18 August

SEERATTAN v STATE

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in Bad Character

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

CR APP N0. 32/2013

Between

PAUL VINCENT SEERATTAN

Appellant

And

THE STATE

Respondent

*************************

JUDGMENT

PANEL:

Yorke-Soo Hon J.A.
Bereaux J.A.
Moosai J.A

APPEARANCES:

Mr. Jagdeo Singh and Mr. Criston Williams instructed by Ms. Adaphia Trancoso for the Appellant.

Ms. Joan Honore´-Paul for the Respondent.

DATE DELIVERED: 24^th July, 2017

Delivered by: Justice A. Yorke-Soo Hon, J.A.

INTRODUCTION

1.On 8^th November, 2013, the appellant was convicted before Mr. Justice Mark Mohammed and a jury in the First Criminal Court San Fernando, on two counts of murder and has appealed the convictions.

CASE FOR THE PROSECUTION

COUNT ONE

On the 22^nd of March, 2005 Radha Pixie Lakhan, (Radha), a sixteen year old girl went missing. She had left her home around 7:30 am to attend the Palo Seco Secondary School where she was a student. She was dressed in her school uniform, that is, a white shirt, grey skirt, white belt, black socks and black sneakers. She was also carrying a grey and cream school bag.

On that day, school ended prematurely at 12:30pm because of a water problem. Radha and her schoolmate Michael Asson, boarded a taxi heading in the direction of Siparia. According to Michael, Radha dropped off at Spring Trace, Quarry Village, Siparia around 1:45 pm. Karen Sugrimsingh, who was at her place of business which is located opposite Spring Trace, confirmed that she saw Radha dressed in her school uniform alight from a taxi and walk into the Trace. Radha never made it home. Later that evening, Radha’s father reported her missing at the Siparia Police Station and a search for her proved futile.

COUNT TWO

Taramatee Toolsie (Taramatee), a janitor, employed at the Penal Government Primary School was last seen alive on 15^th April 2005. There was evidence that two persons interacted with her that day, namely, her sister-in-law Sumintra Roopnarine, and a neighbor Khimnath Dookie. Sumintra said that she spoke to Taramatee that morning but did not see her. Khimnath Dookie said that he saw her walking from La Brea Trace, where she lived, holding a handbag. Mr. Dookie said that he saw a man standing next to a fig patch near to where he lived. He

could only see the man’s back and observed that he had short “curlyish” hair and carried a black knapsack on his back. He observed that as Taramatee passed the fig patch, the man left the patch and walked behind her.

Anindra Samlal, a neighbor, who also lived at La Brea Trace, Siparia, said that around 7:30 am on Friday 15^th April, 2005, whilst waiting at the Siparia Senior Comprehensive School to go to a job site, he saw the appellant. He stated that he knew him for approximately five years before that day. He was “bareback”, dressed in a short pants and wearing a pair of slippers. He had a white cloth tied to his right hand, which appeared to have blood stains on it. He also had cuts on his chest and on his back. The cuts appeared to be fresh, and he observed that he was “shaking like a leaf”. He had a brief conversation with him and saw him heading in the direction of Spring Trace.

Lindon Vialva, also called “Redman”,who was a mutual friend of the appellant and the appellant’s common law wife, Leslie Ann Bowen, said that on 15^th April 2005 around 8:30 to 9:00 am, he saw the appellant coming from the direction of Mappipire Trace which is situated just after the Siparia Senior Comprehensive School. He stated that the appellant looked untidy and his short pants and Tshirt appeared to have blood stains. He also observed that the appellant’s right hand had what appeared to be “fresh blood” coming from it. He asked the appellant where he had fallen to which he replied, “Erin, on the beach”. Mr. Vialva treated the wound and the appellant left.

Leslie Ann Bowen, gave evidence that the appellant left home at La Brea Branch Trace, Siparia, on Friday 15^th April, 2015, at around 5:00 am on account of having to “check” some work. Around 3:00pm that day, the appellant visited her work place on High Street, Siparia, and he looked untidy and had a cut on his forehead. He told her that the cut was as a result of a bottle throwing incident. She also observed that his elbow was wrapped in a bandanna with what looked like medicine applied to it. He told her that he had fallen and sustained a cut.

On April 18^th, 2015 Taramatee’s body was discovered in a forested area within the proximity of the Siparia Senior Comprehensive School. A post mortem performed on her body revealed that she had died as a result of ligature strangulation. Her blouse was torn over the front, buttons were missing, the right cup of the brassiere was extensively torn and the skirt was pulled up or thrown back over the front of the lower abdomen. The body bore evidence of injury. A black strap still attached to a bag on her left side was wound around her neck three times causing a tight noose to be formed resulting in constriction.

The appellant was arrested on the 19^th of April, 2005, around 2:30 am by a party of officers as a result of a report of attempted rape made by one, Lizann McIntosh. A medical examination revealed that he had multiple abrasions on his right forehead and right wrist which were approximately 3 weeks old. There was also a fresh injury in the form of loss of skin and tissue on his right arm. Multiple nail impressions were found on the appellant’s upper and lower back. Those impressions had been made within 72 hours and were consistent with a struggle.

On 19^th April, 2005, at around 5:30pm the appellant was interviewed by Police Constable Dhilpaul and Police Corporal Griffith in relation to the death of Taramatee. During the interview he denied any involvement in the murder. Later that evening, in another interview, he confessed to having raped and strangled Taramatee. In that interview, he said that on Friday 15^th April, 2005, around 6:00 am he was in the vicinity of the “Senior Sec”. He admitted that he approached Taramatee and dragged her down some steps. He said that there was a struggle and that he fell and scraped the right side of his rib cage. He told her to remove her clothing. After he “fight up with her”, he threw her on the ground and had sex with her and then strangled her with the strap from her bag and covered her body with some tyres.

On the 20^th of April the appellant volunteered to take police officers to the scene where he strangled Taramatee. The appellant, his mother and a party of officers proceeded to La Brea Trace, Siparia. There, he showed the officers a bamboo patch where he stood on the morning when he saw Taramatee walking on the road. He also pointed to a spot on the roadway where he made his “first attack”, and to a concrete drain where the struggle took place. He took the officers into some bushes and pointed to a spot on the ground where he had sex with her. He stated that she was “bawling” and that he walked up to her, took her bag strap

and strangled her. She fell on the ground, and he kept on strangling her. He then directed the officers to an area near a tree where he left her body and covered it up with some tyres. The appellant was cautioned and informed of his rights. On his return to the Siparia Police Station, the appellant gave a statement under caution in the presence of his mother and Justice of the Peace Kevon King, Police Constable Dhilpaul and Police Corporal Griffith, and was later charged for Taramatee’s murder.

On 21^st April, 2005, the appellant was interviewed in relation to the disappearance of Radha and he denied any knowledge of her disappearance. On 22^nd April, 2005, he informed Police Inspector Harridass that he wanted to speak to Police Constable Dhilpaul from San Fernando. Later that day he was interviewed by Police Constable Dhilpaul and Police Corporal Griffith, and confessed to raping and strangling Radha. He was cautioned and informed of his legal rights. He told the police that he saw a school girl alight from a taxi and head in the direction of Spring Trace. She wore a school uniform consisting of a white shirt with a monogram of the Palo Seco Secondary School on the front shirt pocket, a grey skirt, white belt, black sneakers, black socks and carried a black school bag. He stated that he followed her, held her and told her that he wanted to have sex with her and she refused. He then dragged her into the bamboo patch, ripped off her clothes, held her down and raped her. He kept her in the bamboo patch for the evening and raped her about six times. When it got darker he strangled her and left her body next to a bamboo root. He said that he first strangled her with a rag and then her school belt. He spent about 4 hours in the bamboo patch. After the incident, he came out of the patch, walked down Spring Trace, stopped a taxi and went home. These interview notes were later authenticated by Justice of the Peace Soodeen. Later that day the appellant confessed to his brother that he had committed the murders. The appellant told the police that he would take them to the place where the incident occurred.

The appellant, his brother and a party of police officers including Police Constable Dhilpaul and Police Corporal Griffith proceeded to Spring Trace. The appellant directed the journey. There he pointed out a spot on the roadway where he made his “first attack”. He directed the party of officers to a bushy area and pointed out

a bamboo patch and said that the body should be in there. Police Constable Dhilpaul checked the area and saw skeletal remains, a book bag with the name Radha written on it, a pair of black sneakers and a white belt in the shape of a loop. The appellant indicated the spot where he raped her and pointed to the belt which he used to strangle her and that the skirt and shoes belonged to her. The appellant was cautioned and informed of his legal rights.

