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Page 1 of 32
REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Cr. App. No. 34 of 2008
DULARIE PETERS
APPELLANT
AND
THE STATE
RESPONDENT
PANEL:
P. Weekes, J.A.
A. Yorke Soo-Hon, J.A.
N. Bereaux, J.A.
APPEARENCES:
Mr. Jagdeo Singh for the appellant
Mr. Roger Gaspard for the respondent
DATE DELIVERED: February 26th
2010
Page 2 of 32
JUDGMENT
Delivered by P. Weekes, JA
1. The appellant was charged on the 6th September 1983 with two counts
of attempted murder of Bhangwandass Cassiram and his wife Mala. On May
14th 2008 she was convicted of the two counts of attempted murder and was
sentenced on 26th May 2008 to a term of eighteen years imprisonment with
hard labour in respect of each count to run concurrently from the date of
conviction.
2. The issues for determination in this appeal are:
(1)Whether or not the trial judge erred in concluding that there was no
abuse of process despite there being a delay of twenty-four years
and eight months between the date the appellant was charged and
the trial;
(2) Whether on the sentence imposed on the appellant was too severe
given the delay.
(3) Whether the trail judge erred in law when he admitted evidence of
a co-accused’s complicity/guilt not probative of the issues joined
between the appellant and the State.
Counsel relied exclusively on their written submissions.
3. To put the first two issues into context, the time line of the
prosecution is set out. On the 2nd
of September 1983, the alleged offences
Page 3 of 32
were committed. Four days later the appellant and her husband were each
charged with two counts of attempted murder. On the 23rd
May 1985 the
preliminary inquiry commenced and was completed on the 8th April 1986.
The appellant and her husband were both committed to stand trial and each
granted bail with surety in the sum of $15,000. On December 4th
1986,
committal documents were received by the Office of the Director of Public
Prosecutions [DPP]. On the 18th August 1994 an indictment was filed by the
DPP. The appellant voluntarily left the jurisdiction on the 10th October 1994
and consequently failed to appear when the matter came up for hearing on a
Cause List on the 9th
January 1995. A bench warrant was issued for her. On
the 14th July 2006 the appellant voluntarily returned to this jurisdiction and
on the 23rd
May 2007 the bench warrant was executed. Her trial began
without her co-accused husband on the 8th May 2008 and on May 14
th 2008
the appellant was convicted.
BACKGROUND OF FACTS.
4. On the 2nd
December 1983, around 8.30 pm Bhangwandass Cassiram
and his wife, Mala, were driving along Endeavour Road when they were
blocked by a motor vehicle parked in the middle of the road. . Endeavour
Road was just 8-10 feet wide. One Ramkissoon (the co-accused) was in the
driver’s seat and the appellant, his common-law wife, was in the front
passenger seat. Some doors of the parked car were open and its house lights
were on. The car was 300-400 feet from a shop which had a floodlight near
the roadway. There were no street lights.
Page 4 of 32
5. Cassiram stopped his car about 3 feet from the parked vehicle.
Ramkissoon came out of his vehicle and asked the appellant to hand him the
gun. No one else was in his car and its house lights were still on. The
appellant took something out of the glove compartment and handed it to
Ramkissoon. It appeared to be a gun. Cassiram then came out of his car and
stood by the door and Ramkissoon shot him twice in the abdominal region.
Cassiram fell to the ground. Ramkissoon walked up closer and shot him
three more times. The appellant was at all material times in the parked motor
vehicle. Ramkissoon returned to his car and turned off the house lights. The
appellant told Ramkissoon that his (Cassiram’s) wife was in their car and to
“finish her too.” He then walked to the front of Cassiram’s car, approached
the left front passenger seat where Mala was seated, placed the gun to her
left arm and shot her. He took the gun, put it to her head and said “Ah kill
your husband, I’ll kill you too.” He then walked to his car and drove off.
6. Cassiram eventually was taken to hospital in critical condition. His
injuries were life-threatening. Mala was also hospitalised and found to have
perforating bullet wounds to her left arm resulting in a compound fracture
and deformity. She also suffered injuries to her back.
SUBMISSIONS
7. The submissions of the appellant in summary were that: Firstly, that
the trial of the appellant constituted an abuse of process of the court because
of the lapse of time between the commission of the offence and the date of
the trial and ought properly to have been stayed by the trial judge, even
Page 5 of 32
though the appellant contributed to almost half of that delay, and that
contributing to the delay, whilst being an important factor is not the only or
overriding factor. Counsel submitted that the abuse of process flowed from
both the prosecution having manipulated or misused the process of the court
so as to deprive the appellant of a protection provided by law and the
defendant having been prejudiced in the conduct of her defence by delay on
the part of the prosecution. He summarized this issue as coming down to
what is a fair trial as expressly guaranteed by our Constitution. Secondly,
that the sentence of the appellant is manifestly severe having regard to the
extraordinary delay in bringing the case to trial, since the court retains a
discretion to discount the sentence of the offender where the delay is of a
kind which has amounted to a denial of the rights of the accused person; and
thirdly that the trial judge erred in law when he allowed the prosecution to
adduce evidence which was prejudicial and non probative of the issues
joined between the State and the appellant at trial, even though the trial
judge expressly warned the jury that they should not use this evidence
against the appellant.
8. The submissions of the respondent in summary were that: firstly, that
notwithstanding the long and unusual length of time between the
commission of the offences and the date of the trial, the trial did not
constitute a nullity, nor did it constitute any abuse of process of the court.
