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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CR. NO. 4 of 2013

THE STATE

V

IJAH OBA BRAITHWAITE a/c “SEGGIE” FIRST ACCUSED

OKERA ALLSOP a/c ‘KERA’ SECOND ACCUSED

RULING ON AN APPLICATION TO READ DEPOSITION OF SHENEKIA Mc

CARTHY PURSUANT TO SECTION 39 (1)(a) OF THE INDICTABLE OFFENCES

(PRELIMINARY ENQUIRY) ACT CHAP. 12:01 IN RELATION TO ACCUSED NO.

1 AND NO. 2

and

APPLICATION TO ADMIT TRANSCRIPT/NOTES OF EVIDENCE PURSUANT TO

SECTION 15 C (1) (c) and (e) OF THE EVIDENCE ACT CHAPTER 7:02 (AS

AMENDED) or ALTERNATIVELY THE COMMON LAW IN RELATION TO NO. 2

BEFORE THE HONOURABLE MADAME JUSTICE MARIA WILSON

APPEARANCES:

Ms. Joy Balkaran

Mr. Raydon Dalrymple-Watts appeared on behalf of the State

Mr. Wayne Struge

Ms. Danielle Rampersad appeared on behalf of Accused No. 1

Ms. Hasine Shaikh

Ms. Danielle Rampersad appeared on behalf of Accused No. 2

Date: 14th January, 2019.

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I. APPLICATION

1. On 8th June 2018 the State made three (3) applications in relation to the evidence of

Shenekia McCarthy:-

i. that the deposition of Shenekia McCarthy from the Preliminary Enquiry of

Accused No. 1, Ijah Braithwaite, be read as evidence pursuant to Section 39

(1) (a) of the Indictable Offences (Preliminary Enquiry) Act Chap 12:01

(“Preliminary Enquiry Act”);

ii. that the deposition of Shenekia McCarthy from the Preliminary Enquiry of

Accused No. 2, Okera Allsop, be read as evidence in this trial pursuant to

Section 39 (1) (a) the Preliminary Enquiry Act and

iii. that the evidence of Shenekia McCarthy from a trial - State v Taitt and

Braithwaite (Accused No. 1) be admitted into evidence pursuant to 15 (C)

(1) (c) and (e) of the Evidence Act Chapter 7:02 (as amended) (“Evidence

Act”).

II. BACKGROUND

2. Ijah Oba Braithwaite a/c Seggie (“Braithwaite”) and Okera Allsop a/c “Kera” (“Allsop”)

were charged with the murder of Anthony McCarthy which occurred on 16th May 2006 at

building No. 3, Plaisance Terrace East Dry River, Port of Spain.

3. There were three accused who were charged for the murder of Anthony McCarthy – Taitt,

Braithwaite, and later on Okera Allsop.

4. There was first a Preliminary Inquiry held in relation to Braithwaite and Taitt in August

2006 and at the end of that PI, Braithwaite and Taitt were committed to stand trial at the

next Assizes.

5. Braithwaite and Taitt were then tried before Volney, J in April 2008. (Both were found

guilty. They both appealed. The Court of Appeal dismissed the appeal in relation to Taitt

and ordered a retrial for Braithwaite.)

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6. There was then a separate Preliminary Enquiry in relation to Allsop in October 2008.

7. Shenekia McCarthy testified in the Preliminary Enquiry in relation to Braithwaite (and

Taitt) in August 2006, at the trial against Braithwaite and Taitt in April 2008 and at the

Preliminary Enquiry for Allsop in October 2008.

8. The DPP then decided to jointly try Braithwaite and Allsop hence the indictment before

this Court.

9. Shenekia McCarthy was the main witness for the State. The State’s case stood or fell based

on her evidence. The State’s case is that from Shenekia’s evidence one can infer that

Accused No. 1 and Accused No. 2 were parties to a joint enterprise to kill Anthony

McCarthy and in pursuance of that joint enterprise, participated in the murder of Anthony

McCarthy.

III. SPECIFIC APPLICATION

10. The specific application of the State is therefore for:

i. the deposition of Shenekia McCarthy on the 4th and 9th August 2006 at

the PI of Braithwaite (and Taitt) be read;

ii. the evidence of Shenekia McCarthy of the 14th and 18th April 2008 at the

Trial of Taitt and Braithwaite be admitted into evidence; and

iii. the deposition of Shenekia McCarthy at the PI of Allsop on the 30th

October 2008 be read.

