TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CR 00115 of 2008

Between

THE STATE

and

PHILLIP BOODRAM

KERWIN WILLIAMS

MARIO AARON GRAPPIE

RICKY SINGH

ROGER MOTOO Applicants

Before the Honourable Mr. Justice HOLDIP

RULING

Appearances:

Mrs. Tricia Hudlin Cooper for the State

Mrs. Kathy Ann Waterman-Latchu

Mr. Evans Welch for Accused No. 01

Mr. Christon Williams

Mr. Ravi Gooljar for Accused No. 02

Mr. Ramesh Deana

Mr. Ravi Gooljar for Accused No. 03

Mr. Ramesh Deana

Mr. Wayne Sturge for Accused No. 04

Miss Tracy Rojas

Mr. Evans Welch for Accused No. 05

Mr. Criston Williams

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DATED: September 29th

2011

This is an application by Counsel for Phillip Boodram and Roger Mootoo Accused No.

01 and 05 respectively adopted by Counsel for Accused Nos. 02, 03 and 04 that the Court

grant leave for the State’s Witness Nigel Roderique be cross-examined with respect to the

contents of statements given by the said Nigel Roderique on 16th

December, 20th

and 21st

December 2005. It is submitted by Mr. Welch, Counsel for Accused No. 01 and No. 05

that the creditworthiness of Nigel Roderique is a matter in issue in the proceedings. That

the State’s case rests entirely on the evidence of Nigel Roderique. That the contents of

the statements reveal misconduct on the part of the witness.

Leave is sought under the provisions contained in the Evidence (Amendment) Act No.

16 of 2009 S. 15M (1) (b)…. That in criminal proceedings evidence of the bad character

of a person other than the defendant is admissible if and only if …… it has substantial

value in relation to a matter which :

i. is a matter in issue in the proceedings, and

ii. is of substantial importance in the context of the case as a whole…

The background relevant to the application is set out hereunder and is not in dispute.

The Historical Background of the Present Case Before The Court

The deceased Samdaye Rampersad was kidnapped from her residence in San Juan on 27th

November, 2005. On the 5th

January 2006, the police action on the directions of the

witness Nigel Roderique found her body buried in a shallow grave in the hills between

Diamond Village and Carolina Village in Claxton Bay.

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The Witness Nigel Roderique had given a statement to the police on the 31st December,

2005 in which he implicated all Accused who are before the Court in either the planning

of the kidnapping of the deceased and or in her subsequent murder.

In that statement he Roderique stated that he was present and privy to the planning of the

kidnapping and he was also present when Ms. Rampersad was killed. This claim by him

formed the basis of his testimony against the Accused whom he alleged were responsible

in one way or the other for the act.

The Nature of the Case Against The Accused As Testified To By Mr. Roderique

Mr. Roderique testified that on the last Friday in November 2005, he left his home at

Diamond Village Claxton Bay in a car in company with one Vivian Clarke, and one

Nigel (not Nigel Allen) and went to a property in Pranz Gardens Claxton Bay known as

the Wall which was owned by Accused No. 01.

On arrival at the property he called out and Accused No. 02 and No. 03 who frequented

the premises came out to him, one not long after the other. He Roderique asked for

Accused No. 01 who was not there at the time. Accused No. 01 arrived shortly after.

With all persons gathered including those who had come in the car with Roderique.

Accused No. 01 gave the men instructions to kidnap the deceased later the said night. He

told them she could be found outside of a shop in San Juan. Guns were provided to them.

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He further informed them that nothing was to happen to the lady when she was

kidnapped. She must be brought “straight to me” was his instructions.

The reason given for the kidnapping was that the lady’s son had taken cocaine to England

for Accused No. 01 and on his return he failed to report to Accused No. 01 with the

money. He continuously ducked Accused No. 01, and as per Accused No. 01, the only

means of getting to the son and getting his money was to kidnap and hold the deceased

who was his mother. Presumably this was the reason for the instruction to make sure

nothing happened to her and bringing her straight to Accused No. 01. The meeting was

dismissed and Roderique was dropped off at his home.

The Kidnapping failed to take place the said night because there was a police presence at

the Uriah Buttler junction so the plan for that night was cancelled.