Upon their return to the Siparia Police Station the appellant gave a statement in the presence of his cousin, Crystal Seerattan, Justice of the Peace Soodeen, Police Constable Dhilpaul and Police Corporal Griffith in which he admitted to ripping off Radha’s clothing and raping and strangling her with her school belt. The appellant was later charged for Radha’s murder.

Pursuant to the report made to the police by Lizann McIntosh, the appellant was charged for the offences of indecent assault and assault with intent to rob. He was convicted of those offences and sentenced on the 31^st of October, 2012. During the appellant’s trial for the murders of Radha and Taramatee, the state relied on the evidence in the McIntosh case because the modus operandi shared significant features with the offences charged. Lizann’s evidence was that she was attacked by the appellant on the 16^th of April, 2005. Around 12:45 am she left High Street, Siparia and was walking to her home at Alta Garcia Trace. As she proceeded she glanced back and noticed a man walking behind her. When she got to Alta Garcia Trace the man was still following her. He then sprang upon her and held her and she pushed him away and began to scream. He choked her and they struggled. Whilst struggling, she fell into a precipice and the man fell on top of her. The man then threatened that if she did not “hush her mouth”^[1]that he would kill her as he had a knife. He then asked for her purse to which she replied that it fell on top of the precipice. He responded that that was okay as he only wanted “to break”². The man instructed her to remove her clothing and she unzipped her skirt and stepped out of it. He then told her that he wanted to “suck her vagina”^[2]. She began screaming and heard her neighbour’s voice. The man left

her and ran further into the bushes. She later reported the matter to the Siparia police. On the 19^th of April, she attended an identification parade and identified the appellant as the man who had attacked her. The appellant appealed the convictions and sentences and on 28^th April, 2016, the Court of Appeal allowed his appeal on the grounds that the identification parade was unfair and set aside the convictions and sentences.

CASE FOR THE APPELLANT

The appellant gave no evidence, but called one witness, Ms. Eugenia Robertson.

Robertson testified that she lived at No. 101 La Brea Trace, Siparia, near to where Taramatee lived. She stated that a maxi would usually pick up her daughter, Desiree, and Taramatee around 5:45am every morning. On 15^th April, 2005 Desiree did not travel with the maxi and she did not see Taramatee. She stated that she lived about 10-15 metres from the Siparia Senior Comprehensive School and that on the morning in question she did not hear any “voice bawling”.

In the appellant’s statement^[3] he indicated that on Friday 15^th April, 2005 he departed his “child mother house”[sic] after 6:00 am and passed next to Brian’s house (a friend of the appellant’s living on La Brea Trace), went up the hill and down to “Redman’s” There he took a bath and left. He did not see anyone on the Trace, except a man standing on the wall. He stated that he was wearing a brown cotton three-quarter pants, a grey jersey and carried a bluish greyish knapsack. He then went to Siparia where he spent the day.

The appellant said that on Friday night (15^th) he “limed” at China Clippers, Siparia, and opposite the old library. Whilst liming bottles were thrown and he received a cut on his forehead. He spent Friday night at Brian’s home. On Saturday morning he went to Redman’s house and then to Los Iros to his grandfather’s home where he “limed” all day. He spent the night at his aunt’s house and visited his mother on Sunday. He “limed” with his brother and mother

until 10:30 pm and then made his way to Culture Palace, Siparia where he “limed” until 3:00am.

The appellant also said^[4] that he worked on Monday 21^st March, 2005, at a mattress factory in Macoya with a man named Bob. On that day he left home around 5:30am and arrived at the worksite around 9:00am. He did not pass through Spring Trace that morning. He returned home around 7:00pm that night and “limed” with “his girl” at La Brea Trace. He spent the night there. On Tuesday 22^nd March, he visited his cousin Glenroy Ostein at Rancho Quemado. He also “limed” with some friends in Rancho Quemado and left around 2:00pm and went to Palo Seco where he “limed” with another friend. In the evening he went to his “child mother’s” home where he spent the night.

The appellant denied that he gave any oral or written admissions and completely denied the allegations that he was responsible for the killing of Taramatee and Radha and raised the defence of alibi.

The Submissions

The Appellant

Counsel for the appellant Mr. Jagdeo Singh submitted, that the evidence from the McIntosh case severely prejudiced the case for the appellant in the following ways:
1. Propensity
  1. The evidence was also wrongly admitted because the McIntosh case dealt with the issue of identification as opposed to the instant case where the appellant relied on a complete denial as well as an alibi.
  2. The admission of the evidence of the previous convictions showing the propensity of the appellant to commit the offences of the kind charged was wrong since the appellant was later acquitted of those offences.
  3. The evidence of acquittals is more properly admitted by way of misconduct instead of the propensity gateway.

Credibility

(a)The evidence was used to attack the appellant’s credibility when he had been acquitted of those charges.

3. Identification

(a) The evidence demonstrated an abnormal propensity on the part of the appellant which was used to identify him as the person who committed the murders even though there was no direct identification evidence against him.

(b) The appellant’s appeal in the McIntosh case was allowed on the basis that the ID Parade was potentially unfair. The admission of the evidence therefore had the effect of leading to the convictions in the instant case on a wrong factual basis.

(c) The judge failed to adequately direct the jury that increased caution was required in respect of the identification and failed to highlight the specific weaknesses in the case.

(d) The identification of the appellant being a core issue was further exacerbated by the calamitous effect on his credibility by a direction given to the jury.

23. In the circumstances, the conviction of the appellant was unsafe, and a miscarriage of justice occurred because there was a high probability, that the jury would have returned a not guilty verdict.

The Respondent

In sum, the respondent submitted:
1. Although the appellant was later acquitted of the charges in relation to the McIntosh case and the judge admitted it to show his propensity the evidence was properly before the jury.
2. The evidence was properly admitted although the issues raised in the McIntosh matter were different from those in the instant case.
3. The evidence was properly admitted through the propensity gateway rather than through misconduct.
4. There was ample evidence of the appellant’s identification, particularly, the oral and written confessions made by him.
5. The appellant having attacked the credibility of the prosecution witnesses opened himself to the challenge of his own credibility.
6. The judge adequately warned the jury with respect to identification from the McIntosh case. The judge’s direction with respect to the issue of credibility is both correct and adequate.

LAW AND ANALYSIS

Propensity

Singh submitted that the evidence in the McIntosh case was inadmissible because it was not based on the same issue. In the McIntosh case, the issue for the jury’s determination was that of mistaken identification whereas, in the instant matter, the issues were that of alibi and a complete denial of the offences charged.

Since the coming into force of the Evidence Amendment Act 2009 (EAA), this Court has had very little opportunity to adjudicate on the bad character provisions contained therein, and we think it is necessary to trace its development and application in this jurisdiction. These provisions closely resemble those of the Criminal Justice Act 2003, UK (CJA), hence the reason for reliance on the experience in that jurisdiction. In the past, both in the United Kingdom and in this jurisdiction, the rule excluding the defendant’s bad character and his disposition to commit the offence as evidence at trial, was sometimes described as one of the most “hallowed”^[5] rules of evidence. Prior to the coming into force of the CJA, evidence tending to show that the accused had been guilty of criminal offences other than those for which he was being tried was inadmissible unless it was relevant to an issue before the jury, as for example, if it related to the question, whether the acts allegedly constituting the crime charged were designed

or accidental, or in rebuttal to a defence which would otherwise be open to the accused. The evidence took the form of similar fact evidence. It was the duty of the judge to consider whether the evidence of similar facts which was proposed to be advanced was sufficiently substantial or as often described, “strikingly similar” Makin v Attorney General for New South Wales [1894] AC 57.

Since 2003, under the new regime of the CJA, evidence of bad character is now admissible on the simple basis that it shows a tendency to commit an offence of the general type. Section 101(d) states, that a defendant’s bad character is admissible if it is relevant to an important matter in issue between the defendant and the prosecution. Section 103(1) provides as follows:-

“1) For the purposes of Section 101(1)(d) the matters in issue between the defendant and the prosecution include –

(a) the question whether the defendant 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;

(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect.

