II CRIMINAL BENCH BOOK © Judicial Education Institute of Trinidad and Tobago, 2015 All rights reserved. Except for use in review, no part of this publication may be reproduced or transmitted in any form or by any means, electronic or me- chanical, including photocopy, recording, any information storage or retrieval system, or on the internet, without permission in writing from the publishers. Design and Artwork: Paria Publishing Company Limited Typeset in Scala Printed by The Office Authority ISBN 978-976-8255-20-4 (printed book) ISBN 978-976-8255-21-1 (e-book) 2015 SUPREME COURT OF JUDICATURE OF TRINIDAD AND TOBAGO CRIMINAL BENCH BOOK III THE BOARD OF THE JUDICIAL EDUCATION INSTITUTE OF TRINIDAD AND TOBAGO (2015) The Honourable The Chief Justice, Mr Justice Ivor Archie, ORTT— President The Honourable Mr Justice Peter Jamadar, JA— Chairman Justice Roger Hamel-Smith (Ret.)— Programme Director The Honourable Mme Justice Alice Yorke-Soo Hon, JA The Honourable Mme Justice Charmaine Pemberton The Honourable Mme Justice Carla Brown-Antoine The Honourable Mme Justice Andrea Smart Chief Magistrate Her Worship Mrs Marcia Ayers-Caesar Her Worship Magistrate Ms Avason Quinlan Ms Jade Rodriguez— Registrar of the High Court Ms Michelle Austin— Court Executive Administrator Ms Carol Ford-Nunes— Director of Court Library Services Mr Kent Jardine— Judicial Educator Mrs Samantha Forde— Coordinator, JEITT THE BENCH BOOK COMMITTEE The Honourable Mme Justice Alice Yorke-Soo Hon, JA— Chairperson The Honourable Mr Justice Mark Mohammed, JA— Co-Chairperson Ms Kelsea Mahabir— Publications and Research Specialist, JEITT Mr Jason Radhay— IT Specialist (Ag), JEITT Mr Russell Campbell— Judicial Research Assistant Ms Charlene Williams— Judicial Research Assistant Ms Kamla Braithwaite— Judicial Research Assistant Ms Trisha Dassrath— Judicial Research Officer SUPREME COURT OF JUDICATURE OF TRINIDAD AND TOBAGO 2015 IV CRIMINAL BENCH BOOK 2015 SUPREME COURT OF JUDICATURE OF TRINIDAD AND TOBAGO CRIMINAL BENCH BOOK V Foreword The mission of the Judicial Education Institute of Trinidad and Tobago (JEITT) is: to promote excellence in the administration of justice in the Republic of Trin- idad and Tobago through continuous training and development of judges, other judicial officers and non-judicial staff attached to the Judiciary. Publications are an essential part of the mission of the JEITT, as they promote research and serve as aids to the discharge of the judicial function. This publi- cation of a Criminal Bench Book is one such initiative. The need for a Criminal Bench Book has long been recognised by the Board of the JEITT as a necessary and relevant publication. It has the blessing of the President of the Board, The Honourable Chief Justice, Mr Ivor Archie ORTT, and the unanimous support of all Board members. Indeed, it is considered a milestone in the unfolding history of the JEITT. Most notably, this Criminal Bench Book is the first e-publication of the JEITT and serves as a watershed moment in its approach to publications in the 21st century. Consistent with the imperative of access to justice for all, this publication (in its electronic version) will be available to the general profession and public at no cost. All that is required is for an interested person to visit http://www.ttlawcourts.org/jeibooks and click ‘Get this title’ to download the Criminal Bench Book in PDF format. Thus, critical information relating to the norms for conducting a fair and just criminal trial are now, for the first time in Trinidad and Tobago, readily avail- able to anyone who is interested in discovering what these may be. The im- plications are enormous. Not only will every judge have immediate access to the relevant law and procedure, but so too will every lawyer and citizen. This promotes transparency, accountability and consistency in the criminal justice system and removes some of the veils of secrecy so often associated with legal processes. In this way, the constitutional and juridical values of equality and fairness are advanced. It is also worth stating that this publication will assist the media, watchdogs of our democracy, in their scrutiny, analysis of, and com- mentaries on proceedings in the criminal jurisdiction. Finally, for those inter- ested in research, it will serve as an invaluable resource. No publication of this kind is possible without the dedication and efforts of many persons. The President and Board of the JEITT are deeply grateful to SUPREME COURT OF JUDICATURE OF TRINIDAD AND TOBAGO 2015 VI CRIMINAL BENCH BOOK the following persons, without whom this Criminal Bench Book would simply not be available. First, to the Chairperson of the Bench Book Committee, Mme Justice A Yorke-Soo Hon JA, and her Co-Chair, Mr Justice M Mohammed JA, together with their Judicial Research Assistants, Mr R Campbell and Ms C Williams for their careful and thorough