Boodram et Al v Director of Public Prosecutions et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Maharaj, J.
• Judgment Date: 30 January 1996
• Neutral Citation: TT 1996 HC 32
• Docket Number: No. 1097 of 1995
• Date: 30 January 1996
• Court: High Court (Trinidad and Tobago)

High Court

Persad-Maharaj, J.

No. 1097 of 1995

Boodram et al

and

Director of Public Prosecutions et al

Appearances:

For the first applicant Mr. B. Procope Q.C. and Mr. J. Singh.

For the second applicant Mr. Frank Solomon S.C. and Mr. R. Rajcoomar.

For the third applicant Mr. D. Allum S.C., Mr. J. Pantor and Mr. K. Ramkissoon.

For the respondents Mr. Martin Daly S.C. and Mrs. M. Maharaj.

Constitutional law - Fundamental rights and freedoms — Applicants sought a declaration that they were entitled to be provided before their trial, and in sufficient time to permit them fully to prepare, with information which they had requested of the first respondent and which was contained in the index appearing hereafter — Berry v. R [1992] 3 ALL E.R. 881 considered — Application contended that their rights had been infringed by the applicant's not supplying the necessary document — Whether a constitutional motion was the proper procedure to obtain discovery in a criminal case — Court found that the Constitutional Court was not the proper court in which to seek discovery — Court also noted that the right to discovery in a criminal case was a common law right.

1 Before Maharaj, J.

List:

2 Cases cited by the applicants' Attorney and in reply and local statute relied on by the applicants' attorneys.

• 1. R. v Stinchombe 1992 L.R.C (Crim) Canada at p. 167 et al.

• 2. Franklyn and Vincent v R. 42 W.I.R. at p. 262 et al.

• 3. Mohammed Fiaz Baksh v The Queen 1958 A.C. at pp 166, 167 and 172.

• 4. Berry v R. [1992] 3 ALL E.R. Q.C. at page 881 et al.

• 5. The unreported case of Boyd v Basdeo Panday given by His Worship Magistrate Mohipp on the 14 ^th November, at the Couva Court.

• 6. The Evidence Act of Trinidad and Tobago Chapter 7.02.

• 7. R. v Barrett 16 W.I.R. at p. 267 et al and R. v Purvis and Hughes 13 W.I.R. at p. 507.

• 8. Attorney General and Another v Whiteman 39 W.I.R. at page 398 et al.

• 9. The Queen v Leyland Justices, Ex parte Hawthorn 1 Q.B. p. 283 et al.

• 10. R. v Ward [1993] 2 ALL E.R. 577 et al.

• 11. Practice Note [1982] 1 ALL E.R. p.734.

• 12. The Queen v Brown (Winston) [1994] W.I.R. p. 1599 et al.

• R. v Rasheed T.L.R. 20 ^th May, 1994 at page 288.

• 14. The Constitution of Trinidad and Tobago Vol. 1 of the Laws of Trinidad and Tobago and in particular Chapter 1, Part 1 and Part v. thereof.

Cases Cited by the Respondents' Attorney:

• 1. Mr. Martin Daly answered the cases and acts set out in numbers 1 to 14 inclusive of the applicants' list above and quoted several matters set out therein

• 2. In addition the respondents' Attorney relied on the following cases:–

  • (a) Civil Appeal No. 173 of 1994 and in the Constitutional Motion between Nankissoon Boodram also called Dole Chadee and The Attorney General of Trinidad and Tobago and the Director of Public Prosecutions and in particular pages 41 to 46 inclusive.

  • (b) H.C.A. No. 1146 of 1989 and H.C.A. S.1256 of 1988 and in the matter of the Constitutional Motion between Patrick Jaggessar and the Attorney General of Trinidad and Tobago at pages 54 to 56 inclusive.

  • (c) R. v Wandsworth J.J., Ex parte Read [1942] 1 ALL E.R. at p.56 et al.

  • (d) H.C.A. 118 of 1990 in the matter of The State v Latiff Ali and Others.

  • (e) Ian Vincent v The Queen and Franklyn v The Queen [1993] 1 W.L.R. 862, 863 et al, also referred at 42 W.I.R. above.

The Applicants' Constitutional Motion:

3 The Constitutional Motion of the applicants is dated and filed on the 31 ^st day of March, 1995. Paragraphs 1, 2, 5, 6 and 7 set out the declarations sought. And paragraphs 3 and 4 claim orders or directions. The grounds on which the applicaton is based are set out in numbers 1 to 18 of the said motion.

The Applicant's Constitutional Motion:

4 The affidavits and exhibits relied upon by the applicants are as follows:–

5 Letters In Relation To Criminal Discovery — Mr. Sunil Gopaul Gosine:

• (a) That of the applicants' Instructing Attorney, Mr. Sunil Gopaul Gosine, dated the 31/3/95 and exhibits “S.G.G.1 “. These exhibits are really four letters dated 22 ^nd, February, 20 ^th March, 23 ^rd March and another of the 23 ^rd March, 1995 to the first respondent on behalf of the applicant and at times on behalf of Naresh Boodram and Ors. In essence, the letters supra sought discovery in the hereinunder criminal case and in particular all the statements given by the prosecution witness, one Seepersad Dass and one Clint Huggins in relation to the criminal case of The State v Naresh Boodram and Ors. and discovery in respect to Clint Huggins in relation to The Stake v Nakissoon Boodram and Ors. In the latter case the preliminary enquiry No. is 1281 of 1994.

