Gilkes v Stoute

• Jurisdiction: Barbados
• Judge: Stoby, C.J.
• Judgment Date: 06 April 1962
• Neutral Citation: BB 1962 HC 4
• Docket Number: No. 25 of 1962
• Court: High Court (Barbados)
• Date: 06 April 1962

High Court

Stoby, C.J., Field and Hanschell, P.J.

No. 25 of 1962

Gilkes

and

Stoute

Mr. A.V. Walcott for the appellant.

Mr. O.M. Brome for the respondent.

Practice and procedure - Procedure for taking evidence — Magistrate's Jurisdiction and Procedure Act, 1956—57, s. 47(2) — Procedure for taking evidence not followed by magistrate — Whether irregularity went to root of case.

Facts: Reuben Gilkes was charged before a magistrate with unlawfully beating his wife contrary to s.35 of the Offences Against the Persons Act, 1868—5. After the prosecution's case was closed Gilkes elected to give evidence on oath. He was sworn and the Magistrate's note reads “evidence read and confirmed”. Gilkes then gave evidence and was cross-examined. He was convicted and appealed. His counsel argued that the manner in which his evidence was taken was so contrary to recognised procedure that the case should be remitted to the Magistrate for re-hearing. Counsel for the respondent submitted that the evidence read by the Magistrate to the appellant ought to be treated as inadmissible evidence and ignored. He urged that there was ample evidence to sustain the conviction in the absence of this inadmissible evidence.

Held: Dismissing the appeal, that the irregularity did not go to the root of the case.

Stoby, C.J.

1 The ground of appeal argued in this case relates to the manner in which evidence should be taken at a criminal trial in the Magistrate's Court.

2 The appellant was charged with unlawfully beating his wife contrary to section 35 of the Offences Against the Persons Act, 1868–5. In the Magistrate's Court after the case for the prosecution was closed the appellant elected to give evidence on oath from the witness box. After he was sworn the Magistrate's note reads:

3 “Evidence read and confirmed:”

4 The appellant then gave evidence and was cross-examined. He also called a witness. The magistrate convicted him.

5 Counsel for the appellant has argued that the manner in which the appellant's evidence was taken is so contrary to recognised procedure that the case should be remitted to the magistrate for re-hearing.

6 Counsel for the respondent while not contending that the course taken was the proper one has submitted that the evidence read by the Magistrate to the appellant ought to be treated as inadmissible evidence and ignored. He urged that there was ample evidence to sustain the conviction in the absence of this inadmissible evidence. The cases of R. v. Foster 173 E.R. 219 and A.G. v. Bertrand 1865 Vol. 1 L.R.P.C.A. p.520 were cited.

7 Up to the seventeenth century there was no recognised procedure for the administration of summary justice. In certain cases it was not necessary to call a witness; his written statement was enough. By the Act of 6 & 7 Wm. & M c. 11 s.1 a justice of the peace could fine persons who profanely cursed or swore in his presence or hearing. It was not necessary to take evidence; if the justice of the peace said it was so then it was so.

8 Gradually however a recognized form of procedure was evolved and now in Barbados by the Magistrates' Jurisdiction and Procedure Act, 1956–57 section 47(2) it is enacted that “The magistrate, after hearing the evidence and the parties, shall convict the accused or dismiss the information”. This section clearly implies that a witness or informant or defendant must give his evidence and the magistrate must hear it. This procedure enables the magistrate to look at the witness and note the manner in which he gives his evidence thereby assisting in arriving at an opinion regarding his credibility or otherwise. Reading the evidence given in another case in not hearing the witnesses' evidence.

9 In R. v. Foster(supra) the prisoner was on four counts of felony. On the trial of the second count the judge permitted the evidence of the witnesses in the first count to be read.

10 In R. v. Bertrand(supra) the jury disagreed at the first trial; at the second trial the evidence of several...