According to Roderique the kidnapping took place the following night. He Roderique

whilst at home got a prearranged call from one of the kidnappers to alert him that the

bread was in the oven. On receipt of this call Roderique later called back the kidnappers

and advised them of the rendezvous point – a place known as Bobby Hill to which they

should bring the deceased.

None of the men at the meeting was involved in the snatching of the deceased who was

subsequently brought to Bobby Hill by the actual snatchers for a handover to Roderique,

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Accused No. 02, Accused No. 03 and one Frank who were all waiting there together in a

truck.

On the arrival of the car at Bobby Hill, the deceased was restrained with duct tape and

was removed from the vehicle. The duct tape was also taken off of her as it was felt it

might be traced. An attempt was then made by all present except for Roderique to

remove the deceased from the car and transfer her to the back of the truck.

i. The woman according to Roderique fought violently to resist being put onto the

truck and an almighty struggle erupted to get her onto the van which lasted some

five minutes according to his subsequent testimony on oath.

ii. Roderique served as the lookout and did nothing to contribute to putting her on

the back of the van.

iii. She was then taken away from there to the Wall further in Claxton Bay.

iv. Roderique from there walked back to his home.

The following evening just before dusk Roderique and Frank journeyed through the hills

behind Roderique’s house until they got to Carolina Village.

While there Accused No. 05 Roger Mootoo (introduced into the story for the first time)

arrived with the deceased in his car along with Accused No. 02 and No. 03. The

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deceased was removed from the car and made to walk some distance away close to a

sandpit. Shortly after Accused No. 01 arrived in his own vehicle in company with

Accused No. 04. Accused No. 01 alighted from his vehicle and started asking the

deceased for her son. She said she had no son. He started to slap her and rough her up

repeating the question often.

Eventually she fell to the ground. He sat on her back and repeatedly twisted her neck in

different angles until there was a cracking sound and she became motionless. Accused

No. 05 then sat on her back put a lace around her neck and pulled it until her tongue

protruded from her mouth.

Accused No. 01 then left the scene leaving those present with the instruction to take care

of that.

The persons then present took a decision to remove the deceased from the scene of the

assault and bury her at another location. They began to carry her body to the top of a hill

some distance away. Roderique accompanied them but did not assist in the process.

When they got to the burial site there was insufficient tools to carry out the task of

digging a hole. As a result Accused No. 05 left in the vehicle of Accused No. 01 and

returned walking some fifteen minutes later with a fork for the said purpose. A shallow

grave was dug with the fork and the deceased was buried in it and her body covered with

dirt. From there all parties dispersed.

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The Context In Which Roderique Came To Give the Statement of the

31st December Implicating the Accused.

Roderique was taken into police custody on the 15th

December 2005 in circumstances

unrelated to the present case and which are explained below.

About a week later on 22nd

December 2005, he was jointly charged with one Wendell

Simmons for the murder of one Nigel Allen, whose body was found in a shallow grave

on the 19th

December 2005, within walking distance of Roderique’s home at Diamond

Village.

It was whilst at the prison in connection with this matter that he summoned the police to

the prison and give the statement of the 31st December implicating the Accused in the

murder of Samdaye Rampersad.

The Common Law Position

The normal common law position respecting cross-examination as to credit was such that

witness could be asked any question about his character or previous conduct from which

the Court could infer that he was ‘not worthy of belief, not a credible person”. This

meant that the witness could be asked any question about previous convictions and any

reprehensible associations or way of life. See Hobbs v Tinling 1929 2KB1; R v Sweet-

Escott [1971] 55 Cr App. R 31b.

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In the United Kingdom Lord Auld noted in his report of 2001, Review of Criminal Courts

in England and Wales at page 527 that the English Codes of Conduct, which regulated

both sides of the legal profession had gone some way towards discouraging “oppressive

questioning of witnesses. Thus counsel should not ask questions that are merely

scandalous or calculated only to vilify, insult or annoy the witness”.

The common law latitude on cross-examination was also constrained by practical

considerations. Counsel will often only know about a witness’s previous convictions not

other areas of reprehensible conduct in their lives. In a multi-value society there may be

considerable public dispute as to what is meant by reprehensible or discreditable conduct.

