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Page 1 of 67
THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Criminal Appeal No. P023 of 2013
CR No. 0031 of 2003
DANIEL AGARD
Appellant
AND
THE STATE
Respondent
PANEL:
A. Yorke-Soo Hon, J.A.
N. Bereaux, J.A.
M. Mohammed, J.A.
DATE DELIVERED: July 25, 2019
APPEARANCES:
Mr. Jagdeo Singh, Mrs. Renuka Rambhajan, Mr. Trevor Clarke and Mr. Criston J
Williams appeared on behalf of the Appellant.
Mr. Travers Sinanan and Ms. Mauricia Joseph appeared on behalf of the
Respondent.
Page 2 of 67
JUDGMENT
Delivered by: A. Yorke-Soo Hon, J.A.
INTRODUCTION
[1] The appellant, Daniel Agard, and another man (“the other man”), were both
charged for the triple murders of Maggie Lee (Maggie), Lynette Pearson (Lynette)
and John Cropper (John) which occurred on the night of December 11, 2001. The
appellant was charged on December 19, 2001, and on July 14, 2004, he was
convicted and sentenced to death. He successfully appealed his convictions and a
retrial was ordered on April 15, 2005. At the retrial, in September 2013, he was
convicted and sentenced to death. He now appeals the convictions.
CASE FOR THE PROSECUTION
[2] The appellant was the great-nephew of John and Angela Cropper (“the Croppers”).
Maggie was his great grandmother, Lynette was his great aunt and John was his
great uncle. Ken and Robin were Maggie’s sons and Angela and Lynette were her
daughters. In 1999, the appellant did some work for the Croppers at their home
in Cascade. Whilst in their employ, he stole an electronic item from them and he
was fired. He also worked for Ken, and his employment was terminated as a result
of an altercation. The appellant made threats to kill Ken and his family and to burn
down Ken’s house. He also threatened to kill Robin as well as Maggie, John, Angela
and even his own mother.
[3] In August 2001, the appellant went to the Croppers’ residence to collect a pair of
boots and requested a letter of recommendation from Angela and an opportunity
to speak with John. He also made demands for money but Angela denied all his
requests. He then threatened to damage the Croppers’ car and refused to leave
the premises. The police had to be called in.
Page 3 of 67
[4] On December 11, 2001, Lynette held a tea party at the Croppers’ home. Angela
was abroad at the time. Around 5:30 pm that evening, Anjanie Maharaj was
visiting her mother who lived near the Croppers. She observed two men at the
bottom of a nearby hill, close to the track which led to the Croppers’ residence.
After the party, one Judith Sheppard assisted Lynette to tidy the premises. She left
around 6:30 pm. Angela telephoned John on both December 11 and 12, 2001 but
received no answer.
[5] On December 12, 2001, at approximately 2:00 am, the appellant’s image was
captured on camera at the ATM machine at Republic Bank in Tunapuna. The
bank’s record showed that he conducted several transactions using John’s card
and accessing John’s account. He withdrew the sum of two thousand dollars
($2,000.00) altogether on that day. Dion Jones, a taxi driver, was hired by the
other man to come to his home at Maitagual Road. When Jones got there, he met
the appellant whom he had known before as ‘Dougla’. The appellant told Jones
that he had been evicted and needed a place to store his belongings and
requested to be taken to Mendez Drive. Upon their arrival, the appellant placed
two television sets and two bags inside the car. They then proceeded to the home
of Jones’ brother, Daryl Mc Donald in Maitagual Road where they left the items.
Jones then dropped them off at the other man’s house. They did not pay Jones
and the appellant told him to keep one of the television sets until he could pay
him. On the next day, Mc Donald carried a Compaq laptop, a ‘zip drive’ and an ‘A
drive’ to one Christopher Callender and a television set to Jones’ girlfriend Malika
London.
[6] Around 9:00 am on December 13, 2001, the Croppers’ housekeeper, Agnes
Williams, arrived at their residence to take up her duties. She noticed that all the
lights were on, the gate to the premises was opened, John’s vehicle was missing
and the house was ransacked. Angela’s sister-in-law, Maria Persad subsequently
arrived and discovered the bodies of Maggie and Lynette in the bedroom, while
Page 4 of 67
John’s was in the bathtub. The deceased were gagged, their hands bound with
black computer/electrical cord and their bodies bore injuries to their necks. There
was a Du Maurier cigarette pack on the floor, although the Croppers were
environmentalists and did not allow smoking at their home. A knife was missing
from the knife block in the kitchen and there was a substance resembling blood
on the bed and the couch in the bedroom where the bodies were discovered. A
jewellery box was found lying on the floor and there was a blue denim t-shirt in
the bathroom sink. Angela later drew up a list of missing items from the home
which included electronics, money, John’s ATM card, John’s car, jewellery and a
serrated edged knife.
[7] On December 13, 2001, Jones took the appellant to an ATM machine at Republic
Bank, Independence Square, Port of Spain. Whilst there, the appellant’s image was
captured on camera around 4:45 pm and 6:25 pm. The bank’s record showed that
he conducted several transactions using John’s card and accessing John’s account.
He withdrew the sum of one thousand dollars ($1,000.00) altogether on that day.
On December 14, Jones took the appellant to Maracas Beach and to Kazim’s
Jewellery Shop in Maraval where Jones spoke with one Abdul Mohammed and
gave him a bag containing jewellery. Later that night, the appellant was arrested
by Insp. Nedd at Upper Bush Street, Maitagual and was informed of his
constitutional rights and privileges. He remained silent. Thereafter, he was taken
on inquiries to Diego Martin and Champs Fleurs and returned to Homicide at 11:00
pm where Insp. Nedd sought to interview him. However, the appellant indicated
that he was tired and Insp. Nedd postponed the interview and allowed him to rest.
[8] Around 5:25 pm on December 15, 2001, Sgt. Dick cautioned the appellant,
informed him of his right to an attorney and then interviewed him. Insp. Nedd
made contemporaneous notes of that interview. During that interview, he told
Sgt. Dick that he worked for the Croppers in 1999 and that he stole from them but
denied taking money or jewellery from them or that he was involved in the
Page 5 of 67
murders. He also said that at the material time, he was selling drugs on Prizgar
Road, after which he bought weed, smoked it and then went to sleep. He said that
he only smoked Du Maurier cigarettes.
[9] On December 16, 2001, the appellant was interviewed by Insp. Nedd and was
again cautioned and informed of his rights. Insp. Nedd requested that the
interview be taped and the appellant agreed. The appellant then proceeded to say
that he was hustling drugs on the night in question and subsequently got into an
altercation with someone. He also said that a former co-worker, with whom he
had worked at the Croppers, told him of a plan to rob the Croppers, and asked him
to participate but that he had expressly refused.
[10] On December 18, 2001, Insp. Nedd had received instructions to charge the
appellant and as he was about to do so the appellant blurted out “Mr. Nedd ah
know yuh going an charge meh for this murder so leh meh tell yuh de truth”.Insp.
Nedd then cautioned him and again informed him of his rights. The appellant, of
his own volition, proceeded to say that “If I ent tell yuh dis ah go can’t sleep”.
Insp. Nedd reminded him that he was under caution. The appellant then gave an
oral statement to Insp. Nedd in the presence of Sgt. Corbett, who made
contemporaneous notes of what was said. The appellant spoke voluntarily and
was not questioned by the police. The appellant described a plan to rob the
Croppers which he made with one Cudjoe one week before the incident. On
December 10, 2001, he, Cudjoe and two others went to the Croppers’ home but
it was closed and they left. The following day, he and Cudjoe were taken to the
Croppers’ residence. There were people there and Cudjoe and the appellant stood
in the bamboo patch outside until they saw John reversing his car. They then went
into the premises and the appellant grabbed a woman and Cudjoe tied a cord
around her neck. The appellant then left to get John and left the lady with Cudjoe
and he told the police that when he returned “the lady done out of it”. They had
a three-line cutlass and they did not wear any masks but he wore a hat. Cudjoe
Page 6 of 67
used the cutlass to planass1 John on a couch in the bedroom and John’s hands
were tied behind his back. The woman’s hands were tied behind her and her neck
was also tied with the same cord. The old lady’s hands were tied in front of her.
The appellant told the police that “I looking for about Wednesday to hear the
people loose them selves, I aint hearing no thing, the old lady ain’t are know
what happening she coulda even call the police”.
[11] The appellant told the police that he changed his blue long-sleeved jeans jacket
and left it in the bathroom sink and took one of John’s grey shirts. He packed up
several electrical items from the Croppers’ house and placed them inside John’s
car. He left the Croppers’ and dropped off the items at “Small Mickey’s” in Champs
Fleurs and later met Cudjoe by the ‘lookout’ at Lady Young Road. At that time, he
did not know that the deceased were killed. He first learned of their deaths from
Cudjoe, who told him he “fix it”. Cudjoe gave him three thousand dollars
($3,000.00). The appellant then drove John’s car to Hoyte’s Furniture in Champs
Fleurs and left it there. He burnt John’s shirt and the trousers which he was
wearing during the robbery. He said that “when the throat cutting start I did done
leave” and “I sure is a knife from in the house that 3-line can’t do that, I did not
carry Cudjoe to kill the people nah. I don’t know what them people dead for”. He
admitted finding jewellery inside a big “pretty jewel box” which was sold to Jones’
jeweller in Maraval.
[12] After taking the oral statement, Insp. Nedd asked the appellant whether he
wished to make a written statement, and he agreed to do so. He also volunteered
to point out several locations which he referred to in his oral statement and the
police obliged. One such location was the ‘lookout’ on the Lady Young Road,
where the police conducted a search for a knife which was alleged to have been
used in the murders but it proved futile.
1 ‘planass’ in Trinidad and Tobago’s vernacular refers to hitting someone with the flat side of the
blade of a cutlass.
Page 7 of 67
[13] During the course of their enquiries, Sgt. Dick and other officers recovered several
of the items which were missing from the Croppers’ house and Sgt. Veronique
retrieved the jewellery which was left by Jones at Kazim’s Jewellery Shop. Angela
later identified them. The forensic pathologist, Dr. Des Vignes found that the
deceased died as a result of wounds inflicted to their necks caused by a sharp-
bladed instrument. Angela’s jewellery box which was found on the scene
contained a fingerprint matching those of the appellant. The fingerprint was
‘recent’ and was contemporaneous with the time of the killing.
[14] Around 1:45 am on December 19, 2001, the appellant was charged for the three
murders and cautioned. He told Insp. Nedd, “I understand perfect well and the
statement you asked about I will give it in the morning”. Around 10:15 am, Insp.
Nedd cautioned the appellant and asked him if he still wanted to give the
statement and the appellant replied in the affirmative. Around 11:25 am, the
appellant was again cautioned and informed of his rights. He gave a written
statement in the presence of Insp. Nedd, Sgt. Corbett and Marisa Singh, a Justice
of the Peace (JP). The JP was informed by Insp. Nedd that he had already been
charged for the triple murders but that he still wanted to give a statement in
writing. No one had made any promises or threats or held out any indicements to
him in irder for him to do so.
[15] In his written statement, the appellant admitted to a plan which involved robbing
the Croppers and described how he and Cudjoe executed that plan. His written
statement contained essentially the same details as his oral admission but with
some amplification. He said that when he grabbed the woman, she began to
scream and Cudjoe placed his hand over her mouth. He said that Cudjoe “planass”
John and asked him for money. While the appellant was ransacking the house, he
heard John “bawl out” and he ran and told Cudjoe not to hit him again. Cudjoe
wore gloves, but he did not. He and Cudjoe then went through the house to see if
Page 8 of 67
they had left anything behind. The appellant left the premises using John’s car
leaving Cudjoe behind as Cudjoe said that he had “some thing to finish up”.
[16] When he met Cudjoe at Lady Young Road, Cudjoe told him that he “fix dat scene”.
The appellant asked what he was speaking about and he replied “dead men tell
no tales” that he, Cudjoe “fix dat an pelt de knife over de hill nah”. He told Cudjoe
that “nobody was to dead” and that they had never spoken about that. Cudjoe
told him that he was not taking any chances and to “hush his f—ing mouth”. He
threatened him and told him not to say a word to anyone because he would meet
a similar fate as he knew his family and his girlfriend. He again asked Cudjoe how
he could kill those people. Cudjoe replied that he had already spoken. The
appellant told Insp. Nedd “Mr. Nedd ah want yuh to write this. Mr. Nedd no
where in de planning anything ever talk about killing anybody. Nobody was
supposed to dead. I tell him doh even hit dem really nah because how ah know
them nah”. At the end of the statement, he was allowed to read it and he was
permitted to alter, add or correct anything and he signed it. The JP then
authenticated it.
CASE FOR THE APPELLANT
[17] The appellant gave no evidence but called one witness, Roger Peters, a police
officer whose evidence was pertinent to the conditions in which the appellant was
kept whilst in custody. The case for the appellant was one of alibi and fabrication.
The alibi was established through his first two oral statements. He also claimed
that officers fabricated the evidence against him as can be gleaned from cross-
examination conducted on his behalf.
[18] Through cross-examination, the appellant asserted that the deceased and their
families were “well linked” and prominent people and that the police had
fabricated the evidence against him with the assistance of Angela, who had
Page 9 of 67
disliked him. Some of the police officers were members of the same “lodge” as
John and they were determined to hold someone responsible for the murders.
[19] He was subjected to oppression and violence whilst in police custody. He was 18
years old, had no prior convictions and was unaware of the court procedures. He
was interrogated late at nights until the early hours of the morning. In addition,
he was never told of his constitutional rights to an attorney, friend or relative and
neither was he cautioned or had the terms of the caution explained to him.
[20] On the journey to Diego Martin and Champs Fleurs, on the night of his arrest, he
was interrogated by Insp. Nedd and further interrogated at the Homicide Division
until the early hours of the next morning. He asserted that Sgt. Dick intimidated
him and subjected him to both physical and verbal abuse in the presence of other
police officers. He accepted the contents of the statement which he gave to Sgt.
