Baldeo v The State

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Gopeesingh, J
• Judgment Date: 11 November 1992
• Neutral Citation: TT 1992 CA 22
• Docket Number: Crim. App. No. 111 of 1990
• Date: 11 November 1992

Court of Appeal

Davis, Hamel-Smith and Gopeesingh, JJ.A.

Crim. App. No. 111 of 1990

Baldeo

and

The State

Appearances:

Dr. C. Seepersad for the applicant.

Mr. B. Rooparine with him.

Mr. A. Carnoma for respondent.

Criminal law - Appeal against conviction — Possession of firearms and ammunition — Grounds: failure by trial judge to direct jury on meaning of “firearms” and “ammunition” in Firearms Act, s. 5(2), that Station Diary ought not to have been destroyed by police while a matter therein was still pending, etc. — Finding that judge properly directed jury — Appeal dismissed.

Gopeesingh, J

1 On July 23, 1990, the applicant was convicted by a jury on two counts of being in possession of firearms, and of being in possession of ammunition, contrary to Section 6 of the Firearms Act, Chapter 16:01. The particulars of the first count for possession of Firearms were that on June 18, 1986 at Bejucal, in the County of Caroni, the applicant had in his possession four firearms, to wit, one .22 Explorer rifle, one Winchester rifle, one 12 Bore Winchester shotgun and one .22 Italian rifle, whilst the particulars of the second count for possession of Firearms were that on the said date and place had in his possession seven 12 Bore Italian Shotguns, one 12 Bore Shotgun, one .30 U.S. rifle, one 16 Boro Shotgun, one Remington Shotgun, one 12 Bore model 710 Double Barreled Shotgun, and one 15 Bore Stevens Shotgun. The particulars of the first count for possession of ammunition were that on the said date and place he had in his possession 1,617 firearm cartridges, whilst the particulars of the second count for possession of ammunition were that on the said date and place he had in his possession 387 rounds of 16 gauge shotgun cartridges, five hundred and seventy-five rounds of .30 rifle cartridges, and three hundred and fifty-three rounds of .22 rifle pistol cartridges.

2 On each of the two counts for possession of firearms the appellant was sentenced to a term of imprisonment of five (5) years with hard labour whilst on each of the two counts for possession of ammunition, he was sentenced to a term of imprisonment of three (3) years with hard labour. It was further ordered that the sentences on each of the two counts for possession of ammunition were to concurrently with the respective sentences on each of the two counts for possession of firearms, whilst the concurrent sentences on the second count for possession of firearms and the second count for possession of ammunition were to run consecutively with the concurrent sentences imposed on the first count for possession of firearms and the first count for possession of ammunition. In all, therefore, the appellant was sentenced to serve a total of ten (10) years imprisonment.

3 By notices dated July 23, 1990 the applicant sought leave to appeal against both the convictions and sentences. And by a re-amended Notice of Grounds of Appeal he set out six (6) grounds namely:

• “(1) The learned Judge erred in law in admitting in evidence the Armourer's Reports and/or failed to direct the jury that the said reports were valueless.

• (2) the learned judge failed to direct the jury on the legal meaning of the terms as “firearm(s)” and “ammunition” and/or further failed to direct the jury that they had to satisfy themselves that the exhibits tendered by the State constituted firearms and ammunition.

• (3) The learned Judge erred in law when he imposed consecutive sentences upcn the appellant contrary to Section 49 of the Criminal Procedure Act Chapter 12:02 and/or common law.

• (4) The learned Judge failed to direct the jury that it was open to them to draw the inference that the Stationary Diary (the subject of subpoena by the defence) could have thrown light on the evidence given at the trial including what was alleged by the defence i.e an entry to the effect that Knolly Haridass was arrested and brought with the appellant and his wife to Police Headquarters on July 13th, 1986. Further, his Lordship failed to direct the jury that the Station Dairy was in the control/custody possession of the police and it ought not to have been destroyed, as it was alleged, while a matter therein was still pending.

• (5) The learned judge failed (1) to direct the jury that Shanti Lutchman's evidence was that she was in control of the house; that until the contrary is proved, she was deemed to be in possession; (2) that there was no evidence to contrary and that if they accepted her evidence, then the appellant was not in possession in law. Further, that if her evidence left the jury in doubt as to who was in possession then the prosecution had, not discharged the burden upon it and therefore any had to (be) resolved in favour of the appellant.