The theoretical ambit of cross-examination at common law remained very broad. This

was criticized on moral, practical and policy grounds. The first line of argument tended

to stress that it was not right that every indiscretion of a witness’s lifetime, however old

or minor should necessarily be exposed to public view. The second, that although

misconduct may affect general credibility this (unlike specific credibility) is often of

limited value in assessing a witness’s testimony. The final argument is that gratuitously

allowing distressing and humiliating cross-examination contributes to the current and

very marked reluctance of witnesses to come forward or testify in criminal cases.

The statutory framework in Act 16 of 2009 reflects the Criminal Justice Act 2003 S.100

so that before the bad character of non-defendants could be adduced, it should satisfy a

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test of “enhanced relevance” and this should cover not just bad character that went to

credibility but also which went to the issue in the case.

Thus the test in respect of the introduction of evidence concerning the bad character of a

person other than a defendant is accordingly stricter than the test applicable to evidence

concerning the bad character of defendant himself R v Weir [2005] EWCA Crim 2866,

1 WLR 1885.

The provisions of the Evidence Amendment Act as they relate to the bad character of

non-accused witnesses are designed to place greater limitations on the extent of cross-

examination on their previous misconduct. Our provisions are mirrored on the English

provisions which are contained in the Criminal Justice Act 2003 S.100. Professor

Spencer in his seminal work Evidence of Bad Character 2ed 2009 at para. 3.10 stated as

follows:

“How does this S. 100 affect the previous law, which gave cross-examiners great

freedom to question witnesses about discreditable incidents or tendencies, in order

to undermine their credibility?

The first (and very obvious) point to make is that the general effect of section 100

is to restrict what could be done before, rather to extend it section 100 clearly

imposes restrictions which did not exist before.”

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The Court held in R v Miller [2010] EWCA Crim 1153 that the purpose of S. 100 was

to limit the ambit of cross-examination to that which was substantially probative on the

issue of credibility, if credibility was an issue of substantial importance in the case. Thus

evidence of bad character which has no real significance to an issue or which is only

marginally relevant is not admissible, nor is evidence that goes only to trivial or minor

issue in the case. Sec 15 M(1) (b) of 16 of 2009; CJA 2003 S. 100(1) (b). Both sides

accept that the credibility of Nigel Roderique will be a matter in issue in the proceedings

and which is of substantial importance in the context of this case as a whole.

It should be noted in S. 15 M (1) (b) that the word ‘substantial’ must mean that the

evidence concerned has something more than trivial probative value but it is not

necessarily of conclusive probative value.

In R v Scott [2009] EWCA Crim 2457 one of the objectives of the CJA2003 S. 100 was

to enhance the limited protection given to witnesses at common law and to protect them

from gratuitous character assassination.

In R v Miller the Court also accepted the submission that the credibility of a witness’s

account in evidence is, depending on the circumstances, capable of being an issue of

substantial importance in the trial.

At paragraph 20 of the said Miller case the Court pronounced and this Court adopts same

that “evidence of bad character is not confined to proof of previous convictions or

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previous conduct otherwise proved, it must pass the sec 100(1) test of being… of

substantial probative value on an issue of substantial importance. The purpose of sec 100

in the present context is to limit the ambit of cross-examination to that which is

substantially probative on the issue of credibility, if credibility is an issue of substantial

importance in the case. One of its intended effects is to eliminate kite flying and innuendo

against the character of a witness in favour of a concentration upon the real issues in the

case.”

In Stephen Brathwaite v The Queen [2010] EWCA Crim 1082 Lord Justice Hughes

staes at paragraphs 11 – 12:

“the test for the admissibility of bad character evidence against a non-defendant is

contained in section 100 of the Criminal Justice Act 2003 mirrored in Sec

15M(1)(b) and is as follows:-

(1) In criminal proceedings evidence of the bad character of a person other

than the defendant is admissible if and only if-

(a) It is important explanatory evidence,

(b) It has substantial probative value in relation to a matter which-

(i) Is a matter in issue in the proceedings, and

(ii) Is of substantial importance in the context of the case as a

whole, or

(c) All parties to the proceedings agree to the evidence being

admissible.”

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Four things might be noted.