The respondent further submitted that the failure of the State to proceed
more expeditiously with the trial of the appellant did not amount to a breach
of her constitutional rights since there is no constitutional right to a speedy
trial or to a trial within a reasonable time, whether expressly or by
implication. The respondent also submitted that the right of the appellant to
Page 6 of 32
be tried within a reasonable time is a common law right and court should
exercise its discretion to stay a criminal trial only in the most exceptional
circumstances.
9. Although the lapse of time between the charging of the appellant and
the appearance of the matter at the Cause List was lengthy, it was not a
“most exceptional circumstance”, given the systemic and institutional
constraints existing at the time in this country. In support of this argument,
the respondent relied on an affidavit of Eunice Augustine filed on the 21st
January 2009. Mrs. Augustine deposed as follows:
“1. I was an acting Indictment Officer at the Office of the
Director of Public Prosecutions (hereinafter called the
“D.P.P.’s Department”). I held this post from 1982 to
1995…..
3. …..that the documents concerning the indictment of
DULARIE PETERS (hereinafter called “the Appellant”)
were forwarded by the Magistrates’ Court and reached
the D.P.P.’s Department on 4th
December, 1986. The
indictment was filed in the High Court on 18th
august,
1994 and the matter was first listed before the Assizes in
Port of Spain on 9th
January, 1995.
5. As a result of a huge backlog of committal/indictable
matters in the D.P.P.’s Department, and for the
indictment to be preferred and the matter listed before the
Court was in keeping with the average time it took a
matter of that nature to be dealt with. The delay was
unavoidable given the huge volume of matters pending at
any given time, the inadequate number of State Attorneys
and the limited number of Courts in the Assizes.
6. In the circumstances existing in the country between
December 1986 and January 1996 (hereinafter called
Page 7 of 32
“the material time”) the period of time taken for the
matter involving the Appellant to be processed at the
D.D.P.’s Department, and for the indictment to be
preferred and the matter listed before the Court was in
keeping with the average time it took a matter of that
nature to be dealt with. The delay was unavoidable given
the huge volume of matters pending at any given time,
the inadequate number of State Attorneys and the limited
number of Courts in the Assizes.
7. In December 1986 there were 2172 outstanding
committal/ indictable matters at the Department; by
December 1987 the number of outstanding matters grew
to 2358. By December 1988 the number was 2452. By
December 1989 the number was 2665. By December
1990 the number grew to 2712. As at December 1991 the
number was 2719. As at December 1992 the number was
26677 and as at December 1993 the number was 2720.
As at December 1994 the number of outstanding
committal/indictable matters was 2649. These figures did
not include Tobago matters ……
8. During the material time, when committal proceedings
were received from the Magistrates’ Courts by the
Indictment Section of the D.P.P.’s Department a file was
opened. The file was passed to a junior State Counsel
who prepared a case summary and a draft indictment.
There was delay at this stage because of the large volume
of matters and extremely heavy workload of junior State
Attorneys who, in addition to preparing case summaries
and draft indictments, were assigned to the Magistrates’
Courts throughout the country and were also given other
assignments from time to time.
9 After the case summary and draft indictment were
prepared the file was returned to me. It was then sent to
a Senior State Counsel for vetting. Again, there was
delay at this stage owing to the heavy workload of Senior
State Attorneys who were assigned to both the Assizes
and the Courts of Appeal and additionally, they were
Page 8 of 32
given other assignments from time to time. The delay
was exacerbated by a chronic shortage of legal staff
especially at the senior level.
10. After the summary and draft indictment had been vetted,
I sent them or caused them to be sent to the Director of
Public Prosecutions who prepared a fair copy of the
indictment. The indictment was typed and sent back to
the Director of Public Prosecutions for signing. I then
sent or caused that indictment to be sent for filing in the
Criminal Registry of the High Court. I would then list
the matter for the earliest date available.
11. The process conducted at the D.P.P.’s Department had to
be thorough, especially since the Director of Public
Prosecutions can indict not only for the matter for which
the accused had been committed, but for any other
offence disclosed by the depositions.
12. During the material time, only the Director of Public
Prosecutions could sign and prefer indictments.”
10. The respondent also submitted that not only must the court consider
the length of the delay and the justification put forward by the prosecution,
but also the responsibility of the accused for asserting her rights and the
prejudice to the accused. The respondent submitted that the appellant did not
assert her right to a trial within a reasonable time and neither did she show
that as a result of the delay, she had suffered serious prejudice. Secondly, the
respondent submitted in reply to the appellant’s assertion that the sentence
was manifestly severe having regard to the extraordinary delay, that the
delay did not amount to a “denial of the rights of the appellant”; and thirdly,
the respondent conceded that the trial judge did err in law when he allowed
the prosecution to adduce evidence of oral statements made out of court of
Page 9 of 32
acts done by a party not before the court, in the absence of the appellant.
Notwithstanding, the respondent submitted that given the robust directions
to the jury by the trial judge, any prejudice against the appellant possibly
caused by the impugned evidence would have been obviated with the result
that there was no miscarriage of justice.
11. Both the appellant and the respondent relied on several authorities:
DPP v. Tokai (delay of 12 years)1, Ann Marie Boodram v The
State (delay of 9 years)2, Robert Mohammed & Johnny
Richardson (delay of 9 years and 3 months)3, Thomas v.