Dick on December 15, 2001, but denied that he said that he never took any money
or jewellery from the Cropper’s home. He also accepted the contents of the taped
interview of December 16, 2001.
[21] The appellant denied making the oral statement of December 18, 2001. He
insisted that it was fabricated by the police. He said that Insp. Nedd and Sgt.
Corbett told him that if he placed himself on the scene of the crime, he would be
able to go home and would be made a state witness. He, however, refused to do
so. With respect to the written statement of December 19, 2001, the appellant
said that he was “coached” from the interview notes compiled by the police on
December 18, in order for him to give it. He did not volunteer to take the police
to various places on December 18, nor did he at any time point out anything to
them.
Page 10 of 67
GROUNDS OF APPEAL
Ground 1
An irregularity occurred during the course of the trial when the trial judge
directed the jury in accordance with the principles laid down in Chan Wing-Siu v
The Queen, which were subsequently impugned by both the Supreme Court
(U.K.) and the Judicial Committee of the Privy Council, sitting in joint session in
the conjoint appeals of Jogee and Ruddock v The State. The effect of such
irregularity thereby resulted in a miscarriage of justice and the wrongful
conviction of the appellant for the offence of murder.
SUBMISSIONS ON BEHALF OF THE APPELLANT
[22] Counsel for the appellant, Mr. Singh submitted that the trial judge misdirected the
jury that culpability in a joint criminal enterprise was based on the concept of
realisation and foreseeability as enunciated in Chan Wing-Siu v The Queen2. The
trial judge extensively misdirected the jury in his summation, on more than twenty
occasions, that the appellant could have been found guilty of murder if they found
that when he participated in the joint enterprise, he realised that the principal
might have used his weapon with the intention to kill or cause grievous bodily
harm.
[23] He further submitted that the principle in Chan Wing-Siu was held to be incorrect
by both the Supreme Court of the United Kingdom and the Privy Council in R v
Jogee; R v Ruddock3, in which the court ruled that the law required culpability in
joint enterprise cases to be “intention-based”. In this case, there was a clear
miscarriage of justice since there was a ‘clear danger’ that the jury utilised the
concept of realisation as a platform upon which to find the appellant guilty. This
2 [1985] A.C. 168. 3 [2016] 2 WLR 681.
Page 11 of 67
position was fortified by the fact that the jury returned to court and asked the trial
judge for further directions on the narrow issue of realisation for criminal
culpability in a joint enterprise. Consequently, the resulting conviction was unsafe.
This case was wholly distinguishable from that of Lester Pitman v The State and
Neil Hernandez v The State4.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
[24] Counsel for the prosecution, Mr. Sinanan, submitted that the trial judge, in his
summation, comprehensively directed the jury in accordance with the law of joint
responsibility as it stood at the time of the trial in 2012. He referred to the Privy
Council decisions in Lester Pitman v The State and Neil Hernandez v The State
and R v Jogee; R v Ruddock. In Jogee and Ruddock, it was decided that where a
conviction was arrived at after faithfully applying the law as it stood at the time of
the trial, leave to appeal out of time would not be granted, unless the appellant
could show that he would suffer substantial injustice. He contended that the
appellant did not demonstrate that he suffered any such injustice.
[25] Mr. Sinanan further submitted that even if the jury were directed in line with
Jogee and Ruddock, they would have arrived at the same verdict as the evidence
against the appellant demonstrated that he shared his confederate’s common
intention to kill the deceased and that, at the very least, this was a “clear case of
conditional intent”. He further submitted that, in any event, when the trial judge
directed the jury on joint enterprise, he also directed them on the issue of shared
intention. He submitted that the trial judge referred to evidence of prior threats
which were made by the appellant to kill the Cropper family and this proved that
the appellant shared a common intention with his confederate, to kill or do
grievous bodily harm to the three deceased persons.
4 [2017] UKPC 6.
Page 12 of 67
[26] Mr. Sinanan also submitted that the appellant was “plainly guilty of murder”
based on the felony/murder rule under section 2 A of the Criminal Law Act, Chap
10:04, whether or not he intended to kill the deceased. In support of this
contention, Mr. Sinanan relied on both an oral statement given by the appellant
on December 18, 2001, and a written statement given the following day, in which
the appellant unequivocally admitted his participation in the robbery.
LAW, ANALYSIS AND REASONING
[27] The landmark judgment of R v Jogee; R v Ruddock5, delivered in 2016, is of
application to this case. In those cases, the two appellants had been convicted of
murders on the basis of joint enterprise in which their confederates used knives
to kill the two deceased persons. In directing the jury on accessorial liability, in
each case, the trial judges directed them in line with the principles derived from
Chan Wing-Siu6. That case established that where a secondary party realised that
there was a possibility that the principal might commit an offence, in addition to
the planned offence, and the secondary party continued in the enterprise, that
party was guilty as an accessory to the additional offence, whether or not he
intended it.
[28] In the case of Jogee, the trial judge directed the jury that the defendant was guilty
of murder if they accepted that he participated in the attack on the deceased while
realising that his confederate might stab him with the intent to cause really serious
harm. In the case of Ruddock, the trial judge directed the jury that it was necessary
for the prosecution to establish that the defendant and his confederate possessed
a shared common intention and that such a common intention would arise “where
the defendant knew that there was a real possibility that the other defendant
5 Jogee; Ruddock (n.3). 6 Chan Wing-Sui (n.2).
Page 13 of 67
might have a particular intention and with that knowledge, nevertheless, went on
to take part in it”.7
[29] On appeal, the Supreme Court and the Privy Council reviewed the doctrine of
accessorial liability as established in Chan Wing-Siu. The courts came to the
conclusion that the relevant law as expounded in Chan Wing-Siu had taken a
wrong turn. In allowing the appeals, Lord Hughes and Lord Toulson JJSC, in their
joint judgment, held that:
“… (1) that accessory liability required proof of a conduct element
accompanied by the necessary mental element; that the requisite conduct
element was that the accessory had assisted or encouraged the commission
of the offence by the principal; that the mental element was an intention to
assist or encourage that commission of the crime, and that required
knowledge of any existing facts necessary for it to be criminal; that neither
association or an agreement with the principal, nor presence at the scene
when the principal perpetrated the crime, was necessarily proof of assistance
or encouragement by the accessory, although it was likely to be very relevant
evidence as to whether assistance or encouragement had been provided; that
if the crime required a particular intent the accessory had to intend to assist
or encourage the principal to act with such intent; that foresight was not to
be equated with intent to assist and the correct approach was to treat
foresight as evidence from which intent to assist and encourage could be
inferred; that the law had taken a wrong turn when it had equated foresight
with intent to assist, as a matter of law, and treated foresight as an inevitable
yardstick of common purpose; and that, accordingly, the rule whereby
foresight was equated with intent would be set aside and the correct direction
applied (post, paras 7–12, 78, 79, 83, 87–92).” 8
[30] The court, in addressing the obvious concern with respect to the many convictions
arrived at by judges faithfully applying the law as it then was, made it clear that
such convictions will not automatically be rendered invalid. Lord Hughes and Lord
Toulson JJSC went on to say in their joint judgment:
7Jogee; Ruddock (n.3) at 711. 8 Jogee; Ruddock (n.3) at 681 – 682.
Page 14 of 67
“The effect of putting the law right is not to render invalid all convictions
which were arrived at over many years by faithfully applying the law as it
was then laid down. The error identified, of equating foresight with intent
rather than treating the first as evidence of the second, is important as a
matter of legal principle, but it does not follow that it will have been important
on the facts to the outcome of the trial or to the safety of the conviction.
Moreover, where a conviction has been arrived at by faithfully applying the
law as it stood at the time, it can be set aside only by seeking exceptional
leave to appeal to the Court of Appeal out of time. That court may grant
such leave if substantial injustice can be demonstrated, but it will not do so
simply because the law applied has now been declared to have been
mistaken. Refusal of leave is not limited to cases where the defendant could,
if the true position in law had been appreciated, have been charged with a
different offence.” 9 [emphasis ours]
[31] In Lester Pitman10, the Privy Council noted that the trial judge had faithfully
directed the jury in accordance with the law of joint responsibility as it was
understood at the time, in accordance with Chan Wing-Siu and R v Powell and
English11. The Board observed that in light of the decision in Jogee and Ruddock,
there was, to that extent, a misdirection. Although the Board already had before
it the appeal for which leave was granted, in the circumstances, the appellant was
allowed to argue that he should be given leave to appeal additionally, out of time,
on that new point. However, the court reiterated the position set down in Jogee
and Ruddock, that exceptional leave out of time to appeal against a conviction
which was arrived at through faithfully applying the law as it then was, would only
be granted if substantial injustice would be suffered by the appellant if it were
refused. In R v Johnson and others: R v Moises12, the Court of Appeal of the United
Kingdom noted the distinction with respect to appeals against convictions brought
out of time as opposed to those brought within time. With respect to the former,
9 Jogee; Ruddock (n.3) at 708. 10 Pitman; Hernandez (n.4). 11 [1999] AC 1. 12 [2017] 4 All ER 769.
Page 15 of 67
the court held that the fact that there had been a change in the law was
insufficient to justify exceptional leave to appeal. If a person was properly
convicted on the law as it then stood, the court would not grant leave without it
being demonstrated that substantial injustice would otherwise have been done.
In R v Crilly13, the Court of Appeal expressly approved and applied the approach
laid down in Jogee and Ruddock and R v Johnson and others.
[32] In R v Johnson: R v Moises it was held that:
“For appeals against conviction brought within the time limit of 28 days
specified in s 18(2) of the Criminal Appeal Act 1968, the fact that a jury was
directed in accordance with the then prevailing law, which has subsequently
been changed by the courts, does not automatically render the verdict unsafe.
Appeals against conviction brought in time must be judged in accordance with
the well-established statutory requirement identified in s 2(1) of the 1968 Act:
it is not sufficient only for there to have been some misdirection or error in the
conduct of the trial. What is critical is that the verdict is thereby rendered
unsafe. Thus, the decision in any case must be fact sensitive: a misdirection of
law which was not, in reality, in relation to a true (or real) issue in the trial,
does not thereby (and certainly not necessarily) render a conviction unsafe
(see [7], [9], below).”14
[33] Therefore, when leave is sought to appeal out of time, it will be granted only if the
appellant can demonstrate substantial injustice. However, if the appeal is on time,
he must show that the verdict was rendered unsafe.
[34] Section 51 of the Supreme Court of Judicature Act, Chapter 4:01, provides for
notice of appeal against conviction to be filed within 14 days from the date of
conviction. In this case, it is clear that the appeal against convictions was within
time in that the notice of appeal was filed on September 23, 2013, well within the
14 day requirement. It is also clear that the trial judge directed the jury on joint
13 [2018] EWCA Crim 168. 14 Johnson and others (n.12) at 769.
Page 16 of 67
enterprise in accordance with the principles laid down in Chang Wing-Siu15, which
have since been declared to be wrong.
[35] In the decision in Johnson and others (supra), the court followed the approach in
R v Graham16, concerning appeals against convictions brought within the time
limit. In Graham, Bingham CJ considered section 2 (1) of the Criminal Appeal Act
1968 UK, as amended, which provided:
“ 2 (1)Except as provided by this Act, the Court of Appeal shall allow an
appeal against conviction if they think—
(a) that the verdict of the jury should be set aside on the ground that
under all the circumstances of the case it is unsafe or unsatisfactory; or
(b) that the judgment of the court of trial should be set aside on the
ground of a wrong decision of any question of law; or
(c) that there was a material irregularity in the course of the trial, and in
any other case shall dismiss the appeal:
Provided that the Court may, notwithstanding that they are of opinion that
the point raised in the appeal might be decided in favour of the appellant,
dismiss the appeal if they consider that no miscarriage of justice has actually
occurred.”
The above statutory provision substantially mirrors section 44 of the Supreme
Court of Judicature Act, which provides that:
“44. (1) The Court of Appeal on any such appeal against conviction shall allow
the appeal if it thinks that the verdict of the jury should be set aside on the
ground that it is unreasonable or cannot be supported having regard to the
evidence, or that the judgment of the Court before whom the appellant was
convicted should be set aside on the ground of a wrong decision on any
question of law or that on any ground there was a miscarriage of justice, and
in any other case shall dismiss the appeal; but the Court may, notwithstanding
that they are of opinion that the point raised in the appeal might be decided
in favour of the appellant, dismiss the appeal if they consider that no
substantial miscarriage of justice has actually occurred.”
15 Chang Wing-Siu (n.2). 16 [1997] 1 Cr. App. R 302.
Page 17 of 67
[36] In 1995, section 2 (1) of the Criminal Appeal Act 1968 (UK) was replaced by a
simpler provision which states:
“1) Subject to the provisions of this Act, the Court of Appeal—
(a) shall allow an appeal against conviction if they think that the conviction
is unsafe; and
(b) shall dismiss such an appeal in any other case”
This new provision made it quite clear that the court needed to address only one
issue, which was the safety of the conviction. In Graham, the court identified the
question to be determined as whether, in light of any arguments raised or
evidence adduced on appeal, the Court of Appeal considered a conviction unsafe.
Lord Bingham CJ put it this way:
“If the Court is satisfied, despite any misdirection of law or any irregularity in
the conduct of the trial or any fresh evidence, that the conviction is safe, the
Court will dismiss the appeal. But if, for whatever reason, the court concludes
that the appellant was wrongly convicted of the offence charged, or is left in
doubt whether the appellant was rightly convicted of that offence or not, then
it must of necessity consider the conviction unsafe.”17
[37] There is no corresponding provision in this jurisdiction to the above amendment
of the Criminal Appeal Act 1995. Section 44 (1) of the Supreme Court of
Judicature Act presents the test in the following way: The Court of Appeal on any
such appeal against conviction shall allow the appeal if it thinks that there is a
miscarriage of justice.
