1. Conviction for breaking and entering and theft — Appeal against trial court's refusal to issue subpoenas for witnesses without requiring disclosure of the evidence's relevance. (Para 1 , 2 , 3 , 4 )
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1946 Supreme(SC) 11
Privy Council At West Africa
Sir John Beaumont, Lord Du Parcq, Justice Lord Porter, JJ.
Thomas Shorunke -Appellant
Versus
The King. -Resopndent
Privy Council Appeal No. 85 of 1944
Decided On : 11-04-1946
Advocates Appeared:
Burchells, A.L. Bryden and Co., F. Gahan, Sir Patrick Hastings, Elliot Gorst
Burchells, A.L. Bryden and Co., F. Gahan, Sir Patrick Hastings, Elliot Gorst
An accused person possesses a common law right to obtain subpoenas for witnesses without being required to disclose the relevance of the evidence beforehand, a right that exists alongside and is not superseded by statutory procedures for summoning witnesses during a trial.
Headnote:(A) Supreme Court Ordinance, 1914 - Sections 14 and 62 - Protectorate Courts Ordinance, 1938 - Section 12 - Criminal Procedure Ordinance, 1914 - Sections 66, 67 and 82 - Right to subpoena - Whether the court can condition the issuance of subpoenas on the disclosure of the relevance of the evidence - In the common law jurisdiction, an accused is entitled to subpoenas without conditions, although they may later be set aside if it is shown that the witnesses cannot provide relevant evidence (Para 5).
(B) Common Law Rights - The application of common law, doctrines of equity, and statutes of general application in force in the common law jurisdiction on 1st January 1909 remains applicable unless superseded by local ordinances (Paras 6, 15). Statutory provisions for summoning witnesses supplement rather than supersede the common law right to a subpoena (Para 15).
(C) Criminal Procedure - Provisions regarding preliminary investigations and summary trials (Sections 66, 67, and 82 of the Criminal Procedure Ordinance) deal with the court's power to adjourn and issue process at a specific stage of the trial but do not extinguish the right to apply for subpoenas throughout the proceedings (Paras 15, 16).
Facts of the case:
An accused person, while facing trial for breaking and entering and theft, requested the court to issue subpoenas for witnesses and produce documents. The trial judge required the accused to provide the gist of the evidence and the reasons for calling the witnesses to determine relevance before issuing the subpoenas. The accused refused to disclose the nature of his defense. Consequently, the court refused to provide further assistance with subpoenas, and the accused was convicted and sentenced to imprisonment.
Findings of Court:
The trial judge erred in refusing to issue subpoenas without requiring the accused to first satisfy the court regarding the materiality of the evidence. The right to a subpoena exists independently of the specific procedures laid down in the local criminal procedure ordinances.
Issues: Whether the trial judge was justified in requiring the accused to satisfy the court that there was a likelihood that witnesses could give material evidence before issuing subpoenas, or whether the accused was entitled to such subpoenas as a matter of right under common law.
Ratio Decidendi: The common law right to a subpoena continues to apply alongside local ordinances. While local statutes provide the court with discretionary power to summon witnesses or adjourn trials to compel attendance, they do not remove the accused's right to obtain subpoenas without being forced to disclose the relevance of the evidence beforehand. Conditioning the issuance of subpoenas on such disclosure constitutes a miscarriage of justice (Paras 15, 16).
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether subpoenas must be issued as of right under common law or are subject to judicial discretion regarding evidence relevance under local Ordinances. (Para 5 , 14 )
3. Local Ordinances regarding summary trials and preliminary investigations supplement rather than supersede the common law right to obtain subpoenas for witnesses during a trial. (Para 6 , 7 , 8 , 10 , 11 , 12 , 13 , 15 )
4. The common law right to a subpoena exists alongside statutory provisions, allowing an accused to summon witnesses without first proving the relevance of their evidence. (Para 15 , 16 )
5. Appeal allowed — Conviction set aside due to a grave miscarriage of justice resulting from the refusal to issue subpoenas without conditions. (Para 16 )