Baptiste 4 (delays of 5 years and 3 months and 7years and 5
months respectively), Balkissoon Roodal v. The State
5(international obligations, human rights, interpretation of the
Constitution), Charles Matthew v. The State 6 (Constitutionality
of the death penalty), The State v. Hilton Barnett (delay of 8
years and 5 months)7, Mills v. HM Advocate
8 (delay of 5
years), Attorney General’s Reference (No.1 of 1990)9 (delay of
2 years), Bell v. D.P.P 10
(delay of 5 years), Sookermany v. the
DPP 11
(delay of 8 years and 4 months), The State v. Donaldson
Mortley12
(delay of 17 years), Darmalingum v. The
1 DPP v. Tokai (1996) 48 WIR 376 PC; [1996] .
2 Ann Marie Boodram v The State, Privy Council Appeal No. 65 of 2000.
3 Robert Mohammed & Johnny Richardson H.C. 131/1995
4 Thomas v. Baptiste , P.C. Appeal No. 60 of 1998, [1999] UKPC 13.
5 Balkissoon Roodal v. The State [2003] U.K.P.C. 78
6 Charles Matthew v. The State [2004] U.K.P.C. 33.
7 The State v. Hilton Barnett H.C. 114/2002.
8 Mills v. HM Advocate [2002] UKPC D2, [2004] 1 A.C.441.
9 Attorney General’s Reference No.1 of 1990) [1992] Q.B. 630.
10 Bell v. D.P.P [1985] AC 937, [1985] 3 WLR 73.
11 Sookermany v. the DPP (1996) 48 WIR 346.
12 The State v. Donaldson Mortley, H.C. 186/1979.
Page 10 of 32
State13
(delay of 8 ½ years), Dyer v. Watson 14
(delay of 20
months), Attorney General’s Reference (No.2 of 2001) 15
(delay
of 3 years), Boolell v. The State 16
(delay of 12 years).
FIRST ISSUE:
Abuse of Process - Delay
12. We first look at the trial judge’s reasons for rejecting the appellant’s
application for stay of prosecution on the ground of delay.
Mohammed J. in his ruling discounted the approximate twelve (12) year
period that the accused was voluntarily absent from the jurisdiction. That
period was not counted in determining the issue of delay since this delay was
exclusively the fault of the accused in not appearing for trial. With respect to
the period between the commission of the offence and the charge to the
preferrment of the indictment, he held that that period, although substantial,
was the effective norm during the 1980s and 1990s. He cited the cases of
DPP v. Tokai17
and Sookermany v. DPP18
. The judge reasoned that if the
application had been made in 1995, had the accused appeared for trial, an
application for a permanent stay would not have been properly granted when
applying the principles in Tokai and Sookermany. The judge found that in
the public interest the case came down in favour of continued prosecution
and that the delay was not unfair, manipulative or an abuse of process,
13
Darmalingum v. The State [2000] 1 W.L.R. 3203., [2000] UKPC 30. 14
Dyer v. Watson [2002] UKPC D1; [2004] 1 A.C. 379. 15
Attorney General’s Reference (No.2 of 2001) [2003] U.K.H.L. 68. 16
Boolell v. The State [2006] UKPC 46. 17
(1996) 48 WIR 376 PC; [1996] UKPC 19. 18
(1996) 48 WIR 346.
Page 11 of 32
therefore the defence had not persuaded the court that the indictment should
be permanently stayed on the ground of inordinate delay.
13. Mohammed J. noted that while the matter of actual prejudice was
raised by trial attorney stating that all but one potential defence witness had
died and the remaining one was in a state of mental decline, he was not able
to identify any actual prejudice such as would cancel or outweigh the need to
have the trial continue. He adverted to the fact that had there been some
proof by way of a statement of what these potential witnesses were expected
to say and its relevance to the issues at hand, the situation might have been
different.
14. We agree fully with Mohammed J. that the period of delay
(commencing 10th
October 1994 to3rd
May 2007, amounting to twelve years
and seven months) attributed to the appellant must be excised from the
timeline. Therefore, the period of delay attributed to the State is twelve
years and one month being the difference between the overall delay of
twenty-four years and eight months and the period accredited to the
appellant. The appellant conceded in her written submissions that she was
responsible for at least half of the delay but submitted that, when taken in the
round, the period of delay in the conclusion of this case was unacceptable
and this constituted a breach of her constitutional rights for which the
appropriate remedy ought to have been the staying of the indictment.
Page 12 of 32
THE LAW ON DELAY
Common Law
15. At common law, a defendant who wishes to stay a prosecution on the
basis that his continued prosecution would amount to an abuse of process,
must show that he would suffer serious prejudice to the extent that no fair
trial would be possible owing to the delay, so that the continuation of the
prosecution amounted to an abuse of process.19
,The right to a fair trial is an
absolute right which does not permit the application of any balancing
exercise, and the public interest can never be invoked to deny that right to
any person under any circumstances.20
16. Where there is an express constitutional right to trial without undue
delay or within a reasonable time then complaint, in advance of the trial, by
way of constitutional motion is the more appropriate remedy. Where there is
no express right to a speedy trial or trial within a reasonable time, (as in the
Trinidad and Tobago’s Constitution), then common law principles are to be
applied in order to determine whether the trial would be a fair one, this being a
matter primarily for the trial judge who must decide whether the criminal
proceedings should be stayed as a result of unfairness.21
17. A preponderance of authority suggests that the discretion to stay
proceedings should be exercised only in exceptional cases, and even in those
exceptional circumstances the judge is bound to consider the extent to which a
19
Attorney General’s Reference (No.1 of 1990) [1992] 3 W.L.R.9. 20
Dyer v Watson (supra). This case although based on the constitutional right to trial with in a reasonable
time expressed the position that the rights created by the relevant enactment were separate and distinct and
that in respect of the fair trial requirement no balancing of the public interest was permitted. 21
DPP v. Tokai (1996) 48 WIR 376 PC; [1996] UKPC 19.