2) Where subsection (1)(a) applies, a defendant’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.

3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.”

In the case of R v Hanson, R v Gilmore, R v Pickstone [2005] 1 WLR 3169, the English Court of Appeal in deciding the admissibility of previous convictions to show the defendant’s propensity, interpreted the provisions of the CJA.Rose

LJ delivering the decision of the court laid down the tests to be used, as well as set out some useful guidance to trial judges where propensity to commit the offence is relied upon, which we think are worth reproducing in this judgment.

At paragraphs 6 – 12, he stated as follows:

“6. By Section 103(2) a defendant’s propensity to commit offences of the kind with which he is charged may be established (without prejudice to any other way of doing so), by evidence of conviction of an offence of the same description or category as the one with which he is charged, but by Section 103(3), this does not apply if the court is satisfied that this would be unjust “by reason of the length of time since the conviction or for any other reason.” The Criminal Justice Act 2003 (Categories of Offences) Order 2004 (SI 2004/3346) prescribes offences in the categories of theft and sexual offences against persons under the age of 16.

7. Where propensity to commit the offence is relied upon there are thus essentially three questions to be considered. 1. Does the history of conviction(s) establish a propensity to commit offences of the kind charged? 2. Does that propensity make it more likely that the defendant committed the offence charged? 3. Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted?

8. In referring to offences of the same description or category, Section 103(2) is not exhaustive of the types of conviction which might be relied upon to show evidence of propensity to commit offences of the kind charged. Nor, however, is it necessarily sufficient, in order to show such propensity, that a conviction should be of the same description or category as that charged.

9. 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: compare Director of Public Prosecutions v P [1991] 2 AC 447, 460-461. Child sexual abuse or fire setting are 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.

10. In a conviction case, the decisions required of the trial judge under Section 101(3) and Section 103(3), though not identical, are closely related. It is to be noted that the wording of Section 101(3) – “must not admit” – is stronger than the comparable provision in Section 78 of the Police and Criminal Evidence Act 1984 – “may refuse to allow.” When considering what is just under Section 103(3), and the fairness of the proceedings under Section 101(3), the judge may, among other factors take into consideration the degree of similarity between the previous conviction and the offence charged, albeit they are both within the same description or prescribed category. For example, theft and assault occasioning actual bodily harm may each embrace a wide spectrum of conduct. This does not however mean that what used to be referred to as striking similarity must be shown before convictions become admissible. The judge may also take into consideration the respective gravity of the past and present offences. He or she 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.

11. 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.

12. 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. The sentence passed will not normally be probative or admissible at the behest of the Crown, though it may be at the behest of the defence. Where past events are disputed the judge must take care not to permit the trial unreasonably to be diverted into an investigation of matters not charged on the indictment.”

As mentioned earlier, the bad character provisions of the CJA are in similar terms to the EAA and in respect of propensity they are as follows:

15N (1) 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;

S 15 P (1) 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;

(b) the question whether the accused has a propensity to be untruthful in any respect.

(2) 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.

(3) Subsection (2) does not apply in the case of a particular accused if the Court is satisfied, by reason of the length of time since his conviction or for any other reason that it would be unjust for the section to apply in his case.

Singh’s submissions on this point, based on pre CJA cases are unhelpful. In R v Campbell 2007 2 Cr App R 28 the court observed that, “Decisions in this field before the relevant provisions of the 2003 Act came into force are unhelpful

and should not be cited.”^[6]In R v Anthony Lascelles Lafayette 2008 EWCACrim 3238,the court echoed the same sentiments.

Nonetheless, in R v Straffen [1952] 2 QB 911 and R v Thompson [1918] AC221 (pre CJA cases referred to by Mr. Singh), evidence of previous convictions had to be strikingly similar and had to fall under an acceptable exception to the rule that a person’s criminal conduct or character was likely to lead a jury to the conclusion that he committed the offence charged, the EAA has now reduced that test to a degree of similarity left up to the judge’s discretion. The old rule is now consigned to history. The test now, is one simply of relevance. Once the proposed evidence is relevant to an important issue (not necessarily the same issue), between the prosecution and the defence, then unless there is an application to exclude it, it is admissible subject to the overriding discretion of the court to shut it out if it is unjust to admit it in accordance with section 15 P (3) of the

Therefore, Mr. Singh’s submission that the issue in the McIntosh case, (mistaken identification) was different from that in the instant cases, (denial and alibi) and is therefore inadmissible, is without merit. Indeed, even in 1952 in the case of Harris v DPP [1952] AC 1 the court noted that the introduction of propensity evidence could be advanced without waiting to ascertain what line of defence is to be adopted. In Hanson,the court held that it was not even necessary in order to show propensity that a conviction must be of the same category or description as that charged.

We are satisfied that the judge’s approach was correct. It is no longer necessary in order to show propensity, that a conviction should be of the same description or category as that charged (see Hanson). Therefore, it mattered not that the McIntosh case dealt with a charge of indecent assault and one of an assault with intent to rob. Its circumstances demonstrated probative force in relation to the offences charged because the modus operandi shared significant features with the offences charged. Since there is no longer a need to show striking similarity between the previous conviction and the offences charged the judge correctly considered the degree of similarity. He did not “cast the net” too wide, neither did

he enter the potentially prejudicial zone but reminded himself of the Hanson principlesas restated in R v Tully and Woods [2006] EWCA Crim 2270, where Lady Justice Smith stated at paragraph 26:

“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. To allow the Crown to prove a propensity to obtain other people’s property by some means or another is, in our view, to allow them to cast far too wide a net. Such evidence has limited probative value and has a potentially prejudicial and harmful effect. 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 fact that the convictions are for offences of the same description or category does not automatically mean that they should be admitted. It is not possible to define the degree of similarity which must be shown. That must be for the Judge’s discretion and judgment to be exercised on the facts and circumstances of the individual case. But the Judge must strike a balance and in doing so must remember the words of s. 101(3) to which we have already referred.”

In our view, the judge properly exercised his discretion to admit the evidence.

Use of Acquittal to Show Propensity

Singh submitted, that because the appellant’s convictions were set aside by the Court of Appeal in the McIntosh case, admission of that evidence through the propensity gateway severely prejudiced him. Whilst the prosecution may seek to lead evidence of a previous acquittal to prove propensity, the considerations for the admissibility of evidence in acquittal cases are different from those in conviction cases, so too are the directions to the jury.

Honore-Paul submitted, that evidence from a previous trial which ends in an acquittal is admissible and can be led as propensity evidence. The requirements of admission are matters for the judge. The judge in this case was careful to give appropriate directions on bad character, which would have remained the same had there been an acquittal or a conviction in the McIntosh case.

It is important to again delve into the common law history. An acquittal was once considered sacrosanct in that, in criminal proceedings a person ought not to have to defend himself twice against the same allegation of criminal wrongdoing. This principle, known as the rule against “double-jeopardy” is stringently guarded. In Sambasivan v Public Prosecutor of Malaya [1950] AC 458Lord McDermott in delivering the judgment of the board, stated as follows at page 479:

The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.

