REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Cr. App. No. 14 of 2010
Ivor Archie, C.J.
Paula-Mae Weekes J.A.
Alice Yorke-Soo Hon, J.A.
Ms. J. Honoré-Paul for the State.
Mr. Jagdeo Singh for the Appellant.
DATE DELIVERED: 9th May, 2013
Delivered by: A. Yorke-Soo Hon, J.A.
1.On 1stNovember 2010, the appellantwas convicted for the offences of sexual intercourse with a female under the age of fourteen. He was sentenced to seventeen years imprisonment and has appealed both the conviction and sentence.
The Prosecution Case
- The virtual complainant, S.S., lived in Mayo with her mother, her stepfather (the appellant), the appellant’s father, her two sisters and her brother. The appellant’s father lived in the downstairs portion of a two-storey dwelling house, while the appellant lived in the upper portion of the said house with S.S., her mother and her three siblings. The appellant and S.S slept on a mattress on the floor while her mother and siblings slept on the only bed.
- One night, between 28th March and 20th April 2003, S.S. was awakened by the appellant. He told her to stay quiet and began to touch her vagina. She pushed him away. He nonetheless continued, pulling down her underwear and touching her vagina. She began to “kick up” but he placed his foot over her feet to stop her from doing so. He then placed his penis into her vagina and began to move up and down. She experienced pain and began to groan softly, for fear of waking the others members of her family. The appellant then cuffed her on her right hip and held down her legs. She was unable to “knee” him and after about two to three minutes he came off from on top of her and went to sleep. She also went to sleep. The following morning, when she went to the bathroom, S.S. saw blood on her underwear and she washed it off.
- S. did not tell anyone what had happened because the appellant threatened her. He told her that if she did, he would beat her and kill her.
- On 27thOctober 2003, Ms. Florencia Dass, the principal of S.S’s school, accompanied S.S. to the Gasparillo Police Station. Her mother also came to the police station and a statement was taken from S.S. by WPC Callender St.Clair.
- The following day, S.S. was medically examined by Dr. Halcampie. He found that her hymen was ruptured but that it was not a recent rupture. No marks of violence or bruising were found on her body. Dr. Halcampie expressed the view that he would not expect to find any evidence of injury which may have occurred in April 2003.
- On 31st October 2003, Police Officer Teeluck arrested the appellant. After being told of the report against him, and after being cautioned, the appellant said: “Officer, I done tell meh wife sorry for that”. He was then taken to the Gasparillo Police Station.
- At the time of the trial, the appellant had a pending charge for the offence of sexual intercourse with one N.R. a female under the age of fourteen. N.R was called as a witness in these proceedings. She indicated that in August 2006, when she was twelve years old, she met the appellant and told him that she was eighteen years old. She later told him that she was twelve. After indicating her true age, she and the appellant had sexual intercourse. About 2 – 3 weeks later, N.R. went to the appellant’s home in Mayo, where they again had sexual intercourse.
The Defence Case
- The appellant denied that he ever had sexual intercourse with S.S. He said that S.S. and her mother maliciously and spitefully made up these allegations against him, because he had spoken to S.S. about coming home late from school and also because S.S’s mother wanted to get rid of him as she had begun a relationship with another man.
- The appellant admitted to having sexual intercourse with N.R. but stated that he believed that she was eighteen at the time. He completely denied the second occurrence of sexual intercourse which allegedly occurred at Mayo.
The Learned Trial Judge erred in law when he allowed the prosecution to lead evidence of the alleged bad character of the appellant.
- This complaint appears to have been limited to the judge’s treatment of the sexual intercourse charge. Counsel for the appellant submitted that the judge erred in allowing the evidence of the pending charge against the appellant to be used to show that the appellant had a propensity to conduct sexual relations with underage girls. He argued that such a propensity must be proved by convictions, and that it was erroneous to allow the evidence of N.R. which amounted to no more than an allegation. Counsel sought to distinguish the circumstances of the N.R. allegation from the case at bar. He emphasised that the appellant had sexual intercourse with N.R. in circumstances where he believed that she was eighteen (18), whereas the alleged sexual intercourse with S.S had taken place while the appellant was in a common law relationship with S.S’s mother and in the close confines of the family home. These distinctions illustrate that “there was nothing so singularly unique in the mode of commission or execution of the act which would necessarily have placed such an identifying stamp or mark on the case to make it a unique mode of commission”. In short, there was absolutely no similarity between the mode of commission of the offence charged in the instant case and the allegations of N.R. Counsel also complained that the judge ought not to have allowed the prosecution to pick the “best” of the allegations to put before the jury as this presented a “skewed and incomplete” picture of the evidence.