In Winston Solomon v The State18, de la Bastide CJ (as he then was) noted that:
“The Privy Council does not appear ever to have adverted expressly to the
difference in terminology between the legislation in the two jurisdictions. They
habitually use the English terminology of 'unsafe' as the criterion by which the
validity of convictions in Trinidad and Tobago is to be assessed. For our part
we do not think there is any difference in substance between the test
17 Ibid at 308. 18 (1999) 57 WIR 432.
Page 18 of 67
prescribed by the statutory provisions in the two countries.”19 [emphasis
ours]
In support of this proposition, he relied on the dicta of Lord Hutton in the decision
in R v Mills and Poole,20 where it was said:
“There is no real distinction between a material irregularity which causes a
miscarriage of justice and a feature of the trial which causes a conviction to
be unsafe.”21
Therefore, the test employed by the Privy Council is no different from the test
applied in this jurisdiction which is, ‘was the conviction thereby rendered unsafe?’
[38] In Giselle Stafford and Dave Carter v The State22, the Judicial Committee of the
Privy Council applied the ruling in Moses v The State23 that the felony/murder rule
was no longer a part of the law of murder in Trinidad and Tobago since the
distinction between felonies and misdemeanours had been abolished. Lord Hope
of Craighead stated that the test which must be applied to the application of
section 44 is as follows: “if the jury had been properly directed, would they
inevitably have come to the same conclusion upon a review of all the evidence?”.
After a thorough review of the evidence, the court concluded that it was
impossible to say that a reasonable jury, having considered all of the evidence,
would inevitably have convicted the appellants. Accordingly, their convictions
were quashed and verdicts of manslaughter were substituted.
[39] In this case, the trial judge, in his summation carefully explained to the jury the
meaning of the concept of joint enterprise and directed them on the elements
19 Ibid at 454. 20 [1997] 3 All ER 780. 21 Ibid at 791. 22 (1998) 53 WIR 417. 23 (1996) 49 WIR 455.
Page 19 of 67
necessary for proving the culpability of a ‘secondary party’24. We note that his
directions on the requisite mental element entailed two limbs, namely (i) ‘shared
intention’,25 and (ii) ‘realisation’ or ‘foresight’26, which followed the principles in
Chan Wing-Siu27. The trial judge directed the jury in the following way:
“Now, if the Prosecution has made you sure that the accused and his
companion embarked on this joint enterprise to rob the Croppers, and that the
accused knew that his companion was armed with a cutlass, and that he
shared his companion's intention to kill or cause grievous bodily harm to all
occupants of the household present there that night, and, nevertheless,
continued to participate in the robbery, and his companion with the cutlass
did go on to kill all three persons during the course of the robbery, albeit with
a knife, with the intention to kill them or cause them grievous bodily harm,
and you are sure that the weapon produced by his companion, a cutlass, was
equally as dangerous as the weapon causing death, namely, a knife, then the
accused would be guilty of the murder of all three persons, Members of the
Jury. So that's shared intention.
And let's look at realization… Now, the Prosecution does not have to go so far
as to establish a shared intention between the accused and his companion to
kill or cause grievous bodily harm to the occupants of the Cropper household.
The accused would be guilty of the murder of all three persons if the
Prosecution has made you sure that the accused and his companion embarked
on this joint enterprise to rob the Croppers and that the accused knew that his
companion was armed with a cutlass, and the accused realized that in the
course or furtherance of the robbery, his companion with the cutlass, might
use the cutlass with the intention to kill or cause grievous bodily harm to all
three persons present, and he, the accused, nevertheless, continued to
24 Day 1 Summation page 27 line 42 - page 46 line 34; page 51 line 1 - page 53 line 44; page 59
lines 44 - page 60 line 33. Day 2 Summation page 3 line 30 – page 4 line 6. Day 3 Summation page 54 line 20 – page 56 line 19; page 59 line 13 – page 61 line 30; page 64 line 1 – page 66 line 22. 25 Day 1 Summation page 29 line 30 –page 30 line 7; page 36 lines 46-48; page 37 line 38 – page
38 line 12; page 39 lines 11- 25; page 42 lines 20 – 36; page 54 lines 9 – 15; page 57 lines 15 – 27; page 59 lines 1 – 7. Day 3 Summation page 54 lines 20 – 42; page 55 lines 18 – 29; page 59 lines 27 – 48; page 60 lines 31 – 37. 26 Day 1 Summation page 30 line 8-18; page 31 lines 1 – 19; page 32 lines 2 – 22; page 35 lines 19
– 38; page 36 lines 46 – 48; page 37 lines 38 – page 38 line 12; page 39 lines 11 – 25; page 42 line 37 – page 43 line 13; page 44 line 10 – page 46 line 34; page 51 line 1 – page 53 line 44; page 54 lines 16 – 42; page 57 line 15 – page 58 line 50; page 60 lines 1 – 29. Day 3 Summation page 54 line 20 – page 55 line 14; page 55 line 18 – page 56 line 19; page 59 lines 27 – 48; page 60 lines 2 – 23; page 60 line 37 – page 61 line 26. 27 Chang Wing-Siu (n.2).
Page 20 of 67
participate in the robbery, and his companion with the cutlass, did kill all three
persons, albeit with a knife, in the course or furtherance of the robbery, with
the intention to kill them or cause them grievous bodily harm, and you, the
jury, are sure that the weapon produced by his companion, a cutlass, was
equally as dangerous as the weapon causing death, namely, a knife. ” 28
[40] The trial judge correctly directed the jury along the guidelines set out in Chan
Wing-Siu. He referred to it at several points in his summation and also when the
jury returned on two occasions and requested further directions on the principle
of joint enterprise. Firstly, he instructed them that if they were sure that the
appellant knew that his confederate was armed with a cutlass, that he shared his
confederate’s common intention to kill or to do grievous bodily harm and
nevertheless continued to participate in the robbery, and his confederate used a
knife (a weapon equally dangerous) killing the occupants during the course of the
robbery with the intention to kill or to cause them really serious harm, then the
appellant would be guilty of murder. Secondly, the trial judge correctly directed
the jury on the issue of realisation. He instructed them that it was open to them
to find the appellant guilty of murder if they were sure that he knew that his
confederate was armed with a cutlass and realised that during the course of the
robbery, his confederate might use the cutlass (or an equally dangerous weapon,
to wit a knife), with the intention to kill or to do grievous bodily harm to the
occupants and the appellant nevertheless continued to partake in the robbery.
[41] The evidence led by the prosecution revealed that the appellant was part of a joint
enterprise with the common purpose to rob the Croppers. In his third oral
statement and his written statement, the appellant admitted that together with
his confederate, he participated in this venture with his face uncovered and was
aware that his confederate was armed with a cutlass. The appellant admitted that
he assisted in rounding up the occupants and searched and ransacked the house
28 Day 1 Summation, page 42 line 20- page 42 line 13.
Page 21 of 67
while his confederate tied up the occupants. He saw his confederate ‘planass’ John
and asked him for money, and also heard John exclaim as his confederate hit him
again. He warned him to desist. Nevertheless, the appellant did not unequivocally
withdraw from the enterprise. He continued, with the assistance of his
confederate, to take items from the home and to pack them into John’s vehicle
which he used to take them away. Based on this evidence, it was open to the jury
to find that the appellant shared his confederate’s common intention to kill or to
cause grievous bodily harm and thus it was open to them to convict him for
murder.
[42] While the law in Chan Wing-Siu has now been held to be wrong, this does not
mean that the appeal will automatically succeed. It is will only be so if the
appellant can demonstrate that his convictions were unsafe. For an appeal to
succeed on this ground would be to open the “flood gates” to a plethora of
adverse repercussions. In cases where parties have unsuccessfully pursued their
appeals up to the final court, a subsequent change in the law will not by itself be
enough to overturn their convictions unless they can show exceptional
circumstances, see Pitman (supra). As observed in R v Ramsden29 “…alarming
consequences would flow from permitting the general re-opening of old cases on
the ground that a decision of a court of authority had removed a widely held
misconception as to the prior state of the law on which the conviction which it was
sought to appeal had been based”30 The judge, in this case, cannot be faulted for
having faithfully applied the law as it stood at the time. The appellant’s conviction
can only be set aside if the Court of Appeal is satisfied that the conviction was
unsafe, that is, had the jury been properly directed, such directions might
reasonably have led to his acquittal. Regrettably, we are unable to say so.
29 [1972] Crim LR 547 30 referred to by Lord Hughes and Lord Toulson in Jogee; Ruddock at 708.
Page 22 of 67
[43] The case for the prosecution was based on circumstantial evidence as well as the
appellant’s confession. In May 2001, he threatened to kill Ken and his family and
to burn down Ken’s house. In both his third oral statement and in his written
statement, the appellant admitted to a plan to rob the Croppers and explained
how this plan was executed and how he effectively participated in it, not only by
taking away certain items from the house but also by rounding up the occupants.
He knew that his confederate carried a cutlass and he saw him ‘planass’ John with
it. His confederate tied up the occupants with computer/electrical cord and they
were later so discovered. A knife was missing from the knife block in the kitchen
and the appellant took the police to Lady Young Road and showed them where his
confederate said he threw it. The blue denim t-shirt which the appellant wore that
night was discovered in the bathroom sink and a Du Maurier cigarette pack, the
brand which the appellant used, was found on the scene. The appellant’s
fingerprints were discovered on a jewellery box kept in the house and were found
to be contemporaneous with the time of the killing. Although in his statements
the appellant insisted that he only agreed to rob the Croppers and not to inflict
violence or to kill anyone, yet when he saw his confederate beating and planassing
John and demanding money from him, he did not withdraw from the enterprise.
His confederate gave him three thousand dollars ($3,000.00) and the appellant
was captured on camera on two occasions, shortly after the incident, at ATM
machines conducting transactions. The bank’s record showed that he withdrew
money from John’s account, using John’s bank card.
[44] The case for the appellant was that of an alibi and fabrication by the police. He
claimed that on the night in question, he sold drugs along Prizgar Road until 11:00
pm. He then ‘limed’ with his sister, purchased some weed, smoked it and then
went to bed. He alleged that upon his arrest, he was interrogated for long hours
and was intimidated and subjected to physical and verbal abuse from Sgt. Dick. He
denied that he made the third oral statement attributed to him and claimed that
Page 23 of 67
it was fabricated by the police. He alleged that the police told him that he would
be released and be made a state witness if he placed himself on the scene, but he
refused to do so. He claimed that the police “coached” him from that alleged oral
statement in order to make the written statement and insisted that he was never
at the Croppers’ home on the night in question and that he never robbed or
murdered them.
[45] The case for the prosecution case was formidable. In our view, had the trial judge
given the Jogee and Ruddock directions, the jury would inevitably have arrived at
the same verdicts. The jury was faced with two broad versions of the events in
question. On the prosecution’s version, the appellant had participated in a joint-
enterprise to rob and kill the occupants of the Croppers’ home. On the appellant’s
version, he was never at the Croppers’ home on the night in question and the
police fabricated the evidence against him. The jury had to determine which
version, if any, they accepted. Once they accepted the appellant’s version, or had
doubts about the prosecution case, he would have been found not guilty. It is
obvious, in our view, that they rejected the appellant’s version, including his
assertion that he agreed only to participate in the robbery and did not agree to
the infliction of violence. They also rejected his explanation that the murders took
place after he left. It is beyond question that the jury’s verdicts demonstrated a
clear finding that he not only participated in the robbery but that he also had the
necessary intention to kill the occupants of the Croppers’ home on the night in
question or to cause them grievous bodily harm. Consequently, we are firm in our
view that the appellant’s convictions were safe.
Felony/Murder Rule
[46] The felony/murder rule re-emerged by way of Act No. 16 of 1997, which was an
amendment to section 2 A of the Criminal Law Act. Although the prosecution
conducted its case on the principles of joint enterprise, alternatively on the
Page 24 of 67
evidence, it was open to the jury to rely on the felony/murder rule had they been
so directed. Section 2 A (1) of the Criminal Law Act, Chapter 10:04 provides that:
“Where a person embarks upon the commission of an arrestable offence
involving violence and someone is killed in the course or furtherance of that
offence (or any other arrestable offence involving violence), he and all other
persons engaged in the course or furtherance of the commission of that
arrestable offence (or any other arrestable offence involving violence) are
liable to be convicted of murder even if the killing was done without intent to
kill or to cause grievous bodily harm.”
[47] In Albert Edwards v The State31 Weekes JA stated at paragraph 2:
“2. By the operation of the felony/murder rule, a person who participates with
others in a crime involving violence, robbery is taken to be such a crime, which
results in death of the intended victim, is liable, as is the principal, for murder.
No consideration need be given to the intention of the secondary participant
beyond that in respect of the original offence.”
[48] The notion of the inherently violent nature of a robbery and the unpredictable
consequences thereby arising was discussed by Shaw LJ in his dicta in R v William
Penfold32. He said:
“As I have said, this is an irrefutable proposition. How far it has to be spelled
out in the context of the facts of a particular case is another matter. No one
will be so naïve as to suppose when three men agree to invade a house
occupied by an elderly man and his daughter, that they can and do assume
with confidence there will be no resistance by force or reaction by screaming
which will make unnecessary or superfluous whatever measure of violence
might be called for to quell such resistance or to stifle such reaction. If the trial
judge did not put the matter as a precise and explicit proposition, it was made
as clear as was requisite at many points of the summing-up.
Robbers who burst into a house can hardly fail to contemplate the possible
necessity of some degree of force to overcome or silence the occupants.