IV. APPLICATIONS UNDER SECTION 39 (1)(a) of the INDICTABLE

OFFENCES (PRELIMINARY ENQUIRY) ACT CHAP 12:01

11. The Court will first consider the State’s applications made pursuant to section 39 (1) (a) of

the Preliminary Enquiry that is, the application to read the deposition of Shenekia

McCarthy from the Preliminary Inquiry of Accused No. 1, Ijah Braithwaite as evidence in

the trial, and to read as the deposition of Shenekia McCarthy from the Preliminary Inquiry

of Accused No. 2, Okera Allsop as evidence in the trial.

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V. LAW

12. Section 39 (1) (a) Indictable Offences (Preliminary Enquiry) Act Chap 12:01, provides

as follows:

“Where any person has been committed for trial for any offence, the deposition of

any person taken before a Magistrate may, if the conditions set out below are

satisfied, without further proof be read as evidence on the trial of that person,

whether for that offence or for any other offence arising out of the same

transaction or set of circumstances as that offence. The conditions referred to

above are the following:

(a) the deposition must be the deposition either of a witness whose

attendance at the trial is stated to be unnecessary in accordance with

the provisions of section 21(5), or, of a witness who is proved at the

trial by the oath of a credible witness to be dead, or so ill as not to be

able to travel although there may be a prospect of his recovery, or

incapable in consequence of his condition of mind of giving evidence,

or absent from Trinidad and Tobago, or kept out of the way by the

prosecutor or the State or by the accused person or by some other

person on his behalf.

(b) it must be proved at the trial, either by a certificate purporting to be

signed by the Magistrate before whom the deposition purports to

have been taken or by the oath of a credible witness, that the

deposition was taken in the presence of the accused person or the

prosecutor, as the case may be, and that he or his legal adviser had

full opportunity of cross-examining the deponent;

(c) the deposition must purport to be signed by the Magistrate before

whom it purports to have been taken

13. In relation to section 39 (1) (b) and (c) of the Preliminary Enquiry Act there is no

dispute between the parties.

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14. There was dispute however in relation to whether the State proved beyond reasonable

doubt that Shenekia McCarthy was “absent from Trinidad and Tobago.”

15. In considering this application the Court reminded itself that it could consider hearsay

evidence. In this regard Hamel Smith J.A. in Kenrick London and Or. v. The State, Cr.

App. Nos. 31 of 2002 stated the following at paragraphs 52 and 53 of his ruling –

“Counsel submitted that the application was based on hearsay and that the state

did not prove that she could not return to the country to give evidence.

Applications of this kind will at times generate a certain amount of hearsay

evidence, unlike applications where a witness has died and a death certificate is

generally sufficient. In the former, someone, preferably a member of the family,

may inform the court that the witness is in a particular country, having seen that

person depart on board an aircraft, and is unable to return on short notice to

attend court because of certain commitments. The trial judge, if satisfied that the

witness is in a particular country, having seen that person depart on board an

aircraft, and is unable to return on short notice, will then decide whether in the

interests of justice he will admit the deposition.

The absent witness may be the only one who can give direct evidence as to

whether she can return on short notice and that would make nonsense of the

provision in the law if the other side could insist on her attendance to give that

evidence. The proper approach, we think, is that the judge hears evidence as to

why the witness cannot return on short notice (which will inevitably be hearsay).

If there is any other evidence to show that the reason is untrue then, maybe, more

is necessary, but if there is not, the Judge is entitled to come to the conclusion that

the witness cannot return on short notice based on the hearsay evidence given.

This the trial Judge did and it was a matter for his discretion. In light of the

evidence led we cannot say that he erred in the exercise of that discretion.”

16. Weekes, JA endorsed the view of Hamel Smith, JA and further states the following in

ANDY ADAMS also called REDOO, Cr. App. No. 33 of 2009

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“There can be no doubt that in certain circumstances, depending on the condition

to be satisfied under s. 39(1) (a) of the Act, a certain amount of hearsay evidence

is inevitable. A witness who is being kept out of the way will hardly attend court

in order to give evidence of that fact. That information will most likely be relayed

by that witness to another person who may be called to give evidence that he was

so informed.

In respect of the judge considering hearsay evidence in deciding whether the

conditions at s. 39(1)(a) of the Act were satisfied, we are of the opinion that he

was entitled to do so. What is of concern, however, is whether on the totality of

the evidence he could be properly satisfied beyond reasonable doubt that the

witness was out of the jurisdiction or kept away by fear.”

