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.