While they may not desire to inflict any real harm, they do agree, by
implication, to put themselves under the dictates of any arising necessity. It
31 Cr. App. No. 58 of 1992. 32 (1980) 71 Cr. App R. 4.
Page 25 of 67
would be absurd and nonsensical to assume that they agreed to go so far and
not a whit further to achieve their objective….”33 [emphasis ours]
[49] Approving Shaw LJ above, Weekes JA said at paragraph 23 that:
“23. Robbery is an inherently violent crime since there is an intention to put
the victim in fear or to use force in order to accomplish its goal. Robbery, unlike
larceny, requires personal contact with the victim and therefore the
perpetrator must necessarily deal with the unpredictable consequences that
may well arise.” [emphasis ours]34
[50] The appellant admitted that he, together with his confederate, planned to rob the
Croppers and that he was a participant in the execution of that plan. It was while
carrying out that robbery the deceased met their deaths. It was therefore open to
the prosecution to conduct its case based on the felony/murder rule rather than
on the principles of joint enterprise. The appellant’s admission founded the
application of the felony/murder rule and on this basis alone, the appellant was
unarguably guilty of murder.
[51] In Lester Pitman v The State the Privy Council permitted Pitman to argue that he
should be given leave to appeal additionally, out of time on the Jogee and
Ruddock principle. Pitman was of course, the appellant’s confederate who had
been tried and convicted all the way to the final court. The Board refused leave
and stated that exceptional leave to appeal out of time against a conviction
obtained by the faithful application of the law as it stood at the time of trial, will
only be granted if substantial injustice would arise as a result of the court’s refusal.
In any event, even if leave was granted the convictions must stand because on the
application of the felony/murder rule, Pitman was plainly guilty of murder. Lord
Hughes stated at paragraph 23 that:
“..Pitman was plainly guilty of murder in any event. The jury clearly accepted
the confession. On that basis, he was unarguably guilty of robbery, an
33 Ibid at 8. 34 Albert Edwards (n.31) at para 23
Page 26 of 67
arrestable offence involving violence, and the triple deaths were occasioned
in the course or furtherance of it…Accordingly, this was murder under the
felony-murder rule, whether or not the defendant intended death or grievous
bodily harm: section 2A of the Criminal Law Act 1979.”
[52] Similarly, in the instant case, the jury undoubtedly accepted the two confessions,
both oral and written given by the appellant in which he admitted to committing
robbery. This is an arrestable offence and an offence involving violence. It was in
the furtherance of the robbery that the murders were committed. Accordingly,
the felony/murder rule applied and whether or not the appellant intended death
or grievous bodily harm was of no consequence to the operation of the rule. He
was, on the principle of the felony/murder rule, plainly guilty of murder and
cannot successfully contend that his convictions were unsafe.
Accordingly, for the reasons set out above, this ground of appeal is without merit.
Ground 2
The trial judge erred in law when he failed to adequately direct the Jury on the
issue of alibi.
SUBMISSIONS ON BEHALF OF THE APPELLANT
[53] Mr. Singh submitted that the trial judge in his summation failed to give the jury an
adequate and comprehensive direction on the issue of alibi which was raised by
the appellant in his first and second statements to the police. He failed to direct
the jury that a person may fabricate an alibi for innocent reasons such as to bolster
a genuine defence and he did not explain to them that if they rejected the alibi,
they should not automatically conclude that this ‘falsity’ reflected the appellant’s
guilt. In the circumstances, the jury were deprived of any guidance on how to
approach the issue if they found that the appellant had fabricated the alibi.
Page 27 of 67
[54] He further submitted that the trial judge compounded this error when he gave an
incomplete “Lucas Direction” and failed to expressly and specifically identify the
lies to which that direction related. He also submitted that the trial judge did not
explicitly instruct the jury that the “Lucas Direction” was equally applicable to the
issue of alibi. Consequently, it was left to the jury to openly and indiscriminately
apply that direction to any matter in which they found that the appellant had lied
in his statements to the police and they were left bereft of structured and tailored
guidance.
[55] Relying on the decision in Melvin Phillip v The State35, counsel submitted that the
trial judge also failed to explain to the jury that if they found themselves in the
“middle position” of whether the appellant’s alibi was believable or not, they were
obligated to acquit him.
[56] Mr. Singh submitted that the trial judge’s failure to give proper directions on the
issue of alibi amounted to a substantial miscarriage of justice and the appellant’s
convictions ought to be set aside under section 44 of the Supreme Court of
Judicature Act.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
[57] Mr. Sinanan submitted that the trial judge covered the salient points on the issue
of alibi in his directions to the jury and even if he failed to give every element of
the direction, the evidence of the prosecution was strong and such omission did
not result in a miscarriage of justice.
[58] Mr. Sinanan further submitted that the trial judge’s Lucas direction adequately
addressed the issue of lies. The jury were directed that if they disbelieved the
appellant’s alibi, they were required to return to the prosecution case and
35 Cr. App. No. P18 of 2013.
Page 28 of 67
consider the strength of the evidence against him. He submitted that the jury
received accurate directions and he distinguished the cases of Campbell and
Campbell v The State36 and Phillip37.
[59] Although Mr. Sinanan conceded that the trial judge did not give a full Lucas
direction with regard to the alibi, he submitted that there was no miscarriage of
justice and the court should not dismiss the appeal for this reason.
LAW, ANALYSIS AND REASONING
[60] At the trial, the appellant relied on his alibi, thereby specifically denying that he
was present at the Croppers’ home on the night of December 11, 2001. He neither
testified nor called witnesses in support of his alibi and described his whereabouts
in the first two statements which he gave to the police.
[61] Where an alibi is raised, the trial judge should routinely give the standard alibi
direction to the jury to the effect that if they reject the alibi, they must return to
the prosecution case and assess the strength of the evidence as sometimes a false
alibi may be invented to bolster a genuine defence. His failure to do so will amount
to a misdirection. However, it does not automatically render a conviction unsafe.
In delivering the judgment in Leroy Owen Lesley v R 38, Henry LJ said:
“However, the judge should, as well as directing the jury that it was for the
prosecution to disprove the appellant’s alibi, have directed them in
accordance with the standard direction recommended by the Judicial Studies
Board that an alibi was sometimes invented to bolster a genuine defence, and
his failure to do so was a misdirection. Such a direction should routinely be
given, but a failure to give it would not automatically render a conviction
unsafe.”39 [emphasis ours]
36 Cr. App. No. 7 of 2011. 37 Melvin Phillip (n.35). 38 [1996] 1 Cr. App. R. 39. 39 Ibid at 39.
Page 29 of 67
[62] In Lesley, the appellant was convicted of murder and wounding with intent to
cause grievous bodily harm. His fingerprint was found on a beer bottle at the scene
and he was identified by two witnesses. The prosecution relied on the fact that
the notice of alibi had not been supported by evidence and that the statements in
it were refuted by the presence of the fingerprint. He relied on an alibi and gave
no evidence or called any witnesses. The evidence of the chief prosecution witness
was described as being of poor quality and had at least been in part rejected by
the jury since the appellant’s confederate had been acquitted. Her evidence was
vigorously attacked in cross-examination and she was “truculent, evasive and
obstructive”. He appealed his conviction on the ground that, inter alia, the trial
judge misdirected the jury on the issue of alibi by failing to direct them that an
alibi was sometimes invented to bolster a genuine defence. Lesley was decided
upon its own facts. The appeal was allowed and the conviction quashed as it was
rendered unsafe.
[63] In this case, the trial judge gave the following alibi direction:
“…the accused does not have to prove that he was elsewhere at the time that
the crime was committed nor does the accused have to prove that the police
fabricated this case against him. On the contrary, the prosecution must
disprove the alibi. The Prosecution disproves the alibi by making you sure that
the accused was not where he said he was but that he was at the scene of the
crime committing the crime…
but members of the Jury, what if you say no, no, we reject the Defence
outright, we reject the Defence completely, you cannot automatically convict,
Members what you should do is go and look at the case for the Prosecution In
the entirety of the evidence.” 40
[64] This alibi direction fell short of the standard direction required. The judge failed
to direct the jury specifically that the appellant might have lied in order to bolster
a genuine defence, but that his lie did not mean that his alibi was untrue. However,
40 Day 3, Summation Page 54 lines 1-19.
Page 30 of 67
whether the trial judge’s failure to do so renders the conviction unsafe is
dependent on the facts and circumstances of this case.
[65] In Lesley, Henry LJ stated as follows:
“…here, where the chief prosecution witness was not, in all respects,
satisfactory, and was one whose account had at least, in part, been doubted
by the jury … we are unable to be confident that the failure to give the
standard direction made no difference. There were real difficulties in the
Crown case. The effect of the omission in the summing-up was incalculable.
Accordingly, in our judgment, it renders the verdict unsafe. In the result, we
must quash the conviction.”41 [emphasis ours]
[66] Lesley is distinguishable. In Lesley, there were real evidential difficulties. The
identification evidence was highly questionable and the prosecution sought to rely
on the appellant’s failure to support the alibi notice as an indication that its
contents were untrue and were refuted by the presence of the fingerprint. The
main witness was uncooperative and described as “truculent, evasive and
obstructive”. A number of the witnesses failed to point out the appellant at an
identification parade and there were others who knew him and said that he was
definitely not at the scene that night. In these circumstances, it was therefore
imperative for the trial judge to give the full direction.
[67] In the present case, there were no such evidential difficulties. The case for the
prosecution was manifestly strong and the prosecution did not rely on a false alibi
to show a consciousness of the appellant’s guilt. The absence of such reliance
dispels any issue of material prejudice to the appellant. Unlike Lesley, where the
trial judge’s omission was incalculable, there was no harm in this case.
[68] The essential thrust of the alibi direction was given to the jury in this case. The
trial judge told them that the prosecution had to disprove the alibi and they had
41 Lesley (n.38) at 50
Page 31 of 67
to do so by making themselves sure that the appellant was not where he said that
he was but that he was on the scene committing the crime. He directed them that
if they rejected the alibi, this could not automatically be used to find the appellant
guilty of murder, but that they should return to the case for the prosecution and
consider the evidence in its entirety.
[69] Therefore, although it was incumbent on the trial judge to give the full alibi
direction, the jury would inevitably have arrived at the same verdicts had the
direction been given. In the circumstances, the convictions are not unsafe.
[70] Mr. Singh also complained that the trial judge deprived the jury of any guidance
as to the approach to be adopted if they found that the appellant had fabricated
the alibi direction. He also submitted that the trial judge failed to specifically
instruct the jury that the Lucas direction was equally applicable to the issue of
alibi. They were left without any guidance and it was open to them to apply the
direction on any matter in which they found that the appellant had lied in his
statement to the police.
[71] In Campbell and Campbell42, the appellants were charged for murder and their
primary defence was that the prosecution’s key witness had fabricated his account
which had placed them at the scene of the crime. They did not give evidence nor
did they call any witnesses. Instead, the issue of alibi was raised through an
oblique suggestion to the police complainant made during cross-examination. It
was advanced by one of the appellants that the evidence was insufficient to raise
an alibi and that the conventional directions on alibi were damaging to his case.
Mohammed JA, in delivering the decision said at paragraph 31 that:
“Based on this evidence, it is clear that the issue of alibi arose and it was
incumbent on the trial judge to give the necessary directions on that issue.
In addition, we agree with the argument of counsel for the State that this was
a case where, without a proper warning on a rejected or false alibi, there was
42 Campbell and Campbell (n.36).
Page 32 of 67
a risk that the jury might treat the rejected alibi as being supportive of guilt.
Such a warning was therefore required and necessarily incorporated a
direction as to the limited and very narrow circumstances in which a rejected
alibi can supply support for identification evidence, in line with settled
authorities on the point. Thus, the jury was expressly instructed that they could
rely on the false alibi as supportive of the identification evidence only if they
were satisfied that the sole reason for the fabrication was to deceive them.
[72] In R v Harron43, the appellant was convicted of assault occasioning actual bodily
harm. He claimed that he was not in the bar where the assault occurred and he
adduced evidence in support of this. He was convicted and appealed on the
ground that the trial judge failed to direct the jury that if they rejected the alibi,
they ought not to conclude that he was guilty. It was held that where there is no
realistic distinction between the issue of guilt and the issue in relation to an alibi,
and where the only possible basis for refuting the alibi would be the acceptance
of the prosecution evidence there is no necessity for the Lucas direction. Beldam
LJ stated:
“…It was clear from the authorities that merely because lies had been told to
the effect that the accused was at a different place when the offence was
committed was not decisive as to whether the jury needed to be directed
about the approach to the question of lies told by a defendant; that where
evidence of witnesses for the Crown proving guilt was in direct and
irreconcilable conflict with the evidence of the defendant and his witnesses
the jury had, as a matter of logic, to decide which witnesses were telling the
truth. If they accepted the prosecution evidence that necessarily involved a
conclusion that the defence evidence was untrue and that the defendant was
therefore lying; that was not a situation where there was any distinction
between the issue of guilt and the issue of lies and, accordingly, it was
unnecessary to give a Lucas direction which would only arise where, on some
collateral matter, and due to some change in evidence or account by the
defence, there was scope for drawing an inference of guilt from the fact that
the defendant had, on an earlier occasion, told lies, or on some other matter,
told lies at trial; and that accordingly, since the jury’s decision was unlikely to
have been affected even if they had been told that alibis were sometimes
43 [1996] 2 Cr App Rep 457.
Page 33 of 67
falsely put forward to bolster an honest defence, the conviction was not
unsafe.”44
In this case, the issue of lies told by the appellant did not constitute a specific
feature of the prosecution case neither was it a matter under the jury’s
consideration separate from the main issue, which turned on the credibility of the
prosecution witnesses. Mr. Singh’s submission that the trial judge expressly and
specifically failed to identify the lies to which the direction related is misconceived.
There were no lies in the evidence which were admitted. The mere fact that the
appellant might have lied about his alibi did not require the trial judge to give a
Lucas direction. The prosecution case was in “direct and irreconcilable conflict”
with that of the appellant’s and the jury had to determine which they accepted as
true. If they accepted the prosecution’s version, then naturally, the appellant’s
version was untrue and he was therefore lying. This was not a situation in which
there was any distinction between the issue of guilt and that of lies. A Lucas
direction was therefore unnecessary. Unlike Campbell, there was no risk that,
without the proper warning, the jury might treat the rejected alibi as supportive
of guilt. The trial judge did not specifically give a Lucas direction in relation to the
appellant’s alibi and, in the circumstances, he cannot be faulted as he was under
no duty to do so.