However, in R v Z [2000] 2 AC 483,the tide turned when an acquittal was used to establish previous bad character. Past acquittals can now he used to establish previous bad character. The defendant was acquitted on three previous charges of rape and convicted of one, the prosecutor sought to call the four previous complainants to give evidence of the defendant’s conduct towards them in order to negate his defence of consent. The House of Lords held that the principle of double jeopardy prevented a defendant from being prosecuted for an offence on the same facts or substantially the same facts as in a previous prosecution. However, the relevant evidence was not inadmissible merely because it showed or tended to show that the defendant had in fact been guilty of a previous offence of which he had been acquitted, and that, since the evidence of the 4 previous complainants was proposed to be deduced not to show that the defendant had been guilty on the previous occasions but to show by similar facts, his guilt of the offence for which he is being tried, the principle of double jeopardy was not infringed and the evidence was subject to the judge’s discretion to exclude it after weighing its prejudicial effect against its probative value under Section 78 of Police and Criminal Evidence Act, UK (PACE) 1984.
The reasoning in R v Z (supra) was adopted in R v Edwards and Rowlands, R vMcLean, R v Smith and R v Enright [2006] 2 Cr App R 4which was decided after the coming into force of the In R v Smith the appellant was charged in 1998 for rape, grievous indecency and indecent assault. Those 3 counts were stayed as an abuse of process in view of a letter from the Hampshire Constabulary, advising that no further action would be taken against him. In 2005 he was tried on an indictment of 9 counts of sexual offences including the 3 for which he was charged in 1998. The judge stayed the proceedings in respect of the 1998 charges on account of the letter. At the trial the prosecution was allowed to advance evidence which would have supported the stayed counts. The judge admitted the evidence as capable of establishing a propensity on the part of the appellant to commit the offences charged, within the meaning of Section 103(1) of the Criminal Justice Act 2003, so that the evidence was admissible through gateway (d) of Section 101(1). On appeal, it was held that the judge was correct. Scott Barker LJ in delivering the judgment of the Court stated – at paragraphs 77 and 78, adopting Lord Hughes’ reasoning in R v Zas follows:

“Therefore in the past evidence of previous acquittals were allowed, not to show that the defendant was guilty on those occasions, but to show by similar fact, his guilt for the offence for which he is being tried (R v Z). With the new regime such evidence is now admissible under the propensity gateway of Section 15 P(1) to show the propensity on the part of the defendant to commit offences of the kind with which he is charged.” (R v Smith)

R v Smith, decided after the coming into force of the CJA, paved the way for the admission of acquittals as evidence showing propensity under section 101 (d). By virtue of section 15 P (1) of the EAA we can now take the same approach as it applies to our jurisdiction.

In R v Boulton [2007] EWCA Crim 942 the defendant was convicted on several counts three of which included rape. The trial judge allowed evidence from a previous charge of rape in which the defendant was acquitted. It was accepted by the defendant that in light of the decision in R v Zthe evidence was admissible to show propensity although he was acquitted of that charge. In R v Ngyuen[2008] All ER (D) 267 (Mar)the defendant was charged with murder. He struck

the deceased to the side of the neck with a glass causing him to bleed profusely. The prosecution was granted leave to adduce bad character evidence to the effect that on a previous occasion the defendant had broken a glass and used it to cause injuries to three persons. The prosecution decided not to prosecute him for that previous incident. On appeal, the defendant contended that the trial judge was wrong to allow the evidence. It was held that the judge was far from plainly wrong and was entitled to decide that the previous incident was relevant to whether the defendant had a propensity to commit charges of the kind to which he was charged although he was never convicted of any offence in relation to that incident. In R v Taylor [2013] EWCA Crim 2398, although 30 years had passed since the original acquittals for sexual offences, evidence from those acquittals was admitted since it was significant in the later prosecution for sexual offences and murder and were supported by statements of the accused including an admission of one rape. The lapse of time did not provide an impediment to its admission.

The line of authorities beginning with R v Z(before the enforcement of the CJA) therefore suggests that evidence in previous trials which amounted to acquittals is not prohibited from being admissible and being used in later proceedings to establish propensity on the part of the defendant to commit offences of the kind of which he is charged. It would seem therefore that the double jeopardy principle so dearly guarded in the Sambasivan era is no longer “binding and conclusive” in all subsequent proceedings, and that the gateways opened up for the admission of bad character evidence by the CJA and by extension the EAA are very wide.

In considering whether to admit the evidence from the McIntosh trial under the propensity limb the judge guided himself by the tests laid down in Hanson. At page 53 of the proceedings of June 10^th, 2013 the judge asked himself the following questions:-
1. Did the proposed evidence have the capacity to establish propensity on the part of the appellant to commit offences of the kind charged?
2. If the answer to that question is in the affirmative, did that propensity make it more likely that he committed the offence charged?
3. If the answer is in the affirmative, would it be unjust to rely on the proposed evidence and in any event, would the proceedings be unfair if they were admitted?

The judge then proceeded to examine three sets of allegations, two of which resulted in convictions and one in an acquittal. The judge only admitted one, that is, the McIntosh case in respect of which he mentioned the following similarities:-
1. The victim, Lizann McIntosh was walking along a trace.
2. The appellant followed, dived on and choked her, indicative of an intention to at least cause grievous bodily harm.
3. He attempted to engage in non-consensual sexual activity, and said that he wanted to ‘break in her’ though he was pre-empted by a passer-by.
4. He threatened to kill her and said that he had a knife, demonstrating an intention to kill.

The judge found that the factual scenario was similar to that in the Taramatee case where on the prosecution’s account, the appellant, discharged on her abdomen. The judge went on to find that although the McIntosh case ended in a different way because of the intervention of a neighbour and the fact that the attack occurred in the course of an indecent assault and with an intent to rob, these did not deprive the evidence of its potential probative force. He found that the evidence was capable of establishing that the appellant had a tendency to commit acts of a sexual nature against women in lonely areas and those involved actions or words spoken, indicative of an intention to kill. The judge then decided that the evidence from the McIntosh case made it more likely that the defendant committed the offences charged. When considering the question of whether it would be unjust to rely on the proposed evidence, the judge noted that the prosecution case was strong. It comprised of interviews and confessions both oral and written and the judge concluded that it would not be unjust to rely on the proposed evidence.

We are therefore satisfied, that the evidence from the McIntosh case, though treated as a previous conviction when it later resulted in an acquittal, was still admissible under the propensity gateway be it an acquittal or a conviction. This

was after the judge in exercise of his discretion considered whether it would be unjust to admit it or that its admission would have such an adverse effect on the fairness of the proceedings and should be excluded. In the circumstances, the appellant has suffered no prejudice by way of its admission since the directions to the jury would have remained unchanged. The judge was careful to follow the Hanson guidelines as later revisited by Baker LJ in R v Edwards et al at paragraph 27 as follows:

“Our final general observation is that, in any case in which evidence of bad character is admitted to show propensity, whether to commit offences or to be untruthful, the judge in summing up should warn the jury clearly against placing undue reliance on previous convictions. Evidence of bad character cannot be used simply to bolster a weak case, or to prejudice the minds of a jury against a defendant. In particular, the jury should be directed; that they should not conclude that the defendant is guilty or untruthful merely because he has these convictions; that, although the convictions may show a propensity, this does not mean that he has committed this offence or been untruthful in this case; that whether they in fact show a propensity is for them to decide; that they must take into account what the defendant has said about his previous convictions; and that, although they are entitled, if they find propensity as shown, to take this into account when determining guilt, propensity is only one relevant factor and they must assess its significance in the light of all the evidence in the case…”

The judge obviously had these guiding principles in mind when he directed the jury as follows:

“Remember you are not trying the McIntosh matter, another jury found the defendant guilty for that matter already so please bear that in mind. Equally, you are not to be prejudiced in any way or affected in any way by that outcome. Don’t hold it against the defendant. That is not the purpose of the evidence. The allegation made by Ms. McIntosh led to a trial, the trial led to the defendant being found guilty and being sentenced. Do not allow that or the sentence in any way to prejudice you, that is not the purpose of the evidence, and it would be wholly and totally wrong for you to do that. The purpose of the evidence is to try to demonstrate to you only that the defendant has a certain character trait.”^[7]

We therefore find no merit in the appellant’s submissions.

Misconduct

Singh submitted that as an acquittal, the evidence would have been properly admissible not under the propensity gateway but rather as misconduct other than evidence which had to do with the alleged facts of the offence with which the appellant was charged consistent with the definition of bad character under section 15 K (1) of the EAA. In accordance with section 15 K (2) of the EAAmisconduct includes the commission of an offence or other reprehensible conduct.

Evidence of misconduct with respect to the facts of the offence with which the defendant was charged does not require a bad character direction. However, evidence of misconduct other than evidence of the offence charged requires a bad character direction. In determining what is meant by the commission of an offence we note firstly that the evidence may take the form of a previous conviction. It may also be the evidence for which the defendant had not previously been tried. This may occur where the defendant has a collection of similar offences for which he is charged. It may also be evidence that the defendant had committed an offence for which he has been acquitted. Where evidence falls short of conclusively establishing that a defendant has committed a particular offence this too is considered evidence of the commission of an offence (R v Anderson and Another – [2008] EWCA Crim 837). In R v Edwards (supra) the evidence which was sought to be admitted comprised three charges which were stayed as an abuse of process. On appeal it was noted that the judge rightly observed that this was a case of misconduct, but the pattern of the incidents were more importantly indicative of propensity rather than a single incident of misconduct. In that case the judge correctly admitted the evidence through the propensity gateway.