Page 13 of 32
suitable direction to the jury is capable of obviating any prejudice to the
accused resulting from the delay. At common law, even where the delay was
unjustifiable, a stay in criminal proceedings should only be granted in
exceptional circumstances.22
The applicant bears an onerous burden of proof
to show that he would suffer prejudice so that no fair trial could be held, and,
on such an application, the court should take into account any measures
available to the trial judge to mitigate unfairness.23
The Republican Constitution and Human Rights Conventions
International Convention on Civil and Political Rights (ICCPR),
Inter-American Convention on Human Rights ( IACHR) and
European Convention on Human Rights ( ECHR)
18. The constitutional importance of the principle that international
conventions do not alter domestic law except to the extent that they are
incorporated into domestic law by legislation, was recognized by the Privy
Council in Thomas v. Baptiste.24
The Privy Council in DPP v Tokai
concluded that the Republican Constitution of Trinidad and Tobago did not
enshrine the right to a speedy trial:
It is noticeable that this Constitution, unlike some of those in
other Caribbean countries and elsewhere, particularly the
United States of America and Canada, does not include in the
catalogue of fundamental rights and freedoms the right to a
speedy trial or trial within a reasonable time. The only relevant
rights are the right not to be deprived of life, liberty or property
except by due process of law and the right to the protection of
the law, which include, as section 5(2)(f) makes plain, the right
of those accused of criminal offences to a fair trial. Further, the
22
Hardeo Sinanan v Senior Magistrate Ayers-Caesar citing AG’s Reference (No.1 of 1990) (supra) 23
Sookermany v. the DPP (1996) 48 WIR 346. 24
P.C. Appeal No. 60 of 1998, [1999] UKPC 13, paragraph 26.
Page 14 of 32
opening words of section 4 indicate that the rights in question
are rights which existed at the coming into force of the
Constitution. The present Constitution is that of 1976, but the
relevant wording in the original independence Constitution of
1962 was identical. It follows that the rights in question are
rights which were enjoyed at common law before the
Constitution of 1962 came into force. Neither Constitution purports to vary or enlarge these common law rights.
19. It was subsequently observed25
that the decision in Tokai was made
without reference to Trinidad and Tobago’s International Convention
obligations to secure to its citizens the right to a trial within a reasonable
time.26
The Privy Council in Boodram did not, however, consider whether
by necessary implication there was a right to a trial within a reasonable time
under the Constitution, and found it unnecessary to decide this point at the
time, leaving it to be decided when it became necessary and appropriate to
do so.27
20. The point came up for consideration in two first instance decisions in
the High Court of Trinidad and Tobago. In Robert Mohammed & Johnny
Richardson28
Baird J. stated that it could not be said that Parliament
expressly or impliedly excluded the concept of a fair trial within a
reasonable time from the rights contained in Sections 4(a), 4(b) , 5 (2) (e)
and 5 (2) (h) of the Trinidad and Tobago Constitution and that that in face of
the silence of Parliament, the Court must interpret the abovementioned rights
in a manner that would be in keeping with the international obligations of
25
Ann Marie Boodram v The State, Privy Council Appeal No. 65 of 2000, per Lord Steyn at paragraph 41. 26
See Articles 9(3) and 14(3)(c) of the International Covenant on Civil and Political Rights and Articles
7(5) and 8(1) of the American Convention of Human Rights. 27
Ann Marie Boodram,n.32 above. 28
H.C. 131/1995
Page 15 of 32
this country and that the Court must construe those rights in conformity with
Articles 9(3) and 14 (3) (c) of the International Covenant on Civil and
Political Rights. In The State v Hilton Barnett29
, Moosai J. disagreed with
Baird J. in Robert Mohammed & Johnny Richardson stating that the
omission of any right to trial within a reasonable time under the Trinidad and
Tobago Constitution was deliberate. He added: “…As the right to trial
within a reasonable time is a separate and distinct fundamental right, the
inclusion by implication of such a right would be tantamount to the altering
and amending of the fundamental rights provisions of the Constitution
without there being any legal basis in our domestic law.”
21. This court finds that there is a clear difference between construing the
meaning of legislation and importing meaning into an enactment. It is clear
that the combined effect of the decision in Tokai and the constitutional
principle recognised in Thomas v Baptiste is that the inclusion of the
reasonable time requirement in section 5(2)(e) of the Republican
Constitution is untenable. It is interesting therefore that the court in Robert
Mohammed (supra) did not seek to include the requirement of a reasonable
time within the construct of the fair trial, instead opting to aver that it was
part of the notion of due process. This inclusion in the face of the express
provision of the right to a fair trial, in the Constitution is perhaps a
misguided attempt to import meaning into the Constitution. It is a usurpation
of Parliament’s function and amounts to judicial constitutional amendment.
This court is clear that even in the face of judicial pronouncements that the
Constitution of Trinidad and Tobago should be interpreted so as to conform
29
H.C. 114/2002.
Page 16 of 32
to the international obligations of Trinidad and Tobago30
, including Lord
Hoffmann’s statement that domestic law should be interpreted so far as
possible consistently with international obligations under the International
Convention on Civil and Political Rights (ICCPR) and the Inter-American
Convention on Human Rights (IACHR), that the reasonable time
requirement cannot be recognised until it is incorporated by the passage of
relevant domestic legislation. The very outcome of that case31
bears
testimony to the fact that construction can be taken only so far.