[73] However, in addressing the appellant’s statements, two of which contained his
alibi, the trial judge gave the full-blown Lucas direction.45 This was clearly wrong.
The issue surrounding the making and the contents of the statements revolved
around the question of credibility rather than lies. The danger of this error was
that the jury might have had the false impression that such lies as they might have
found were probably capable of supporting the prosecution case in the sense of
being proof of guilt.
44 Ibid at 457 45 Day 3 of Summation page 56 lines 20-49.
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[74] Nevertheless, we do not think this error led to any unfairness. The appellant gave
four statements altogether. In the first two, he raised the alibi, but in the two
statements which followed, he admitted to being at the scene and participating in
the robbery. Even if the jury were to conclude that he deliberately lied about his
whereabouts and used it as evidence to support guilt, it would have made no
difference. The trial judge’s error was unlikely to cause any confusion in the minds
of the jurors and did not have the potential to distract them from the key issues
upon which they needed to focus.
[75] The main question for their determination was whether the appellant was present
at the scene and participated in the killings. The issue was simple and the “battle
lines drawn”. The prosecution answered “yes”, the defence “no”. There were no
complexities and the giving of the direction did not lead to any. On the contrary,
the appellant having received the full Lucas instructions when he was not strictly
entitled to them, gained the benefits of an inherently protective direction. The
jury were now under an obligation to consider that any lie they might have found
might have been for an innocent reason.
[76] In the circumstances, we hold that the trial judge’s error was not fatal in this case
such as to render the convictions unsafe as there was no ensuing unfairness.
Therefore, the convictions were not unsafe and there was no miscarriage of justice
requiring us to invoke section 44 of the Supreme Court of Judicature Act.
[77] Mr. Singh’s contention that the trial judge failed to direct the jury on how to deal
with the ‘middle ground’ is without merit. We note that the trial judge, in fact, did
direct the jury as follows:
“…However, Members of the Jury, even if you do not believe the Defence, but
you are not sure, you have a reasonable doubt as to the alibi raised by the
Defence or you are left in a reasonable doubt as to the allegation of
fabrication raised by the Defence, once again, the accused would be, clearly,
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not guilty of any crime and your verdict, in those circumstances, would also
be not guilty on all three counts on the indictment.” 46 [emphasis ours]
[78] Although the trial judge did not explicitly use the terminology “the middle
ground”, the concept was more than adequately conveyed.
For the reasons set out above, this ground of appeal fails.
Ground 3
A material irregularity occurred during the course of the trial when the trial
judge admitted into evidence the written statement allegedly given by the
appellant, and which was taken from the appellant after he had been formally
charged for the offence of murder.
SUBMISSIONS ON BEHALF OF THE APPELLANT
[79] Mr. Singh submitted that the subsequent interview and taking of the appellant’s
written statement after he was charged, was a direct breach of Rule III (b) of the
Judges’ Rules and Administrative Directions to the Police. This rule provided for
such a statement to be taken only in exceptional circumstances such as where it
was necessary to prevent harm or loss to another or the public or for clearing up
any ambiguity in a previous answer or statement. He argued that none of those
issues arose in this case. The decision in The State v Reaz Mohammed a/c Lull,
Kieron Khan and Ian Ramnarine47 was relied upon in support of these
submissions.
[80] He further submitted that under section 5 (2) (c) (iii) of the Constitution of
Trinidad and Tobago, Chap 1:01, the appellant’s constitutional right to be taken
46 Day 3 Summation page 53 lines 37 to 45. 47 H.C.S.5/2006.
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promptly before an appropriate judicial tribunal, was infringed. Therefore, the
written statement was obtained in consequence of this infringement. The failure
of the police to take the appellant to court in a prompt manner was a deliberate
and cynical violation and therefore the statement ought to have been excluded.
He relied on the case of Ancil Edmund, Bruce Henry and Irene Ragbir v The State48
where the taking of a further statement was held to be unfair. Counsel submitted
that these breaches were exacerbated by the trial judge’s direction to the jury that
it was open to them to rely on the contents of the statement. For these reasons,
the statement ought not to have been admitted and the trial judge wrongly
exercised his discretion in doing so.
SUBMISSION ON BEHALF OF THE RESPONDENT
[81] Mr. Sinanan submitted that the trial judge could not be faulted in the exercise of
his discretion to allow the appellant’s statement after he was charged and that
the appellant failed to demonstrate that the admission of this statement was
unfair and manifestly unreasonable so as to warrant the court’s intervention.
[82] He argued that there was no breach of the Judges’ Rules, Principle (d) of Appendix
(A) for the following reasons: (i) the utterance made by the appellant to Insp. Nedd
“I know you going and charge me for murder” was made voluntarily and
unprompted; (ii) the appellant knew that he was going to be charged and it was a
mere formality for Insp. Nedd to tell him this; (iii) Insp. Nedd’s failure to inform
the appellant that he was going to be charged for murder was a technical and
immaterial breach and did not contravene the principles of fairness and
voluntariness; (iv) There was nothing to suggest that Insp. Nedd acted in bad faith
when he interacted with the appellant; and (v) Despite the fact that it was
operative in the appellant’s mind that he was going to be charged with murder,
48 Cr. App. Nos. 22,28, 30 of 2006.
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he nonetheless opted to give both an oral and written statement. Mr. Sinanan
relied on the principles in Peart (Shabadine) v R49 and further submitted that
there was no breach of the principles of fairness and the appellant suffered no
prejudice leading to a miscarriage of justice. He cited the case of Hksar v Chan Wai
Keung50.
LAW, ANALYSIS AND REASONING
[83] The Judges’ Rules and Administrative Directions to the Police contain guidance
which embodies the standard of fairness to be observed by police officers when
questioning a suspect and they influence the admissibility of the resulting
statements as evidence. Principle (d) of Appendix A of the Judges’ Rules, provide
as follows:
“When a police officer who is making enquiries of any person about an offence
has enough evidence to prefer a charge against that person for the offence,
he shall, without delay, cause that person to be charged or inform him that he
may be prosecuted for the offence.”
[84] Rule III (a) provides as follows:
“Where a person is charged with or informed that he may be prosecuted for
an offence, he shall be cautioned in the following terms: -
“Do you wish to say anything? You are not obliged to say anything unless
you wish to do so, but whatever you say will be taken down in writing and
may be given in evidence.””
Rule III (b) provides as follows:
“It is only in exceptional cases that questions relating to the offence should be
put to the accused person after he has been charged or informed that he may
be prosecuted. Such questions may be put where they are necessary for the
purpose of preventing or minimizing harm or loss to some other person or to
the public, or for clearing up an ambiguity in a previous answer or statement.”
49 [2006] UKPC 5. 50 [2003] 1 HKLRD 901.
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Rule III (c) provides as follows:
“When such a person is being questioned, or elects to make a statement, a
record shall be kept of the time and place at which any questioning or
statement began and ended and of the persons present.”
[85] Principle (d) of Appendix A is a fundamental rule governing the questioning of
suspects by the police. It ensures that once inquiries result in enough evidence,
the suspect ought to be charged or at the very least, informed that he might be
prosecuted. In conjunction with Rule III (b), the rationale is to prevent the police
from subjecting a suspect to inquiries not for any legitimate proposed
investigatory purpose but to offer an opportunity for him to either incriminate
himself or to further incriminate himself. In delivering the judgment in Hksar v
Chan Wai Keung51, Deputy Judge McMahon said:
“Principle (d) was a fundamental principle governing the questioning of
suspects by the police. It ensured that once enquiries of a defendant had
resulted in “enough” evidence being obtained warranting him being charged
or prosecuted that he should then be charged or told he would be prosecuted.
In conjunction with Rule III (b) it prevented the police from subjecting a suspect
to enquiries not for any proper investigatory purposes but so as to have him
or allow him to further incriminate himself. However, principle (d) was not
designed to obstruct proper and fair police enquiries, so far as those enquiries
related to matters of investigation (R v Lai Kin Ming (1984)HKC 1 followed)” 52
[86] The rule is designed both to prohibit unfair investigatory procedures by the police
and to protect vulnerable suspects from self-incrimination. Therefore, when Insp.
Nedd invited the appellant, after he was charged, to give the statement which he
promised to give prior to being charged, it clearly amounted to an infringement of
Rule III (b). However, it is not every infringement of the Judges’ Rules which would
result in the exclusion of a defendant’s statement. Even where there is a breach
of Rule III (b) and there are no exceptional circumstances as envisaged by the Rule,
51 Ibid. 52 Ibid at 901 -902.
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the court may still proceed to admit a statement made after the laying of the
charge, if the court concludes that it is right and fair to do so.
[87] In delivering the judgment of the Board in Peart (Shabadine)53, Lord Carswell
outlined the following guidelines with respect to the application of the Judges'
Rules:
“(i) The Judges' Rules are administrative directions, not rules of law, but
possess considerable importance as embodying the standard of fairness which
ought to be observed.
(ii) The judicial power is not limited or circumscribed by the Judges' Rules. A
court may allow a prisoner's statement to be admitted, notwithstanding a
breach of the Judges' Rules; conversely, the court may refuse to admit it even
if the terms of the Judges' Rules have been followed.
(iii) If a prisoner has been charged, the Judges' Rules require that he should
not be questioned in the absence of exceptional circumstances. The court may
nevertheless admit a statement made in response to such questioning, even if
there are no exceptional circumstances, if it regards it as right to do so, but
would need to be satisfied that it was fair to admit it. The increased
vulnerability of the prisoner's position after being charged and the pressure to
speak, with the risk of self-incrimination or causing prejudice to his case,
militate against admitting such a statement.
(iv) The criterion for admission of a statement is fairness. The voluntary nature
of the statement is the major factor in determining fairness. If it is not
voluntary, it will not be admitted. If it is voluntary, that constitutes a strong
reason in favour of admitting it, notwithstanding a breach of the Judges'
Rules; but the court may rule that it would be unfair to do so even if the
statement was voluntary.”
[88] In The State v Mohammed (a/c Lull), Khan and Ramnarine54, the three
defendants were charged with murder and voir dire proceedings were held in
respect of each defendant with respect to interviews conducted by the police in
which caution statements were allegedly given by the defendants. They all
53 Peart (n.49). 54 Mohammed, Khan and Ramnarine (n.47).
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contended that the statements were not voluntary since there was a breach of
Rule III (b) of the Judges’ Rules. The court held that the interview notes and
caution statements of all the defendants were inadmissible as the prosecutionn
failed to establish voluntariness. The court stated:
“The provisions of Rule 3 (A) and (B) are consequent upon that of Rule (D) of
Appendix A. As soon as the police officer has enough evidence to charge a
suspect, he has a duty to charge him immediately or inform him that he may
be prosecuted. Upon being charged or upon being so informed, then the
provisions of Rule 3 (A) and (B) become relevant. The suspect must then be
cautioned and only in exceptional cases questions relating to the offence can
be put to him as defined in the said rule.”
[89] In Ancil Edmund; Henry Bruce and Irene Ragbir v The State55, one of the grounds
of appeal was that the trial judge had erred when he admitted the appellant’s
(Irene’s) oral and written admissions into evidence. The voir dire evidence of Insp.
Harry, who interviewed the appellant during the investigation, disclosed that after
the appellant implicated herself in an oral admission, the procedure under Rule III
of the Judges’ Rules was not followed. She was not informed that she might be
prosecuted for the death of her husband and that any further statement would be
recorded in writing and might be given in evidence against her. Insp. Harry had
invited her to give a further written statement after her oral admission. The court
held that after the oral admission, there was enough to prefer a charge against
the appellant and she should have been cautioned under Principle (d) of Appendix
A. Once this took place, the Rule III caution and procedure should have ensued.
The questions put to the appellant thereafter were improperly posed and the
invitation to provide a written statement was inappropriate. The court took the
view that a breach of the Judges’ Rules did not by itself amount to unfair
treatment. However, it was inexcusable to invite the appellant to give a written
statement the day after she clearly implicated herself in an oral admission.
Therefore, the judge’s discretion was incorrectly exercised and the oral statement
55 Edmund; Bruce and Ragbir (n. 48).
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should have been excluded. Similarly, the written statement should also have
been excluded since it was “fruit of the poisoned tree”56.
[90] For the purposes of clarity and context, we find it helpful to briefly summarise the
events of December 18 and 19, 2001. On the morning of December 18, 2001 Insp.
Nedd received instructions from the Director of Public Prosecutions to charge the
appellant and was mandated by Principle (d) of Appendix A, without delay, to
charge him or to inform him that he might be prosecuted. As he was about to do
so, the appellant blurted out “Mr. Nedd, I know you going and charge me for this
murder so let me tell you the truth.” Insp. Nedd did not tell the appellant he was
going to be charged but instead proceeded to caution him in accordance with Rule
III (a) and advised him of his rights and privileges. The appellant, on his own
volition, proceeded to say to Insp. Nedd that “If I ent tell yuh dis ah go can’t
sleep”. Insp. Nedd reminded the appellant that he was under caution and he was
introduced to Sgt. Corbett who then proceeded to take written notes of what the
appellant said between 8:05 pm and 9:05 pm. A note was also made in the station
diary by Insp. Nedd, consistent with the written notes taken by Sgt. Corbett.
Afterwards, Insp. Nedd asked the appellant if he wanted to give a written
statement and he said “yes” but he wanted to show them the places of which he
spoke in his oral statement and the officers obliged. They left the CID at 9:50 pm
and returned at 1:40 am. Thereupon, Insp. Nedd informed the appellant that he
was going to charge him and advised him of his rights and privileges, following
which the charges were laid at 1:45 am. Insp. Nedd again cautioned the appellant
and he replied “Mr. Nedd, I understand perfectly well and the statement you ask
about, I would give it in the morning.”
