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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

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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

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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.

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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

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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

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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

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“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

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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

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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

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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

http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.01&serialnum=2002706013&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=2004521924&mt=WestlawUK09&db=999&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=65C7B8F7





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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

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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

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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.

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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

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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

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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

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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

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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.

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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

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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

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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

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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.

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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

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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

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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

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