• (6) The verdict is not supported by the evidence.”

4 The applicant also, by Notice of Motion dated and filed on May 10, 1991, sought leave “to adduce and read in addition to the evidence produced below the following evidence, namely: the affidavits of Mamoon Rasheed and Carl Kallicharan both sworn to and filed herein on the 10th day of May, 1991.

5 The applicant was jointly charged with his reputed wife, Shanti Lutchman, on the first count for possession of firearms and the first count for possession of ammunition, mentioned above. However, at the close of the State's case, the prosecutor informed the court that he was “not proceeding further against the second accused, being satisfied that there is no case against her to go to the jury”. The learned judge accepted the course adopted and the jury to return a verdict of not guilty against her whereupon a not guilty verdict was returned and she was discharged on these two counts. Thereafter, the matter proceeded against this applicant only, on all four counts mentioned above.

6 The prosecution case was that, having procured a search warrant on June 17, 1986, to search the house of the applicant for arms and ammunition, Inspector Senior led a party of police officers to that home at about 6:00 a.m. on June 18, 1986. On arrival, the search warrant was executed and in a bedroom, which the applicant told the police he and his wife occupied, a bag was found under the bed containing four firearms, the subject of the first count for possession of firearms. The search continued and in a shed, attached to the house, a piece of PVC pipe was found between some water melons. When opened, same was found to contain ‘a quantity of firearm ammunition”, the subject matter of the first count for possession of ammunition. Thereupon, Inspector Senior cautioned the applicant and his wife. Although the wife remained silent, the applicant then said: “Boss I want to speak to you”. Subsequently, upon being taken into a bedroom, the applicant told inspector Senior, in the presence of P.C. Abraham, “ah will give you the balance but you got to protect my life and my family”. Upon being asked how he came into possession of these firearms and ammunition, the appellant said a man by the name of Beardman from Sangre Grande gave him to sell. When asked what part of Sangra Grande Beardman was from, the appellant said he did “not know but whenever he has meet him he does so by the market”. The applicant then took Inspector Sanoir and others “about 300 ft. west of his house and he pointed to a spot in some bushes and said the balance there”. The area was searched in the applicant's presence and thirteen (13) more firearms and two pieces of PVC sealed on both ends, containing ammunition, were found. These firearms ammunition were the subject of the second counts for possession of fireman's and ammunition.

7 On the other hand, in essence, the applicant's case amounted to a complete denial of the prosecution's case. Apart from admitting that Inspector Sanoir and a police party came to the home in question can the particular day and effected a search thereof, as well as surrounding areas, the applicant denied everything else. He specifically denied that the fire allegedly found in his bedroom were in fact so found; that the ammunition allegedly found in the shed attached to the house were so found. In fact he denied that he ever had melons in a shed. He specifically denied that, at anytime, he told Inspector Sanoir that he wanted to speak with him and that he subsequently went into a bedroom with him; that he told Inspector Sanoir that he would tell him where the other guns were but they would have to protect his life and his family; that he said what he allegedly said about Beardman; that he took the police to the back of his house and pointed out the place where the firearms and ammunition were found. Indeed, according to the applicant, he saw a set guns like those tendered into as evidence as exhibits, in a police van and the first time he saw same was in that van.

8 I will deal firstly, with the application for leave to adduce fresh evidence.

9 In the course of the trial on issue arose as to whether one Knolly Haridass, who was called as a witness on of the applicant, was present at the applicant's home during the morning of the search by the police party and whether he was in fact arrested together with the applicant and his wife and taken to C.I.D., Port of Spain, as contended by the defence. According to the applicant, he saw Harridass sitting on a chair in front of the applicant's home and Harridass was subsequently put into a van the police, together with the applicant and his wife and taken to C.I.D.. Shanti Lutchman, the applicant's reputed wife, who also testified on his behalf, maintained likewise. Haridass himself, who was called as a witness on the applicant's behalf, said that on the morning in question, around 7 o'clock, he went to the applicant's home to take the applicant's children to school, as he was accustomed doing. On his arrival there he saw people searching around the applicant's house. He was spoken to by police officers, taken to his home and...