- In response, counsel for the State indicated that Section 15P(2) contemplates the use of situations other than convictions for establishing a person’s propensity. That is, propensity may be established by evidence of misconduct even though such misconduct does not result in convictions and prior convictions are simply one way of proving propensity. It was further submitted that the judge properly addressed his mind to his statutory duty to ensure fairness in the matter when he allowed the prosecution to pick the “best” of the allegations. Counsel submitted that a “skewed and incomplete” picture was not presented to the jury since the evidence was properly tested by the defence in cross-examination and was also subject to the directions later given by the judge.
- The gateways governing the admissibility of the evidence of an accused’s bad character are set out in Section 15N of the Evidence Act (as amended by the Evidence (Amendment) Act No. 16of 2009). The evidence of N.R. was sought to be admitted under Section 15N(1)(d)which provides as follows:
- In criminal proceedings evidence of the accused’s bad character is admissible where—
(d) it is relevant to an important matter in issue between the accused and the prosecution;…
- This new statutory regime allows for the exclusion of potential bad character evidence on specified grounds and simultaneously reiterates the judge’s duty to ensure that a defendant receives a fair trial. Section 15N(3) provides as follows:
“(3) The Court shall not admit evidence under subsection (1) if, on an application by the accused to exclude it, it appears to the Court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it.”
- Section 15N(4) stipulates particular factors which a judge must consider when balancing the fairness of the trial. It reads:
“(4) On an application to exclude evidence under subsection (3), the Court shall have regard, in particular, to the length of time between the matter to which that evidence related and the matters which form the subject of the offence charged.”
- Section 15N(1)(d) must be read together with Section 15P which states:
- For the purpose of section 15N(1)(d), an important matter in issue between the accused and the prosecution includes—
(a)the question whether the accused has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence….
- Where subsection (1)(a) applies, an accused person’s propensity to commit offences of the kind with which he is charged may, without prejudice to any other way of doing so, be established by evidence that he has been convicted of—
(a) an offence of the same description as the one with which he is charged; or
(b) an offence of the same category as the one with which he is charged.
- The provisions of the Evidence (Amendment) Act 2009 were heavily influenced by the United Kingdom Criminal Justice Act 2003. It is useful therefore to have regard to UK cases which have explained and interpreted the parallel UK sections to determine the correct approach to be taken to the provisions in the Evidence (Amendment) Act.
- The Court of Appeal in R v Hanson EWCA Crim 3429 gave an over-arching consideration to guide applications to adduce bad character evidence:
“The starting point should be for judges and practitioners to bear in mind that Parliament’s purpose in the legislation, as we divine it from the terms of the Act, was to assist in the evidence based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice. It is accordingly to be hoped that prosecution applications to adduce such evidence will not be made routinely, simply because a defendant has previous convictions, but will also be based on the particular circumstances of the case.”
- At paragraph 12 of R v Chopra  1 Cr. App. R 16 the English Court of Appeal indicated:
“The right way to deal with the new law is not first to ask what would have been the position under the old. In saying that, we do not doubt that some, perhaps many, of the familiar considerations of relevance and fairness which confronted courts before the 2003 Act in cases of multiple allegations where they were said to be of a similar kind will continue to confront them dealing with such cases afterwards. Nor do we doubt that some of the answers may be the same. There has, however, been a sea change in the law’s starting point. Such a sea change has been affected by the 2003 Act in a number of respects in relation to bad character generally. In the present case the important change is that whereas previously evidence of the defendant’s propensity to offend in the manner nowcharged was prima facie inadmissible, now it is prima facie admissible.”
- In R v Somanathan  EWCA Crim 2866, the Court of Appeal gave guidance as to the test to be applied under the new regime. At paragraph 35 and 36, Kennedy LJ explained as follows:
“Evidence of bad character is now admissible if it satisfies certain criteria and the approach is no longer one of inadmissibility subject to exceptions… If the evidence of a defendant’s bad character is relevant to an important issue between the prosecution and the defence then, unless there is an application to exclude the evidence, it is admissible. Leave is not required. So the pre-existing one stage test which balanced probative value against prejudicial effect is obsolete”
It can be gleaned from the above that the test is now one of simple relevance. Indeed in this vein, in the second edition of Evidence of Bad Characterby JR Spencer, it was statedat page 74 that “it was not necessary to show thatthe evidence had any kind of enhanced probative value or enhanced relevance.”