17. In La Vende v The State (1979) 30 WIR 460, that Court also stated that

“ … if a deposition taken before a magistrate is to be admitted in evidence on the

trial of an indictable offence on the ground that the witness is absent from the

country, his absence must be proved by evidence and it is not something of which

judicial notice may be taken, nor may any deficiency in the evidence be supplied

by outside knowledge. Indeed, it was said by Sir Issac Hyatali CJ (as he then was)

that “proper proof” of absence was a condition precedent to admission. It is clear

that the evidence of absence must be cogent.”

VI. EVIDENCE

18. In support of these applications the State called 3 witnesses:

i. Lauren Bridgelal- a representative of the Immigration Department of

Trinidad and Tobago;

ii. PC Randy Ramjag- the Complainant in the matter; and

iii. Ms. Joanna McCarthy – the aunt of Shenekia McCarthy.

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19. The State also tendered the following documentary evidence:

i. a departure card which Shenekia McCarthy purportedly

signed upon leaving Trinidad;

ii. Two voice note messages which PC Ramjag received on

his personal cell phone from Shenekia McCarthy on the

10th January 2019 at 10:56 a.m.

iii. a statement dated 25th September 2018 which PC Ramjag

received from Shenekia McCarthy;

iv. A report from Omari McCarthy - the brother of Shenekia

McCarthy that he was shot at on Saturday 8th August 2009.

This report was placed in a diary extract on the said 8th

August;

20. The Defence did not call any witnesses on this issue.

VII. ANALYSIS

21. I found that the evidence of Joanna McCarthy and Lauren Bridgelal did not assist the State

in establishing that Shenekia McCarthy was ‘absent from Trinidad and Tobago’ at the time

of this trial.

22. Joanna McCarthy, the aunt of Shenekia McCarthy, testified that Shenekia McCarthy lived

with her from when she, Shenekia was a baby to the age of 16 years old and then Shenekia

went to live in the USA with her mother. Joanna McCarthy kept in touch with Shenekia

after she left the country, via telephone and would speak to her every week, sometimes

days within the week and sometimes every month. The last time that Joanna McCarthy

spoke to Shenekia was on the 3rd August, 2018. I found that apart from the fact that Joanna

McCarthy did not know which part of the USA Shenekia resided, she did not have any

recent communication with Shenekia. Joanna McCarthy’s evidence was therefore

insufficient to prove that Shenekia McCarthy was ‘absent from Trinidad and Tobago’ at

the time of this trial.

23. Lauren Bridgelal, an immigration officer, produced the Departure Card which Shenekia

purportedly signed prior to leaving Trinidad. The State relied on this evidence to show that

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Shenekia left Trinidad. However, Lauren Bridgelal conceded that she was not present when

Shenekia signed that Departure Card and she could not say if the Shenekia McCarthy who

signed the card was the same Shenekia McCarthy who is a witness in this matter.

24. The State also relied on the normal procedure which obtains when a person leaves this

country which included presenting their passport to the representative of an airline and

comparing the personal details on the passport with the Departure Card. The names of

passengers on such a flight is put on a Flight Manifest and the Departure Card is sent to

Immigration and placed in a database.

25. From that database Bridgelal testified that a Shenekia McCarthy, left the country on the

27th October 2008 and did not return to the country. Bridgelal accepted that in searching

their database she relied on the date of birth which the DPP’s department provided and did

not obtain Shenekia’s US Passport or her Birth Certificate to independently confirm the

date of birth of Shenekia McCarthy.

26. Bridgelal also conceded that even though their database showed that a Shenekia McCarthy

left the country and did not return, that there are many points of entry which are not

‘official’ ports of entry, through which individuals can enter the country illegally. Defence

attorney asked her to comment on one Rajee Ali and the fact that Immigration’s records

showed that he left the country and did not return. However, the said Rajee Ali is in the

country. She was aware of this particular example and agreed that persons can enter the

country illegally through unofficial points or ports of entry.