[91] Around 10:15 am that day, Insp. Nedd cautioned the appellant under Rule III (a)
and asked him if he still wished to give the statement in writing and the appellant
56 Ibid para 107
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said that he was ready. Arrangements were made for a JP to attend. When the JP
arrived, Insp. Nedd told the JP, Marissa Singh, that the appellant was already
charged but that he still wanted to give a statement in writing and that no threats
of violence or any promise or any inducements were made to him. The JP
confirmed this with the appellant in the presence of the officers. She then
proceeded to ask Insp. Nedd and Sgt. Corbett to leave the room and enquired of
the appellant if he was tired or hungry and he replied in the negative. The officers
returned and thereafter, around 11:15 am the appellant dictated the statement
to Insp. Nedd in the presence of Sgt. Corbett and the JP and gave permission to
Insp. Nedd to record what he was saying in writing. The JP endorsed the written
statement to the effect that she was told, prior to the appellant giving his
statement, that he was already charged and that no promises, threats or force
were used against him. The statement was read to him and he had the opportunity
to make corrections.
[92] The trial judge held a voir dire in order to determine the admissibility of both the
oral and written statements of December 18 and 19. He established that there
was a breach of Principle (d) of Appendix A of the Judges’ Rules in that Insp. Nedd
did not immediately charge or inform the appellant that he might be charged for
the offences. However, he concluded that such a breach was not deliberate and
that the statements were admissible. In respect of the statements he said as
follows in his ruling on the voir dire:
“With respect to the breach of Principle D of Appendix A I accept Nedd’s
testimony that at the time of the arrest that the standard operational
proceedings of the Trinidad and Tobago Police Service were in place...
Admittedly there is no direct evidence from the police before the taking of
the interview notes on December 18th that the accused was informed that
he was going to be charged. However, I agree with State attorney that
having regard to the unchallenged evidence of Nedd to the effect that the
accused said later on, on that Tuesday, December 18, 2001. “Mr. Nedd, I
know you going to charge me,” that the only rationale or reasonable
conclusion that I can come to is that the standard operational procedures
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kicked in and the accused was informed that he was going to be charged for
the instant offences.
In exercising my discretion I also take into account the reason proffered by
Inspector Nedd for not preferring the charge against the accused. It would
be remembered that Nedd testified that …late on the morning of Tuesday,
December, 18th, he had received instructions from the DPP to charge the
accused. Indeed, he stated that that was his purpose in going with Sergeant
Corbett to CID to meet with the accused later that day. Nedd testified that on
seeing the accused, the accused effectively blurted out that he was aware that
Nedd was going to charge the accused for “This murder so let me tell you the
truth” Inspector Nedd immediately cautioned the accused in accordance with
Rule 3. Nedd testified that he administered the Rule 3 caution because he
knew the accused was about to be charged for the instant offences, and Nedd
went on to state that he introduced Sergeant Corbett to the accused, further
administered the Rule 3 caution and informed the accused of his right to an
attorney, relative or friend. The accused again blurted out that he would be
unable to sleep if he did not tell the police what he had to say…
In cross-examination Nedd proffered two reasons for not informing the
accused that he was going to be charged. Firstly, the standard operational
procedures had taken effect. Two, when the accused admitted knowledge
of an imminent charge, it verified in his mind that the accused was in fact
informed…Thereafter, Inspector Nedd agreed with Mr. Sturge that it was
possible to have charged the accused and then hear what he had to say. Mr.
Sturge then asked Inspector Nedd why he did not adopt that procedure.
Inspector Nedd replied, “Because I did not know then and I do not know now,
how I could have been able to explain to my senior, the DPP or a Court of
law that I did not accept an alibi if that is what the accused was giving before
preferring charges against him
Having regard to the evidence before me on the voir dire I hold that while
there was a breach of Principle D of Appendix A of the Judges’ Rules the
breach was not deliberate. I have also considered the conduct of the Justice
of the Peace. In my view Mrs. Singh was not as thorough as she should have
been, but that she was satisfied in her own mind prior to the accused
dictating the written statement on Wednesday December 19th that the
accused wished to give a statement that was truly voluntary. She was
fortified in her view, having regard to the confident and independent
manner in which the accused subsequently dictated the contents of that
written statement.
Page 44 of 67
For the sake of completeness I have found that the impugned utterances of
Tuesday December 18, 2001, as recorded in the notes and in the notes of the
journey of 18th December, 2001, and the written statement of Wednesday
December 19th, were all given voluntarily in the widest sense of the word.
Further, notwithstanding a breach of Principle D of Appendix A of the
Judges’ Rules, in the exercise of my undoubted discretion it would be fair to
admit the impugned utterances of Tuesday, December 18, 2001…In all the
circumstances I propose to admit the impugned utterances of December 18th
and the written statement of December 19th.” 57 [emphasis ours]
[93] It is well established that it is not every infringement of the Judges’ Rules which
would result in the exclusion of a defendant’s statement. Even where there is a
breach of the Rule, the court may still proceed to admit a statement if the court
thinks that it is right and fair to do so.58
[94] The trial judge further stated in his ruling on the voir dire that in relation to the
written statement, he was satisfied that despite the multiplicity of cautions and
advice given to the appellant of his right to an attorney, relative or friend, it was
manifest from the evidence that the appellant was bent on putting forward his
side of the story. This could have been seen from his conduct after he was charged.
The trial judge was of the view that the appellant would have spoken out whether
he was charged or not. In his ruling, he stated that:
“Against that backdrop I propose to consider the factors that I should have
regard to in exercising my undeniable discretion. The accused was
approximately 18 years and four months old at the time of his arrest in
December 14th. While a young man the accused was clearly street smart, a
drug trafficker who would peddle his drugs even late at night. The accused
was also a self-confessed thief having admitted stealing from his
greatmother’s house in August 2001 while he was employed with a group of
workmen doing repairs to the house (sic). Accordingly, the accused could even
at his age be described as a tough character, a man of the world. Additionally,
57 Notes of Evidence, March 27, 2013 page 12 lines 13 to page 14 line 12. 58 Peart (n.49).
Page 45 of 67
Nedd portrayed the accused as a man who was mocking and jeering law
enforcement authorities from very shortly after his arrest.
Further, I formed the impression that notwithstanding a multiplicity of
cautions and advice of the right to an attorney, relative or friend, this
accused seem bent on putting forward his side of the story, this can be seen
from his conduct even after being charged. The accused, for whatever
reason, wanted to have his side of the story told. So that the evidence
establishes that this particular accused, whether he was charged or not,
would have spoken out. As Lord Carswell stated in Peart at para 21. “That the
basic and fundamental reason for prohibition is the principle that to
interrogate the prisoner tends to be unfair as requiring him possibly to
incriminate himself”. Moreover, having myself listened to the tape of
Sunday, December 16th, it does not appear to me to be the voice of a man
whose will was slowly being sapped. Rather the accused speaks freely
without any suggestion of being under any form of compulsion or violence
or threats.
Additionally, I have found that the accused had been repeatedly cautioned
by the police during the course of his interaction with them. Firstly, pursuant
to Rule 2 of the Judges’ Rules from time of arrest on Friday, December 14th
until Sunday, December 16th. Secondly pursuant to Rule 3 of the Judges’ Rules
from Tuesday, December 18th, after Nedd had received instructions from the
DPP to charge the accused, up to the time of the recording of the written
statement on Wednesday, December 19th. Further, the police had repeatedly
informed the accused of his right to an attorney, relative or friend during the
course of his interaction with them from the time of his arrest on Friday,
December 14th, to the time of the recording of the written statement on
December 19th”. 59[emphasis ours]
[95] The trial judge found that the questions asked by Insp. Nedd during the giving of
the written statement did not breach the Judges’ Rules since Insp. Nedd directed
those questions to clear up certain ambiguities in the appellant's statement. He
stated:
“it is manifest that the questions asked by Inspector Nedd were limited and
directed to clearing up certain ambiguities in the accused’s statement. As
59 Notes of Evidence, March 27, 2013 at page 11 lines 14 to page 12 lines 12
Page 46 of 67
such they fell within the permissible ambit of questioning contemplated by
Rule 3 (b) of the Judges Rules…”60 [emphasis ours]
[96] More specifically, the trial judge concluded that the written statement was given
voluntarily as it was given in the presence of the JP, who was satisfied in her own
mind prior to the appellant dictating it, that he wished to give it voluntarily. The
trial judge said that “she was fortified in her view, having regard to the confident
and independent manner in which the accused subsequently dictated the
contents of the written statement.”61
[97] The trial judge ruled that both the oral and written statements were given
voluntarily and consequently admitted them. He said:
“having seen and heard the Prosecution’s witnesses the Prosecution had
satisfied me beyond a reasonable doubt that the statements were
voluntary. Accordingly, I reject all allegations of oppression, abuse, trickery
and inducement put forward by the Defence…”62 [emphasis ours]
[98] Moreover, in presenting a fair picture to the jury, the trial judge, throughout his
summation directed them that there was a breach of the Judge’s Rules in that
Insp. Nedd did not promptly charge or inform the appellant that he might be
charged.63 Although the trial judge had previously ruled in his voir dire that the
breach was not deliberate and did not cause the written statement to be
inadmissible, he left it open to the jury, consistent with the principles in R v
Mushtaq64, for them to determine whether the breach was, in fact, deliberate and
whether in all the circumstances they could rely on the statements. He said:
“I had indicated -- I directed you that there was a breach of the Judges' Rules
and that you must look at all the circumstances in considering whether you
60 Notes of Evidence, March 27, 2013, page 9 lines 49 to page 10 line 4. 61 Notes of Evidence, March 27, 2013 page 13 lines 40 - 43 62 Notes of Evidence, March 27, 2013 page 4 lines 45 - 49 63 Day 1 Summation page 67 lines 7-18,page 73 lines 18-40; Day 2 Summation page 8 lines 16-18,
page 10 line 45 to page 11 line 10 and Day 3 Summation page 44 lines 33-41. 64 [2005] 1 WLR 1513.
Page 47 of 67
can rely on the statement of the 18th December or, indeed, of the statement
of the 19th December. In considering the circumstances, you would consider
whether the officers deliberately breached the Judges' Rules in the manner
aforesaid. The Prosecution witnesses have denied that they deliberately
breached the Judges' Rules. And I had set out all the factors to be taken into
consideration by you when coming to determine whether you can rely on any
particular statement.”65
[99] In respect of Insp. Nedd’s request for a further statement after the appellant had
been charged, the trial judge directed the jury that this did not amount to a breach
of Rule III (b) of the Judges Rules. He directed them that it was open to them to
decide whether Insp. Nedd was simply inviting the appellant to make a written
statement in relation to the appellant’s previous oral statement and whether the
appellant at that time had a free choice to either give or withhold the written
statement. The trial judge said:
“Members of the Jury, a while ago, I had indicated that there was no breach
by Nedd asking the accused whether he wished to give a statement, whether
he still wished to give the statement in writing even after he had been
charged and I had indicated that there had been no breach of the Judges'
Rules. And I just want you to bear in mind that Rule 3(c) of the Judges' Rules
provides, and you would recall what Rule 3(a) is, the caution starts off with:
"Do you wish to say anything" and then it goes on to properly caution the
accused. And Rule 3(c) of the Judges' Rules provides: "When such a person" --
Now, Rule 3(b) says that it is only in exceptional circumstances that someone
can be questioned after they have been charged or informed that they may be
charged for the offence. And Rule 3(c) provides: "When such a person is being
questioned or elects to make a statement, a record shall be kept of the time
and place at which any questioning or statement began and ended and of the
persons present." So that Rule 3(c) makes clear, Members of the Jury, that
there may be circumstances where a person, who has been charged or
informed that he may be charged for an offence may, for whatever reason,
elect or choose to give the police a statement. So that the accused, who was
in that Rule 3 scenario, if the Prosecution has made you sure that Nedd was
simply inviting the accused to give a written statement of what had gone
65 Day 3 Summation page 43 lines 2 to 14
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before, and leaving it up to the accused to determine whether he would give
the written statement or not, then, Members of the Jury, Rule 3 did not
prevent Nedd, in these circumstances, from asking the accused on the
morning of Wednesday, 19th December, whether he still wanted to give the
statement.”66
The trial judge carefully directed the jury on how to approach the written
statement. In order to reach these verdicts, it was palpably clear that they had
rejected the appellant’s claim to oppression and accepted that the written
statement was in fact voluntary.
[100] This court will not interfere with the decision of a lower court unless it has been
shown to be plainly wrong. The decision to admit the statement was within the
broad ambit of discretion given to the trial judge. He was directly involved in the
case and was intimately acquainted with all the factual issues and the manner in
which they arose for consideration. In his ruling on the voir dire, he correctly
considered the legal principles governing the admissibility of confessions. He
reminded himself that the prosecution bore the burden of proving the
voluntariness of the statement. However, even where the statement was
obtained voluntarily, he had the discretion to exclude it if it was obtained by
improper and unfair means. He did not exclude it. In our view, he was perfectly
entitled to do so and we do not consider that he was plainly wrong: see Keron
Briggs v The State67and Jade Bovell v The State 68.
Accordingly, this ground of appeal is without merit.
66 Day 3 Summation, Page 21 lines 37 to Page 22 lines 19. 67 Cr App No T013 of 2014. 68 Cr App No. T10 of 2014.
Page 49 of 67
Ground 4
A material irregularity occurred during the course of the trial when the trial
judge treated the appellant as a person of effective bad character and proceeded
to give a bad character direction on credibility. The appellant was, effectively a
person of good character and was entitled to a good character direction or at
the very least, a modified good character direction.
SUBMISSIONS ON BEHALF OF THE APPELLANT
[101] The submissions on this ground were quite extensive and required considerable
sifting and distillation. We, therefore, find it convenient to summarise these
submissions and to also develop them in our reasoning.