- With regard to Section 103(1)(a) of the UK Criminal Justice Act 2003 which is in substance the same as Section 15(N)(1)(d) of our Evidence Act, Spencer noted:
“…in other words, the purpose ofthe provision is to ensure that, in future, evidence of the defendant’s bad character is not onlyadmissible where it sheds light on some specific disputed issue but also, to the extent that itshows he has a propensity to commit offences of this sort, where it sheds light on the general issue of whether he committed the offence or not.”
- It is apparent from Section 15P(1)(a) that to justify the admission of any proposed evidence, it must be shown that the accused has a propensity to do acts similar to that with which he is charged. It must, however, additionally be shown that the accused having such a propensity (in the specific context of the case) makes it more likely that he is guilty of the charged offence. Where this is not established, the evidence will not meet the prescribed statutory test for admission. If both criteria are satisfied, only then does the evidence classify as an important matter in issue between the parties for the purposes of Section 15N(1).
- The fairness test set out in Section 15N(3) is designed to reflect the existing position under the common law which requires the judge to assess the probative value of the evidence to an issue in the case and the prejudicial effect of admitting it, and excludes the evidence where it would be unfair to admit it. In applying the test, the courts are directed specifically under Section 15N(4) to take into account of the amount of time that has elapsed since the previous events and the current charge.
- We adopt the approach to the question of admissibility of evidence under the propensity gateway established by the Court of Appeal in Hanson. There are three questions that must be asked of the judge hearing an application to admit bad character evidence:
- Does the proposed evidence have the capacity to establish a propensity on the part of the defendant to commit offences of the kind charged?
- If yes,does that propensity make it more likely that the defendant committed the offence charged?
- If yes,is it unjust to rely on the proposed evidence and in any event, will the proceedings be unfair if they are admitted?
Capacity to Establish Propensity
- Section 15(P)(2) allows an accused’s propensity to be proved by a previous conviction or by other means. In Hanson  EWCA Crim 824, the Court stated:
“There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged. Child sexual abuse or fire settingare comparatively clear examples of such unusual behaviour but we attempt no exhaustive list. Circumstances demonstrating probative force are not confined to those sharing striking similarity. So, a single conviction for shoplifting, will not, without more, be admissible to show propensity to steal. But if the modus operandi has significant features shared by the offence charged it may show propensity.”
In Hansonitselfthe Court of Appeal upheld a conviction for stealing a carrier bag containing £600 from a bedroom to which the defendant had access. The defendant pleaded guilty when the judge ruled that he would permit the prosecution to prove his previous convictions for dishonesty. Similarly, in Gilmore (heard together with Hanson), where the appellant had been charged with theft, the Court of Appeal upheld the decision of the judge to allow the jury to hear evidence of his three previous convictions for shoplifting.
- It appears that allegations or charges which have not yet been proved in a court of law will suffice to prove such propensity. Such was the case in R v Smith  EWCA Crim 3244 where allegations of prior sexual misconduct of the defendant were admitted as proof of his propensity to commit the offence of gross indecency with a child. The Court opined that:
“If evidence of previous allegations is in principle admissible notwithstanding that the accused was acquitted of charges based on those allegations in a previous trial, it is difficult to see why in principle evidence relating to allegations that have never been tried (i.e. because of a stay for abuse of process) should not be admissible.”
The Court further found “no difficulty with the fact that the evidence admitted by the judge was in the category of allegations rather than convictions.” It is accepted therefore that allegations may be sufficient to prove propensity to commit an offence.
- More pertinently, it was held in R v Edwards and Rowlands  2 Cr. App. R 4 that since evidence of previous allegations was in principle admissible, there was no reason in principle why evidence relating to allegations that had never been tried should not be admissible. Equally, in R v Adenusi  EWCA Crim 1059 it was held that:
“…there was no justification for saying as a matter of law that propensity at the time of committing offences could not be determined by reference to offences committed thereafter. Whether or not offences committed thereafter assisted the jury to decide on the issue of propensity was a matter for the jury subject always to the judge’s duty to ensure a fair trial.”
It follows that the alleged sexual encounters with N.R. which took place in 2006, some three years after the matter in issue, are capable of showing propensity.