(i) The test of ‘substantial probative value’ is not the same as the test for gateway (d)

of S. 101(1) in relation to the common case of bad character evidence affecting

the defendant which the Crown seeks to adduce. There the test is whether the

evidence is “relevant”.

(ii) If the conditions of section 100(1) are met, there is no residual discretion in the

judge to refuse to admit the evidence.

(iii)This means that bad character evidence cannot be adduced by any means,

including cross-examination of the witness, without leave.

(iv) What section 100(1) requires, except where there is agreement is not discretion

but judgment on the part of the judge. In a case such as the present, where

“important explanatory evidence” is not in point, he must assess:

(a) the issue to which the evidence goes S. 100(1)(b)(i),

(b) whether that issue is of substantial importance in the context of the case as a

whole,

(c) whether the evidence has substantial probative value in relation to that issue.

This assessment is, by definition, highly fact-sensitive in each case. It is an assessment of

whether the evidence in question substantially goes to show (prove) the point which the

applicant wishes to prove on the issue in question. The issue will often, but not always,

be either the propensity of the person against whom the application is made to behave in

a particular way, or credibility.

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Section 100(3) of the CJA 2003 gives some guidance on the assessment of whether

evidence has substantial probative value. It commands the judge to have regard to

various identified factors. But it is to be noted that whilst the factors there mentioned

must be considered, they do not constitute and exhaustive list. Section 100(3) says that

the Court must have regard to them “and to any others it considers relevant.” The

identified factors are such as the nature and number of events, the extent of their

similarity to other alleged misconduct if that is said to be the source of its probative

value and, if it be suggested that the evidence is such as shows that the non-defendant

committed the offence being tried, the extent to which the totality of the evidence tends to

show that the same person was responsible for both the bad character event and the

offence being tried. Thus, section 100(3) emphasises that that the test of substantial

probative value is a test of the force of the evidence which it is sought to adduce.

Again commenting on the intended legislative purpose of section 100(3) in Regina v H

[2009] EWCA Crim 2899 Lord Justice Moses at paragraphs 15-17 remarked:

“This section is not limited in such a way as to exclude evidence either of the

propensity of a non defendant or his credibility. Both may have substantial

probative value in relation to a matter which is in issue in the proceedings.

There is further statutory fortification for the proposition that both propensity and

credibility, as revealed by a non defendant’s bad character, may be of substantial

probative value, in those factors which a court is required to take into account,

under subsection (3). In particular the full –out words at the bottom of (c) and (d)

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provide a stark contrast as to the scope of those factors. The full out words at the

end of (c) refer to the nature and extent of similarities and dissimilarities. The

full-out words at the end of (d) are not so restricted and merely refer to the extent

to which the evidence shows or tends to show that the same person was

responsible each time.

It is true that nowhere in section 100 is there a specific reference to propensity,

but that, in our judgment, provides no warrant for the unrealistic and on occasions

unfair limitation under section 100, which would follow were propensity not to be

admissible”.

Lord Justice Pitchford in Neil Brewster and Dayo Cromwell v R [2010] EWCA Crim

1994 at paragraph 23 stated:

“The first question for the trial judge under section 1001(1)(b) is whether

creditworthiness is a matter in issue which is of substantial importance in the

context of the case as a whole. This is a significant hurdle.

If it is shown that creditworthiness is an issue of substantial importance, the

second question is whether the bad character relied upon is of substantial

probative value in relation to that issue.

It seems that the trial judge’s task will be to evaluate the evidence of bad

character which it is proposed to admit for the purpose of deciding whether it is

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reasonably capable of assisting a fair minded jury to reach a view, whether the

witness’s evidence is or is not worthy of belief. Only then can it properly be said

that the evidence is of substantial probative value on the issue of creditworthiness.

The question is whether… or bad behaviour is sufficiently persuasive to be

worthy of consideration by a fair minded tribunal upon the issue of the witness’s

creditworthiness. When the evidence is reasonably capable of giving assistance to

the jury in the way we have described, it should not be assumed that the jury is

not capable of forming an intelligent judgment whether it in fact bears on the

present credibility of the witness, and therefore, upon the decision whether the

witness is telling the truth. Jurors can, with suitable assistance from the judge

safely be left to make a proper evaluation of such evidence just as they are when

considering issues of credibility and propensity arising from a defendant’s bad

character.”