[102] Mr. Singh submitted that at the time of the trial, the appellant was a man of good
character with no convictions recorded against him and accordingly, he was
entitled to a full good character direction (R v Aziz and others69). He also
submitted that the trial judge ought to have at least given the jury a ‘modified
good character direction’ based on the principles in R v Gray70.
[103] He contended that the principles in Hunter and Ors v R71 did not apply as they
came into existence after the appellant’s trial which was conducted in the year
2013.
[104] He complained further that the conduct relied on by the prosecution did not fall
within the definition of ‘bad character’ under section 15 K (1) (a) of the Evidence
Act. He also submitted that the evidence used to show bad character by the
69[1995] 2 Cr App R 478. 70[2004] 2 Cr App R 30. 71 [2015] EWCA Crim 631.
Page 50 of 67
prosecution was the same evidence which was relied upon to show the appellant’s
intention and his motive.
[105] Mr. Singh submitted that there was a substantial miscarriage of justice by the
judge’s failure to give a good character, or at minimum, a modified good character
direction and the court ought to set aside the conviction under section 44 of the
Supreme Court of Judicature Act.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
[106] Mr. Sinanan submitted that the trial judge was correct in not giving a good
character direction since the appellant was not of good character as he had a
disposition towards both misconduct and reprehensible behaviour.
[107] Mr. Sinanan submitted that the decision in Hunter and Ors reiterated the pre-
existing principles in relation to good character and recited what was previously
stated in earlier decisions of the Court of Appeal of the United Kingdom, including
Vye, Aziz, Zoppola-Barraza72 and R v H73.
[108] He submitted further that the reprehensible behaviour, in this case, was
committed earlier in time and was independent of and not connected to the
charges. He relied on the decision in Zoppola-Barraza in support of this.
[109] He also submitted that even if the trial judge had failed to give a good character
direction, this would not be fatal since the case for the prosecution was
overwhelming. Therefore, there was no need to invoke the provisions of section
44 (1) of the Supreme Court of Judicature Act as there was no substantial
miscarriage of justice.
72[1994] Crim LR 833. 73 [1994] Crim LR 205.
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LAW, ANALYSIS AND REASONING
GOOD CHARACTER
[110] Mr. Singh submitted that the appellant, who had no previous convictions, was
entitled to a good character direction on both credibility and propensity. In one of
his out of court statements to the police in seeking to establish an alibi, the
appellant admitted that on the night of the murders, he was selling drugs at
Prizgar Road, some distance away from the scene. He also admitted to stealing an
electronic item, a Sony discman, as well as two CD’s in 1999, whilst employed at
the Croppers’ home. In light of these admissions, the trial judge exercised his
discretion to withhold the standard good character direction as well as a modified
good character direction in respect of the appellant and it was contended that the
trial judge was wrong to do so.
[111] The general rule with respect to the giving of a good character direction is that
such a direction is relevant to a defendant's credibility as well as to his propensity.
A direction as to credibility is to be given where he has good character and has
testified and/or has made pre-trial statements which he has explicitly or in effect
adopted. A direction as to the relevance of good character to the likelihood of the
defendant having committed the offence charged (propensity), is to be given
where a defendant has good character, whether or not he has testified or has
made pre-trial statements. One of the exceptions to the general rule is where the
defendant has no previous convictions but has admitted to other reprehensible
conduct and the court considers it would be an insult to common sense to give
the direction. In such a case, the trial judge can properly exercise his discretion
not to give it.
[112] In Hunter and Ors,74 the court, in comprehensively examining a number of cases
in which the principles of good character applied, discerned that those principles
74 Hunter and Ors (n.71).
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were being extended too far and that convictions were being quashed in
circumstances that the court found “ surprising”. 75 Such an approach led in many
instances to the quashing of convictions or meaningless directions which were in
some cases, “far too generous”76 to the defendant. This infringed the rule of
fairness. It is clearly not fair to allow a defendant who has a spurious claim to a
good character to benefit from the direction and as explained by the court in
Hunter, only persons with legitimately founded good character or effective good
character should be allowed the direction. In order to illustrate the unfairness
which can result in giving the direction when it was undeserved, reference was
made to the decision in R v Barry Henry Durbin77 where the defendant was
convicted for the importation of 875 kilograms of cannabis sativa. During an
interview and in evidence he admitted, among other things, to smuggling goods
other than drugs across Europe. The trial judge considered him a man of good
character but withheld a good character direction because he was unable to give
it in respect of his co-accused. His appeal was allowed on the ground that having
been considered to be of good character, he was entitled to the direction, albeit
a modified one, to take into account his particular circumstances.
[113] The court in Hunter and Ors denounced this decision as having taken “a wrong
turn”78. It is in light of the misapplication of the principles of good character that
the court sought to examine the law and to bring clarity to the circumstances in
which the good character direction ought to be given. Two categories were
defined: that of absolute good character where the court is bound to give both
limbs of the directions, credibility and propensity, and that of effective good
character where the court is equally bound.
75 Hunter and Ors (n.71) Para 70. 76 Hunter and Ors (n.71) Para 66. 77 [1995] 2 Cr. App. R. 84. 78 Hunter and Ors (n.71) Para 20.
Page 53 of 67
[114] With respect to the issue of absolute good character, the court enunciated the
following principles:
“77…the term "absolute good character" [means] a defendant who has no
previous convictions or cautions recorded against them and no other
reprehensible conduct alleged, admitted or proven. We do not suggest the
defendant has to go further and adduce evidence of positive good character.
This category of defendant is entitled to both limbs of the good character
direction. The law is settled.
78…The first credibility limb of good character is a positive feature which
should be taken into account. The second propensity limb means that good
character may make it less likely that the defendant acted as alleged and so
particular attention should be paid to the fact. What weight is to be given to
each limb is a matter for the jury. The judge must tailor the terms of the
direction to the case before him/her, but in the name of consistency, we
commend the Judicial College standard direction in the Crown Court Bench
Book as a basis.” 79
[115] Where a defendant has no previous conviction, no cautions recorded, no
reprehensible conduct, allegedly admitted or proven and is found to be of
absolute good character, the court is bound to give the standard good character
direction both on credibility and propensity. It is clear from the evidence in this
case that the appellant was not a man of absolute good character. Although he
had no previous convictions and no cautions recorded against him, he had
admitted to criminal conduct. It would have been an affront to common sense for
the trial judge to have treated him as a person of absolute good character. The
direction would not only have been absurd and meaningless but it would also have
misled the jury. In the circumstances, the trial judge was correct to withhold the
absolute good character or “plain vanilla” direction as the appellant was clearly
disentitled to such by virtue of his admissions.
79 Hunter and Ors (n.72) Para 77 and 78.
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EFFECTIVE GOOD CHARACTER
[116] Mr. Singh further submitted that the trial judge wrongly exercised his discretion
by finding that the appellant was not entitled to a modified good character
direction. Such a discretion, he argued, ought to be exercised proportionally. The
appellant could only be deprived of this direction if the admitted criminal conduct
was both serious and similar to the conduct charged. He submitted that a “small
hustler” on the drug blocks of Trinidad cannot be taken to have the propensity to
“butcher” innocent law-abiding citizens in their own homes. Further, a single act
of petty dishonesty cannot be enough to penalise the appellant and prohibit him
from obtaining at least a modified good character direction.
[117] He further submitted that the trial judge applied the wrong law. The principles in
R v Gray80 represented the authoritative statement of the law in respect of
effective good character at the time of the trial and ought to have been applied in
this case rather than those expounded in Hunter and Ors which comprised new
principles non-existent at the time of the trial. Had the principles set out in Gray
been applied, the appellant would have been declared a person of effective good
character and entitled to at least a modified good character direction.
[118] In response, Mr. Sinanan submitted that the trial judge correctly exercised his
discretion in finding the appellant not to be a person of effective good character
and as such was not worthy of a modified good character direction. The appellant
had a disposition to both misconduct and reprehensible behaviour and it would
have been improper for the trial judge to ignore the matters raised or to attempt
to artificially weave them into any form of a good character direction, standard or
modified, as that would have amounted to an affront to common sense. He also
submitted that the trial judge correctly applied the principles in Hunter and Ors
and that those principles were not new ones. The court, having examined the
80 Gray (n.70)
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existing principles, set out to give guidance as to how trial judges ought to
approach its application.
Did Hunter Create New Law?
[119] In R v Gray, the appellant, who was then 18 years of age, was charged with
murder. He admitted to being involved in violence on the night of the offence
where he had hit a man at the scene of the crime. He was previously convicted for
driving a car under the influence of excessive alcohol without a license or
insurance when he was 17 years old. The trial judge directed the jury that he was
a man of good character since the conviction was not for an offence of dishonesty
or violence. He gave no directions on propensity. On appeal, the court set down
seven (7) principles. Principles 4 and 5 state as follows:
“(4) Where a defendant of previous good character, whether absolute or, we
would suggest, effective, has been shown at trial, whether by admission or
otherwise, to be guilty of criminal conduct, the prima facie rule of practice is
to deal with this by qualifying a Vye direction rather than by withholding it
(Vye, Durbin, Aziz); but
(5) In such a case, there remains a narrowly circumscribed residual discretion
to withhold a good character direction in whole, or presumably in part where
it would make no sense, or would be meaningless or absurd or an insult to
common sense, to do otherwise (Zoppola-Barrazza and dicta
in Durbin and Aziz).” 81
[120] Mr. Singh submitted that the appellant was bound to be treated as a person of
effective good character and was entitled to a modified good character direction
had the court applied the above principles in R v Gray. He submitted that the trial
judge ought to have followed the prima facie rule of practice which was to add
words of qualification to the Vye direction and not to withhold it altogether. Such
81 Gray (n.70) Para 57.
Page 56 of 67
discretion was a “narrowly circumscribed” one and the court was only allowed to
withhold it if it would amount to an affront to common sense.
[121] R v Gray was one of the cases reviewed in Hunter and Ors. The court, in seeking
to bring about consistency in approach in order to ensure that only persons who
are of good character benefit from the direction, examined the whole “spectrum
of situations” likely to face the trial judge and categorised what is known as the
effective good character direction. It was clarified that the discretion to withhold
the direction was not of the “narrowly circumscribed” nature averted to in R v
Gray but rather one of an “open-textured” kind. Thus, the trial judge enjoys a
broad discretion whether to give any part of the direction and, if so, on what
terms. It is for the trial judge to decide what is fair in the circumstances of the case
and it may be that fairness requires that the direction is appropriate, but not
necessary. The effective good character direction as stated by Lady Justice Hallet
DBE is as follows:
“79. Where a defendant has previous convictions or cautions recorded which
are old, minor and have no relevance to the charge, the judge must make a
judgement as to whether or not to treat the defendant as a person of effective
good character. It does not follow from the fact that a defendant has previous
convictions which are old or irrelevant to the offence charged that a judge is
obliged to treat him as a person of good character. In fairness to all, the trial
judge should be vigilant to ensure that only those defendants who merit an
'effective good character' are afforded one. It is for the judge to make a
judgement, by assessing all the circumstances of the offence/s and the
offender, to the extent known, and then deciding what fairness to all dictates.
The judge should not leave it to the jury to decide whether or not the
defendant is to be treated as of good character.
80. If the judge decides to treat a defendant as a person of effective good
character, the judge does not have a discretion whether to give the direction.
S/he must give both limbs of the direction, modified as necessary to reflect the
other matters and thereby ensure the jury is not misled.”82
82 Hunter and Ors (n.71) Para 79 and 80.
Page 57 of 67
[122] This identification of the judge’s discretion as being “open-textured” instead of
“narrowly circumscribed” cannot be described as new law but as a clarification in
the application of the law which already existed. The court in Hunter and Ors
conducted a thorough examination of the case law as it stood then and offered
guidance to trial judges on the application of the principles so as to promote
consistency of approach. This had become necessary because judges were giving
the direction with such generosity that even persons who admitted to
reprehensible conduct were being allowed to benefit. The case of Durbin83 is a
good illustration of the confusion which the court in Hunter attempted to diffuse.
In Durbin, the appellant had spent convictions and had admitted to lying to the
police and grossly misleading them in their investigations by claiming a false alibi.
He had also admitted that he knowingly smuggled goods across Europe in order
to avoid customs duties and, yet, was still treated as a man of good character. The
court was satisfied that in the circumstances of the case, the law took a wrong
turn. A number of decisions placed reliance on Durbin and other similar decisions
which added to the ongoing state of confusion. In Zoppola84, the appellant had no
previous convictions and was charged with the importation of cocaine. He made
admissions that on several occasions he had smuggled gold and jewels into the
jurisdiction to evade duties and taxes. He was deprived of the good character
direction because to give it would have been an affront to common sense. Alliott
J, in delivering the judgment had the following to say:
“It was an affront to common sense to hold that such a person was entitled to
the same direction as those who can truly be considered to be of good
character.”85
[123] The court in Hunter and Ors was conscious of the fact that the ongoing approach
might affect public trust and confidence in the criminal justice system and felt that
83 Durbin (n. 77). 84 Zoppola-Barraza (n. 72). 85 ibid at 833
Page 58 of 67
the time had come to put the matter right by laying down guidelines. We are firm
in our view that Hunter and Ors v R did not create new law and that the trial judge
was correct to approach the question of the good character of the appellant as he
did.
Was the appellant entitled to an effective good character direction?
[124] Mr. Singh is asking us to find that the trial judge ought to have treated the
appellant’s admissions as having no relevance to the charge in that they were both
dissimilar and disproportionate and that the trial judge should have treated him
as a man of effective good character and allowed him a modified good character
direction. The appellant admitted to the serious offence of selling drugs. He also
admitted to stealing from the deceased, a crime of dishonesty, which was relevant
to the appellant’s credibility. Although the crimes admitted were both non-violent
in nature, and to that extent disproportionate to those actually committed, it was
important for the jury have a full picture of the person before them. The trial judge
could not easily disregard the evidence. Accordingly, it was open to him, in
exercising his discretion, to treat the appellant as a person who was not entitled
to a modified good character direction.