- In cases where the Defendant is accused of a sexual offence against a minor, evidence of other sexual or inappropriate conduct with minors has been admitted to show propensity. In Manister, heard together with Somanathan, the appellant had been convicted of indecent assault upon a 13-year-old girl (A). He denied any sexual relationship between himself and A, claiming they were just friends. The prosecution sought to demonstrate that the appellant was sexually attracted to girls of within the teenaged bracket. The trial judge allowed evidence of an admitted sexual relationship between the appellant and a 16-year-old girl (B) from October 1998 to September 2001. He also allowed evidence of the appellant saying to a 15-year old girl (C) “Why do you think I’m still single. If only you were a bit older and I a bit younger”. The Court of Appeal held both pieces of evidence to have been rightfully admitted. The evidence pertaining to B was said, at paragraph 95, to be:
“…capable of demonstrating a sexual interest in early or mid-teenage girls, much younger than the appellant, and therefore bore on the truth of his case of a purely supportive, a sexual interest in A.”
The Court further stated at paragraph 97, that in the case of C:
“…his words, with their implied admission of sexual attraction to fifteen year old C, were again, in our view, clearly relevant to the issue of whether the appellant was sexually attracted to A, and therefore admissible for the same reasons which applied to the sexual relationship with B.”
- Similarly, in Weir, which was also decided together with Somanathan, the Court of Appeal upheld that appellant’s conviction for sexually assaulting a minor, confirming that evidence that he had been previously cautioned for taking an indecent photograph of a child was correctly admitted via gateway (d).
Does the evidence make it more likely that the appellant committed the offence charged?
- The English Court of Appeal case of R v Tully and Wood  EWCA Crim 2270 discussed the decision of Hanson and we endorse their views. At paragraph 26, the Court explained:
“The whole thrust of the guidance in Hanson is that the court should only admit convictions which have some probative force by reason of their similarity to the offence charged… In Hanson the court said that the Judge should look for similarities between what the defendant had done in the past and what he was now charged with. Those similarities did not have to be striking in the way that similar fact evidence has to be, but there must be a degree of similarity.”
- The critical question is whether the evidence of N.R. was relevant as going, or being capable of going, to establish propensity to commit offence against S.S. We find that there could only be one answer to that question. Each complainant alleged the same conduct by the appellant. Each was a young girl with whom he was accused of having sex. Indeed in the case of N.R., it was an underaged girl with whom he admitted to having sexual intercourse with. It is accepted that the sexual intercourse between the appellant and the virtual complainant took place in a domestic setting, where the appellant was romantically involved with the virtual complainant’s mother, whereas the sexual intercourse between the appellant and the then 12-year-old N.M. took place in circumstances where he (allegedly) believed her to be eighteen. Notwithstanding this, as the judge below rightly stated, at page 20:
“These differences in the surrounding general contexts do not however, in my respectful view, override the essential similarity which is the capacity of N.R.’s evidence to demonstrate that the Defendant has a tendency to have sexual intercourse with under aged girls.”
As there is no need for there to be a “striking similarity”, we agree that there existed a sufficient “degree of similarity” between the evidence of N.R. and the charge against the appellant.The fact is that the evidence shows the sexual taste of the appellant. So long as the evidence of N.R. was accepted, that evidence did tend to establish a propensity to be sexually attracted to and, indeed, sexually active with girls of a tender age.
Is It Unjust To Rely on the Evidence?
- Professor Spencer in his paper entitled “The New Law On Bad Character Evidence andHearsay” discussed the operation of the fairness provision (our Section 15N(3)):
“In a case where the bad character evidence is evidence of general disposition only – as against evidence that shows the defendant’s ‘hallmark’ or in some other way links him closely to the offence – this provision clearly enables the courts to exclude where there is little or nothing else.”
These sentiments are illustrated in the approach of the court in Hanson where it was stated, at paragraphs 10:
“[The judge] must always consider the strength of the prosecution case. If there is no or very little other evidence against a defendant, it is unlikely to be just to admit his previous convictions, whatever they are.”
- The Court gave further guidance on the use of previous convictions and the importance of their date at paragraphs 11 – 12:
“In principle, if there is a substantial gap between the dates of commission of and conviction for the earlier offences, we would regard the date of commission as generally being of more significance than the date of conviction when assessing admissibility. Old convictions, with no special feature shared with the offence charged, are likely seriously to affect the fairness of proceedings adversely, unless, despite their age, it can properly be said that they show a continuing propensity.
It will often be necessary, before determining admissibility and even when considering offences of the same description or category, to examine each individual conviction rather than merely to look at the name of the offence or at the defendant’s record as a whole.”
