republic of trinidad and tobago in the court of...

of 26

DRAFT

t

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

of 26

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

of 26

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

of 26

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.

of 26

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.

of 26

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

of 26

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)

of 26

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.

of 26

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

of 26

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.

of 26

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

of 26

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.

of 26

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

of 26

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.

of 26

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.

of 26

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.

of 26

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

of 26

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

of 26

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

of 26

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.

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.

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

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

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,

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.

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

republic of trinidad and tobago in the court of...

Documents