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DRAFT
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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Cr. App. No. 8 of 2014
BETWEEN
SAMUEL RAMESAR
Appellant
AND
THE STATE Respondent
PANEL: A. Mendonca, J.A. R. Narine, J.A. M. Mohammed, J.A
APPEARANCES:
Mr. D. Khan, Ms. U. Nathai-Lutchman for the Appellant Mr. G. Busby and Ms. A. Teelucksingh-Ramoutar for the Respondent
Date Delivered: 16th December, 2016
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JUDGMENT Delivered by R. Narine, J.A. BACKGROUND
1. The appellant, Samuel Ramesar, was convicted on 29th July 2013 of the offence of
possession of a dangerous drug, namely marijuana, for the purpose of trafficking
contrary to section 5(4) of the Dangerous Drugs Act Chapter 11:25 (the Act). His
sentencing was adjourned pending the Court of Appeal judgment in Barry Francis
and Roger Hinds v. The State Cr. App. Nos. 5 & 6 of 2010, on the issue of the
minimum mandatory sentence for drug offences. On 28th March 2014, after
hearing the plea in mitigation on behalf of the appellant, the trial judge sentenced
him to 16 years imprisonment with hard labour, less the number of days spent in
remand. The judge ordered this 16 year sentence to commence from the date of
conviction and to run concurrently with any other sentences he was serving. It is
against this conviction that he now appeals.
RELEVANT FACTS
2. On Friday 20th December 2002, at around 8:00 am, Constables Ramjattan and
Gordon in the company of Inspector Modeste were on mobile patrol on the Uriah
Butler Highway in the vicinity of Bamboo Settlement No. 1, in an unmarked police
vehicle. At the traffic light coming out from Bamboo Settlement, they observed
vehicle PAU 1582 behind them facing east.
3. The police officers alighted from their vehicle and approached the vehicle. There
were two persons in the vehicle. The appellant was in the front passenger seat.
The other occupant, Mr. Williams, was in the driver’s seat. The police officers
identified themselves and asked the men to exit the vehicle. They were searched.
Nothing illegal was found on them. The vehicle was searched. The officers found
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a black plastic bag containing three packages of plant like material resembling
marijuana on the floor of the front passenger side of the vehicle. The two men
were cautioned, arrested and taken to the St. Joseph Police Station. The
packages seized were weighed and marked. The marijuana weighed 4kg. The
appellant was subsequently charged for being in possession of the marijuana for
the purpose of trafficking.
4. The appellant opted not to give evidence at his trial. No witnesses were called on
his behalf. Through his counsel the appellant contended that the police officers
fabricated the case against him, that no bag containing the packages of marijuana
was found in the vehicle, and that he and Mr. Williams were mistreated by the
police officers when they searched the vehicle.
5. The appellant was convicted on 29th July 2013 on the charge of possession of a
dangerous drug for the purpose of trafficking. The trial judge imposed a sentence
of 16 years imprisonment with hard labour to commence from the date of the
conviction, less the time spent in remand which was 54 days in total, leaving 15
years and 311 days imprisonment, to run concurrently with any other sentences he
was serving.
6. The appellant had four previous convictions. In 1991 he was convicted on two
counts of robbery with aggravation. He served five years concurrently with hard
labour. In 2000 he was convicted of attempting to obtain the sum of $86,500.00 by
false pretences. He served four years with hard labour for that offence. In 2012
while on bail for the present offence which is the subject of this appeal, he was
convicted of possession and trafficking of 690 gm of cocaine. He was fined
$15,000.00 or two years imprisonment with hard labour.
THE APPEAL
7. Written submissions were filed on behalf of the appellant in respect of seven
grounds of appeal. At the hearing of the legal submissions, counsel for the
appellant withdrew grounds four and seven of the appeal which concerned the
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unavailability of bad character evidence in relation to the State’s main witness and
the severity of the sentence imposed on the appellant.
Ground 1
The trial judge erred in law in directing the jury’s attention to the shifting burden in
section 21(1) of the Dangerous Drugs Act Chapter 11:25 although the appellant
was not an occupier of the vehicle. (sic)
8. In support of this ground, counsel for the appellant submitted that the evidence
could not support the contention that the appellant was an “occupier” within the
meaning of the Act. The judge’s direction was also criticised for focusing the jury’s
attention on concepts regarding actual possession and constructive possession by
virtue of proximity. Mr Khan submitted in essence that the judge may have given
the jury the impression that because the appellant was in the vehicle in which the
marijuana was found, he was required to prove that he did not know it was there or
that he did not consent to it being there.
