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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.

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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.

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[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

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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

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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

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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.

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[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

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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

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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.

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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.

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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.

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[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).

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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.

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“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.

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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.

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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.

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[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).

Page 61 of 67

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

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[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