27. I found that the evidence of Ms. Lauren Bridgelal did not assist the State in proving that

Shenekia McCarthy was ‘absent from Trinidad and Tobago’ because the representative

from the airline was not called to give evidence that the Shenekia McCarthy in question

filled out the Departure Card and that the representative was satisfied that the Departure

Card details and Shenekia passport matched. Further, even if I accepted the evidence in the

Departure Card or the airline representative gave additional evidence, Bridgelal conceded

that Immigration could not be sure that if their database showed that a person left Trinidad

and Tobago and did not return, it means that the person is not in Trinidad and Tobago

because individuals could return to Trinidad illegally though points of entries not manned

by Immigration. In essence, as an Immigration Officer she could not vouch that a person

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was absent from the country based on an indication from their database that the person did

not return to Trinidad and Tobago.

28. The Defence argued that the State did not call a relative or other person who testified that

they saw Shenekia board an aircraft. They argued that the case of ANDY ADAM (supra)

made this a requirement.

29. The Court disagrees that this was the only way that the State could prove that a person left

the country. In ANDY ADAM (supra), Weekes, JA quoted Hamel Smith, JA in

KENRICK LONDON. The quotation which I have already referred to above I will repeat

for the sake of addressing this issue.

30. Hamel Smith, JA said the following:

“… someone, preferably a member of the family, may inform the court that the

witness is in a particular country, having seen that person depart on board an

aircraft, and is unable to return on short notice to attend court because of certain

commitments. The trial judge, if satisfied that the witness is in a particular

country, having seen that person depart on board an aircraft, and is unable to

return on short notice, will then decide whether in the interests of justice he will

admit the deposition…”

31. Hamel Smith, JA did not say that the state must call a witness to say that they saw the

person in question board a flight. He said the family “may” inform the Court. If this was

indeed a requirement the State would be placed at a disadvantage in most cases, because

with the structure of the Piarco Airport as it is, there is no longer a waving gallery to permit

relatives to see their loved ones board an international flight.

32. Having considered the evidence of Joanna McCarthy and the evidence of Lauren Bridgelal,

the Court next considered the evidence of PC Ramjag, the Complainant in this matter.

33. Ramjag testified that as the complainant in the matter he knew Shenekia McCarthy since

16th May 2006 the day of the alleged murder of Anthony McCarthy. He said he was the

police officer that took the initial statement from her and also took other statements from

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her. He testified that he had been in communication with Shenekia on a regular basis. He

communicated with her some 30 – 40 times.

34. PC Ramjag testified that he was tasked with the responsibility of making the travel

arrangement for Shenekia McCarthy for the PI of Braithwaite, for the High Court trial

of Braithwaite and for the PI for Allsop.

35. PC Ramjag stated that his task included booking and paying for ‘all round’ plane tickets

from the United States of America to Trinidad for her to testify at these hearings. Further,

he was responsible for picking up the Shenekia at the airport upon her arrival and

ensured that she was transported back to the airport after giving evidence to return to the

United States. PC Ramjag was also responsible with ensuring Shenekia McCarthy’s

safety while she stayed in Trinidad.

36. PC Ramjag said that he would often contact Shenekia via her personal cell phone

number which bore a US area code. This was the same US number Ramjag had for

Shenekia since 2006. Ramjag said that he would usually speak to Shenekia on this

number before she boarded the plane at the United States Airport to come to Trinidad to

ensure that she was safe. He said this was a normal routine they undertook when she

was expected to give evidence in Trinidad and Tobago.

37. Further PC Ramjag also communicated with Shenekia McCarthy on a day that he, Ramjag

testified in this voir dire.

38. The Court found it ironical in this case that the Defence challenged the fact that

Shenekia was absent from the country because they informed the Court at the beginning

of this matter and in one of their legal submissions that they wanted her evidence to be

taken via video link and were taken by surprise that the necessary arrangements were

not put in place by the State.

39. Nevertheless the Court has to analyse the evidence that the State has presented to decide

if they have established beyond reasonable grounds that Shenekia McCarthy was absent

from Trinidad and Tobago.

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40. The Court, in coming to its determination, considered the fact that modern technology

allows roaming on phones which in essence mean that one can have a US number and

through roaming, the owner of the phone can use the same number in another

jurisdiction. However, the Court was persuaded by the evidence of PC Ramjag that

Shenekia McCarthy was living in the USA. He had the responsibility of arranging for

her to be in Trinidad for the different hearings concerning this matter and that he is also

responsible for making travel arrangements for her. On the day he testified that Shenekia

communicated to him on the same US number he had for her via a voice note. The

evidence of PC Ramjag that he made travel arrangements inter alia for her in the past

convinced the Court that Shenekia McCarthy was absent from Trinidad and Tobago.