9. It was also argued on behalf of the appellant that his guilt, if any, would have been
properly founded on the basis of constructive possession supported by proximity
and visibility of the black plastic bag. Counsel for the appellant complained that
since the facts of the case does not support a finding that he was in actual
possession, the legal directions that emerged from such a finding were likely to
confuse the jury and compromise “the golden thread principles” of presumption of
innocence, burden and standard of proof and right to silence.
10. Counsel for the appellant further argued that the prejudice caused by this grave
misdirection was bolstered when the trial judge directed the jury to keep in mind
that the accused presented no evidence to discharge the burden on him to prove
that the dangerous drugs found in the vehicle were there without his knowledge
and consent. It was argued that these errors taken cumulatively prejudiced the
appellant.
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11. The appellant relied on the cases of Latchmi Bharath and Ferney Bohoroquez
v. The State Cr. App. Nos. 49 and 50 of 2008 and Mantoor Ramdhanie & Ors. v.
The State Cr. App. Nos. 91-92, 97 of 1997.
12. In reply, the State contended that this ground of appeal was wholly misconceived
and proceeded from a misunderstanding of the terms actual and constructive
possession and of the basis on which the trial judge put the case to the jury.
13. The State also submitted that the issue of the appellant being in possession of the
dangerous drug by virtue of being an occupier of the vehicle, in the context of the
Act, was never advanced to the jury and so any argument in respect of the shifting
burden of section 21(1) of the Act was totally misplaced.
14. It was further submitted that the case for the State and that put to the jury by the
trial judge, was a straight forward one of actual possession of the marijuana by the
appellant. There was never any suggestion of constructive possession by the
appellant.
15. The State argued that the trial judge was correct in his charge to the jury with
respect to the presumptions that could be used to find the appellant to be in
possession of the dangerous drug and having knowledge of its nature. The only
logical inference to be drawn from the evidence is that the appellant knew of the
marijuana and had it under his control. Reliance was placed on the case of Dial
Maharaj and Chris Mohammed v. The State Cr. App. Nos. 30 and 31 of 2007.
16. In respect of the matters raised under this ground, the judge directed the jury as
follows:
“The point that has been raised consistently throughout the trial is
whether or not the accused was in possession of those packages.
So I then, now, turn, if I may, to the second element or ingredient,
that is the issue of possession, which I may also add, in my humble
opinion, seems to be the central issue in the trial.
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So, Members of the jury, someone can be in possession of
something when that person knows that he has it, and it is in or on
his person or in his presence and he has control over it. For
example, a juror has a bag on her lap. She has control over it
because she can determine what can be done with the contents of
that bag. That would be a simple example, perhaps, of possession.
But what is the position in law if a dangerous drug is found in a
vehicle in which you are a passenger or occupant in the vehicle on
the passenger side. However, on the well of that passenger side, or
on the floor, it was suggested that the black plastic bag was found
there, and therefore, in that black plastic bag, upon examination by
the police complainant, and later further analysis by the Forensic
Science Officer, what was found in those packages was said to be
marijuana.
Now, the law provides that a person who is found to have had in his
custody or under his control anything containing a dangerous drug
shall, until the contrary is proven, be deemed to have been in
possession of such drug and shall, until the contrary is proven, be
deemed to have known the nature of such drug.
And so the State rely on a number of aspects of their case, which I
have just reminded you of, the central issues are that, look, you stop
a car, you search the passenger after he has alighted from the
vehicle, you search the vehicle and upon searching the vehicle this
black bag is found, and if you therefore find, if you accept that
evidence, in accordance with the standard that you must, so you
have to be satisfied so that you are sure, if you accept that evidence
to be true, and that bag was found in the footwell where the
passenger was, the State say, look, you take all of those
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circumstances into consideration and the only inference you can
draw is that he must have been in custody and control of that black
plastic bag, and if you are satisfied that the accused had physical
custody and under his control, that black plastic bag, then and only
then will it be open to you to rely on the deeming provision that I have
just outlined to you, that is to say that the accused is then deemed to
be in possession of any drugs found in the black plastic bag, and to
know the nature of such drug, and in this case the State say it is
marijuana. So, in the circumstances that the State have outlined,
black plastic bag, open the black plastic bag, three packages, open
the package, look at it, form an opinion, send it to the forensic lab for
examination, they find it is marijuana. The deeming provision permits
the State to say, “Once those packages have been found in your
physical custody or control” - - so you have to find that before you go
anywhere else, you have to find that as a fact. If you do then the law
provides that the person who has physical custody and control of that
black plastic bag, knows, knows that he has in his possession,
marijuana. That is the law.