22. In the case of Charles Matthew v The State32
the Privy Council
noted Trinidad and Tobago’s international convention obligations in respect
of the mandatory death penalty and while the Board concluded that the
Constitution should be interpreted as far as possible to conform with these
obligations it was decided that this construction was only possible when the
legislation to be construed was capable of two possible meanings, one in
accordance with, and the other contrary to, the international obligation. The
Board stated:
Their Lordships note that Trinidad and Tobago is, like
Barbados, a party to the International Covenant on Civil and
Political Rights and a member of the Organisation of American
States and that the Human Rights Committee and Inter-
American Commission have both decided that the mandatory
death penalty is inconsistent with the international law
obligations created by adherence to the ICCPR and
membership of the OAS respectively: see Kennedy v Trinidad
and Tobago (2002) CCPR/C/67/D/845/1998 and Edwards v
The Bahamas (2001) Report No 48/01 . The principle that
30
Balkissoon Roodal v. The State [2003] U.K.P.C. 78 per Lord Steyn, para.29. 39 Roodal decided that the mandatory sentence of death was inconsistent with the international obligations of Trinidad and Tobago
but was overruled by an enlarged Board in Charles Matthew v. The State31 with the Privy Council confirming that the death sentence
for murder will continue to be mandatory even in the face of these very international obligations.. 32
[2004] U.K.P.C. 33
Page 17 of 32
domestic law should so far as possible be interpreted
consistently with international obligations and the weight of
opinion expressed in domestic cases decided in other
jurisdictions supports the conclusion that sections 4 and 5 the
Constitution should be similarly interpreted. For further
discussion on this point, their Lordships refer to the judgment in Boyce and Joseph v The Queen.
23. In Boyce and Joseph v The Queen33
the Privy Council clearly stated
that:
The presumption that Parliament does not intend to legislate in
violation of the state's international obligations is rebuttable
and does not arise unless the court has failed to determine the
meaning of the legislation. Only if domestic legislation could
yield two contradictory meanings, one in accordance with and
the other contrary to an international obligation, will the
rebuttable presumption in favour of compliance with the
international obligation arise. In addition, the court may only
interpret unclear legislation in the light of the treaty; they
cannot interpret the treaty itself: see R v Lyons [2003] 1 AC
976 , 995. However, the sovereign power of the Queen in
Parliament extends to the breaking of treaties: see Mortensen 8
F (J) 93 and Salomon [1967] 2 QB 116 , 143.
24. In the current circumstances we are of the opinion that neither the
construction of the fair trial requirement nor of the due process requirement
yields a …meaning contrary to an international obligation so as to raise
the rebuttable presumption in favour of construction in compliance with
Trinidad and Tobago’s international convention obligations. The common
law position in respect of delay in Trinidad and Tobago remains the law.
Therefore, in reference to the requirements of the common law it is now
33
[2005] 1 A.C. 400
Page 18 of 32
necessary to set out specific considerations in so far as they affect the
appellant’s right to a fair trial.
Presumptive and Actual Prejudice
25. In view of the foregoing, the central issue in this appeal is whether the
appellant would have suffered serious prejudice to the extent that no fair trial
“as expressly guaranteed by the Constitution of Trinidad and Tobago”
was possible owing to the delay and therefore continuation of the
prosecution would have amounted and did amount to an abuse of process.
26. Prejudice simpliciter is not sufficient, what is required is prejudice
which leads to unfairness that cannot be cured by the trial judge’s
actions/directions. It is axiomatic that a person charged with having
committed a criminal offence should receive a fair trial and if he cannot be
tried fairly then he should not be tried at all.34
If the apprehended unfairness
could be cured by the exercise of the trial judge’s discretion within the trial
process, then the trial should not be stayed, proceedings must only be stayed
in the exceptional circumstance that the prejudice cannot be obviated and a
fair trial cannot be had.35
One method of ensuring fairness is the trial
judge’s direction to the jury. In this matter the trial judge directed as follows
on delay:
“Madam Foreman, members of the Jury, we are now concerned
with events which were are said to have taken place a long time
ago, 25 years ago in 1983. You must appreciate that because
of this there may be a danger of real prejudice to the accused.
34
R V Horseferry Road Magistrates’ Court, Ex p Bennet [1994] 1 AC 42 35
Attorney General’s Reference (No. 1 of 1990) [1992]QB 630
Page 19 of 32
This possibility must be in your mind when you decide whether
the Prosecution has made you sure of the defendant’s guilt.
You should make allowances for the fact that with the passage
of time memories fail. Witnesses, whoever they may be, cannot
be expected to remember with crystal clarity events which
occurred many years ago.
You should also make allowances for the fact that from the
defendant’s point of view, the longer the time since an alleged
incident, the more difficult it may be for her to answer it. For
example, has the passage of time deprived her of the
opportunity to put forward an alibi and evidence in support of
it. You only have to imagine what it would be like to have to
answer questions about events which are said to have taken
place 25 years ago in your own lives to appreciate the problems
which may be caused by delay.
Now, in this case, there is evidence that in an agreed document
that the accused voluntarily left Trinidad and Tobago on the
10th October, 1994 and voluntarily returned to Trinidad and
Tobago on the 14th of July 2006. The State says that that is a
12 year period, about a 12 year period. And the State says that
a little less than half of the period of overall delay in the case is
due to the accused having been voluntarily out of the country
between those dates.
The State says that since part of the delay was the responsibility
of the accused then you should factor that in, in determining
what extent or what degree of allowance you make for the fact
that from her point of view the longer the time since an alleged
incident, the more difficult it may be for her to answer it. Now,
even if you believe that the delay in this case is understandable,
if you decide that because of it, the defendant has been placed
at a real disadvantage in putting forward her case, the take that
into account in her favour when deciding if the Prosecution has
made you sure of her guilt.