41. The Court notes that the State also premised their application on 39 (1) (a) in relation to

Accused No. 2 on the fact that the accused or someone on his behalf kept the witness from

coming to give evidence in this matter. While this Court accepts, on the basis of PC

Ramjag’s evidence that Shenekia McCarthy is outside of the jurisdiction, the Court

however finds there is no evidence to support the State’s assertion that she was being

prevented from attending the Court as a result of threats from accused No.2 or someone on

his behalf. The Court also notes that the State did not furnish the Court with any of the

alleged Facebook threats of which it is alleged Accused No. 2 sent. Therefore the State did

not provide any evidence that the Okera Allsop in this matter is the same Okera Allsop that

made the alleged threats in question. The Court is not satisfied that Shenekia McCarthy

was being kept away by Accused No.2 or someone on his behalf.

42. The Court also considered whether to exercise its discretion to refuse to admit the

depositions and in so doing was guided by the principles stated in the cases of Barnes,

Scott and Walters v. R 37 WIR. and Nankissoon Boodram et al v the State (1997)

53 WIR, namely that the Court should assess the quality of evidence and the fact that

the Accused was not afforded the opportunity to cross examine the witness. The Court

noted from this case that it should adopt a cautious approach and should not exclude a

deposition unless it is in the interest of justice to do so.

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VIII. RULING

43. Having considered all the evidence the State has satisfied that Shenekia McCarthy is

absent from Trinidad and Tobago pursuant to Section 39 (1)(a) of the Indictable

Offences (Preliminary Enquiry) Act and also approved section 39 (1) (b) and (c) of

the Indictable Offences (Preliminary Enquiry) Act. The Court rules that the

depositions of Shenekia McCarthy from the Preliminary Enquiry of Braithwaite and the

Preliminary Enquiry of Allsop should be read into evidence at this trial.

IX. WHETHER TO ADMIT THE TRANSCRIPT/NOTES OF EVIDENCE FROM

THE FORMER TRIAL IN RELATION TO ACCUSED NO.1. PURSUANT TO

SECTION 15 C (1) (c) of the EVIDENCE ACT OR ALTERNATIVELY

UNDER THE COMMON LAW

44. The Court then considered whether to admit the notes of evidence/transcript of Shenekia

McCarthy from the trial of The State vs Braithwaite and Taitt that was held before

Volney, J. pursuant to Section 15 C (1) (c) of the Evidence Act; and in the alternative

whether the Court should exercise its common law discretion to admit these trial notes.

X. LAW

45. Section 15 C (1) (c) of the Evidence Act provides as follows:

“Subject to subsection (2), a statement made by a person in a document shall be

admissible in criminal proceedings as evidence of any fact of which direct oral

evidence by him would be admissible if it is proved to the satisfaction of the

Court that such person—

a) is deceased;

b) is unfit, by reason of his bodily or mental condition, to attend as a

witness;

c) is outside of Trinidad and Tobago and it is not reasonably practicable

to secure his attendance

d) cannot be found after all reasonable steps have been taken to find him;

e) is kept away from the proceedings by threats of bodily harm and no

reasonable steps can be taken to protect the person; or

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f) is fearful and no reasonable steps can be taken to protect the person or

others or to protect him or others from financial loss.

46. Section 15 C (2) of the Evidence Act provides as follows:

“Leave may be given by the Court under subsection (1)(a), (e)and (f)only if the

Court considers that the statement ought to be admitted in the interest of justice,

having regard to—

(a) the statement’s contents;

(b) any risk that its admission or exclusion will result in unfairness to any party

to the proceedings (and in particular to how difficult it will be to challenge the

statement if the person who made the statement does not give oral evidence); and

(c) any other relevant circumstances.

47. The Court notes that the section 15 C (1) (c) of the Evidence Act does not refer to the

admissibility of Court transcripts/ notes of evidence. The Court is of the view that

Mohammed, J’s (as he then was) reasoning in the case of The State v Dane Lewis

H.C.A No. 10 of 2008 is instructive in this case.

48. In Dane Lewis (supra), the Court was asked to rule on the issue as to whether a verified

transcript of a witness' evidence recorded electronically, is capable of being tendered in

evidence at trial under section 39 of the Indictable Offences Preliminary Inquiries Act

as the witness in Dane Lewis had died.