So if you are satisfied to the extent that you feel sure that the law
says that the accused is in possession of the dangerous drugs,
unless he proves that it was there without his knowledge and
consent. And remember I told you that generally the accused does
not have to prove anything, but in specific circumstances he may
have to, and this is one such specific circumstance because when
the law deems an accused to be in possession of a dangerous drug,
the burden of proof is now on him to prove that the dangerous drug
was there without his knowledge and consent.”
17. It is clear from the lengthy extract of the summing up set out above, that the trial
judge did not direct the jury on constructive possession pursuant to section 21(1)
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of the Act, by virtue of which a person is deemed to be in possession of a
dangerous drug by virtue for example, of his occupation or control of a building,
room or vehicle. The trial judge’s direction was on actual possession of the bag
(which contained the marijuana) by virtue of the evidence that the bag was found
at the feet of the appellant in the well of the front passenger seat of the vehicle.
The judge correctly directed the jury that the State relied on the inference that by
virtue of the location and proximity of the bag, the appellant exercised custody and
control of the bag.
18. The trial judge then directed the jury (as provided by section 29 B(d) of the Act)
that a person who is found to have had in his custody or under his control anything
containing a dangerous drug, shall, until the contrary is proven, be deemed to
have been in possession of such drug and shall, until the contrary is proven, be
deemed to have known the nature of such drug. The trial judge went on to direct
the jury on the burden and standard of proof that is to be applied once the
deeming provision is activated by a finding of custody and control. The judge then
reminded the jury that the appellant had not presented any evidence to discharge
the burden placed on him.
19. In my view the trial judge’s direction on actual possession and the deeming
provision contained in section 29 B(d) were clear and adequate having regard to
the evidence. There was no direction on constructive possession pursuant to the
section 21(1) of the Act. This is not surprising in view of the fact that the driver
was not before the jury. Having regard to the evidence of where the bag was
found, it was clearly open to the judge to direct the jury on actual possession. A
direction on constructive possession was not necessary in this case, and may well
have confused the jury if given in addition to or as an alternative to actual
possession.
20. It follows that this ground is unfounded and misconceived, and is accordingly
dismissed.
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Ground 2
The trial judge’s directions on the issue of possession was erroneous in that His
Lordship did not adequately guide the Jury as to the issue of “custody” nor “in
control of” and what evidence would assist them in resolving this issue. (sic)
21. Counsel for the appellant submitted that the trial judge failed to direct the jury
adequately on the legal concept of custody in drug offences and on the concept of
the appellant being in control of the drug. It was contended that the issues to be
resolved by the jury were simple in that they had to decide whether or not the
black bag was found at the feet of the appellant and if they were sure of such, they
were then required to decide if the appellant was in possession of the black bag. It
was also argued that even if the jury was sure that the black bag was found at the
appellant’s feet, such a finding did not automatically lead to the conclusion that he
was in possession of it. It was submitted that the bag could be so positioned
without him having it in his custody or under his control.
22. Counsel for the appellant also contended that there is a factual and legal
distinction between prohibited goods being found on one’s person such as in one’s
pocket, lap or hand, as opposed to being found at one’s feet. It was stated that the
distinction becomes more significant where the item is found in a vehicle in which
one is not the sole occupant as in this case.
23. The State contended on the other hand, that the distinction between actual
possession and “constructive possession by virtue of proximity”, which the
appellant attempted to make is not a useful one. Further the black bag containing
4 kg of marijuana being found at the feet of the appellant in a vehicle as small as a
B-11 Sunny is indicative of custody or physical control. The State cited as
authority for that proposition the Court of Appeal judgment in Dial Maharaj and
Chris Mohammed v. The State (supra). In that case Weekes JA emphatically
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rejected the distinction which counsel for the appellant seeks to put forward. At
paragraphs 40 and 41, Weekes JA stated:
“40. In the course of her submissions before us, Ms. Seetahal conceded
that if drugs were found in the driver’s pocket, the deeming provision
would be inapplicable. She sought however to distinguish from this
the instance when the drugs are found in the lap or at the feet of the
driver of the vehicle. Counsel here used the criterion of visibility, in
respect of the package and not necessarily its contents, as the yard
stick in deciding whether the driver alone would be clothed with
possession of the drugs.
41. We are unable to agree with counsel’s submissions. We cannot see
the distinction that counsel is trying to draw to be a useful one.