- We are of the view that admitting evidence of the defendant’s previous misconduct in this case was neither unjust nor unfair. It was a mere three years between the events related by S.S. and those by N.R. When one examines each individual allegation against the appellant, the degree of similarity between them is sufficient. Indeed, on the barest of facts on both accounts a prima facie case for the offence of sexual intercourse with a minor is made out. Moreover, the State’s case was a fairly strong one, having been based both on alleged oral admission by the appellant to PC Teeluck as well as the evidence of S.S.
- The judge was called upon to balance his case management powers, his duty to ensure fairness and allow the State the opportunity to present its case. At page 23 , the judge expressly called on the prosecution to be circumspect in their choices:
“I will therefore under my inherent case management powers, and as part of the exercise of my statutorily conferred discretion, request the Prosecution to be more discriminating and focused in their approach, and to select one or two events from the overall narrative given by N.R., which “best” in the Prosecution’s view illustrates the tendency that they are seeking to establish, and importantly, the selection of which is not unfair to the Defendant by taking that one, or those two incidents, so out of surrounding context that the Defendant is unable to effectively contest it, or which make his contest of it subject to a forensic and/or artificially created disadvantage in the present matter.”
In any event, we do not find that the evidence eventually presented by the prosecution to have been in any way skewed or incomplete in the circumstances where it was adduced for the purpose of showing propensity to commit this offence.
- In the circumstances, no criticism can be made of the judge’s decision to allow the evidence of N.M. under Section 15N (1).
The direction to the jury on good character was confusing and deprived the appellant of the benefit of a full good character direction in a case where both credibility and propensity were in direct focus and upon which the Jury were caused to make findings.
- Counsel for the appellant submitted that since at the time of the trial, the appellant had no previous convictions, he was entitled to a good character direction both as to credibility and propensity. He argued that the judge was therefore wrong to direct the jury that they should only consider the appellant a person of good character if they disbelieved the allegation of N.R,. and that, conversely, if they believed N.R, the appellant would not be entitled to the benefit of the direction.
Counsel criticised the direction as being “highly speculative” “confusing and artificial”.
- In response, the State submitted that the directions on the prior acts of misconduct were adequate and well-tailored to the evidence and that the said directions were neither illogical nor confusing.
- It is necessary to examine the given directions in full. The language of the direction was clear and could not have created any real confusion in the minds of the jury. At page 26, the judge stated: “… the Prosecution submits that the evidence of [N.R] is capable of establishing that the defendant has a propensity, the word ‘propensity’ meaning a tendency to have sexual intercourse with young women under the age of fourteen years. If you accept that submission made by the Prosecution, the Prosecution says, the fact that the defendant possessed such a tendency makes it more likely that he behaved towards [S.S] as she says he did towards her, you must decided whether [N.R] gave truthful, reliable evidence. If you are not sure of this, then you must disregard N.R’s evidence completely and ignore this direction. If you are sure that [N.R] gave truthful, honest, reliable and accurate evidence, the Prosecution bearing the burden of making you sure of this, do you conclude that the defendant did have the propensity as alleged by the Prosecution? Again, that is wholly your decision to make. If you are not sure that this is the right conclusion, then you must disregard N.R’s evidence completely and ignore this direction. If you are sure that that is the right conclusion, you must assess whether, and if so, to what extent, it helps you to decide whether the defendant is
guilty of the charge that you are considering, even if you do decide that the defendant has a propensity to act as the Prosecution alleges, it does not follow that he must be guilty of the offence charged.”
- More pertinently, when directing the jury on the appellant’s good character, the judge reiterated many times that the direction only applied if the jury believed the evidence of N.R. It is unlikely that the jury would have been confused as to how they were to make use of the direction when one considers the clarity of language. At page 33, the judge said:
“I am going to give you a direction that only applies if you reject or you are not sure of the evidence of N.R.This direction does not apply if you accept and you are sure of N.R’s evidence. In assessing this direction, you will give appropriate consideration to the issues as disputed and not disputed. The defendant disputes the second incident described by N.R in her evidence, but on his account, he accepts that he did have sexual intercourse with her on the first occasion described. What the defendant disputes is his understanding as to the age of N.R. You will, also, Jurors, apply the definition of sexual intercourse with a minor as I have given it to you. So, I repeat, this direction only applies if you reject or you are not sure of N.R’s evidence.”