Now, you have also heard, as I told you earlier, that the
accused has no previous convictions. Having regard to what
you know about the defendant and in particular 25 years since
Page 20 of 32
the date of the alleged offence, you may think that she is entitled
to ask you to give considerable weight to her good character
when deciding whether the Prosecution has satisfied you of her
guilt.
27. If it is established after the fact that the trial was unfair then the
resulting conviction will be quashed.36
Serious prosecutorial delay which
causes prejudice to the accused such that no fair trial can be held or delay
which renders trial of the accused unfair in the circumstances requires the
imposition of a stay since it is incumbent upon the court to prevent an abuse
of its processes. In the context of our country’s jurisprudence/constitutional
requirements, this outcome is as a result of the fair trial requirement and not
any constitutionally enshrined reasonable time requirement.
28. At common law the appellant must generally prove to the judge that
he would suffer serious prejudice as a result of the delay. In the case of
Attorney General’s Reference (No. 1 of 1990) 37
Lord Lane C. J. stated that:
That no stay was to be imposed unless a defendant established
on the balance of probabilities that, owing to the delay, he
would suffer serious prejudice to the extent that no fair trial
could be held, in that the continuation of the prosecution
amounted to a misuse of the process of the court; that, in
assessing whether there was likely to be prejudice and if so
whether it could properly be described as serious, the court
should bear in mind the trial judge's power at common law and
under the Police and Criminal Evidence Act 1984 to regulate
the admissibility of evidence, the trial process itself which
should ensure that all relevant factual issues arising from delay
would be placed before the jury as part of the evidence for their
36
Mohammed v The State [1999] 2 AC 111, 124 37
[1992] Q.B. 630.
Page 21 of 32
consideration, and the judge's powers to give appropriate
directions before the jury considered their verdict
29. The courts have recognized that in some circumstances the period of
delay may be of the order sufficient to raise a rebuttable presumption of
prejudice. In R. v Bow Street Metropolitan Stipendiary Magistrate Ex p.
DPP38
Watkins L.J. said:
Obviously, what has to be demonstrated to the court is that the
delay complained of has produced genuine prejudice and
unfairness. In some circumstances as the cases show, Mr.
Lawson referred to them in his skeleton argument, prejudice
will be presumed from substantial delay. Where that is so it will be for the Prosecution to rebut, if it can, the presumption.
As we have already stated it is perfectly proper, according to
circumstances, to infer prejudice from the mere passage of
time. That inference is more easily drawn when dealing with a
single brief but confused event which must depend on the
recollections of those involved. (emphasis added)
30. The position then is that, as in those jurisdictions which have the
constitutional right to trial within a reasonable time, the mere fact of
inordinate or excessive delay may be sufficient to raise a presumption in the
appellant’s favour that he will be prejudiced. Under the common law,
however the fact remains that the mere spectra of prejudice is not sufficient
to warrant a stay, that prejudice must be enough, in all the circumstances, to
render the continued prosecution unfair.
38
[1990] 91 Cr. App. R. 283
Page 22 of 32
31. The courts have also recognized that in certain circumstances, the
delay may be of such an order as to raise the presumption that a fair trial will
no longer be possible. This presumption will be sufficient to substantiate a
stay. In the case of R. v Telford Justices Ex p. Badhan39
the court opined
that it would be possible to infer prejudice where the delay was substantial.
This case was one in which the victim of rape, made a complaint several
years after the commission of the offence which translated into the initiation
of committal proceedings some fifteen to sixteen years after the alleged
offence. The court distinguished this case from cases in which unjustifiable
delay occurred through prosecutorial fault and continued that the principle to
be applied was the same. The court concluded that:
Where the period of delay is long, then it can be legitimate for
the court to infer prejudice without proof of specific
prejudice: see Reg. v. Bow Street Stipendiary Magistrate, Ex
parte Director of Public Prosecutions, 91 Cr.App.R. 283, 300;
also Bell v. Director of Public Prosecutions [1985] A.C. 937,
950D. (emphasis added)
…As in a case of delay, we think the onus will normally be on
the accused to show that on the balance of probability a fair
trial is now impossible. How the accused is to discharge the
onus upon him must depend on all the circumstances of the
case. Thus, he may find his task more difficult in a case wholly
dependent on contemporary and available documents than he
would in a case such as is the present which is dependent
wholly upon a late complaint and oral testimony. As in cases of
delay, we also think that where the elapse of time is a long
one, it may be inferred that a fair trial is no longer possible.
Whether it is legitimate to draw the inference will depend on
the circumstances of the case. Thus it may not be readily
39
[1991] 2 Q.B. 78
Page 23 of 32
drawn where the prosecution is wholly dependent on available
documents. (emphasis added)
32. In respect of actual prejudice we find that the material put before the
trial judge, bearing in mind that the burden of proof on a balance of
probability was on the appellant, did not discharge the burden. Unlike the
facts in Donaldson Mortley v The State40
in which the appellant deposed
that his alibi witness was dead (proof supplied) and that because of his
peculiar circumstances (having been tried three times on an unconnected
matter and having been in custody for a lengthy period caused psychological
trauma and stress resulting in a substantial loss of memory) he was unable to
properly defend the allegations against him, the appellant in the instant case
was unable to establish prejudice that could not be cured by a strong
appropriate direction by the trial judge. Her situation is also to be
distinguished from Donaldson Mortley (supra), in that she did not argue,
perhaps not surprisingly, that she had asserted her right to have her trial
heard speedily.
33. We are of the opinion that whatever prejudice might have arisen it
was obviated in the judge’s direction to the jury as rehearsed earlier in our
judgment.