When the exhibit is found on the person of an accused this plainly
implies that he or she has physical control of its contents. If this is so
then there is no need to deem that control is in someone else. It is of
no moment where on the person it is found, legs, lap, at the feet of,
pocket, all lead to the clear implication of physical control. These
circumstances are quite distinct from ones in which the drugs are
found in the trunk or glove compartment or back seat of the vehicle
without any clear suggestion of who is in physical control of them.”
24. The judge’s directions on possession have already been set out at paragraph 16
ante. In my view the judge’s directions on possession were adequate having
regard to the evidence in this case. There was sufficient evidence from which the
jury could draw the inference that the bag was in the custody and control of the
appellant.
25. Accordingly, I find no merit in this ground.
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Ground 3
The trial judge erred in law in failing to direct the jury of the significance and legal impact
of the presence of the driver of the vehicle and that the appellant was not in a place in
which he had sole exclusive access. Further that the evidence against the appellant
was wholly circumstantial and that there is a reasonable hypothesis for the jury to come
to the conclusion that the serendipitous driver was in sole possession and equally open
for the jury to use this hypothesis to find that the appellant did not have ‘custody” nor
was “in control of” the black bag. (sic)
26. I must confess I had considerable difficulty in deciphering this ground. It appears
to be based on the fact that two persons were in the vehicle. Counsel for the
appellant argued that there was prima facie evidence from which both the driver
and the appellant could be found to be in possession. The appellant could be
deemed to be in possession by virtue of proximity and the driver by virtue of being
an occupier of the vehicle pursuant to section 21(1) of the Act. It was stated that
both of these legal principles of possession when applied to the facts of the case
gave both persons a level of control.
27. It was also contended that the evidence against the appellant was wholly
circumstantial and although the driver of the vehicle was not before the court, it
was open to the jury to infer that the bag containing the marijuana was in the sole
possession of the driver. The judge’s failure to direct the jury along these lines, it
is submitted, put the appellant at a disadvantage shifting the burden on him to
show that the black bag was there without his knowledge and consent.
28. The State rejected the appellant’s submission that the case against the appellant
was wholly circumstantial. The State contended that it’s case was based on the
direct evidence of the finding of the bag in which the marijuana was contained at
the feet of the appellant and on the rebuttable presumptions of law that operated to
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deem the appellant in possession of the dangerous drug with knowledge of its
nature.
29. It is important to bear in mind that the appellant alone was named in the indictment
for the offence. The driver of the vehicle was not before the jury. No evidence
was led by the prosecution as to his involvement, and rightly so. Such evidence
would have been irrelevant to the issue as to whether the appellant was in
possession of the bag. Accordingly there was no duty on the trial judge to direct
the jury on whether the driver was an “occupier” of the vehicle pursuant to section
21(1) of the Act so as to deem him in possession of the bag. It matters not
whether the driver was jointly in possession with the appellant. The issue before
the jury was whether the location and proximity of the bag to the appellant gave
rise to a reasonable inference that he exercised custody and control over it, so as
to deem him to be in possession of the drug and to have knowledge of the nature
of the drug under section 29 B(d) of the Act.
30. On the evidence it was open to the jury to find that the appellant had physical
control and custody of the bag, or that he did not. It was not necessary to invoke
section 21(1) of the Act in view of the fact that this was a case of actual
possession as opposed to constructive possession pursuant to section 21(1).
Accordingly, a direction on constructive possession would have been irrelevant
and may have served only to confuse the jury. It clearly was not a direction to
which the appellant was entitled. It follows that he was placed at no disadvantage
nor did he suffer any prejudice by the absence of such a direction.
31. In his directions to the jury the judge in referring to the fact that the passage of
time was bound to affect the memory of the appellant, to the extent that he may be
prejudiced in defending himself, pointed out the presence of Mr. Williams in the
vehicle. He also quite correctly urged the jury not to speculate on Mr. Williams’
presence in the vehicle on the day in question.
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32. While the judge did not specifically direct the jury on inferences to be drawn based
on the presence of the driver at the material time when the marijuana was found, it
must be borne in mind that inferences are not based on speculation. There must
be findings of fact reasonably arising from admissible evidence. For the jury in this
case to draw an inference that the bag containing the packets of marijuana
belonged to Mr. Williams, would have amounted to fanciful and impermissible
speculation, as there was no evidence before the court either on the State’s case,
or from the appellant’s case in relation to Mr. Williams.