49. Mohammed, J in his judgement stated that :

Section 39 of the Preliminary Inquiries Act does not provide, in terms, for the

admission as evidence at trial of a verified transcript of the electronically

recorded evidence of a witness, whose evidence at trial has become subsequently

unavailable for one of the reasons set out in Section 39, Subsection 1.

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By Act No. 23 of 2005, the taking of evidence in a Preliminary Inquiry was

permitted to be done in addition to by way of writing, as traditionally had been

the only method in the form of a deposition by way of the recording of such

evidence.

Section 16 of the Act, as amended, provides in its material parts as follows:

16 (4) "If the evidence is recorded by electronic audio recording, video

recording or computer aided transcription, CAT, a transcript of the recorded

evidence shall be prepared and verified by the certificate of those responsible

for the accuracy of the recording of the proceedings, and of the transcript in

accordance with the recording of Court Proceedings Act 1991." So those are the

relevant terms of the amended Section 16.

50. Mohammed, J further noted that a broader question arose from the application made,

namely:

Whether Parliament, under the Indictable Offences Preliminary Inquiries Act, as

amended, intentionally omitted from reception as evidence at a trial the verified

transcript of evidence electronically recorded at the Preliminary Inquiry or,

whether this is what is known as a legislative slip. If it is the latter, can a judicial

rectifying construction be applied or would an attempt to apply a rectification

construction be an example of judicial overreach with respect to a statutory lacuna

that may only be remedied by Parliament and not the Court?

51. It was held in Dane Lewis that though the Court is furnished with mechanisms to interpret

Parliament’s intention when creating statutes, in cases similar to the one at Bar, linguistic

cutting and pasting would be required, and if attempted, it resembles an exercise of

statutory reconstruction and not of proper judicial construction. These reasons point me

to the view that the deficits in the law can only be remedied by Parliament, therefore the

law does not, in its current state empower the Court to admit Court transcripts pursuant to

section 15 C (1) (c) of the Evidence Act.

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52. The Court therefore turns to the State's alternative argument, which is in essence that if the

law does not allow the Court the transcript pursuant to section 15 C (1) (c) of the Evidence

Act the Court can admit it by way of its common law judicial discretion.

53. The Court is of the view that the cases of R v Edmund [1909] and R. v Hall [1973] are

also instructive in guiding this Court in relation to its common law discretion to admit

transcript evidence. The Court in Edmund and Hall held that:

"From this line of authorities, we think it plain that a deposition, properly

taken before a magistrate, on oath, in the presence of the accused, and

where the accused has had the opportunity of cross-examination was, at

least since 1554, admissible at Common Law in criminal cases, if the

original deponent was dead, despite the absence of opportunity to observe

the demeanour of the witness. The only difference between such a

deposition and the transcript of evidence given at a previous trial, is that

the transcript is not signed by the witness. Provided it is authenticated in

some other appropriate way, as by calling the shorthand writer who took

the original note, there seems no reason to think that such a transcript

should not be equally receivable in evidence. [Emphasis added]

54. The Court agrees with their Lordships in Edmund and Hall and notes that similarly to

these cases, the only difference between the deposition and the transcript of evidence given

at a previous trial, is that the transcript is not signed by the witness. The Court notes that

the transcript of the notes of evidence in the trial heard before Volney, J - The State v Taitt

and Braithwaite - was authenticated pursuant to Court Proceedings Act No. 1 of 1991.

55. The Court is satisfied that in light of the fact that section 15 C (1) (c) of the Evidence Act

does not cater for the admissibility of transcript notes, the most appropriate course to be

adopted by the Court would be to admit the trial notes of the previous trial - The State

v Taitt and Braithwaite by way of the Common Law.

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XI. JUDICIAL DISCRETION TO EXCLUDE

56. The Court also assessed whether accused No.1 was prejudiced by his inability to cross

Shenekia McCarthy and whether there is anything on the facts of the case that warrants the

Court to exercise its inherent juridical decision to exclude the transcript of the trial notes of

the previous trial – The State v Taitt and Braithwaite.

57. The Court rules the facts of this case does not warrant the use of its juridical decision to

exclude the trial notes of the previous trial from being admitted into evidence.

XII. RULING

58. The Court therefore rules that the evidence which Shenekia McCarthy gave at the trial

of Braithwaite and Taitt is admissible in evidence in this trial in relation to Accused No.

1.

_____________________________

Maria T. M. Wilson

Judge