[125] In order to treat a defendant as a person of effective good character, the trial
judge must be sure that only those who deserve to be so treated are afforded the
appropriate direction. Where a defendant has old or minor previous convictions
which are irrelevant to the charge, it is open to the trial judge to treat him as a
person of effective good character. It does not follow that in every case where a
defendant is so circumstanced, that the court had a duty to bestow that benefit
upon him. It is a matter of fairness and the trial judge is expected to closely assess
all the circumstances of the offence and the offender, and to decide where the
balance of fairness lies.
Page 59 of 67
[126] We shall not interfere with the trial judge’s findings because he correctly directed
himself. We would only have interfered if he were plainly wrong or if the discretion
had been exercised unreasonably. Where the case turns on its own specific facts
and circumstances, the court will be particularly slow to interfere. In Hunter and
Ors, the court expressed the position as follows:
“An appellate court should only interfere if, on the facts, it was not properly
open to the judge to reach the conclusions he did…the circumstances in which
this court would interfere with the exercise of a judicial discretion or a fact-
specific judgment are limited. Context is all and the trial judge is likely to have
a far better feel for the dynamics of a criminal trial and the interests of justice
than an appellate court.” 86
[127] The evidence of criminal conduct came from the appellant himself in perhaps his
attempt to bolster his alibi and the trial judge could not ignore it. His admissions
comprised the commission of very serious offences, that of larceny and drug
trafficking and their admissibility turned on the specific facts of this case, in the
sense that they were inextricably bound with his alibi. There was no escape route
for the trial judge. He was bound to admit the evidence in its entirety. Indeed, he
would have been criticised if he did not and might have been accused of depriving
the appellant of fully and intelligibly advancing his defence. The trial judge has a
“feel for the case” unlike the Court of Appeal. Therefore, in this case, “context is
all”. We are satisfied that the trial judge was not plainly wrong in treating the
appellant as being a person of effective good character and benefiting him with
the relevant direction.
BAD CHARACTER
[128] Mr. Singh also submitted that the evidence advanced did not constitute bad
character evidence. In determining whether the criminal conduct can be admitted
as ‘bad character’ evidence on the part of the defendant, the conduct must not be
86 Hunter and Ors (n.71) Para 96.
Page 60 of 67
connected with the alleged facts of the offence on which the appellant was
charged. Section 15 K of the Evidence Act stipulates that:
“15K. (1) Reference to evidence of a person’s bad character is to evidence of,
or a disposition towards, misconduct on his part, other than evidence
which—
(a) has to do with the alleged facts of the offence with which the accused
is charged, or
(b) is evidence of misconduct in connection with the investigation or
prosecution of that offence.
(2) For the purpose of this section and sections 15L to 15W, “misconduct”
includes the commission of an offence or other reprehensible behaviour.”
[emphasis ours]
[129] In Zoppola87, in deciding whether the bad character evidence relied upon had to
do with the alleged facts of the offence with which the appellant was charged, the
court held that the conduct was independent of the offence charged and had
occurred earlier in time. Consequently, it conformed to the definition of bad
character evidence. In contrast, in R v Durbin88, the admitted dishonest smuggling
was tied to the events which were the subject of the trial, whilst in Zoppola, the
dishonest smuggling was independent of the subject charge.
[130] In this case, the criminal conduct to which the appellant admitted, occurred prior
to and was independent of the charges of murder and fell squarely within the
definition of bad character as set out in section 15 K (1) (a) of the Evidence
Amendment Act. It was not evidence which was tied up with the alleged facts of
the offences for which the appellant was charged.
[131] Mr. Singh seems to be labouring under the impression that the trial judge treated
all the events prior to the commission of the offence as evidence of bad character.
87 Zoppola-Barraza (n. 72). 88 Durbin (n.77).
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We are unable to identify that anywhere in the summation. Indeed, in his decision
to admit the bad character evidence, the trial judge ruled as follows:
“I had already yesterday in stating my conclusions indicated that for the
purpose of the voir dire, it would be fair to admit bad character of the accused
pursuant to section 15N (1)(d) and (g) in so far as it relates to (1) the accused
engaging in drug trafficking and (2) the accused committing the offence of
larceny at the home of the Croppers”89
There was evidence before the jury that the appellant had previously made
threats to kill members of the family on separate occasions, that on one occasion,
the police were called to remove him following an altercation with the family
where serious threats of violence were also made, that he partook in the proceeds
of the crime by attempting to use the bank card belonging to the deceased and
that he stole items from the home on the fateful night. The trial judge did not treat
any of these items as evidence of bad character since they were all inextricably
tied up with the alleged facts of the offences with which the appellant was
charged. The trial judge appeared to have been most mindful of his duty not to
treat allegations of reprehensible conduct as evidence of bad character which
were closely tied up with the allegations of the case itself. The direction on bad
character focused only on admissions made by the appellant in respect of his drug
trafficking and larceny. They both were unconnected with the facts of the offences
charged. We are therefore of the view that the trial judge correctly admitted the
evidence as that of bad character under the Evidence Amendment Act, sections
15 N (1) (d) and (g).
Wrongful admission of bad character evidence and inadequate directions and
warnings
[132] Mr. Singh spent considerable time in his submissions discussing the case of Burris
v The State90. He made no particular complaints but in Burris, the appellant
89 Notes of Evidence, March 27, 2013, Page 14 lines 3-10 90 Cr App 4 of 2012.
Page 62 of 67
submitted that the trial judge erred in law by failing to give the appropriate
directions and warnings relating to bad character evidence. From the contents of
the submissions and the portions of the judgment of Burris to which counsel
referred, it seems to us that counsel is submitting here that the trial judge wrongly
admitted the bad character evidence in this case and failed to give the appropriate
directions and warnings.
[133] The Evidence Amendment Act 2009, section 15 N (1) lists the gateways for the
admissibility of an accused’s bad character. These gateways mirror the provisions
of the Criminal Justice Act, 2003. Section 15 N (1) states as follows:
“15N. (1) In criminal proceedings evidence of the accused’s bad character is
admissible where—
(a) all parties to the proceedings agree to the evidence being admissible;
(b) the evidence is adduced by the accused himself or is given in answer to
a question asked by him in cross-examination and intended to elicit it;
(c) it is important explanatory evidence;
(d) it is relevant to an important matter in issue between the accused and
the prosecution;
(e) it has substantial probative value in relation to an important matter in
issue between the accused and a co-accused;
(f) it is evidence to correct a false impression given by the accused; or
(g) the accused has made an attack on another person’s character.”
[emphasis ours]
[134] Section 15 P (1) and (2) treat an important matter in issue as follows:
“15P. (1) For the purpose of section 15N (1)(d), an important matter in issue
between the accused and the prosecution includes—
(a) the question whether the accused has a propensity to commit offences
of the kind with which he is charged, except where his having such a
propensity makes it no more likely that he is guilty of the offence;
(b) the question whether the accused has a propensity to be untruthful in
any respect.
(2) Where subsection (1)(a) applies, an accused person’s propensity to commit
offences of the kind with which he is charged may, without prejudice to any
Page 63 of 67
other way of doing so, be established by evidence that he has been convicted
of—
(a) an offence of the same description as the one with which he is charged;
or
(b) an offence of the same category as the one with which he is charged.”
[135] In Burris, the court explained that “important matters in issue between the
prosecution and the defence” were not limited to matters of propensity and
untruthfulness but rather a consideration of the evidence relevant to the context
of the case as a whole. The court said:
“21. The purpose of admitting evidence of prior misconduct of the accused is
to demonstrate an increased likelihood that he committed the offence in
question. Misconduct includes the commission of an offence or other
reprehensible behaviour and is therefore not limited to evidence of prior
convictions (Section 15 K (2) Chap. 7:02). Although section 15 P (1) deems
propensity and untruthfulness to be important matters in issue, the
definition is not exhaustive. Important matters in issue between the
prosecution and the accused will invariably include whether the accused
committed the act for which he is charged and whether he did so with the
requisite mental state. Other issues may become important in the context
of the particular trial, for example, whether the accused has fabricated an
alibi. (Archbold Criminal Pleading, Evidence and Practice 2011 13 – 38). The
threshold for admitting evidence of the accused's bad character is satisfied
if the evidence is relevant to an important issue between the prosecution
and the defence in the context of the case as a whole (Blackstone’s Criminal
Practice 2015 F12.17; Weir [2006] 2 All ER 570; Chopra [2007] 1 Cr App R 16
Hughes LJ at [16]).”91 [emphasis ours]
[136] In this case, the trial judge allowed bad character evidence, given by way of the
appellant’s admissions that he had misconducted himself in committing serious
criminal offences, under the gateways of important matters in issue (section 15 N
(1) (d)) and that he had made attacks on the character of Sgt. Dick, Insp. Nedd,
91 Ibid para 21.
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Sgt. Corbett, Sgt Hood, Cpl Louison, Sgt. Ramroop, Sgt. Labadie, Dion Jones and
Darryl Mc Donald (section 15 N (1) (g)).92
[137] In this case, the central issue for the jury’s determination was that of truthfulness.
The appellant attacked the character of key prosecution witnesses and it was
important for the jury to be made aware of the character of the man making the
accusations in order for them to determine his creditworthiness. He alleged that
Sgt. Dick threatened him and used force against him in the presence of Insp Nedd
and on one occasion, in the presence of Sgt. Corbett. In demonstrating the bad
character of Sgt. Dick, he referred to two other matters in which trial judges had
made adverse findings against Sgt. Dick in voir dires with respect to his role in the
recording of statements. He also attacked the characters of Insp. Nedd and Sgt.
Corbett by alleging that on the night of December 18, they told him that he could
not sleep unless he followed their instructions and if he did, he would be made a
state witness. He alleged that they carried him on a journey and told him where
to point out and what to say. Moreover, he alleged that they fabricated the third
oral statement attributed to him and “coached” him from that statement into
giving the written statement. He also alleged that Sgt. Corbet had shouted at him
on one occasion whilst being interrogated and that Insp. Nedd, Sgt. Corbett and
Sgt. Dick interrogated him at length during nighttime hours. The appellant further
alleged that Sgt. Hood, Cpl. Louison, Sgt. Ramroop, Sgt. Labadie and Insp. Nedd
were all part and parcel of the plot to connect him to the case by falsifying
evidence of his fingerprint. He alleged that Sgt. Hood, Sgt. Corbett and Sgt.
Ramroop were in the same lodge as John and the officers were determined to hold
someone responsible for the murders. He also accused Dion Jones and Darryl
McDonald of being untruthful and Angela of having assited the police officers in
fabricating the case against him.
92 Day 2 of Summation page 20 line 23 to page 22 line15
Page 65 of 67
[138] The prosecution relied heavily on both the oral and written statements in which
the appellant admitted his participation in the robbery and knowledge that his
confederate had killed the deceased. The truthfulness of the appellant’s
admissions was a relevant matter in issue between the prosecution and the
defence. Similarly, his admission to dishonesty was important evidence to assist
the jury in their determination of the appellant’s credibility. Therefore, in our
view, the trial judge correctly exercised his discretion to allow the bad character
evidence in accordance with section 15 N (1) (d) and (g) of the Evidence
Amendment Act 2009.93
[139] The next question to be determined is whether the trial judge, in allowing the
evidence of bad character, failed to give the appropriate directions and warnings
to ensure that the appellant was protected from any undue prejudice. In the cases
of R v Hanson and Ors94, R v Edwards and Ors95 and Rampersad Ramberan v The
State96, the courts emphasised the importance of the trial judge’s directions in
safeguarding the accused from the risk of being convicted as a result of prejudice.
In Hanson, the court outlined that a proper bad character direction should: (i)
contain a clear warning to the jury against the dangers of placing undue reliance
on previous convictions (or other evidence of bad character); (ii) stress that the
evidence of bad character cannot be used to bolster a weak case, or to prejudice
a jury against the accused; and (iii) emphasise that the jury should not infer guilt
from the existence of evidence of bad character. It was further stated that the jury
should be directed that even if they accepted that the bad character evidence
satisfied the purpose for which it was admitted, this was not the only relevant
factor to be taken into account. This had to be assessed in light of all the other
evidence in the case. In essence, as long as the trial judge gave a clear warning,
93 Notes of Evidence, March 27, 2013 page 14 lines 3-10. 94 [2005] 1 WLR 3169. 95 [2005] EWCA Crim 1813. 96 Cr. App. No. 14 of 2010.
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explanation and guidance as to the use of bad character evidence to which the
jury must rigidly adhere, the terms by which he does so may well differ.
[140] In this case, the trial judge’s direction to the jury on the issue was impeccable. In
his summation,97 he directed the jury that they may only take the appellant’s bad
character into consideration in determining his credibility and the likelihood that
he committed the subject offence. He also directed them that they must bear in
mind that the appellant’s bad character cannot by itself prove guilt and they must
not simply convict him because of it. He cautioned them that previous misconduct
did not make the evidence of the appellant incapable of belief or unreliable, but
that it was one factor amongst others that they must consider in evaluating the
appellant’s case. He also directed them that the bad character evidence could not
be used to bolster a weak case for the prosecution.
[141] In our view, there was nothing further that needed to be said by the trial judge as
the directions comprehensively captured every relevant element of the protective
guidelines in Hanson. These protective directions effectively served to guard the
appellant against prejudice and therefore we can see no force in the appellant’s
arguments.
This ground is without merit.
[142] Having regard to our conclusions, there is no need for us to consider the
application of section 44 of the Supreme Court of Judicature Act.
97 Day 2 Summation page 20 lines 39 to page 22 line 13.
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DISPOSITION
[143] The convictions and sentences are affirmed. The appeal is dismissed.
_____________________ A. Yorke-Soo Hon Justice of Appeal
_____________________ N. Bereaux
Justice of Appeal
______________________
M. Mohammed Justice of Appeal