- Most importantly, the judge gave a full good character direction, on both credibility and propensity:
“If you accept and you are sure of her evidence, the direction I am about to give you does not apply.Depending on how you find on this issue, you have evidence before you, or rather you have no evidence ofthe defendant having committed a criminal offence. Good character is not a defence to the charge which the defendant is on trial for, but it is relevant to your consideration of the case in two ways. First, thedefendant has given evidence, and his good character is a positive feature of the defendant which youshould take into account in his favour when considering whether you accept what he has told yousecondly, the fact that the defendant has not offended in the past may make it less likely that he acted asis not alleged against him.”
- It is clear that the judge was at pains to tailor the good character direction to suit the evidence of the case. Indeed, his approach to the aspect of the case was commendable in this regard.
In light of the above, the criticisms of the judge’s direction are wholly unfounded.
The Learned Trial Judge failed to direct the Jury on the delay of the virtual complainant to report the incident to anyone else.
- It was submitted by Counsel for the appellant that the judge ought to have directed the jury on delay so as to ensure even-handedness between the State and the defence, in circumstance where the virtual complainant did not report the alleged rape until six (6) months after the incident, and the trial did not occur until seven and a half (7½) years later.
- The State submitted that the directions with respect to delay were in all respects adequate. The judge pointed out how the delay in reporting would have prejudiced the appellant and, left it to the jury to determine whether the delay had an impact on the reliability of the virtual complainant’s evidence. The directions were clearly designed to achieve even-handedness between the competing cases of the prosecution and the defence.
- At page 29 of the summation, the judge stated:
“In this case you have heard evidence of S.S. describing an event some time around Easter of 2003. And you have heard about a report being made to the police in late October of 2003. You are entitled to consider why this matter did not come to light sooner. Is that a reflection on the reliability of the complaint? You must consider, is there a danger of real prejudice to the defendant? If the complaint had been made earlier, hypothetically, a medical examination could have taken place sooner. So this possibility must be in your mind in deciding whether the Prosecution has made you sure of the defendant’s guilt. Is it a reflection on the reliability of the complaint, or does it arise from the conduct of the defendant?
You have been given in this case an explanation, which is that, S.S. did not tell anybody because the defendant had threatened her and had told her that if she told anybody he would beat her up and kill her. The State says that any delay in reporting does not reflect negatively on the reliability and credibility of S.S. but arose from the conduct of the defendant in threatening S.S.”
- It is clear from the above that the judge did bring the issue of the delay to the minds of the jury, and did so in a fair manner. Not only did he raise the issue, but he further gave the jury guidance as to how to treat with the delay by pointing out its potential prejudice to the appellant and its possible impact on the credibility of the virtual complainant. Both sides were disclosed, as the judge equally pointed out to the jury the possibility that the delay was the consequence of the appellant’s threats to the virtual complainant.
- This ground therefore fails.
The Learned Trial Judge erred in law when he failed to take into account the forty-five (45) months which the appellant had spent in custody whilst awaiting trial.
- Counsel for the appellant submitted that the judge should have considered the time that the appellant spent in custody while awaiting trial and further ought to have given the appellant full credit for all that time.
- In response, counsel for the State noted that the judge did not expressly state that he had taken the period which the appellant spent in custody into consideration. She accepted as a general principle that a judge should consider time spent in custody prior to trial but was of the view that the exercise of a judge’s discretion should turn on the particular facts of the case. Counsel also indicated that the appellant falls within an exception to the general principle since he was awaiting trial for another matter.
- There exists no constitutional or statutory provision which makes it mandatory for a judge upon sentencing to consider the time which a person spends in custody awaiting trial. The only reference to the computation of time spent in custody pending the determination of a matter is found in Section 49 of the Supreme Court of Judicature Act Ch 4:01, which provides: “The time during which an appellant, pending the determination of his appeal, is released on bail, and subject to any directions which the Court of Appeal may give to the contrary to any appeal, the time duringwhich the appellant, if in custody, is specially treated as an appellant under this section, shall not count as
part of any term of imprisonment under his sentence, and, in the case of an appeal under this Act, any imprisonment under the sentence of the appellant, whether it is the sentence passed by the Court of trial or the sentence passed by the Court of Appeal, shall, subject to any directions which may be given by the Court of Appeal, be deemed to be resumed or to begin to run, as the case requires, if the appellant is in custody, asfrom the day on which the appeal is determined, and, if he is not in custody, as from the day on which he isreceived into prison under the sentence.”
It is clear from the language of this section that it is of application solely and specifically to persons in the process of an appeal. Thus, in Trinidad and Tobago any practice of crediting time spent imprisoned while awaiting trial is to be founded on the common law and judicial practice.