In the instant case we are also of the view that the judge was correct to have chosen the propensity gateway instead of misconduct route. If brought under misconduct the evidence would have made its way before the jury as a single incident. However, under the propensity limb the evidence was indicative of a pattern of behaviour displayed in the modus operandi of the appellant and demonstrated probative force in relation to the evidence. We therefore find no merit in this submission.

Credibility

Singh complained that the evidence from the McIntosh case was used to attack the appellant’s credibility before the jury and this caused him severe prejudice because the appellant was in fact acquitted of those charges. Mrs. Honore-Paul submitted in response, that even with McIntosh’s case being treated as a conviction, the appellant had no right to a good character direction in respect of his credibility.

The principal issue which arises for consideration is whether evidence admitted under section 15 P(1) dealing with propensity can also be used for the purposes of credibility that is, as evidence tending to show that the appellant was likely to be untruthful.

By section 15 N(1)evidence of a person’s bad character is admissible when he has made an attack on another person’s character. By section 15 N(3) the court shall not admit the evidence if it would result in having an adverse effect on the fairness of the proceedings. Even though the different gateways may have been created with distinct purposes in mind, there are two important cases. Once a defendant’s bad character has passed though one of them, the use which the court may make of it depends on the nature of the evidence not the gateway through which it was admitted. In R v Edward Paul Highton, Dong Van Nguyenand Anthony Mark Carp [2005] EWCA Crim 1985the court was faced with the exact question, except that it was in the reverse. The question for determination was whether evidence admitted under Section 101 (1)(a) of the CJA as a result of an attack by the defendant on another person’s character was admissible as evidence of propensity to commit offences of the kind with which he was charged, was confined only to his credibility. It was the first time since the coming into force of the CJA that the court was confronted with this issue. In delivering the judgment of the court, Lord Woolf CJ stated that Section 103(1) prefaces Section 103 (1)(a) and (b) with the word ‘include’ and he indicated that the matters in issue may extend beyond the two areas mentioned. The court also considered that the width of the definition in Section 98 of what constitutes evidence of bad character suggests that, whenever such evidence is admitted it must be for any purpose for which it is relevant in the case. He also referred to the fact that the law provides protection for the defendant at the stage of admissibility, in that if the evidence may cause unfairness then it would be unjust to admit it. At paragraph 10 he stated:

“We therefore conclude that a distinction must be drawn between the admissibility of evidence of bad character, which depends upon it getting through one of the gateways, and the use to which it may be put once it is admitted. The use to which it may be put depends upon the matters to which it is relevant rather than upon the gateway through which it was admitted. It is true that the reasoning that leads to the admission of evidence under gateway (d) may also determine the matters to which the evidence is relevant or primarily relevant once admitted. That is not true, however, of all the gateways. In the case of gateway (g), for example, admissibility depends on the defendant having made an attack on another person’s character, but once the evidence is admitted, it may, depending on the particular facts, be relevant not only to credibility but also to propensity to commit offences of the kind with which the defendant is charged.”

In R v Campbell (supra)which followed Highton the appellant’s previous convictions were admitted to show his propensity to commit violent acts against women. The judge directed the jury that they could take the appellant’s previous convictions into consideration when deciding his credibility. It was held that once evidence has been admitted through one of the gateways, it was open to the jury to attach significance to it in any respect in which it was relevant. The extent of such significance to be attached to the previous convictions was likely to depend

upon a number of variables such as number, similarity, how recently they occurred and the nature of the defence. In directing the jury as to the inferences to be drawn from bad character it is really unrealistic to draw a distinction between propensity to offend and credibility since if the jury learnt that a defendant had a propensity to commit criminal acts, they might well conclude that it was more likely that he was guilty and that he is less likely to be telling the truth when he said that he was not.

The other case emphasizes the need for the directions to the jury to be related to the gateway through which it was admitted. In R v Anthony Lascelles Lafayette[2008] EWCA Crim 3238 the defendant had volunteered evidence of his previous convictions. The court expressed the view that in such a case it was incumbent upon the judge to consider the purpose for which the jury could use this evidence. The court explained that there was a distinction to be made between considering the defendant’s bad character when deciding upon his credibility and using it as evidence of propensity. At paragraph 50 Hooper LJ stated:

“But it seems to us that the Act does require a distinction to be made between taking into account the defendant’s previous convictions/conduct when deciding whether to believe his account of what happened and using those previous convictions as evidence of propensity. If the previous convictions admitted under gateway (d) are previous offences of violence and if they are not admissible under gateway (g) to show propensity, then it may be better to direct the jury that they may be taken into account when deciding whether to believe the Defendant’s account that he was, for example, the object of a violent attack and thus entitled to defend himself.”

The court also expressed concern that while the evidence of bad character may be admitted under gateway (g) (attack on character) it will also be admissible under gateway (d) (propensity) and will entitle the judge to give a propensity direction. But, what if the evidence which is admissible under the credibility limb is not admissible on the propensity limb? At paragraph 49 Hooper LJ stated:

“In many cases at least some of the bad character evidence admitted under gateway (g) will also be admissible under gateway (d) and thus entitle the judge to give a propensity direction … What is the position today if the evidence which is admissible under gateway (g) is not admissible under gateway (d) to show propensity? For example, what should the judge say if the evidence under gateway (g) showed only previous convictions for offences of dishonesty and/or drugs offences and/or offences of violence, from any of which the jury would not be entitled to conclude that they showed on the part of the Defendant a propensity to commit the kind of offences with which he is charged? We think that the better course is for the direction to be so fashioned in a gateway (g) only case that the jury understand that the relevance of these kinds of previous convictions goes to credit and they should not consider that it shows a propensity to commit the offence they are considering, at least if there is a risk that they might do so. That is not to say that the words “credit” and “propensity” should be or need to be used.”

In R v Davis (Robert) [2009] 2 CR App R 17 the appellant had killed his long term girlfriend. He claimed that he had acted under provocation after she confessed to having an affair. The prosecution sought to introduce evidence under (c) and (d) of the CJA of a woman with whom the appellant had had a relationship to the effect that he had been jealous and violent. The judge did not admit the evidence under the propensity gateway but allowed it as important explanatory evidence so that the jury could properly understand the evidence of the appellant’s conduct towards his girlfriend. On appeal it was held that the judge erred in admitting the evidence as important explanatory evidence. Evidence of propensity should not slide in under the guise of important background evidence and evidence admitted as explanatory should not readily be used for the purpose of propensity. In admitting propensity evidence the law created certain safeguards which were absent in the area of explanatory evidence.

From these two approaches we are able to glean the following helpful guidelines:-
1. The use to which bad character evidence may be put depends on the matters to which it is relevant rather than the gateway through which it is admitted.
2. In the case of gateway (g) (credibility) once the evidence is admitted it may, depending on the particular facts of the case, be relevant not only to credibility but also propensity.
3. Care ought to be exercised in admitting evidence of credibility and using same to show propensity when the previous convictions are for completely different offences. Sometimes it may be difficult to draw a distinction between credit and propensity when the offences/conduct admissible under gateway (g) have similarities to the offence charged, but do not show propensity. The task of the trial judge will be to carefully weigh and evaluate the evidence in order to ascertain on which side, if any, the evidence falls.
4. If the defendant’s previous convictions admitted via gateway (g) were not similar enough to have been admitted as propensity evidence via gateway (d) the judge should direct the jury not to treat them as showing propensity.
5. Bad character evidence admitted under one gateway ought not to be readily used once admitted, for a purpose such as propensity, for which additional safeguards or different tests must first be satisfied. Important explanatory evidence ought not to be dressed up and slipped in as propensity evidence.
In the instant case, the judge entertained the prosecution’s application to have the evidence from the McIntosh case for purposes of both propensity and credibility. In respect of the credibility gateway, the judge suggested that the appellant was alleging that police officers, in particular Sgt. Griffith and Sgt. Phillip ‘made up’ or fabricated some of the evidence against him. The appellant contended that the police used general information which they had against him to construct the contents of the confession statements and that his signature was obtained by unfair and oppressive means. The evidence of the two justices of the peace was also in issue. Since the appellant had attacked the character of the prosecution witnesses, evidence of his bad character became admissible under section 15 N(1)(g) subject only to the judge’s duty to exclude it under Section

15 N(3) if the evidence would have an adverse effect on the fairness of the proceedings.

In the circumstances of this case, the fact that the appellant in the course of his defence cast serious implications on the prosecution witnesses, by accusing them of lying on him, it seemed only fair that the jury be exposed to the full picture of the appellant before them. In performing the balancing act in respect of both the prosecution case well as that of the defence, the judge was correct to admit the evidence in relation to the credibility of the appellant as an important issue for the jury’s determination. The evidence was relevant as to whether the police officers were being truthful. This, in our view did not adversely affect the fairness of the proceedings as it was only right and fair that the jury should know the character in the general and broad sense of the person by whom the imputations were being made.