33. It follows that this ground is without merit.
Grounds 5 and 6
34. At the hearing of the legal submissions, counsel for the appellant indicated that
ground 6 was a continuation of ground 5. Accordingly, these grounds will be
treated as such.
Ground 5
The trial judge erred in law when he gave inadequate directions on bad character. (sic)
Ground 6
The judge erred in law by admitting “obviously very stale” bad character evidence and
by failing to direct the jury on the issue of effective good character. (sic)
35. The trial judge admitted into evidence the appellant’s previous convictions for
attempting to obtain money by false pretences, (which was 13 years old) and for
trafficking in cocaine (which was about 8 months old).
36. Counsel for the appellant submitted that the jury should have been warned that the
evidence admitted was not relevant to the propensity of the appellant. It was also
argued that the judge should have gone further to explain to the jury for what
purpose the bad character evidence may or may not be used. Counsel for the
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appellant also contended that the judge should have warned the jury in clearer
terms against placing undue reliance on the previous convictions of the appellant.
It was also raised under this ground that the judge should have told the jury that
the bad character evidence was merely “background evidence” in the State’s case
and ought to have directed more clearly on the “weight” that the jury ought to place
on this type of evidence.
37. In response, counsel for the State referred to the Judicial Studies Board Crown
Court Bench Book published in March 2010 with respect to what was required of
the judge in directing on the bad character of an accused:
(i) When summing up, the trial judge’s task is to explain to the jury for what
purpose(s) the evidence may (and perhaps, may not) be used.
(ii) The bad character evidence should be identified.
(iii) It is necessary to explain for what purposes the evidence may be used in its
appropriate factual context.
(iv) It may be appropriate to warn the jury against using the evidence for an
inappropriate purpose, for example, evidence admitted because the
defendant has made an attack on another person’s character may not be
sufficient to establish a propensity to commit the crime charged.
(v) Where there is a risk that the jury might use the evidence inappropriately,
they should be told both of the limited purpose for which the evidence can be
used and directed that the evidence cannot otherwise support the
prosecution case.
(vi) The jury should be assisted to place the bad character evidence within the
perspective of the evidence as a whole.
(vii) They should be reminded that bad character evidence is merely part of the
evidence in the case and does not of itself prove guilt.
38. Counsel for the State submitted that the trial judge touched on all the relevant
points as per the specimen direction given by the Judicial Studies Board and
therefore cannot be faulted.
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39. In R v Lafayette [2008] EWCA Crim 3238 Hooper L.J. at para 41 of the judgment
stated that where bad character evidence has been admitted under the credibility
gateway only and is not relevant to the issue of propensity, if the judge is of the
view that, absent a warning, there is a danger that the jury might improperly stray
toward a finding of propensity, then the jury should be explicitly warned and
directed that the evidence is not relevant to propensity.
40. Where the direction falls short of the ideal explicit warning where such is required,
an appellate court will examine the direction to determine whether there are
sufficient safeguards contained in it, so as to justify the conclusion that the
conviction is safe: see paragraphs 51-53 of Lafayette (ante).
41. The approach in Lafayette was followed, in the decision of Amaar Najib v R
[2013] EWCA Crim. 86. This was a case in which an explicit propensity warning
was required, but not given. The United Kingdom Court of Appeal examined the
directions to determine the safety of the convictions. The court concluded that the
judge had tailored her directions to the evidence and to the issue of the credibility
of the case for each defendant. This was held to be sufficient in the absence of a
propensity direction. In addition the prosecution’s case was found to be
particularly strong. For these reasons the court concluded that the conviction was
safe.
42. In his summing up, the judge directed the jury in the following terms on the
relevance of the bad character evidence:
“Now, I am going to give you a direction then how it may be open for
you to deal with this evidence. So you have heard evidence that the
accused has convictions for attempting to obtain money by false
pretences and trafficking in cocaine. And I must explain how that
evidence is relevant to your consideration in this case.
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The accused is charged with trafficking in marijuana. The
Prosecution’s case is that the accused was in a vehicle with a bag of
drugs - - a bag containing drugs, three packages. And when the
Police Complainant, Ramjattan, was cross-examined on behalf of the
accused it was suggested to him that he was lying and that he has
fabricated the case against the accused in order to set him up to
extort money from him. All of this was emphatically denied by the
Police Complainant.
The accused’s case has involved the accusation that the officer was
dishonest and improper. He has, the Defence say, made up the
circumstances of the incident. You will need to decide whether you
accept the evidence of the officer, and in order to do so you will have
to consider whether the accusation of lying, and invention made by
the accused, is worthy of belief.