- Over time, the courts have taken a range of approaches to time spent imprisoned while awaiting trial.
- In The State v Gilbert Evelyn HC 60 of 1995 the judge remained silent as to what impact the time spent awaiting trial had on the determination of the appropriate sentence. The Court did little more that state that it took into account the fact that the accused has spent six years in custody awaiting trial. A twenty-five year sentence effective from the date of conviction was ordered.
- In Paul Williams v The State (1999) 57 WIR 380, the appellant was sentenced to five years by the judge. On appeal, Chief Justice de la Bastide (as he then was) found that the judge misdirected himself in rejecting counsel’s submission to take into account the two years which the accused had spent in prison pending trial. The Court of Appeal found it immaterial whether the time spent in prison pending trial was the result of the refusal of bail or of inability to raise the bail. Given that misdirection (inter alia), the sentence was altered to one of three years’ imprisonment with hard labour to run from the date of conviction.
- In Christna Basdeo v The State Cr. App. No 24 of 2005, the Court of Appeal expressly refused to exercise their discretion to take into account the time the accused spent awaiting trial. The Court stated at paragraph 18:
“We also take into consideration the four years that have elapsed between the appellant filing his grounds of appeal and the hearing but decline counsel’s invitation to also consider the two years spent awaiting trial.
While it is clear that a judge may do the latter we are of the view, that this discretion must be exercised judicially. There must be something more than the natural effluxion of time that must pass between arrest and trial to trigger the discretion. It is not an arithmetical exercise. Factors such as an usually inordinate lapse of time given the prevailing system and/or that lapse being caused through no fault of the appellant are some of the considerations. This list is not exhaustive and each case would be decided on its particular history. Nothing presented in arguments before us triggers the discretion.”
- In The State v Ramdeo Seecharan HCA 74 of 2007, the High Court noted to the credit of the accused that he pleaded guilty at the first opportunity, he had no previous convictions, he had no pending cases and that the attack on the victim was one isolated incident. The accused also had a drug addiction and was found to have been of unsound mind at the time of the incident. The Court considered that, given the factors in favour of the accused, the two years spent in custody prior to trial would be treated as time served.
- The High Court in The State v Jose Diaz Parra HCA 91 of 2007 declined to engage in an exercise in strict arithmetic in discounting the time spent in custody. The accused pleaded guilty to the offence of possession of dangerous drugs for the purpose of trafficking and had been in custody awaiting the determination of his case for a period of approximately 3 years and 1 month. In deciding the appropriate sentence, the Court reasoned, at paragraph 9, as follows:
“From all of the circumstances, no delay in the hearing of this case can reasonably be ascribed to the prisoner. The court, accordingly, considers the time spent in custody by this prisoner to be a significant and relevant factor in its determination of the appropriate sentence in this case. In deciding how much of the time spent in custody to take account of, the court is not, however, expected to undertake a strict mathematical exercise in deciding its sentence and then deducting from this the time spent. A reasonable amount of time must be allowed for the normal flow of court proceedings. In this case the court is of the view that one year would have been a reasonable time for completion of the committal proceedings.”
- From the varying approaches set out above, it is indisputable that, to date, the lack of clear guidance as to how to treat time spent on remand while awaiting trial, has empowered a judge with a broad discretion to deal with such time as he sees fit and indeed has left the law devoid of any mechanism to give effect to such exercise of discretion.
- In this regard, we find useful the learning of the Board of the Judicial Committee of the
Privy Council in Callachand & Another v The State  UKPC 49, an appeal from Mauritius. In that case, at paragraph 9, the Board expressly approved the practice of taking into account time spent in custody prior to sentencing and also indicated how this should be done:
“It seems to be clear too that any time spent in custody prior to sentencing should be fully taken into account, not simply by means of a form of words but by means of an arithmetical deduction when assessing the length of the sentence that is to be served from the date of sentencing.”
- Similarly, the Caribbean Court of Justice pronounced on this issue in the recent case of Romeo Da Costa Hall v R. CCJ Appeal No. CR 1 of 2010. The learning in this case has already been applied by courts throughout the region and, we too, endorse the erudite reasoning and guidance of the CCJ therein.
- At paragraph 26, the majority of the panel of the CCJ laid down “the primary rule” in these terms:
“The primary rule is that the judge should grant substantially full credit for time spent on remand in terms of years or months and must state his or her reason for not granting a full reduction or no reduction at all.”