With respect to Mr. Singh’s submission that in any event the admission of the evidence was unfair to the appellant because the appellant’s conviction was later quashed, we have already dealt with the fact that cases resulting in acquittals, can also be introduced as bad character evidence, in this case through the propensity gateway.

Admission through both the propensity and credibility gateways requires stringent tests. Under the credibility gateway there is protection for the appellant at the stage of admissibility in terms of section 15 N (3). If the admission of the evidence would have an adverse effect on the fairness of the proceedings then the court ought not to admit it. By reference to section 15 P (3) if the court is satisfied by reason of the length of time before the conviction or for any other reason it would be unjust to admit the convictions then the court ought not to admit it.

In R v Highton Lord Woolf CJ at paragraph 12 observed that:

“there is a very close relationship between the requirement of fairness and the general requirement of the rules of evidence that, unless evidence is relevant, it should not be admitted.”

We are therefore satisfied that the evidence from the McIntosh case was relevant to the issues before the court, in the instant case in so far as the credibility of the appellant was concerned.

The instant case can be distinguished from R v Davis (Robert). In that case the gateways involved were (c) important explanatory evidence and (d) that of propensity. The impugned evidence was disguised as important explanatory evidence, when in fact, it introduced previous convictions relative to propensity before the jury. In the instant matter, no such dress rehearsal took place. The prosecution sought to introduce the evidence for use in respect of both propensity and credibility. There was no attempt to mislead or deceive the appellant as to the purposes for which it was admitted.

In Lafayette the discussion centered around whether a person’s conviction in 1985 for wounding with intent and possession of a sawn-off shotgun and a 2003 incident involving a domestic dispute were relevant to the charge of murder for which the defendant was before the court. In the instant case, no such discussion is necessary, albeit the McIntosh case was a case of indecent assault and assault with intent to rob and the instant cases are concerned with the offence of murder. The important factor relied upon in the McIntosh case as already pointed out was the appellant’s modus operandi with respect to the execution of crimes against women. We are satisfied that the use to which the evidence from the McIntosh case was put was more important than the gateway through which it was admitted. It was relevant to both credibility and propensity. Having admitted the evidence, the duty of the judge was to assist the jury as to its relevance tailored to the facts of the case. “Relevance can normally be deduced by the application of common sense. The summing up that assists the jury with the relevance of bad character evidence will accord with common sense and assist them to avoid prejudice that is at odds with this.” (R v Campbell)^[8].

The judge carefully directed the jury that they were entitled to take the appellant’s previous convictions into account in determining what weight to

attach to the appellant’s accusation made towards the prosecution witnesses.

In our view these directions were unassailable.

Identification

ID Parade

Singh submitted that the prejudice caused by the appellant was heightened by the fact that his appeal was allowed on the basis that the ID Parade was unfair. The admission of the evidence therefore had the effect of leading to convictions on a wrong factual basis.

We disagree. We have already pointed out, that the evidence of the McIntosh case whether admitted as a conviction against the appellant or as an acquittal, was still capable of being admitted to prove propensity to commit the offences alleged. Therefore, although the convictions were admitted on a wrong factual basis it made no difference. The evidence therefore did not have the effect of leading to the convictions. In any event, the judge made it clear to the jury throughout, that if they accepted the evidence from the McIntosh case it could not by itself prove the appellant’s guilt on the two offences on which he was being tried and that they should not find him guilty mainly because of that evidence. He made it clear on several occasions that this was only a bit of the evidence not all of the evidence and that their verdict should reflect a consideration of all the evidence. ^[9]

The judge adopted an extreme measure of caution in order to guard against prejudice. He did so by putting all the relevant evidence in the McIntosh matter before the jury and by giving them the opportunity to consider it themselves. The judge painfully took the jury through the evidence in the McIntosh case. He pointed out the procedure to be adopted on an identification parade; told the jury of the purpose of an ID parade; and emphasized the need for the parade to be fairly constituted. In particular, the jury was invited to consider whether the ID Parade was fair. He instructed them that if they were to find that it was not, they ought to reject it, in which case McIntosh’s evidence would have stood alone and

would have been of limited weight. The judge fairly put the case for the defence concerning the identification parade. He stated :

“If you conclude that the ID Parade in the Lizann McIntosh matter is or may have been unfair, you must reject the evidence of the ID Parade, and if you reject the evidence of the ID Parade then the evidence of Lizann McIntosh’s visual identification of her alleged assailant stands alone and it may be of very limited weight, and if you reject the ID Parade then it would be open to you to in turn reject Lizann McIntosh’s evidence on the narrow issue of visual identification. These directions only relate to identification. So if you say the ID Parade was or may have been unfair, then you reject the ID Parade. If you reject the ID Parade it would in turn mean that you could attach very limited and narrow weight to the visual identification of Lizann Mc Intosh which you would then not be able to act on it.”^[10]

Therefore these submissions are without merit.

Caution

In respect of Mr. Singh’s second submission that the judge is required to direct the jury that increased caution was necessary in respect of the identification evidence in the McIntosh case we note that the judge instructed the jury to exercise caution throughout. At page 59 the judge said:

“the purpose of this evidence is not to generate prejudice against the defendant and you must most meticulously and carefully guard against that. If you accept the evidence on this issue it cannot by itself prove the defendant’s guilt of the two offences for which you are trying him, and you should not find him guilty just because or mainly because of this evidence.”¹²

At page 61 the judge told the jury

“Please remember, Jurors, that you are not trying the Lizann McIntosh matter, you are trying the two offences of Murder. Another jury found the defendant guilty, last year, for the Lizann McIntosh allegation. You are evaluating its quality to determine if you are sure it meets all the criteria in law that I am now setting out to you, to enable you to probably or possibly place some reliance on it, if you are sure of it.”^[11]

The judge also told the jury about the need to look at visual identification evidence carefully and cautiously, and the reason the law required that the identification parade be fairly conducted.^[12]There are other instances in which the judge admonished the jury in similar terms.^[13] Although the judge did not use the word “caution” throughout we are satisfied that he did more than that. He pointed to the relevance of the evidence, and the purpose for which it was being used. This approach in our view took the jury along the correct path in making sure that no prejudice accrued to the appellant.

Weakness in the Identification Evidence

72.In respect of the submission that the judge did not point out the weaknesses in the identification evidence to the jury we find that he did. In the summing up of 6^th November 2013 page 68, the judge stated as follows:

“the defence says that the visual identification evidence of Ms. McIntosh is not strong. The defence says that it is implausible on the face it that Ms. McIntosh, would struggle with her assailant as much as she says but yet be able to have the opportunity to accurately observe the assailant’s features”^[14]

Another important feature of the identification evidence in the McIntosh case which the judge addressed is that of the identification parade. The judge stated: One, the height of the head hair of the men were [was] different; not all men on the parade were Indianish, four men were; that the men had

different clothing, and it was suggested that the only one who opened his mouth was the defendant and not all the men on the parade as alleged by Inspector Khan. For all of these reasons the defence is saying that the

ID Parade is unfair”^[15]

The judge assisted the jury by pointing out the features of the parade which tended to make it unfair. Although he did not use the word weakness, we are satisfied that the effect of what he did brought the jury’s attention into focus on the inadequacies of the evidence of the identification parade.

The judge directed the jury that McIntosh’s continuous struggle with her assailant, may have made it impossible for her to accurately observe his features. Pursuant to the guidelines in the case set out in R v Turnbull^[16],the judge was required to specifically point the jury to the weaknesses in the identification evidence. It would certainly have been ideal for the trial judge to specifically tell the jury that these were weaknesses in the identification evidence. We however, do not think that the omission was fatal because the judge drew the jury’s attention to the relevant evidence. This amounted to a direction pointing to a “weakness” in the identification evidence in the case although the judge did not actually use the word “weakness”.