In fairness to the officer and to you, it would be wrong for you to be
left in ignorance of the character of the man making the accusation.
You are entitled to have regard to the accused’s own character, as
revealed by his previous convictions, when deciding what the truth is.
The accused admits two previous convictions and the circumstances
of them. It was submitted or it is drawn to your attention that the
dishonesty offence is obviously very stale- some, as I mentioned
earlier, 13-odd years ago, and that the recent conviction for
trafficking in drugs which would have been the last 12 months on the
23rd November, 2012, involved no dishonesty. It was said that the
circumstances were very different from those now alleged because
he pleaded guilty on each of those occasions.
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So you may have regard to those points which in themselves are, of
course, right. It is your decision, however, whether your knowledge
of the accused’s convictions helps you to resolve the central issue of
truthfulness, and if so, what weight you give to it. Please remember
that the bad character evidence is just part of the evidence in the
case, how important a part is for you to judge.
You must, in the end, resolve the question whether the evidence of
the Police Complainant was truthful and reliable? Do not, however,
fall into the trap of thinking that these convictions help the
Prosecution’s case in any other respect. They do not. These
convictions can have no bearing on the question of whether the
accused was likely to traffic in marijuana, as alleged on this occasion,
at all. It doesn’t help you with that at all.”
43. In this case the appellant gave no evidence and called no witnesses. In cross-
examination his attorney suggested that the police officers had fabricated the case
against him, and had mistreated him when they searched the vehicle. In his
summing up, the trial judge explained to the jury that they were entitled to have
regard to the appellant’s character in deciding whether to believe the police
officers or whether to believe the allegations of improper conduct made against the
police officers by the appellant through his attorney. The judge made it clear to the
jury that the purpose of the evidence of the appellant’s convictions was to assist
them in deciding on the truthfulness of the officers’ evidence in view of the
allegations of fabrication and impropriety made against them. The judge went on
to make it clear that the appellant’s convictions were not relevant to the question of
whether the appellant was likely to traffic in marijuana.
44. The judge’s directions to the jury on the appellant’s convictions were such that the
jury could not have been left in doubt that the evidence was relevant only to the
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issue of truthfulness, and was not to be considered in relation to propensity to
commit the offence charged.
45. Since evidence of the appellant’s bad character was not admitted as being
relevant to propensity, there was no need for the judge to direct the jury that the
bad character evidence was merely “background evidence” in the State’s case and
on the “weight” that the jury ought to have placed on this type of evidence. Such
directions as suggested by counsel for the appellant would only have been
required if the evidence had been admitted as being relevant to propensity.
Additionally, any direction by the judge on the “weight” to be given by the jury to
the evidence would have amounted to a usurpation by the judge of the jury’s role
and function since it is a matter for the jury to decide what weight to attach to the
evidence.
46. Counsel for the appellant further complained that the judge erred in law by
admitting the evidence of the appellant’s 13 year old conviction for obtaining
money by false pretences, this evidence being admitted by agreement under
section 15N(1)(a) of the Evidence Act, Chapter 7:02 (the Act).
47. The State in response submitted that this evidence was not admitted by
agreement but was rather the subject of a written application by the State which
was resisted by the appellant. Counsel for the State argued that the judge’s
decision to admit the 13 year old conviction was one that was well reasoned,
supported by the authorities and made in the interest of securing a fair trial to both
sides. It was further contended that this was evidenced by the judge’s decision not
to admit other older convictions of the appellant as the judge found them to “likely
be of little assistance to the jury”.
48. In fact during the trial, counsel for the State made an application to admit evidence
with respect to the bad character of the appellant. There were two limbs of the
application. The first limb was under section 15 N(1)(d) of the Act, to adduce
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evidence of the appellant’s previous convictions which included two offences of
robbery with aggravation in 1991; attempting to obtain money by false pretences in
2000 and possession of cocaine for the purpose of trafficking to which he pleaded
guilty in 2012. The purpose of leading this evidence was to establish that the
appellant had a propensity to be untruthful and/or commit the offence of trafficking
marijuana. After hearing submissions and considering the relevant authorities,
the court refused the State’s application under the propensity gateway because
the court was of the firm view that it would be unjust to do so and would have an
adverse effect on the fairness of the proceedings.