Holding the State to a Different Standard
34. There is a fundamental difference between delay caused by an
accused and that caused by prosecutorial delay. Delay caused by the accused
can never form the basis of challenge and can never lead to a stay of
40
HC 186/97
Page 24 of 32
proceedings or to any other stay, that is, the accused can never pray in aid
what would not have happened but for the additional passage of time for
which he is responsible.41
Delay caused by the accused may be considered as
some other species of default, incapable as it is of giving rise to the remedy
sought by the defendant. This is reiterated in the dictum of Lord Diplock in
Kakis v Cyprus 42
Delay in the commencement or conduct of extradition
proceedings which is brought about by the accused himself by
fleeing the country, concealing his whereabouts or evading
arrest cannot, in my view, be relied upon as a ground for
holding it to be either unjust or oppressive to return him. Any
difficulties that he may encounter in the conduct of his defence
in consequence of the delay due to such causes are of his own
choice and making. Save in the most exceptional circumstances
it would be neither unjust nor oppressive that he should be
required to accept them.
35. The courts have taken different views on the effect of the State’s
culpability viz delay. In the case of Kakis (supra), Lord Diplock delivered
the majority decision and stated at page 783 that:
As respects delay which is not brought about by the acts of the
accused himself, however, the question of where responsibility
lies for the delay is not generally relevant. What matters is not
so much the cause of such delay as its effect; or, rather, the
effects of those events which would not have happened before
the trial of the accused if it had taken place with ordinary
promptitude.
41
Gomes v Trinidad and Tobago [2009] UKHL 21 42
[1978] 1W.L.R. 779, at pg 783
Page 25 of 32
36. Lord Edmund Davies, while agreeing with the judgment disagreed
with Lord Diplock on the effect of State caused delay. At page 785 of the
judgment he said:
the answer to the question of where responsibility lies for the
delay may well have a direct bearing on the issues of injustice
and oppression. Thus, the fact that the requesting government is
shown to have been inexcusably dilatory in taking steps to bring
the fugitive to justice may serve to establish both the injustice
and the oppressiveness of making an order for his return.
Lord Keith of Kinkel in his dissenting judgment opined that:
The case of Narang [1978] A.C. 247 also indicates that it may
be relevant to consider the extent to which the passage of time
has been due to dilatoriness on the part of the requesting
authority
But the general position has been settled in Attorney General’s Reference
(No.1 of 1990) (supra). Stays will only rarely be granted in the absence of
some fault of the complainant or prosecution. Lord Lane CJ stated at page
643 that:
In principle, therefore, even where the delay can be said to be
unjustifiable, the imposition of a permanent stay should be the
exception rather than the rule. Still more rare should be cases
where a stay can properly be imposed in the absence of any
fault on the part of the complainant or prosecution. Delay due
merely to the complexity of the case or contributed to by the
actions of the defendant himself should never be the foundation
for a stay.
Page 26 of 32
37. It is however generally accepted that a stay should not be used to
punish the State for its deleteriousness. In R. v Norwich Crown Court Ex
p. Belsham43
the court considered that a stay should never be granted as a
form of punishment of the prosecution but instead must always be justified
on the basis that a fair trial is no longer possible. Watkins L.J. stated at page
69 that:
It should also be borne in mind that a stay on the basis of abuse
of process must never be seen to be used simply as a form of
disciplinary disapproval of the C.P.S. That it should be seen to
be so is impermissible. Abuse of process must be plainly
established on well known principles. It is only in that event
that a stay of criminal proceedings can possibly be allowed.
38. Prosecutorial fault cannot, without more, justify a stay. The hurdle of
prejudice that affects the fairness of the trial must still be crossed. Support
for this contention can be found in the case of Tan v Cameron44
where
Lord Mustill at page 225 said:
the longer the delay the more likely it will be that the
prosecution is at fault, and that the delay has caused prejudice
to the defendant; and the less that the prosecution has to offer
by explanation, the more easily can fault be inferred. But the
establishment of these facts is only one step on the way to a
consideration of whether, in all the circumstances, the
situation created by the delay is such as to make it an unfair
employment of the powers of the court any longer to hold the
defendant to account. This is a question to be considered in the
round, and nothing is gained by the introduction of shifting
burdens of proof, which serves only to break down into formal
steps what is in reality a single appreciation of what is or is not
unfair. (emphasis added)
43
[1992] 1 W.L.R. 54 a case later overruled on a jurisdictional point in the case of Re Ashton (1994) 1
A.C. 9 44
[1992] 2 AC 205
Page 27 of 32
39. In the case of The State v. Donaldson Mortley45
the Court was
guided by the principles laid down in AG’s Reference (No.1 of 1990), Tan
v. Cameron, Tokai and Sookermany when it concluded that while a
lengthy, inexplicable delay raised questions of presumptive prejudice that
alone is not sufficient to warrant a stay but the real issue is whether in all the
circumstances given the trial court’s dominion over admissibility of
evidence and directions to the jury, the accused could be afforded a fair
trial.46
Public Interest
40. Given all that has been said above, we agree with the judge that the
public interest was served by having this trial heard. The charges and the
circumstances allegedly giving rise to them were serious. It cannot be
ignored that but for divine intervention the virtual complainant, if not his
wife, would have been killed. It was a strong case established by the
prosecution and the appellant had the opportunity, if desired, to respond to it.
As Mustill L.J. said in the authority of John Fairbanks47
“It must be remembered that justice serves the interest of the
public as well as those of the defendant”
Having this matter ventilated in open court and brought to its determination
best served the advancement of the interest or welfare of the public, society
or nation.
