Automated Summary
Key Facts
Atmanand Babajee was charged with three offences under the Road Traffic Act: failing to provide breath specimen (Count I), failing to provide blood specimen (Count II), and driving with alcohol above prescribed limit (Count III). The accused sought dismissal due to the death of witness 3, but the court set aside the motion, ruling that the prosecution can proceed with other witnesses and a fair hearing is possible.
Issues
The court determined whether the death of the contravening officer (witness 3) would deny the accused a fair hearing, requiring dismissal of the charges. The court held that the right to a fair hearing is not absolute and that the case could proceed with other evidence, so the motion to dismiss was denied.
Holdings
The court set aside the motion to dismiss the case, ruling that the absence of the deceased witness 3 does not prevent a fair hearing as other witnesses can be called and the case is not solely dependent on witness 3's testimony.
Legal Principles
- The court applied Natural Justice principles, specifically addressing the non-absolute nature of the right to cross-examine under section 10 of the Constitution. It relied on J.D.H Charles v State [2015] SCJ 410 to establish that fairness must be assessed holistically, balancing the accused's rights with public and victim interests.
- The court applied admissibility principles for hearsay evidence from absent witnesses, citing Al Khawaja and Tahery v The United Kingdom and R v/s Horncastle to establish that such evidence may be admitted if it does not compromise trial fairness under Article 6 of the European Convention.
Precedent Name
- Appadoo vs R
- J.D.H Charles v State
- R v/s Horncastle & Ors
- R. v. Davis
- Al Khawaja and Tahery v. The United Kingdom
- Mohammed v The State
- Nembhard v. the Queen
- State v Stockall D A
Cited Statute
Road Traffic Act
Judge Name
Ashmi Nuckchady
Passage Text
- 6. True it is that, in the case of J. D. H. Charles (supra), the hearsay evidence the admissibility of which was in issue was a dying declaration, however, the underlying legal principle applicable would not be materially different in the present context. In the decision at first instance which has been approved by the Full Bench in J. D. H. Charles(supra) numerous foreign judgments, in particular those of the United Kingdom Supreme Court and of the European Court of Human Rights have received full consideration.
- 7. There are also cases where the European Court of Human Rights has admitted the statement of a witness who has passed away or is otherwise absent and even upheld a conviction where hearsay was the sole evidence [R v/s Horncastle & Ors [2009] EWCA 64; Al Khawaja and Tahery v The United Kingdom [2012] E.H.R.R 23] which again shows that the right to confront a witness for the Prosecution under Article 6(3)(d)of the Convention of Human Rights, which is in substance and in essence to the same effect as section 10(2)(e) of our Constitution, is not absolute. The European Court of Human Rights, laid emphasis on the relevant considerations as being an assessment of the impact that the defendant's inability to examine a witness has had on the overall fairness of his trial [State v Stockall D A [2016 SCJ 41]].