Supreme Court
27th June, 1984
Moe, C.J.

Mr. G.C. Gandhi for the Prosecution
Mr. E. Flowers for the Defence

Motion to quash indictment - Indictable Procedure Ordinance - Whether there was an irregularity of committal proceedings - Proceedings irregular and no lawful committal of accused.

RULING ON MOTION TO QUASH INDICTMENT

Counsel for the First accused, Mr. Edwin Flowers, moved to have quashed the indictment against him in this case on the grounds that the purported committal of the accused for trial made by the Magistrate is null and void. His main contention is that the Magistrate did not comply with section 35 of the Indictable Procedure Ordinance, Chapter 22, hereinafter referred to as the Ordinance. Mr. Sampson for the Second accused associates himself with the submission.

The provisions of section 35 of the Ordinance are as follows:

"35. (1) After the proceedings required by the preceding section are completed, the examining Magistrate shall ask the accused person whether he desires to give evidence on his own behalf and whether he desires to call witnesses.

(2) If the accused in answer to the question states that he wishes to give evidence or to call witnesses, or both to give evidence and to call witnesses, the examining Magistrate shall proceed to take the evidence of the accused if he wishes to give evidence himself, and of any witnesses called by him who know anything relating to the facts and circumstances of the case or anything tending to prove the innocence of the accused, and the depositions of the accused and his witnesses shall be taken, signed, authenticated and transmitted to the court of trial in the same manner as the deposition of a witness for the prosecution.

(3) Nothing contained in this section shall prevent the prosecutor in any case from giving in evidence at the trial any admission or confession or other statement of the accused made at any time which is by law admissible as evidence against the accused."

The record transmitted to the Registrar and certified by the Magistrate to be a true copy of the depositions and other documents relating to the cause contains no reference to section 35 of Chapter 22. Immediately after the depositions of various witnesses there appear the following two documents:-

The charges are read over to the accused Frank Puerto and he is then addressed by me in accordance with section 34(1) of Chapter 22.

I have complied with the provisions of section 34(2) of Chapter 22 whereupon the accused states:

The accused Frank Puerto:

"No I do not wish to say anything in answer to the charge."
Sgd. Frank Puerto
Sgd. Glenford Quallo
Magistrate

"I do not wish to call any witnesses"
Sgd. Frank Puerto
Sgd. Glenford Quallo
Magistrate

The charge is read over to the accused John Popper and he is then addressed by me in accordance with section 34(1) of Chapter 22.

I have complied with the provisions of section 34(2) of Chapter 22 whereupon the accused states:

The accused person John Popper:

"I don't wish to say anything in answer to the charge."
Sgd. John Popper
Sgd. Glenford Quallo

"I don't wish to call any witnesses."
Sgd. John Popper
Sgd. Glenford Quallo

Upon the whole of the evidence I am of the opinion that a sufficient case has been made out to put the accused persons upon their trial. I therefore commit both accused persons for trial at the next quarterly session of the Supreme Court to be held at Belize City on the day of 19th June, 1984.

Both accused persons were granted bail at $1,000.00 plus two sureties.

Dated at Belmopan this 16th day of April, 1984.

Sgd. Glenford Quallo
Magistrate

Counsel for the accused submitted that the above document shows that the Magistrate while complying with section 34 of the Ordinance did not comply with section 35. Firstly, the Magistrate did not indicate that he was complying with section 35. Secondly, there is nothing on the record to show that the Magistrate told the accused of the alternatives open to him under that section and thirdly, the statement "I don't wish to call any witnesses" signed by the accused appearing as it does where it is cannot be held by the Court to indicate that the Magistrate had complied with section 35. Fourthly, the Magistrate after complying with section 34 purported to comply with section 40(1) of the Ordinance. Section 40(1) is as follows:-

Subject to the provisions of this section, if, upon the whole of the evidence, the examining Magistrate is of the opinion that a sufficient case is made out to put the accused person upon his trial he shall commit him for trial to the next practicable sitting of the Court for the district in which the inquiry is held.