research and compilation of the rele- vant materials and writing of the drafts for publication. It has been a long and sometimes challenging journey, but they persevered resolutely, and for that we are deeply grateful. Further thanks go to the judges of the Criminal Bench of Trinidad and Tobago for their participation, enthusiasm and contributions. Next, to the publications and research staff at the JEITT, Ms K Mahabir, Ms K Braithwaite and Ms T Dassrath, together with the JEITT’s 2015 Interns Mr E Elahie and Ms F Primus, who painstakingly and with a vision for excellence, supplemented the research and writing as well as proofread the text and ren- dered the layout, to ensure that this publication was clear, coherent and acces- sible. The e-version of this publication is the result of the insightful and creative work of the JEITT’s IT Specialist (Ag), Mr J Radhay and the Judiciary’s Internet/ Intranet Support Officer Mr S Ajodha. For this we are especially thankful. It is hoped that the e-version of the Criminal Bench Book will be user-friendly and easy to navigate. Finally, we acknowledge the willingness of our producers, Paria Publishing, to work patiently with the JEITT to ensure that this publica- tion meets the standards of professionalism appropriate for one such as this. Mr Justice P Jamadar JA Chairman, Board of Directors, JEITT 7th September 2015 2015 SUPREME COURT OF JUDICATURE OF TRINIDAD AND TOBAGO CRIMINAL BENCH BOOK VII Preface Trial by jury is a distinctive feature of the Criminal Justice System in Trinidad and Tobago and a cornerstone of our constitutional democracy. Throughout the years, the judges of the Criminal Bench have steadfastly risen to the chal- lenge of providing jurors with accurate legal directions tailored to the facts of each case. The proper administration of justice calls for judicial ingenuity in crafting summations which are precise, legally sound, and above all else, capa- ble of assisting the jury in the performance of their duty. Managing the increased volume of cases coming before the criminal assizes adds further burden to the weighty responsibility of the judicial office. Judges must continue to provide clear and concise directions of law in a climate of heightened public scrutiny, reduced trial timelines, voluminous lists, legisla- tion that is constantly developing, and new judicial precedents. These challeng- es are compounded by the worrying trend of appeals grounded solely upon the inadequacy of trial directions. The Trinidad and Tobago Criminal Bench Book will serve as a tool of trade for judges and is comprised of guidelines, commentary and specimen directions that are all intended to be a point of reference when preparing to address a jury. It is our hope that this book will clarify complex areas of law which present difficulty to judges and jurors alike. As an evolving text, the Bench Book is a contemporary statement of law and will adapt over time to reflect new devel- opments. The Crown Court Bench Books of the United Kingdom have traditionally set the standard for crafting legal directions. This Criminal Bench Book derives some of its content from these Bench Books which are already frequently uti- lised by our judges and are therefore both tested and familiar. We particularly wish to thank Lord Justice Pitchford, Professor David Ormerod QC and the Judicial College of England and Wales for allowing us to incorporate material from the United Kingdom Judicial Studies Board Crown Court Bench Book— Directing the Jury (March 2010) into our resource. These resources supple- ment our Criminal Bench Book, which is also made up of material submitted by the judges of the Criminal Bench. As this Criminal Bench Book develops we hope that there will be a shift towards a homogeneous text that is distinctly native to Trinidad and Tobago. Mme Justice A Yorke-Soo Hon, JA Chairperson, Bench Book Committee Mr Justice Mark Mohammed, JA Co-Chairperson, Bench Book Committee SUPREME COURT OF JUDICATURE OF TRINIDAD AND TOBAGO 2015 VIII CRIMINAL BENCH BOOK 2015 SUPREME COURT OF JUDICATURE OF TRINIDAD AND TOBAGO CRIMINAL BENCH BOOK IX Contents Foreword V Preface VII Table of Cases XII Table of Statutes XXI Summing-Up Checklist XXIII Introduction XXV Chapter 1— Guidelines 1 1. Structure of a Summing-Up 1 2. Summing-Up Checklist 4 Chapter 2— Fitness to Plead 5 Chapter 3— Preliminary Directions of Law 8 1. Burden and Standard of Proof 8 2. Specimen Counts 10 3. Trial in the Absence of The Accused 13 4. Trial of One Accused in the Absence of Another 18 5. Delay 20 Chapter 4— Causation 24 Chapter 5— Intention 40 1. Intention 40 2. Intention Formed in Drink or Under the Influence of Drugs 42 3. Recklessness 45 Chapter 6— Criminal Attempts 46 Chapter 7— Conspiracy 49 Chapter 8— Joint Enterprise 55 1. Participation (Simple Joint Enterprise) 63 2. Accused Not Present Assisting Another to Commit the Offence 67 3.