49. The second limb of the application was to adduce bad character evidence under
section 15 N(1)(g) of the Act, to lead evidence of the appellant’s former
convictions. The application was based on allegations of dishonesty and
fabrication of evidence made to State witnesses by the defence in cross-
examination. The application was relevant only to the credibility of the accused,
not to propensity. After hearing submissions from both sides, the judge granted the
State’s application through this gateway to admit into evidence the appellant’s
former convictions for obtaining money by false pretences and the possession of
cocaine for the purpose of trafficking. The judge refused to admit into evidence
the appellant’s two convictions for robbery with aggravation as they were
considered stale given that they were over twenty years old and were likely to be
of little assistance to the jury.
50. The appellant’s complaint is however focused on the State’s application under
section 15 N(1)(g) of the Act to admit in particular, evidence of the appellant’s
conviction for obtaining money by false pretences. In R. v. Hearne [2009] EWCA
Crim 103 the 61 year old appellant was convicted of burglary. It was alleged that
he and another man entered into an aviary where valuable domestic birds were
being kept. In his defence he claimed that while he did enter the aviary without
permission it was for an innocent purpose to release the wild birds which were
unlawfully kept. This assertion that he was trying to release the wild birds
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amounted to an attack on the character of the person who, as part of the business,
housed valuable birds for sale within the aviary. The prosecution sought to admit
into evidence two previous convictions of the appellant. The first was an offence
of burglary, to which the appellant had pleaded guilty on 6th June 1987, some 20
years before, when he was only 40. The other was 10 years later, on 8th December
1997, when he was 50, an offence of burglary, to which he had pleaded guilty.
The appellant’s attorney submitted that the offences were so old and stale that
they ought not to have been admitted as casting any light upon the appellant’s
character. She also submitted that the court was required to refuse their
admission because their admission would have an adverse effect on the fairness
of the proceedings. The Court of Appeal of England and Wales found that the two
previous convictions of the appellant was not too stale to be admitted. There had
been an attack upon the character of the person who kept the valuable birds for
business and it would have skewed the fairness of the trial had the jury been
deprived of the knowledge that the source of those allegations was someone who,
at a mature age, had committed burglary.
51. Similarly, in R v. Edwards [2005] EWCA Crim 1813 evidence of the appellant’s
thirteen year old conviction was admissible to show the character of the person
making the attack against a witness.
52. Having regard to the facts of this case it was open to the trial judge to admit into
evidence the appellant’s previous conviction for obtaining money by false
pretences despite the conviction being 13 years old. The judge’s decision to
admit the previous conviction of the appellant on the basis that it was necessary in
order to secure a fair trial to both sides cannot be faulted, having regard to the
serious allegations made against the character of the State’s main witness.
53. Under this ground of appeal counsel for the appellant also contended that the
judge further erred in law by failing to direct the jury on the good character of the
appellant.
Page 21 of 26
54. The State responded by arguing that the appellant was not entitled to a good
character direction of any sort because he had a conviction for possession of
cocaine for the purpose of trafficking as recently as November 2012, a mere eight
months before his trial for possession of marijuana for the purpose of trafficking in
this matter.
55. It was established in Teeluck & Anor. v The State [2005] UKPC 14 that the giving
of a good character direction is not discretionary. It is “an obligation as a matter of
law” to give the direction where an accused is entitled to it. The Board set down a
series of propositions dealing with the circumstances under which a good
character direction ought to be given which includes the following:
(i) When a defendant is of good character, that is, he has no convictions of any
relevance or significance, he is entitled to the benefit of a good character
direction from the judge when summing up to the jury, tailored to fit the
circumstances of the case: Thompson v The Queen [1998] AC 811,
following R v Aziz [1996] AC 41 and R v Vye [1993] 1 WLR 471.
(ii) The direction should be given as a matter of course, not of discretion. It will
have some value and will therefore be capable of having some effect in every
case in which it is appropriate for such a direction to be given: R v Fulcher
[1995] 2 Cr App R 251, 260. If it is omitted in such a case it will rarely be
possible for an appellate court to say that the giving of a good character
direction could not have affected the outcome of the trial: R v Kamar The
Times, 14 May 1999.
(iii) The standard direction should contain two limbs, the credibility direction, that
a person of good character is more likely to be truthful than one of bad
character, and the propensity direction, that he is less likely to commit a
crime, especially one of the nature with which he is charged.
Page 22 of 26
(iv) Where credibility is in issue, a good character direction is always relevant:
Berry v The Queen [1992] 2 AC 364, 381; Barrow v The State [1998] AC
846, 850; Sealey and Headley v The State [2002] UKPC 52, para 34.