45
Supra. 46
Ibid. 47
(1986) 83 Cr. App R. 251, 255
Page 28 of 32
41. In concluding on this issue we find that considering this case in the
round, the appellant’s right to a fair trial has not been breached. While we do
conclude that the delay of twelve years and one month suggests presumptive
prejudice, we do not find that the period can be said to have raised a
presumption of unfairness. It was for the appellant to prove the resultant
prejudice was sufficient to render the continued prosecution unfair. We do
not find that she has discharged the burden placed on her.
42. We are unable to agree with the submissions on behalf of the
appellant that a fair trial under our Constitution is affected by our
international treaty obligations so as to import a requirement of trial within a
reasonable time. The time factor finds its importance within the context of a
fair trial. Delay may indeed render a fair trial impossible but not without a
consideration of other factors and circumstances. Once a trial court can
afford an accused a fair trial, notwithstanding delay, the trial must continue
and the trial judge in his directions must draw the jury’s attention to any
possible disadvantage that visits the accused because of it.
43. We are also of the view that to interpret the right as suggested by the
appellant would be to create a new right not now existing under our
Constitution. This we cannot properly do.
44. the prosecution neither manipulated nor misused the process of the
trial court to deprive the appellant of any protection provided by law. She
was entitled to a fair trial. She enjoyed fully all protections provided as she
underwent the trial process. Any prejudice she may have suffered by virtue
Page 29 of 32
of prosecutional delay was not such as to render a fair trial impossible
especially given the trial judge’s directions.
Accordingly we are unable to find for her on this ground
SECOND ISSUE
Severity of sentence.
45. The appellant contended that the sentence imposed was manifestly
severe having regard to the extraordinary delay. Counsel submitted one case
for consideration. In the Privy Council case of Prakash Boolell v The
State48
the appellant, an attorney at law, was convicted of swindling. He was
sentenced to six months imprisonment and ordered to pay a fine. He
appealed on the ground that the very long delay between his first statement
under caution and the eventual disposition of the matter (a twelve year
period) was a breach of his constitutional right to a fair trial within a
reasonable time. While the court recognized that the delay was in large
measure due to the appellant’s manipulation of the system, the board opined
that “it was incumbent on the court to take such steps as it could to expedite
matters and reach a conclusion.” The Board concluded that the appellant’s
constitutional right to a trial within a reasonable time was infringed but
found that the trial itself was not unfair. In consequence the Board concluded
that the appropriate remedy for the breach of the constitutional reasonable
time requirement was a setting aside of the prison sentence and the
48
[2006] UKPC 46.
Page 30 of 32
substitution of a higher fine that the one originally imposed. The appropriate
remedy for the unfair trial would have been the quashing of the conviction.
46. We do not find this authority helpful for the reasons we have given. It
has already been established that in Trinidad and Tobago there is no
constitutional right to a trial within a reasonable time. Discounting of a
sentence is not therefore an appropriate remedy for a breach of the fair trial
requirement. In any event, as we have expressed earlier, we find no breach
of the fair trial requirement in the instant matter.
We have taken the liberty to peruse the judge’s comments on sentencing and
find them unimpeachable.
Accordingly we find no merit in this ground
THIRD ISSUE
Admission of prejudicial evidence.
47. Counsel for the appellant contended that the trial judge erred in law
when he allowed the prosecution to adduce evidence which was prejudicial
to the appellant and non-probative of the issues joined with the State at trial,
to wit the trial judge allowed into evidence the deposition of Assistant
Superintendant Wise which revealed that the appellant’s co-accused, who
was not present at the trial, had attended the police station, not in the
presence of the appellant, and handed over a firearm to Assistant
Page 31 of 32
Superintendent of Police Wise. Counsel for the State conceded that this
evidence should not have been admitted at the appellant’s trial.
48. This court considered R. v Laycock (Darryl)49
, in which case the
prosecution included charges which necessitated the revelation of
information directly prejudicial to the accused. The court recognized the
prosecutorial error but concluded that in view of the strong evidence against
the accused and the adequacy of the trial judge’s direction to the jury, the
conviction should stand. The English Court of Appeal considered that the
trial judge:
… weighed the matter in the balance and came to the
conclusion that it could appropriately be left before the jury
without being unduly prejudicial to the appellant. We find no
reason to interfere with the judge's conclusion when he decided
that the evidence should go before the jury. However, it was a
matter which required the judge to give a careful warning to
the jury. In his summing-up at page 9 of the transcript the judge
gave a perfectly appropriate warning as to how to treat the
statement in question. We conclude that there is no substance in
the objection to the evidence of the interview in relation to the
wearing of the bullet-proof vest going before the jury.
However, it is necessary now to look at the case as a whole and
to ask ourselves whether, because of the wrongful inclusion of
the reference to the four-and-a-half year sentence in the two
counts of possession as a prohibited person, this conviction is
unsafe. ... Looking at the matter as a whole, we have to be
satisfied that the appellant had both a fair trial and that the
conviction is safe.
Having looked at the matter with the care that it requires --
and it does require care because we regard it as a serious error
49
2003 WL 21047394
Page 32 of 32
on the part of the prosecution -- the conclusion we have
reached is that this was an overwhelming case.
49. In the circumstances, given the judge’s strenuous warning to the
jury at page 44, ll 6-34 , the fact that the evidence adduced did not
bear directly on the appellant and the strength of the prosecution case
we find no merit in this ground.
ORDERS
The appeal is dismissed.
Conviction and sentence affirmed.
P. Weekes
Justice of Appeal
A. Yorke-Soo Hon
Justice of Appeal
N. Bereaux
Justice of Appeal