Abnormal Propensity

In relation to Mr. Singh’s submission that abnormal propensity is a means of identification and that in the McIntosh case the evidence demonstrated such abnormal propensity on the part of the appellant and this identified him as the person responsible for the murders, though there was no direct evidence against him, Mr. Singh again relied on the case of Straffen and In both these cases evidence was admitted establishing the identity of the murderers. As already discussed under the EAA thepropensity gateway is now wide open for evidence which has the capacity to establish propensity on the part of the defendant to commit offences of the kind charged subject to the security checkpoint if it would be unjust to rely upon it. It was under this gateway that the evidence was properly admitted.

There was direct identification evidence against the appellant. He gave both oral and written confessions (which he denied) in respect of both murders. He also took the police to the respective scenes of the murders and pointed out the bodies of the deceased (which he denied). Therefore, while there was no identification parade or identifying witnesses in this case, the other evidence linking the appellant to the crime came directly from him. If the jury rejected the evidence of the McIntosh case as lacking probative force then it was open to them to consider the appellant’s admissions, and if accepted, was sufficient to find him guilty. We therefore find no merit in this ground of appeal.

Prejudice

In our opinion the admission of the evidence in the McIntosh case did not prejudice the case for the appellant. The judge correctly directed himself on the question of fairness and admonished the jury on several occasions that it ought not to stir up prejudice against the appellant. He warned them to most meticulously and carefully guard against that and repeatedly told them that this was only one bit of evidence in the entire case.

We remind ourselves that jurors are members of our community who must be credited with good sense. The criminal justice system depends on them. Without their participation the entire system is likely to come to a crawling halt. These are sensible men and women who bring to the deliberations their knowledge and appreciation of our society, its commonalities as well as its peculiarities. Therefore we must trust that when directions are given by the judge to the jurors they are in a position to both understand and faithfully apply those directions. In the recent Canadian case of R v Robert David Bradshaw [2017] SCC 35 Moldaver J at paragraph 180 expressed similar sentiments in the following terms:

“it is not the role of this Court to second guess the trial judge’s reasonably exercised judgment from a position far removed from the trial setting. Doing so betrays both the deference owed to trial judges and the trust and confidence placed in juries to follow instructions and use their common sense and reason to evaluate evidence.”

The judge gave careful and detailed instructions to the jury as to the use of the evidence in the McIntosh case, putting it in the context of both the case for the prosecution as well as for the defence. There was nothing to suggest that the jury did not understand or followed those often repeated instructions. We must trust juries to use their common sense in sifting the evidence and following the guidance offered by the trial judge. In our view the judge left no room for the jury’s mind to become tainted.

We are therefore fortified in our view that the introduction of the evidence from the McIntosh matter as a previous conviction when in fact the appellant was later acquitted for the offence did not cause him any prejudice. The evidence was relevant and the purpose of introducing it was not to punish him for a crime for which he was acquitted but to prove his guilt in respect of the two murders for which he was not before the court in the previous trial. This ground of appeal therefore fails.

This is sufficient to dispose of the appeal. Although the appellant’s convictions were set aside by the Court of Appeal in the McIntosh case we are of the view that the evidence was rightly admitted, that the judge gave proper directions to the jury, and that the convictions were lawful. In any event, the prosecution case was overwhelmingly strong. Nonetheless, in the event that the evidence was inadmissible (which we do not say that it was), we turn now to consider whether the conviction would be safe in those circumstances.

Safety of the Conviction

The power of the Court of Appeal to set aside a criminal conviction in a criminal appeal from the High Court is based on section44(1)of theSupreme Court of Judicature Act 4:01. The section reads:

44. (1) The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision on any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.

81. Singh submitted that the convictions ought to be vacated because an injustice occurred. Having regard to the fresh evidence of the appellant’s acquittal by the Court of Appeal the convictions are now unsafe. The State pursued the bad character evidence against the appellant on the basis that the convictions existed when in fact they did not. This resulted in serious prejudice to the appellant and therefore his convictions in the instant matter have resulted in unsafe convictions.

Honore-Paul, on the other hand submitted, that no miscarriage of justice occurred. Even if the evidence of the McIntosh case was wrongly admitted (which they do not say that it was), the case against the appellant was particularly strong. In any event this was only one item of circumstantial evidence amidst other evidence inclusive of other circumstantial evidence and evidence of special knowledge, the totality of which supported the convictions. In the circumstances the proviso ought to be applied.

In Strafford (Giselle) and Carter (Dave) v The State (1998) 53 WIR 417 (P.C.) the Privy Council considered the test to be used when applying the proviso pursuant to section 44(1) of the Supreme Court of Judicature Act, Trinidad and Tobago. At pages 422 to 423, Lord Hope stated:

“The test which must be applied to the application of the proviso is whether, if the jury had been properly directed, they would inevitably have come to the same conclusion upon a review of all the evidence”. The court referred to the case of Stirland v Director of Public Prosecutions [1944] AC 315and explained at page 423 that:

“where the verdict is criticised on the ground that the jury were permitted to consider inadmissible evidence, the question is whether no reasonable jury, after a proper summing-up, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken on the ground of its inadmissibility. Where the verdict is criticised on the ground of a misdirection, such as that in the present case, and no question has been raised about the admission of inadmissible evidence, the application of the proviso will depend upon an examination of the whole of the facts which were before the jury in the evidence.”

Lord Hope continued to explain that what was required was:

“…a fair evaluation of the evidence on both sides. But the jury’s verdict may show that they must have rejected the defendant’s evidence. In such a case his version may properly be left out of account. The application of the proviso will then depend upon the strength of the evidence against the defendant in the prosecution case.” [Emphasis Added]

In Solomon v The State (1999) 57 WIR 432, the Court of Appeal had to decide exactly what they needed to be satisfied about in order to quash the conviction in light of the new evidence. De la Bastide CJ pointed out that the test in relation to whether the conviction was unsafe is not any different in substance between that prescribed by the statutory provisions in the United Kingdom and this jurisdiction. The appellant must show that there was a reasonable prospect that if the irregularity had not occurred, that the jury would have acquitted him or found him guilty of a lesser offence.

In Dookran and Another v The State (2007) UKPC 15 Lord Roger in delivering the judgment of the Board stated at paragraph 28:

Although reference to lurking doubt has been criticised from time to time as an unwarranted gloss on the language of the statute regulating appeal proceedings in England and Wales, it is really just one way in which an appeal court addresses the fundamental question: Is the conviction safe? In the vast majority of cases the answer to that question will be found simply by considering whether the rules of procedure and the rules of law, including the rules on the admissibility of evidence, have been applied properly. Very exceptionally, however, even where the rules have been properly applied, on the basis of the “general feel of the case as the Court experiences it”, there may remain a lurking doubt in the minds of the appellate judges which makes them wonder whether justice has been done:”

The Board concluded that they could not avoid a feeling of unease about whether justice had been done and allowed the appeal.

In Lundy v R [2013] UKPC 28, the appellant had been accused of brutally murdering his wife and daughter. On the day of the murder the appellant had been away on a business trip and had stayed at a motel in an area approximately 140km away from the family home.The prosecution case was that the appellant had murdered his wife and daughter around 7pm. To do that he would have had to complete a round trip from where he was staying and commit the murders in the space of 2 hours and 58 minutes. The prosecution’s case depended upon the deduction of time of death in relation to the deceased’s stomach contents. Further evidence relied on by the prosecution included central nervous system (CNS) tissue from the wife which was found on a polo shirt belonging to the appellant and evidence of a computer expert in relation to the fact that the computer in the family’s home had apparently been turned off at 10.52pm on 29 August. Such evidence was to the effect that it was possible to manipulate the computer so as to give the appearance of the computer having been shut down at a different time from when it had actually been shut down. The appellant was convicted of the murders and his appeal to the Court of Appeal was dismissed.