In support of his submission Counsel referred to the following cases:-

R. v. Moran (1966)
R. v. Martinez (1967)
R. v. Banos (1973)
R. v. Eagan (1977)

in each of which rulings had been delivered by the Supreme Court on the very point. He also referred to R v. Gee and Others (1936) 2 All E.R. 89 and R v. Phillips and Quayle (1938) 3 All E.R. 674 in support of his contention that the Magistrate must comply strictly with the provisions of the Ordinance when committing an accused for trial.

The learned Director of Public Prosecutions submitted that the record does show that the learned Magistrate adverted to section 35 of the Ordinance because there is recorded the statement of the accused "I do not wish to call any witnesses" and that whether in fact he did so can be clarified by the Magistrate. The learned Director also contended that the Court's power to investigate how the indictment came to be preferred for the purpose of quashing it is limited and this is not one of the situations in which the Court may do so. He referred to the case of Keme v. The Queen Criminal Appeal No. 4 of 1978. The learned Director clearly relied heavily on certain dicta of the Court of Appeal in that case. One of the grounds of appeal of the Appellant Keme was that the learned judge had erred in deciding that the committal of the Appellant for trial and the indictment preferred against him were lawful and regular. Before the learned trial judge, the application to have quashed the indictment preferred was on grounds which the trial judge grouped under two heads, namely that the examining Magistrate:

(1) admitted evidence which he should not have admitted; and

(2) did not take into account evidence which he could have taken into account. The learned trial Judge refused the application and at the hearing of his appeal against his conviction the same matters were raised which were:-

(1) The examining Magistrate did not, as required by section 30 of the Ordinance cause a doctor to examine the person who was the subject matter of the charge against the Appellant;

(2) The examining Magistrate contrary to section 36(3) of Chapter 18 took into consideration the medico legal report of a doctor, which was tendered by a police witness and did not ensure the taking of the doctor's deposition as required by the said section 30;

(3) The examining Magistrate did not hear and consider the evidence of a person from whom the prosecution had obtained a statement and whom they had intended to call at the preliminary enquiry but who failed to attend with the result that a bench warrant was issued for him.

It is against the above background that the dicta of the Court of Appeal ought to be read. The Court said, "We may add that we have dealt at some length with the matters raised under the first ground of appeal but we are by no means satisfied that the Appellant was entitled to raise them in the fashion adopted in either this Court or the Court below.

The Court sitting to try an indictment is not there to act in an appellate or revisory capacity in respect of the committal proceedings and there is much authority for the view that its power to go behind the indictment and explore how it came to be preferred are limited. Thus in R v. London Country Sessions ex parte Downes 37 C.A.R. 148, a very strong Divisional Court said: 'The only ground on which the Court can examine the depositions before arraignment is to see whether, if a court is included for which there has not been a committal, the deposition or examination taken before a Justice in the presence of the accused discloses that offence.'

In the same case, an indication is given of the very limited range of circumstances which can arrest, arraignment and trial once an indictment is before the court and although these include a motion to quash, the Judge's ruling in respect of the latter will be made upon the form and matter on the face of the indictment save in the one instance where there has been no committal for the offence charged and it is alleged not to be disclosed by the depositions. See Archbold 39th Ed. paras. 99A and 120 and R v. Jones and others 59 C.A.R. 120, 126.

Viewed in context, the judgment to my mind reiterates the proposition that a committal is not bad merely because a Magistrate has taken evidence that was inadmissible nor because a Magistrate has not heard evidence from a person the Prosecution could have presented. The Court had earlier in its judgment stated that the ground of appeal was without merit and in the passages referred to by the learned Director of Public Prosecutions was questioning the Appellant's entitlement to raise the points as a ground for quashing the indictment. I do not take the judgment of the Court of Appeal in Keme's case to be laying down that a trial judge once an indictment is before him cannot quash an indictment where committal proceedings were irregular and contrary to law.

