Ruling on No Case Submission

TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CR 00085 of 2006

Between

THE STATE

and

VAUGHN IAN RYAN SMITH RAYMOND MOSES Applicants

Before the Honourable Mr. Justice HOLDIP

Ruling on No Case Submission

Appearances:

Mr. Jeron John Joseph for the State

Mr. Evans Welch for Accused No. 01 Miss Amanda La Caille

Mr. Mervyn Mitchell for Accused No. 02

DATED: May 19 th 2011

At the end of the Prosecution's case, both Counsel for the Accused made submissions of no-case, that the Court ought not to call upon the Accused persons to answer as it relates, first of all, to Accused No. 1, that the evidence that had been presented by the State had become manifestly unreliable as a result of the cross-examination which highlighted several inconsistencies and contradictions in the evidence of the principal witnesses to wit Corporal Wight, Sergeant Abraham and Inspector Thomas. With respect to Accused No. 2, it was a similar ground, but slightly different on the basis that the only evidence linking the Accused No. 2 to the offence as charged was the purported oral statement that had been made by Accused No. 2, and from the very beginning, Counsel for Accused No. 2 had been submitting that the oral utterance was insufficient to link the Accused to the offence of murder.

In fact, the very basis of his submission was that it did not amount to an admission or to confession of guilt when one looked at the circumstances of the State's case as to how death would have occurred, and when one looks at the statement of Accused No. 1, that there are dire contradictions within those two circumstances. And when one puts the statement of Accused No. 2 next to those two particular sets of circumstances, there is no nexus whatsoever. And so, there is insufficiency of evidence which would allow, the Accused to be called upon to plead.

Now, in deciding whether to dismiss an information at the close of the Prosecution's case, upon a submission of no case to answer, the test to be applied is whether there is evidence which, if accepted, would provide evidence of each element of the charge. Even if there is such evidence, it may be so lacking in weight and reliability that it is open to the Court as a matter of discretion to dismiss the information.

The proper approach to take is discussed in the R v. Galbraith , 1981 , at page 1039, or I W.I.R 1039 at page 1060. The ratio in 2 All ER 1060 may be stated simply under two headings: (1) “If there is no evidence that a crime alleged has been committed by the Defendant, there is no difficulty. The Judge will stop the case.

(2) The difficulty arises where there is some evidence, but it is of a tenuous character, for example, because of inherent weakness or vagueness, or because it is inconsistent with some other evidence.

(2)(a)goes on to state, where the Judge concluded that the Prosecution's evidence, taken at its highest, is such that a Jury, properly directed, could not properly

2 convict on it, it is his duty, on a submission being made, to stop the case.

(e)Where, however, the Prosecution's evidence is such that its strength or weakness depends on the view to be taken of a witness' reliability or other matters which are, generally speaking, within the Jury's province, and where on one possible view of the facts, there is evidence on which the Jury could properly conclude that the Defendant is guilty, then the Judge should allow the matter to be tried by the Jury. There will, of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the Judge”.

This principle had been further applied in the case of Doney v. The Queen , 1990, 171 Commonwealth Law Reports at page 207, or '96 Australian Law Reports at page 539, where the High Court said, at page 214 to 215: "It follows that if there is evidence, even if tenuous or inherently weak or vague, which can be taken into account by the Jury in its deliberations, and that evidence is capable of supporting a verdict of guilty, the matter must be left to the Jury for its decision”.

Or to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence, such that taken at its highest, it will not sustain a verdict of guilty.

The State's case in this matter, as it relates to Accused No. 1, is founded on the oral utterance Accused No. 1 purportedly made on the 28th of November, 2002, followed in a short time thereafter, within the space of about an hour, by a written statement allegedly made by the Accused to Corporal Wight, and in his presence, and in the presence of Sergeant Abraham, as he then was, and now retired Inspector Thomas. So that is the strength of Prosecution's case.

These witnesses were subjected, especially Corporal Wight, to intense cross-examination,

3 as was to be expected with respect to the manner in which the oral utterance and the written statement were, in fact, obtained. At the end of it, the Court has to look at the situation where the confessions are now before the Court.

The simple rule of law is that the weight which is to be assigned to a confession alleged to have been made by an Accused person is for the Jury. It is for the Jury to consider, first the manner in which the statement was obtained and, two, all the circumstances connected with it being given. And that is why the cross-examination of the Witnesses was so intense by Counsel for Accused No. 1 and No. 2.

In the case of the Queen v. Mc Aloon , 1959, 30 Canadian Reports at page 305, the following statement emerges from the Court of Appeal. And it is imply that: "The issue of voluntariness in relation to a statement made to a person in authority is for the trial Judge. The weight to be assigned to the statement, once admitted, is for the Jury."