In R v GH [2009] EWCA Crim 2899, a case which examined the import of the bad

character of a non defendant and considered the situation whether evidence of propensity

was admissible under section 100(3) of CJA 2003, where it is suggested that the person is

also responsible for the misconduct alleged.

Lord Justice Moses clarified the intended purport of the section:

“This section is not limited in such a way as to exclude evidence either of the

propensity of a non-defendant or his credibility. Both may have substantial

probative value in relation to a matter which is in issue in the proceedings.

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There is further statutory fortification for the proposition that both propensity and

credibility, as revealed by a non-defendant’s bad character, may be of substantial

probative value, in those factors which a court is required to take into account,

under subs. (3). In particular the full-out words at the bottom of (c) and (d)

provide a stark contrast as to the scope of those factors. The full-out words at the

end of (d) are not so restricted and merely refer to the extent to which the

evidence shows or tends to show that the same person was responsible each time.”

Reference is also made to Archbold 2010 edition, chapter 13-14, pp. 1519-1520, in

which the learned authors pointed out the language of S. 100 does not recognize a

distinction between matters going to the issue and matters going to credit.

Evidence in support of Leave to Examine on Propensity

Mr. Welch submitted:

See p. 104 of depositions where witness Nigel Roderique stated to the effects that “the

murder I am charged with, I am incriminated in it. I give a statement, that statement

was voluntary.”

See p. 101… “just before being charged I believed I was going to be a witness, so I

spilled my conscience and my guts.”

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The statute is not worded to suggest that these be on a conviction. And what we are

seeking to do by way of cross- examination, is to adduce what he says in relation to that

offence and to demonstrate why it falls within the statutory provision.

Archbold: If the Court finds the statutory criteria is satisfied, there is no discretion to

refuse it.

Sec. 15(k)(1) reference in evidence of a person’s bad character is to evidence of

misconduct. It is for the jury to decide whether the misconduct actually occurred or not,

and what they make of it. A confession statement bearing a signature is evidence of

misconduct.

The prosecution concedes that a very important matter in issue in this matter in the

context of whole proceedings is the credibility of Nigel Roderique.

The Accused are saying that this is frame up, a fabrication on the part of the witness

Nigel Roderique. His credibility falls squarely in issues as an important matter in this

case.

The State’s Case

Mrs. Waterman-Latchoo submitted that the State accepts that the giving by Nigel

Roderique of two different accounts to the police on a serious matter such as a murder

investigation is capable of amounting to reprehensible behaviour under the bad character

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legislation. The State accepts that such material is of substantial probative and defence

i.e. the credit worthiness of the main prosecution witness.

The State further accepts that the defence can cross-examine the witness Nigel Roderique

on the contents of the statements of December 16th

, 20th

and 21st including the

surrounding circumstances of how they were procured.

The State also accepts that the gist of the statements can also be elicited, that he signed in

several places a statement in he stated that he played a role in the killing of Nigel Allen.

The defence would be entitled to argue that the witness is manipulate, is capable of

crafting a detailed fabricated account, is prepared to lie to the police.

The State contends that to go too deeply into the contents of the statements detailing the

death of Nigel Allen would raise satellite issues which threaten to derail the trial of the

substantive matter.

The bad character legislation contemplates there must be some measure of diversion into

previous bad acts. Once one is bringing before the jury evidence of prior conduct there is

bound to be some diversion away form the substantive matter for which the defendants

are on trial, into matters not directly connected with the case at bar.

The learning strongly cautions us to carefully guide the integrity of the substantive trial

and to avoid the treacherous descent into collateral issues. The reliability and integrity of

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the statements themselves are in not dispute. In the absence of proof and proof would be

a conviction – the substance of the December statements is heavily contested.

In Mackenzie v R 2008 EWCA Crim 758, Lord Justice Toulson stated at para. 23:

“In short the conviction operates as a launch pad for establishing propensity.