On appeal to the Privy Council the appellant submitted that there was fresh evidence available which raised questions about the validity of some of the prosecution’s evidence. Consideration was given, amongst other things, to s 385(1)(c) of the Crimes (New Zealand) Act 1961 and to the proviso contained in that subsection (the proviso) which is in similar terms to our jurisdiction. The appeal was allowed. The Board stated that the proper test to be applied by an appellate court in deciding whether a verdict is unsafe or a miscarriage of justice has occurred, where new evidence has been presented, is whether that evidence might reasonably have led to an acquittal.

In R v Cassell [2016] UKPC 19, the appellants were convicted of counts of conspiracy to defraud, procuring the execution of valuable securities by deception, and money laundering. The Court of Appeal of the Eastern Caribbean Supreme Court dismissed their appeals, except for that relating to money laundering. The appellants appealed to the Privy Council. Their central argument was that the judge’s summing up had not presented the core issue of dishonesty to the jury and, that the judge had effectively told the jury what conclusions to arrive at. The Court reasoned that the test for whether a miscarriage of justice has actually occurred was not simply whether the appellate court itself was persuaded of guilt, although such a consideration is necessary, but rather whether the appellate court was further satisfied that a jury acting properly must inevitably have convicted the defendant if the flaw(s) in the proceedings had not occurred.

The lurking doubt test stated in Dookran is not materially different from the tests as stated in Cassell or Strafford. The Board noted that the “lurking doubt” test was one way an appellate Court could ask the fundamental question of whether the conviction was safe and that there might be an occasion where even though all the “rules” may have been followed there still remains an unease in the mind of the Court as to whether the conviction was safe.

Applying the test as set out above,the question for us therefore is, if the evidence from the McIntosh case was inadmissible to show propensity would the jury have failed to convict the appellant on the rest of the evidence to which no objection could have been taken?

Upon examination of the evidence we note that the case for the prosecution was strong and adopt the particulars as pointed out by Mrs. Honore-Paul as follows:

The prosecution’s case at trial consisted mainly of confession statements and oral utterances which the appellant denied. The bad character propensity evidence of Lizann McIntosh was only one item of circumstantial evidence within a plethora of circumstantial evidence and evidence of “special knowledge”. While it is good law that an admission by itself can lead to a conviction the totality of circumstantial evidence gave support to the admissions and made the case for the Prosecution particularly strong. In that regard the Court may note the following:

On 19^thApril 2005, at 8:15 pm during an interview with Homicide Officers Dhilpaul and Griffith, the Appellant admitted killing Taramatee Toolsie. The notes of interview were signed by the appellant and subsequently authenticated by JP Dexter Soodeen.
On the 20^th April, 2005, at 12:55 pm the appellant directed the police officers to the area where he killed Taramatee Toolsie, his mother was present. At 4:55 pm the appellant gave a statement under caution admitting the murder.
He and his mother signed the statement. The J.P. King was present during the recording. In that statement he was asked what Taramatie Toolsie was wearing and he mentioned that she was wearing a bra. When her body was recovered she had on a red top which was what the police officers described. The only other person who spoke of seeing the bra was the pathologist who performed the post mortem examination. This was an aspect of “special knowledge” which added support to the fact that it was the appellant who gave the statement.
On the 22^nd April, 2005, the appellant asked to speak to Officer Dhilpaul. At 12:30pm on that day, in an interview with Officers Dhilpaul and Griffith, the appellant admitted raping and strangling Pixie Lakhan with a belt. At that time she was still missing. J.P. Soodeen authenticated these notes and Crystal Seerattan, the appellant’s cousin, also signed the notes.
On 22^nd April, 2005, in the presence of the police, the appellant told his brother that he had killed Taramatee Toolsie and Pixie Lakhan. An entry was made of this admission in the station diary and it was signed by the appellant and his brother Carlton Seerattan, in keeping with the guidelines given in Frankie Boodram.
On 22^nd April at 2:50pm, the appellant took the police to the place where he left Pixie Lakhan’s body and showed them the areas where he attacked and killed her. The remains of her body were found where the appellant directed the police. His brother was present. He pointed out the belt that he mentioned before. This aspect of special knowledge was compelling. The visit to the crime scene and the admissions made there were embodied in a statement under caution which the appellant gave in the presence of J.P. Soodeen and Crystal Seerattan at 8:00pm on the 22^nd April, 2005. The fact that the body was found only after the appellant directed the police to it, was a spectacular item of “special knowledge”.
On that same night, the appellant confirmed to Insp. Wells that he gave the statement to Officer Dhilpaul.
During the period the appellant was in custody, there is a plethora of evidence (supported by entries) which gave support to the fact that he was fairly treated by the police. The signatures by members of his family on these documents provide strong evidence that the statements not only came from him but they were voluntary.
Apart from the above admissions and evidence of special knowledge, there are other items of circumstantial evidence which lend support to the evidence.

(a) The written statements (which the appellant did not deny at trial) confirmed his familiarity with the area in which the murders took place.

(b) On the morning of the murder of Taramatee Toolsie, i.e. 15^thApril, 2005, at “half five, minutes to six” Khimdath Dookie saw a curly headed man walking behind Taramatee Toolsie. He said the man

had a knapsack. He only saw the back of the man but in general the description fits the appellant. The appellant said the attack took place at “minutes to six” in the morning. While at La Brea Trace, the appellant also said “I see the Indian lady walking down and wey she pass me ah follow she”.

(c) Anindra Samlal saw Paul Vincent at 7:15 on the same morning. He said that the appellant was trembling and had scratches. Dr. Bhimsingh examined the appellant on 19^th April at approximately 4:45pm and subsequently opined that his scratches were consistent with a struggle. Dr. Bhimsingh also indicated that the scratches were approximately 72 hours old.

(d) Lindon Vialva saw the appellant between 8:00 and 9:00am on the 15^th April, 2005. The appellant was dirty and bloody. He observed injuries. This is consistent with the appellant’s description of struggling and falling during his attack on Taramatee Toolsie. Lindon Vialva also indicated that the appellant left a black knapsack at his home on that morning.

(e) Leslie Ann Bowen saw the appellant on the afternoon of the 15^th April, 2005, at her workplace. She described him as being dirty and injured.

In our view, the evidence (apart from the McIntosh evidence) was overwhelmingly strong. We are satisfied of the appellant’s guilt and are certain that a properly directed jury would have arrived at the same conclusion. There is no unease or “lurking doubt” in our minds as to whether there has been a miscarriage of justice and we are prepared to let the convictions stand. We therefore find no merit in this ground of appeal and hold that the appellant’s convictions have not been rendered unsafe in light of his acquittal in the McIntosh case.

Disposition

The appeal is dismissed and the convictions and sentences are affirmed.

Dated the 24^th day of July, 2017.

__________________________

Yorke-Soo Hon

Justice of Appeal

_________________________

Bereaux

Justice of Appeal

_________________________

Moosai

Justice of Appeal

[1]See the evidence of Lizann McIntosh at page 29 of the Transcript of Proceedings dated 20^th September 2013. ² Ibid at page 30

[2] Ibid

[3] Statement marked SD 2

[4] Statement admitted as SD 4

[5]Maxwell v DPP 1934 A.C. 309, 317.

[6] R v Campbell 2007 2 Cr App R 28

[7] Transcript of Proceedings dated 7^th November 2013 at page 9 lines 25- 38.

[8] R v Campbell – [2007] EWCA Crim 1472 at paragraph 24

[9] Transcript of Proceedings dated 6^th November, 2013 at page 59, 60

[10] Transcript of Proceedings dated 7^th November 2013 at pages 6 and 7 lines 37-50 and lines 1-2. ¹² Transcript of Proceedings 6^th November 2013 at page 59 lines 39-46

[11] Transcript of Proceedings dated 6^th November 2013 at page 61 lines 16-24

[12] Transcript of Proceedings dated 7^th November 2013 at page 6 lines 28-32

[13] Transcript of Proceedings dated 6^th November 2013 lines 12-13 and Transcript of Proceedings dated 7^th November 2013, lines 12-25.

[14] Transcript of Proceedings dated 6^th November 2013 at page 68 lines 26-32

[15] Transcript of proceedings dated 6^th of November 2013 at page 69, lines 20-27.

[16] [1977] QB 224

SEERATTAN v STATE

REPUBLIC OF TRINIDAD AND TOBAGO

COUNT ONE

COUNT TWO

Propensity

Use of Acquittal to Show Propensity

Misconduct

Credibility

Identification

Prejudice

Safety of the Conviction

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