So that once again, the whole question of the cross-examination of the Witnesses, as with respect to the circumstances surrounding the taking of that statement and the manner in which it was obtained are matters which the Jury now has to give its consideration to.

Because the voluntariness of that statement would have been for the Court to consider, and the Court, having considered and come to the finding of fact that it was voluntarily given, then that matter of the credibility of the Witnesses must be one that must be left to the Jury. The Court should not, in fact, be usurping that function and seeking to make a determination on the correctness and quality of the evidence which is before it.

Now, the State's case is that Accused No. 1 is the principal offender, and as I have said, the State is relying on the oral statement made to Officers Abraham, Thomas and Wight, together with the written statement which follows. That written statement would have been recorded at 2:20 p.m. and ended at 3:15 p.m. on the 28th of November, 2002.

4 As it relates to the second Accused, the only evidence which connects the second Accused to the offence is the oral statement, again which he would have allegedly made to Officers Wight, Thomas and Abraham. And I will say it in its fullness so that it could be more clearly understood: " Boss, I gave Reddo from Quash Trace, Sangre Grande, $3,000 to buy a gun sometime earlier this year. I did not see or hear from him for a while. After he have kill meh wife on the 26th, it is, of July, 2002, a few days after that, Reddo called me on the phone and tell me that he want some money because he done kill she; and a week after that, he send a Indian man for some money and I give the man $400 and a letter to carry for Reddo ."

As I've indicated, Counsel for Accused No. 2 denies that his client has made this statement, and goes on to indicate that the oral utterance was insufficient to sustain any link between Accused No. 2 and the offence of murder.

The State's case from the opening remarks made by the learned State Prosecutor was that Accused No. 1 was the one who actually killed the deceased by chopping her. The case against No. 2 is that he procured No. 1 to kill the deceased and did so with the intention of bringing about her death; and that Accused No. 1, in fact, killed the deceased. In other words, Accused No. 2 is to be regarded as the aider and the abetter, as he was the one who procured Accused No. 1 to commit the offence of murder.

The oral utterance is not to be taken in a vacuum, and the State's case is that Corporal Wight, having identified himself to Accused No. 2, indicated to him that he was a suspect, relative to the death of his wife, Ramdaye Ramdass Moses, which occurred on the night of the 26th of July, 2002, at North Eastern Settlement, Sangre Grande.

The Accused was then cautioned and the normal Judges' Rule, Rule 2 caution was given to him, whereupon it is the allegation of Corporal Wight that this oral response was made. That the oral response was one in which the Accused did not distance himself from the offence, but rather, he, in fact, indicated that he made an admission that he paid Reddo $3,000 to buy a gun.

The State, therefore, is relying on the answer. That from that response, a reasonable inference could be drawn, because it will now be asking the Court to direct the Jury, or to ask the Jury to find that on the oral admission, that the Accused gave Reddo the money to purchase a gun for the express purpose of killing his wife. And that is the wife of Accused No. 2.

Now, the Accused then goes on to admit certain other things in that statement, as I have said; and again, the State is asking the Court, in its address, in its summing up to the Jury, that the Jury, having listened to all of the evidence, the Jury is entitled to draw reasonable inference from the fact that when the Accused said, " After Reddo killed meh wife on the 26th of July, 2002, he said that he wanted some money, and a few days after, Reddo called me on the phone and tell me he wanted some money because he done kill she ."

The State is asking that the reasonable inference can be drawn, that the Accused had some knowledge which was implicit to him alone; in that he knew for a fact that Reddo was the one who had killed his wife on the 26th of July, 2002, and how else could he have had this knowledge, had he not procured and, in fact, instigated the murder.

The Jury would further be asked why would the Accused be sending money; and this has to do with the $400. Why would the Accused be sending money to a man whom he admits, in his oral statement, he knew killed his wife? Is it not a reasonable inference for a Jury to draw that he was merely paying for services that had been rendered? Again, there was no denial that he knew Reddo, nor was there any attempt by his own admission to distance himself from the man whom he says he knows to be the one who killed his wife.

This case is one which is founded upon the law of joint enterprise, and the Court clearly, in its directions to the Jury, would have to indicate to them what a plan or what an agreement is, and to indicate to them that there need not be any formality about that plan or agreement. That nothing, in fact, need be said at all. It can be done through conduct;

6 that is through a nod or a wink, or even a knowing look, and that an agreement can be inferred, as I said, from the behaviour of the parties.

So in essence, what the State is doing, the State is asking the Jury to infer from the circumstances, as have been set out in the oral utterance of Accused No. 2, in his behaviour, in his admitted behaviour through his oral statement, that he was a party to the unlawful joint enterprise to plan or to kill his wife.