(v) The defendant’s good character must be distinctly raised, by direct evidence
from him or given on his behalf or by eliciting it in cross-examination of
prosecution witnesses: Barrow v The State [1998] AC 846, 852, following
Thompson v The Queen [1998] AC 811, 844. It is a necessary part of
counsel’s duty to his client to ensure that a good character direction is
obtained where the defendant is entitled to it and likely to benefit from it. The
duty of raising the issue is to be discharged by the defence, not by the judge,
and if it is not raised by the defence the judge is under no duty to raise it
himself: Thompson v The Queen, ibid.
56. In Nigel Brown v The State [2012] UKPC 2, the Board at paragraph 33 of the
judgment noted however, that the failure to give a good character direction is not
necessarily fatal. The Board said:
“It is well established that the omission of a good character direction
is not necessarily fatal to the fairness of the trial or to the safety of a
conviction - Jagdeo Singh’s case [2006] 1 WLR 146 para 25 and
Bhola v The State [2006] UKPC 9, paras 14-17. As Lord Bingham of
Cornhill said in Jagdeo Singh’s case, ‘Much may turn on the nature
of and issues in a case, and on the other available evidence.’ (para
25)…”
57. The Board continued at paragraph 35 as follows:
“...There will, of course, be cases where it is simply not possible to
conclude with the necessary level of confidence that a good
Page 23 of 26
character direction would have made no difference. Jagdeo Singh
and Teeluck are obvious examples. But there will also be cases
where the sheer force of the evidence against the defendant is
overwhelming. In those cases it should not prove unduly difficult for
an appellate court to conclude that a good character direction could
not possibly have affected the jury’s verdict. Whether a particular
case comes within one category or the other will depend on a close
examination of the nature of the issues and the strength of the
evidence as well as an assessment of the significance of a good
character direction to those issues and evidence.”
58. In this appeal, counsel for the appellant acknowledges that the appellant has
previous convictions but contends however, that the appellant was of “effective
good character” and was entitled to at least a modified good character direction, if
not a full direction based on both limbs as set out in R v. Vye (supra).
59. In R v. Hunter & Ors. [2015] EWCA Crim. 631, the English Court of Appeal
considered whether in cases where previous convictions are old, minor in nature,
or irrelevant to the offence charged, the offender may be entitled to be treated as
of good character. At paragraphs 79 and 80, the court expressed the view that:
“[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 judgment, by assessing all the circumstances of the offence/s and
Page 24 of 26
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.”
60. In this case the appellant contends that the conviction for attempting to obtain
money by false pretences is 13 years old and should not be considered so as
to deprive the appellant of at least a modified good character direction. The
submission however, is conspicuously silent with respect to the conviction for
trafficking in cocaine, which was barely 8 months old at the time of the trial.
61. In Ricky Ramlochan v. The State Cr. App. No. 4 of 2009, this court approved and
applied the principles set out in R v. Gray [2004] 2 CR App. R. 30 at paragraph 57:
“1. The primary rule is that a person of previous good character must be given a
full direction covering both credibility and propensity. Where there are no
further facts to complicate the position, such a direction is mandatory and
should be unqualified (Vye, Aziz).
2. If a defendant has a previous conviction which, either because of its age or
its nature, may entitle him to be treated as of effective good character, the
trial judge has a discretion so to treat him, and if he does so the defendant is
entitled to a Vye direction (passim); but
3. Where the previous conviction can only be regarded as irrelevant or of no
significance in relation to the offence charged, that discretion ought to be
exercised in favour of treating the defendant as of good character (H, Durbin,
Page 25 of 26
and, to the extent that it cited H with apparent approval, Aziz.) In such a case
the defendant is again entitled to a Vye direction. It would seem to be
consistent with principle (4) below that, where there is room for uncertainty as
to how a defendant of effective good character should be treated, a judge
would be entitled to give an appropriately modified Vye direction.
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).”
62. Applying these principles to this appeal, it is clear that if the only conviction to be
considered was the 13 year old conviction for attempting to obtain money by false
pretences, there might have been some merit in the appellant’s contention for a
modified good character direction. However, the judge could not simply ignore the
very recent (at the time of trial) conviction for trafficking in cocaine. For the court
to give a modified good character direction in this case would have been an affront
to common sense.
63. It follows that grounds 5 and 6 are without merit.
Page 26 of 26
DISPOSITION 64. The appeal is dismissed. The conviction and sentence are affirmed.
Dated this 16th day of December, 2016.
A. Mendonca Justice of Appeal
R. Narine Justice of Appeal
M. Mohammed Justice of Appeal
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