6. Does a defendant have a right to subpoenas without proving the relevance of the evidence first?
Yes. Under the English common law right of subpoena, which exists alongside local ordinances, an accused person is entitled to have subpoenas issued for witnesses without the court imposing conditions such as disclosing the reasons for calling them or proving the likelihood of material evidence. (Para 5 , 16 )
7. Do statutory provisions for summoning witnesses in summary trials supersede common law rights to subpoenas?
No. Statutory provisions that allow a court to summon witnesses upon satisfaction of their relevance supplement rather than supersede the common law right to a subpoena. (Para 15 , 16 )
8. Can a defendant only apply for subpoenas at the close of the prosecution's case?
No. While certain statutory sections deal with the procedure after the prosecution closes, they do not restrict the accused's right to apply for subpoenas before or during the course of the trial. (Para 15 )
Lord Porter.-
This is an appeal in forma pauperis brought by special leave from a judgment of the West African Court of Appeal dated the 27th April 1940, whereby, the appellant appeals against his conviction by the High Court of the Protectorate of Nigeria on 13th February 1940, for breaking and entering a building and committing a felony therein. The appellant, a police constable, was charged, together with three other constables and three other persons, with having broken and entered a store at Ogbomosho and having stolen therefrom £300. There were other indictments not now material. The charge was originally investigated in the District Magistrate's Court at Ibadan and after the evidence had been given for the prosecution the appellant together with the rest of the accused reserved his defence. All seven defendants were then committed for trial at the nest Ibadan Assizes. The trial began on 1st February 1940, when the appellant pleaded not guilty and stated that he was represented by a barrister-a Mr. Wells Palmer. As this gentleman was not in Court the learned Judge adjourned the trial until the following morning and gave instructions that a wire was to be sent to Mr. Wells Palmer informing him of the adjournment. He also asked the police to give every facility to the appellant to get in touch with his lawyer or employ one locally if necessary. Mr. Wells Palmer replied that he was not appearing and the trial proceeded on 2nd February and continued on the following days. During that day's sitting a list of witnesses and documents was handed by the appellant to the Court but he refused to tell the police anything about the contents of the papers required for production or the evidence expected to be given by the witnesses whose names were set out. The learned Judge at the end of the sitting warned the appellant that he must give the gist of the evidence required, in order that it could be judged if relevant, and told him that if relevant, free subpoenas would be issued, but not otherwise.
[2] On 3rd of February the Solicitor General, who was appearing for the prosecution, informed the Court that he had endeavoured to assist the appellant to sort out his witnesses and documents. The appellant, however, had refused his assistance- quite rightly, as the learned Judge observes in the course of his judgment - as he did not want to disclose his defence to the Crown's representatives. The Solicitor-General appears mistakenly to have thought that the learned Judge had instructed the police to assist the appellant and accordingly asked that they might be relieved from any further obligation to assist in collecting witnesses or documents. In the circumstances the learned Judge reconsidered his decision and determined to see the accused in chambers on the rising of the Court in order to discover what witnesses and documents would be necessary in the interests of justice to be produced on the appellant's behalf. In the course of this day's proceedings and during the appellant's cross-examination of one of the prosecution witnesses, the Solicitor-General objected to one of the questions put as being irrelevant and the appellant thereupon informed the Court that he would ask no more questions and make no statement until he got a lawyer. He did thereafter throughout the whole course of the trial remain mute and refuse to take any further part in the proceedings. Nevertheless in accordance with his promise the learned Judge saw the accused in his private room at the close of the day. At this interview the learned Judge, the interpreter, the appellant and one other accused alone were present, though a police officer had been in the room originally and the Solicitor-General came in for a moment to say that all the necessary documents would be produced.
[3] On this occasion the appellant repeated his assertion that a lawyer was being sent to defend him and was then asked to give a list of the names of the witnesses he wished to call, and the reas