In R v. Gee and Others (Supra) at the trial of the Appellants, an objection was raised on their behalf that they were not lawfully before the Court because they were not legally committed for trial and consequently there was no indictment before the Court. The trial judge felt he was bound to try the indictment placed before him but gave the Appellants opportunity of moving by certiorari to quash the indictment. They did not do so and the trial judge thinking he could not give effect to the objection raised, proceeded to try the indictment. On the Appellants' appeal from their conviction Goddard J. as he then was, gave his opinion that the trial judge was wrong in not giving effect to the objection taken on behalf of the Appellants at their trial that there was no lawful committal and accordingly no indictment before the trial judge. He added "although they (the Appellants) might have applied for certiorari it does not make the proceedings regular if they do not do so --- the objection taken by the prisoners is good." Again in R v. Phillips and Quayle (supra) it was at the trial that counsel moved on behalf of his client to quash the indictment on the ground that the proceedings before the committing justices were so defective that there was no lawful committal for trial. The submission was overruled, trial proceeded and the accused convicted. The alleged irregularity of the committal proceedings was the sole ground of an appeal at which it was held that failure to comply with certain sections of the relevant act made the committal a nullity as far as one of the Appellants was concerned.

In the matter before me Mr. Flowers has raised matters relating to procedure which in my view are fundamental to the validity of committal proceedings. In each of the cases referred to by Mr. Flowers, the learned trial judge gave rulings which support his contention. In Regina v. Noran, Chief Justice Inniss ruled "Section 35 of Chapter 22 lays down a requirement which must be complied with by the Magistrate before he can proceed either to discharge or to commit the accused, and in my opinion a magistrate has no jurisdiction either to discharge a person or to commit him for trial without having first complied with the provisions of that section. Section 35 requires the magistrate to ask the accused whether he desires to give evidence on his own behalf and whether he desires to call witnesses."

The learned chief Justice gave a similar ruling in Regina v. Martinez where he pointed out "a committal of an accused person for trial by the Supreme Court when the provisions of section 35 of Chapter 22 have not been complied with is a nullity and all proceedings stemming there from including an indictment filed, are also a nullity." These rulings were followed in Regina v. Baños by Mr. Justice Staine who pointed out "The purpose of a preliminary inquiry is to elicit evidence which should indicate whether the accused should or should not be put on trial. --- section 35 by using the term 'innocence of the accused' clearly has in mind that by giving evidence or calling witnesses the accused may be able to establish his innocence. ---An accused person has already had his right of cross examination taken away by virtue of the provisions of section 33(10) and if he is not given the right to give evidence or call witnesses, all an examining Magistrate will have before him in deciding whether to commit or not will be the depositions of prosecution witnesses which have not been tested by cross examination. Thus it appears to me to be a gross breach of the rules of natural justice, in roads to which have already been made by Statute. In Regina v. Eagan, Chief Justice Malone in his ruling stated "To my mind the Ordinance lays down a strict procedure it must appear from the record or from evidence adduced or both that the procedure has in fact been followed. Were it otherwise this Court would be placed in the position of having to resolve an issue of this nature by the tossing up of a coin and that can not be. Further as the Court is to be satisfied that the mandatory procedure has been followed the burden, to my mind, rests upon the party maintaining that it has been, so to satisfy the Court."

In the instant case, reading the document set out above, I find the statement "I do not wish to call witnesses" to be one of two statements made after the charge was read to the accused and he was addressed by the Magistrate as required by section 34(1) and (2) of Chapter 22. I do not accept the learned Director's submission that it may be presumed that the Magistrate asked the accused the questions set out in section 35 because there is the statement "I don't wish to call any witnesses." Can it be said that the statement is in answer to the question "Do you desire to give evidence on your own behalf?" I think not. It is therefore not clear from the record that the requirements of section 35 have been complied with. It thus becomes evident that the burden of satisfying me that the section has not been complied with has not been discharged.

I accordingly hold that there was no compliance with section 35 of the indictable procedure Ordinance Chapter 22 and as a consequence there was no lawful committal of the accused.

The ruling applies also to the case of the second accused.

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