Without such a launch pad, proof of the previous alleged misconduct requires the

trial of collateral or satellite issues as part of the trial. Trial of collateral issues

have the dangers not only of adding to the length and cost of the trial but of

complication the issues which the jury has to decide and taking the focus away

from the most important issues or issues.”

All that the defence needs to accomplish can be done without going into the underlying

circumstances of the death of Nigel Allen.

The State has also submitted that the English Court of Appeal has drawn a distinction

between the admissibility of misconduct which has resulted in a criminal conviction and

other misconduct which has not been subject to final adjudication in a criminal court.

With respect to the latter the courts have hesitant to sanction the wholesale admittance of

such evidence in trials. The authorities suggest that such evidence should only be

admitted where the nature of the evidence going to prove the misconduct can be assessed

as having substantial probative value.

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See Mackenzie v R [2008] EWCA Crim 758. In Bovell and Dowds [2005] EWCA

Crim 1091, the English Court of Appeal stated at paragraph 21 therein:

“we entertain considerable doubt as to whether the mere making of an allegation

is capable of being evidence within section 100(1).”

In R v Braithwaite as previously quoted, Lord Justice Hughes in explaining the Court’s

position in Bovell v Dowds, held that the important consideration for the court was the

nature of the evidence going to prove the misconduct. He left open the possibility that in

certain cases, although the misconduct alleged was a mere allegation no conviction

having resulted it might yet satisfy the enhanced relevance test of section 100.

Propensity

The defence in its skeleton arguments and the oral presentation sought to convince the

Court that conduct of Roderique and others in the Allen case is strikingly similar to the

account of what he gives happened to the virtual complainant Samdaye Rampersad at the

hands of the Accused.

There was an itemisation of some twenty (20) perceived similarities between the Allen

and Rampersad murders. Counsel also applied the relevant provisions in section 15M (3)

(a) (b) (d) (i) (ii) (iii) and (iv) to those itemised similarities in support of the ground that

the bad character allegations as proof of evidence thereof were of substantial probative

value.

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The State rejected these arguments and indicated its non acceptance of the propensity of

its main witness Nigel Roderique to be involved in murder as demonstrated in the

contents of the witness statements of December 16th

, 20th

and 21st 2005. The State does

not accept that those statement are a matter that is in issue in these proceedings or is of

substantial importance in the contest of the case as a whole.

The State further rejected there were such similarities between the kidnapping and

murder of Nigel Allen and Samdaye Rampersad that it raised an inference that they were

committed by the same person or persons.

The statements of 20th

, 21st December 2005 do not in this Court’s opinion suggest that the

witness masterminded the murder of Nigel Allen. I am of the opinion that the statements

show the witness Nigel Roderique to be someone willing to conspire to kidnap someone

at the behest of another and that he was part of a gang of men present during the killing

of a victim.

The evidence of misconduct which the defence wishes to cull from the perceived

similarities in the accounts surrounding the death of Nigel Allen and Samdaye

Rampersad, do not pass the standard of “enhanced relevance” required for admissibility

under section 15M. The fact that much of the misconduct is in the form of allegations

that have not been subject to judicial findings placed a burden on the defence to show that

the nature of the evidence is such that it is substantial probative value.

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“Where the prosecution (in this case the defence) seeks to prove propensity to

commit offences by evidence other than previous convictions the application of

those criteria may in the nature of things present particular difficulties and the

judge may also have to consider whether the admission of the evidence would

result in the trial becoming unnecessarily and undesirably complex even if not

unfair” per Lord Justice Toulson in Mackenzie v R 2008 EWCA Crim 758

para. 22.

I totally agree that to allow extensive cross-examination into the details of the Nigel

Allen statements would thereafter derail this trial. It is agreed that convictions are not

necessary in order to establish reprehensible misbehaviour but seeking to rely on mere

allegations ought to make us more cautious. At the end of the day the Court must protect

the integrity of the actual trial in which it is engaged and not allow collateral issues to

overrun the proceedings.

Leave therefore is granted to the defence to cross-examine the witness Nigel Roderique

on his creditworthiness but not on his propensity to commit murder founded on the

details in the statements of 20th

and 21st December 2005.

A word of caution – the witness Nigel Roderique would be advised by this Court that the

need not answer any question if the answer might incriminate him.

Malcolm Holdip

Judge