Thomas et Al v The Queen

• Jurisdiction: Saint Kitts and Nevis
• Judge: Singh, J.A.
• Judgment Date: 28 October 1996
• Neutral Citation: KN 1996 CA 6
• Docket Number: Criminal Appeal Nos. 6 & 7 of 1996
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 28 October 1996

Court of Appeal

Byron, C.J. (Acting)

Singh, J.A.

Redhead J.A. (Acting)

Criminal Appeal Nos. 6 & 7 of 1996

Thomas et al

and

The Queen

Dr. Henry Browne and Miss K. Hughes for first-named appellant.

Mr. Hesketh W. Benjamin for second-named appellant.

Mrs. Joan Joyner DPP for respondent.

Criminal law - Appeals against conviction — Murder committed during robbery attempt — Facts: Grounds of appeal included fact that the depositions taken by the magistrate were defective and therefore null and void and that a no-case submission had been rejected by the trial judge — Held: Even if depositions are defective if a prima facie case is disclosed committal is valid despite the fact of the defective depositions — Trial judge was correct to uphold no-case submission because the appellant's admissions established a strong case which satisfied the doctrine of common design and all the elements required for the offence of murder — Appeal dismissed.

1 SATROHAN Singh, J.A.

2 On February 14, 1996, the appellants were convicted by a Jury before Hylton J of the offence of the murder of Kenneth Herbert, contrary to the Common Law. They were both sentenced to death. The allegation of the prosecution was that in their joint effort at robbing the Ottley's Plantation Inn in St. Kitts, they intentionally killed the night watchman Kenneth Herbert.

3 The case against the first named appellant rested solely on the caution statement he gave to the police. The case against the second-named appellant rested on oral and written admissions he allegedly made to the police. At the trial, the judge, at the close of the case for the prosecution, rejected submissions of no case to answer with respect to both appellants. The trial Judge also rejected submissions that the committal by the Magistrate of the appellants after the preliminary enquiry was bad. The trial Judge sustained objections that the deposition taken by the Magistrate of the witness Elwood Benjamin was defective and therefore null and void but allowed the witness to testify under the additional evidence procedure. The appeals of these appellants challenge the validity of the convictions on all of the aforementioned issues suitably worded as grounds of appeal.

4 During the hearing of the appeals, the appeal of Clement Thomas was allowed and his conviction and sentence quashed upon the Director of Public Prosecutions conceding the appeal. This Court has already given its reasons therefor. This judgment therefore concerns the appeal of the second-named appellant David Wilson.

THE COMMITTAL

5 During the trial of this matter, the prosecution attempted to call a witness Elwood Benjamin. His evidence was objected to by the defence on the ground that the Magistrate in taking his deposition at the preliminary enquiry did not comply with a certain statutory provision. The depositions were not authenticated by the Magistrate as required by S56 of Chapter 46 of the Laws of St. Kitts and Nevis. The Judge upheld the objection. The deposition of Elwood Benjamin was therefore null and void.

6 Mr. Benjamin for this appellant argued that the Magistrate, in the conduct of the preliminary enquiry, being a creature of statute, having failed to comply with this statutory provision, that the committal of this appellant was bad and that there was no committal as a matter of law. Counsel for the appellant concedes however, that without the deposition of Elwood Benjamin, there was enough evidence for the Magistrate to commit but contended that such a consideration was irrelevant because the Magistrate being a creature of statute, if he failed to comply with any of the statutory provisions, the entire proceedings were tainted with the illegality.

7 I do not agree. The law as I understand it is that if from the depositions properly taken, a prima facie case is disclosed, the committal is valid despite the fact of the defective depositions. The fact that the taking of a certain deposition did not comply with the statute cannot without more render the whole committal bad. Supportive of this proposition is the case of Charles Edgar, George Harry Parr, Peter Pontika, Thomas Andrew Rooney (1958) 42 CAR 192 where in the English Court of Criminal Appeal it was held that if, upon the depositions which were properly taken a prima facie case was disclosed, the committal was valid. In the instant matter, it is accepted by...