- Justice Wit, giving the dissenting judgement, found the rule to be justified by the concepts of reasonableness and fairness, stating at paragraph 40:
“It would appear then that the legal basis for giving full credit is basic fairness, the avoidance of injustice or,formulated more positively, the interest of justice. Liberty is clearly highly valued by the Constitution.Liberty should therefore be the golden rule and detention, however it is called and for whichever reason it isimposed, must remain the exception to that rule…There are, perhaps unfortunately, many situations which make it necessary to detain some people before they are tried. This is especially unfortunate if that person is eventually found to be innocent. But even in the case of a conviction it would be unfair to the prisoner not toacknowledge, in a very real and effective manner, that he has, albeit with hindsight, de facto been serving hissentence from the day he was detained…
When it comes to sentencing a convicted person, the sentence (in the real sense of time spent in prison) should, therefore, in principle, be effectively the same whether the person was on remand or free on bail when being sentenced. That will in quite a few cases avoid or at least diminish gross inequalities between those who can and those who cannot afford bail. It might in other cases even avoid sentenced prisoners from having to serve in effect a longer sentence than the maximum sentence. In all cases, however, it will do justice to thereality of incarceration.”(emphasis added)
- The majority indicated, and we agree, that should a judge choose to depart from the primary rule, he ought to set out his reason(s) for such departure. In this regard, the Court also provided an inexhaustive list of exceptions to this primary rule at paragraph 18 as follows:
- where the defendant has deliberately contrived to enlarge the amount of time spent on remand, where the defendant is or was on remand for some other offence unconnected with the one for which he is being sentenced;
- where the period of pre-sentence custody is less than a day or the post-conviction sentence is less than 2 or 3 days;
- where the defendant was serving a sentence of imprisonment during the whole or part of the period spent on remand; and
- where the same period of remand in custody would be credited to more than one offence.
- The Court in Da Costa Hall discussed three possible methods of taking into account time spent in custody before sentence, as follows:
- Backdating the commencement of the sentence to the date on which the offender was taken into custody;
- Counting time as already served under the sentence; and
- Reducing the term of the sentence by the time spent on remand.
- The first and second options require legislative authority, which is not at this time provided for in the laws of Trinidad and Tobago. They therefore do not need to be further explored as they are, at this stage, inapplicable.
- We are inclined to agree with the CCJ that the most appropriate option at this time is to reduce the term of the sentence by the time spent on remand. In pronouncing this method as the most suitable, the CCJ accepted as a disadvantage the fact that it could result in skewed messages being sent to the public, noting, “The application of this method may result in persons charged and convicted of the same offence being given markedly different sentences.” In that regard therefore, we reiterate the direction of the Court that:
“The judge should state with emphasis and clarity what he or she considers to be the appropriate sentence taking into account the gravity of the offence and all mitigating and aggravating factors, that being the sentence he would have passed but for the time spent by the prisoner on remand.”
It is notable, that in hindsight, one discovers that this is exactly the approach taken by the Court of Appeal in Williams (supra).
- On a last note, the Court gave practical guidance as to the calculation of the discountable period. In rejecting the argument that when calculating the discountable period a distinction was to be drawn between “prison years” and calendar years, the majority at paragraph 28 stated:
“In the course of argument there was a suggestion that the time spent on remand could be treated as “prison years” and grossed up to calendar years, applying the formula that 9 months served in prison are equivalent to one calendar year. Remissions of sentence have to be earned and are normally effected by administrative action during the prisoner’s incarceration. We therefore do not consider it correct to “gross up” the time spent on remand to calendar years in order to calculate the credit for time served.”
- It is accepted that there is no indication of whether the trial judge considered the period of time the appellant spent awaiting trial, and we now alter the sentence imposed to reflect such a consideration.
- After a thorough review of the relevant authorities, the judge ordered the appellant to serve seventeen (17) years from the date of conviction. We do not depart from that assessment and use that as our starting point. While awaiting the trial, the appellant spent time in custody awaiting trial for another unrelated matter. In accordance with Da Costa Hall that time must not be taken into account when computing the time spent in custody for the purpose of discounting for this matter. In total therefore the appellant spent 30 months (2 years 5 months) in custody for this matter. Taking account the amount of time already spent in custody, we now vary the sentence of the accused to 14 years 7 months from the date of conviction.
69.The appeal against conviction is dismissed and the conviction is affirmed. The appeal against sentence is allowed and the sentence is varied from one of seventeen (17) years to one of fourteen
(14) years and seven (7) months from the date of conviction.
Justice of Appeal
Justice of Appeal