The Index in Relation to the First Declaration in the Motion:

6 The first declaration of the applicants sets out as follows:–

AA declaration that the applicants are entitled to be provided before their trial, and in sufficient time to permit them fully to prepare therefore, with information, documentary materials and for discovery (hereinafter referred to as “the said information@) which they have requested of the first respondent and which is contained in the index appearing hereinafter of the said information.”

7 The information or discovery sought is comprehensively set out as numbers 1 to 10 inclusive immediately after the first declaration sought in the motion.

8 This court has read and re-read the information on discovery sought in the index as stipulated in the motion.

• (a) The affidavit of the third applicant dated the 31 ^st day of March, 1995.

• (b) The affidavit of the second applicant dated the 31 ^st day of March, 1995.

• (c) The affidavit of the first applicant dated the 31 ^st day of March, 1995.

• (d) The affidavit of Mr. Kelvin Ramkissoon, one of the Advocate Attorneys for the third applicant on this Motion. Mr. Ramkissoon was also one of the Attorneys for the applicants at the Preliminary Inquiry held at the Tunapuna Magistrate's court before the second respondent. Annexed to Mr. Ramkissoon's affidavit, dated the 31 ^st day of March, 1995 are the following exhibits:–

  • (i) K.R.1. The deposition taken before the second respondent.

  • (ii) K.R.2. That is a portion or part of the deposition in case No. 1281 of 1994 taken before Magistrate, Herbert Charles and in particular the evidence and cross-examination of Clint Huggins at the Princes Town Preliminary Inquiry.

  • (iii) K.R.3. That is the letters supra written by Mr. Sunil Gopaul Gosine.

  • (iv) K.R.4. This is an advertisement in the Express News Papers dated 24/3/95 indicating that the trial of the applicant was to be heard at the Port of Spain Criminal Assizes on the 12 ^th day of April, 1995.

  • (v) K.R.5. This is a letter from the first applicant's leading Attorney, Mr. B. Procope, seeking inter alia on behalf of the applicants' other Attorneys as well when the applicants' case would be listed at the Criminal Assizes.

The Respondent's Affidavits:

• 1. The affidavit of Mr. Anthony Carmona, an Assistant Director of Public Prosecutions attached to the office of the first respondent and dated 7/4/95 together with exhibit “A.C.1” annexed thereto. The applicants' Attorneys submitted that “A.C.1” was hearsay and inadmissible.

• 2. The affidavit of Mr. Carmona aforesaid dated the 6th day of April, 1995 seeking inter alia to correct errors in his affidavit supra.

The Reply Affidavits of the Applicants' Legal Advisers:

• 1. The affidavit of Mr. Sunil Gopaul Gosine, dated the 21 ^st day of April, 1995 and the deposition marked S.G.G.1 (sic) and allegedly annexed to paragraph 4(c) thereto. At an early stage of the hearing of this motion this court pointed out to the applicants' attorneys that this exhibit was missing. This document was later made available to the court.

• 2. The affidavit of Mr. Desmond Allum S.C. dealing with Mr. Carmona's affidavit of the 7/4/95 and confirming what Mr. Gosine deposed to in paragraph 4 of the 21/4/95 affidavit.

Facts of the Case or the History Thereof:

9 A perusal of the grounds as set out in the applicants' motion is also taken into account by this court.

Charges for Murder:

10 By indictable information, No.2025 of 1994, Inspector Stephen Quashie laid on the 11 ^th day of May, 1994 against the applicants a common law charge of murder of Stephen Sandy during the period Sunday the 14 ^th June, 1992 and Monday the 15 ^th June, 1992 at Curepe. Stephen Sandy is also called “Bulls”.

11 By indictable information No. 2026 of 1994 the said Inspector Stephen Quashie laid on the 11 ^th day of May, 1994 against the applicants a common law charge of murder of Anthony Curtis Greenidge during the period Sunday 14 ^th June, 1992 and Monday the 15 ^th June, 1992 at Curepe. Anthony Curtis Greenidge is also called “Tooks”.

12 It appears that the first applicant was arrested on the 25/5/94, the second on the 14/5/94 and the third applicant on the 14/5/94.

Delay of Statements and Charges:

13 The applicants' Attorney made heavy weather that the applicants were arrested and charged almost two (2) years after the alleged offences were committed and despite the fact that the main prosecution witness, namely Sieupersad Dass gave his first statement to the police on the 26/11/92, that is to say about five (5) months after the commission of the alleged offences and Clint Huggins gave his on the 20/4/93, that is about eleven (11) months thereafter.

Trite Law

14 It is trite law and I so hold that indictable offences tried indictably generally carry no limitation period. I have perused the deposition infra and the evidence of Inspector Stephen Quashie. He interviewed the first respondent at the Arima Police Station on the 23/6/92 in connection with the offences above, and that he was cautioned him but he declined to give a written statement.

15 Further, according to Inspector Quashie, he arrested the third applicant at his home on the 13/5/94 and on the 14/5/94 he arrested the second applicant at the...