The Court also found reliance on the case as to its approach, on the case of The Queen v. Morris, 1997, 98 Australian Criminal Reports , at page 408, where Justice Ipp, in delivering the leading judgment, said at pages 416 to 417. He said: "When a no-case submission is made at the end of the Crown case, the test is not whether upon the whole of the evidence it will be open to the Jury to be satisfied beyond reasonable doubt that the accused was guilty. The test, as I have pointed out, is whether the Defendants could lawfully be convicted and the trial Judge at that stage is required to take into account all inferences, most favourable to the Prosecution, which could reasonably be drawn from the primary facts”.

As Justice Kitto, explained in Zanetti v. Hill, 1962, 108 Commonwealth Law Reports, at page 433, at 442 to 443: "There is no reason why a weakness in the Prosecution's case may not be eked out by something in the case for the Defence, or why a prima facie inference which, by itself, would not be strong enough to exclude reasonable doubt, may be hard to satisfaction beyond reasonable doubt by a failure of the Defendant to provide satisfactory evidence in answer to it when he is in a position to do so."

So that was the quote from the case of The Queen v. Morris , and I said, that was giving the principal guidance that I got there, is that where the Defendant could lawfully be convicted and a trial Judge is required to take into account all inferences most favourable to the Prosecution which could reasonably be drawn from the primary facts.

I go on to say further that this is a case in which the statement of Accused No. 1, if it is to be believed by the Jury, it is something that the Jury may, in fact, be able to use in looking at the case as it relates to Accused No. 2. Because in the Statement, in the written statement, Accused No. 1 speaks to a letter which he received from Accused No. 2; and Accused No. 2, in his oral utterance, speaks about a letter which he had sent to Accused No. 1.

That letter is not in evidence. We don't know what that letter is about, but we are looking at reasonable inferences which could be drawn to the Prosecution's case; and that issue about two parties on separate occasions speaking to a letter. And that, as I said, would only be on the basis that the Jury, having been so directed to keep the case for the Accused No. 1, separate and apart from the case for No. 2, vis-à-vis, any statement made by Accused No. 1 cannot be used against Accused No. 2, and no statement in relation to Accused No. 2 can be used against No. 1.

The issue then, I should say the fact, therefore, that there may be other inferences, and this is where the Defence's case was that through the cross-examination of the Witnesses, many other inferences could have been drawn, by a Jury which are consistent with innocence.

The case of the DPP v. Selena Varlack, Privy Council Appeal No. 23 of 2007 , gives authority for the fact that even though there may be other inferences to be drawn by a Jury which are consistent with innocence, it does not follow from that that the case should be withdrawn from the Jury. Which was the substance of what both Defence Counsel would have been saying in their no-case submissions.

The statement from Varlack is as follows, and I repeat it here: "It follows from the principles as formulated in an earlier case, Billic , in connection with circumstantial cases, that it is not the function of the Judge in considering a submission of no-case to choose between inferences which are

8 reasonably open to the Jury. He must decide upon the basis that the Jury will draw such of the inferences which are reasonably open as are most favourable to the Prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses, consistent with innocence, are reasonably open on the evidence. He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt, and, therefore, exclude any competing hypothesis as not reasonably open on the evidence."

That is the quote from Varlack . When one applies the law from Varlack and looks at the evidence which has been presented by the Prosecution, prosecuting witnesses have been grilled thoroughly by the Defence Counsel.

At the end of the day, as I stated from the very first statement that I made, and which I, therefore, go back to, as it relates to the role which the Court has. The function of the Court here, would have been to decide on the voluntariness of the confession statements; and once those confession statements were found to have been made voluntarily, it remains, therefore, for any weight which is to be assigned to that confession. It is for the Jury, and it is the Jury which will consider the manner in which the statement was obtained and all the circumstances connected with it being given.

The case of R v. Belcon 5 W.I.R 363 , is an early indicator that a Jury can find an accused person guilty of an offence on the basis of an oral admission; an oral confession. That has been with our law here in Trinidad and Tobago jurisdiction, stated by our Court of Appeal since 1963.

So that it is up to the Judge at the end of the day to ensure that he gives the necessary caution as it relates to the oral statement upon which the State would be relying. However, the issue as to whether the confessions are true and whether they can be acted upon is something that must be left to the Jury and the Judge should not usurp that

9 function by stepping in, no matter how he may feel to state that the evidence which is put before him is, in fact, insufficient to found the charge against the Accused persons.

And I rule, therefore, that the submission of no-case by Counsel No. 1 and Counsel No. 2 is hereby rejected, and I call upon the Accused persons to give their evidence.

Dated this 19 th day of May 2011

Malcolm Holdip Judge