressed in section 36C of the Evidence Act. The relevant sections of 36C of the Evidence Act read:

“(1) Subject to this section, in any criminal proceedings, a written statement by a person shall, if the conditions specified in subsection (2) are satisfied, be admissible in evidence to the same extent and effect as direct oral evidence by that person.

(2) The conditions referred to in subsection (1) are that –

  1. a) The statement purports to be signed by the person who made it;
  2. b) A copy of the statement and a notice of intention to tender the statement in evidence are served on all other parties to the proceedings by or on behalf of the person seeking to tender the statement in evidence, at least twenty one days before the hearing at which the statement is to be so tendered;
  3. c) None of the other parties to the proceedings or their attorneys-at-law have, within ten days from the service of the copy of the statement, served a counter-notice on the party seeking so to tender it, objecting to the statement being tendered in evidence and requiring the attendance of the maker of the statement as a witness at the hearing;
  4. d) Notice of the intention to tender the statement in evidence is accompanied by a declaration by the person who made it to the effect that it is true to the best of his or her own knowledge and belief and that he or she made it knowing that, if it were tendered in evidence, he or she would be liable to prosecution if he or shewillfully stated in it anything which he or she knew to be false or did

not believe to be true.

(3)…

(4) A statement shall be inadmissible in evidence under this section in evidence under this section in any criminal proceedings where a party to the proceedings has served a counter notice objecting to the statement being tendered in evidence and requiring the person who made the statement to attend the hearing as a witness.

(5) Notwithstanding that a written statement made by any person may be admissible by virtue of subsection (2), the Court may on its own motion or on application by any party to the proceedings, require the maker of the statement attend and give oral evidence at the hearing.

(6) Notwithstanding the failure of any party to the proceedings to serve a counter notice objecting to the admissibility of the statement, the Court may, if it thinks fit, permit the party to lead evidence contradicting the evidence contained in the written statement.

(7) Where contradicting evidence is given as mentioned in subsection (6), the party who tendered the written statement may lead additional evidence in response to the contradicting evidence.” (Bold emphasis mine)

I find that the written statements are not simply admissible because the witnesses fall within the terms of section 36D of the Evidence Act as submitted by the AG. The statements must first meet the test of admissibility in section 36C of the Evidence Act, and the process is available to persons who fall within the parameters of section 36D of the Evidence Act.

[36] At a PI, the magistrate is required to determine if the evidence met the test of admissibility. If it does, and there is no objection to the admission of the statement, then the magistrate can properly admit the written statements into evidence. In R v Bedwellty Justices, Ex Parte Williams, Lord Cooke of Thorndon stated:

“Section 102 of the Magistrates’ Courts Act 1980 stipulates that in committal proceedings written statements satisfying certain conditions are admissible to the like extent as oral evidence to the like effect by the same person. The implication is plain that, if necessary, the examining justices must consider admissibility. The duty must apply, I suggest, no matter what the ground on which admissibility is challenged before them. But, whatever the ground of challenge, I believe that your Lordships will endorse the caveat that, in general, justices will be well advised to sustain an objection and rule out evidence only if satisfied that this course is plainly required. In general, more doubtful questions of admissibility will be best dealt with by admitting the evidence and leading any further challenge to be raised before the trial judge or occasionally in judicial review proceedings.”

To be continued

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