Flemming v The State

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Yorke-Soo Hon J.A.:
• Judgment Date: 22 March 2016
• Neutral Citation: TT 2016 CA 20
• Docket Number: Cr. App. No. 11 of 2014
• Date: 22 March 2016

Court of Appeal

Weekes, J.A.; Yorke-Soo Hon, J.A.; Mohammed, J.A.

Cr. App. No. 11 of 2014

Flemming

and

The State

Appearances:

Mr. D. Khan instructed by Ms. S. Hinds for the appellant.

Mr. T. Ward Q.C. for the respondent.

Criminal Practice and Procedure - Appeal against conviction — Grievous sexual assault and assault occasioning bodily harm — Sentenced to 10 years and 18 months simple imprisonment — Whether the judge erred by admitting the bad character of the appellant rendering the trial unfair — Whether the judge failed to give a Makanjuola direction — Whether the judge failed to adequately place the defence case of mistaken identity before the jury — Whether the judge failed to explain the importance of the pre — trial procedure in relation to the appellant.

Yorke-Soo Hon J.A.:

BACKGROUND

1 The appellant, Richardson Flemming aka “Popo” was tried in January 2008 and July 2012 for the offences of grievous sexual assault and assault occasioning actual bodily harm. Both trials resulted in non - verdicts or “hung juries”. In March 2014, he was again tried and this time convicted on both charges. He was sentenced to 10 years and 18 months simple imprisonment respectively.

CASE FOR THE PROSECUTION

2 On 29th January 2004, the virtual complainant CR, then 17 years old, lived in Biche but attended school in Rio Claro commuting part of the way to and from school by maxi taxi. On that day she alighted from a maxi taxi and continued to make her way home for the rest of the journey by foot.

3 While traversing a bushy area, the appellant grabbed her by the neck and dragged her through the bushes. There, he forcibly kissed her, forced her to perform oral sex on him, although she vomited in the process, and then he in turn performed oral sex on her. He then allowed her to leave.

4 CR recognised the appellant as someone she knew from the village called “Popo” whom she would see about three times per week for a period of three to five years. That evening, CR accompanied by her mother made a report to the Biche Police Station and provided both a name, “Popo” and a description of the appellant. Later that evening she pointed out the appellant, who was seated in the charge room of the said police station as the person who assaulted her. At the time of the trial the appellant had two pending charges for sexual assault which occurred post offence. One against AN which allegedly occurred on 20th April 2005 and SJ which allegedly occurred on 10th May 2012.

5 Evidence of these pending charges was admitted at the trial via the testimony of SJ and AN.

CASE FOR THE APPELLANT

6 The appellant gave evidence. He died the charges and stated that although he was known as “Popo” there were other persons living in that area with that nickname. He testified that CR was mistaken when she identified him as the person who committed these offences. He also denied that he sexually assaulted SJ and AN.

7 Four grounds of appeal were filed on the appellant's behalf. We will deal with each in turn.

GROUND 1- THE JUDGE ERRED BY ADMITTING THE BAD CHARACTER OF THE APPELLANT RENDERING THE TRIAL UNFAIR.

8 Under this ground the appellant advanced a number of criticisms namely:

The unfairness resulted from the fact that the bad character evidence:

• i. Was used to bolster a weak ease

• ii. Were:

  • a. unproven allegations;

  • b. weak in and of itself; and

  • c. weak unproven allegations that necessarily distracted from the trial and created satellite issues;

• iii. Did not show propensity/tendency to show unusual behaviour as posited by the state.

BOLSTERING A WEAK CASE

9 Section 15N1D of the Evidence Act Chap. 7:02 allows for the admission of the defendant's post offence conduct into evidence, once it is relevant to an important matter in issue between the prosecution and the defence, which includes the defendant's propensity to commit offences of the kind charged. It is a well-established principle of law that propensity may be proved by evidence of pending charges even where the allegations arose after the incident that is the subject of the indictment.

10 Counsel for the appellant contended that the evidence ought not to have been admitted as it was used to bolster a weak case. In support, he relied on the fact that two previous juries could not agree on the guilt of the appellant and this “tipped the scales” rendering the trial unfair. We do not agree. In Vivian Clarke and Ors. v. The State Cr. App. Nos. 28-30 of 2009 paras Weekes, J.A. quoting Yeager v. United States (2009) 129 S. Ct. 2360 stated:

“A host of reasons-sharp disagreement, confusion about the issues, exhaustion after a long trial, to name but a few-could work alone or in tandem to cause a jury to hang. To ascribe meaning to a hung count would presume an ability to identify which factor was at play in the jury room.”

Therefore, since we are not in a position to say what transpired in the jury room it would be improper for us to assume that the hung verdicts were reflective of the strength of the case. On the contrary, this was in our view a fairly strong case of recognition. CR knew the appellant from seeing him three times per week, had an unobstructed view of his face for about twenty minutes during the incident at close range and in broad daylight.

WEAKNESS OF UNPROVEN ALLEGATIONS

11 In the case of AN, she was asleep at her some when she discovered the appellant naked on top of her. She recognised him as someone she knew as “Popo” for about three to five years. He lived on Flemming Street which was two streets away from her. She would see him about three to four times a day. Upon her discovery, she raised an alarm and her husband chased after him but he managed to escape. The next day he returned to the house to collect the clothing he hastily left behind.

12 In the case of SJ, she was in the company of a friend when she was dragged into some nearby bushes by the appellant who proceeded to cuff her about her head and choke her until she could not breathe. He then sexually assaulted her. Although it was late at night, the incident lasted for about fifteen minutes during which time she saw his face. Her friend whom he kicked into a nearly drain went to the police. Shortly afterwards the police arrived on the scene while the appellant was in the act of sexually assaulting her. They pursued him, arrested him and took him into custody. In both cases, the Prosecution's case was fairly strong. He was caught literally “with his pants down”. We therefore do not find favour with these submissions.

CAPACITY TO SHOW PROPENSITY

13 Counsel also complained that the evidence lacked the capacity to establish propensity. The law demands that there must be a degree of similarity between the offence charged and the propensity evidence though striking similarity is not required. We hold that this requirement was satisfied:

• i. In each case the virtual complainant complained of sexual assault;

• ii. In the case of CR and SJ force was used to compel them to comply with the sexual acts;

• iii. CR and SJ were both taken to bushy areas;

• iv. In the case of CR and SJ the appellant forcibly dragged them away;

• v. All the virtual complainants came from the same area;

• vi. In all three cases there was no penetration of the victims.

• vii. While AN's case was somewhat dissimilar in that she was attacked in her home, the Judge was careful to point out the differences to the jury;

14 A sufficient degree of similarity was made out across the cases of the three virtual complainants. We are therefore of the view that the bad character evidence had the capacity to establish propensity and to make it more likely that the appellant had committed the offences. The judge was therefore correct in admitting the evidence.

15 We now address Mr. Khan's submissions that in this and every case, where the admission of bad character evidence with respect to pending matters are in issue, that an examination of the case papers or a voir dire procedure be adopted whereby the judge assesses the strength of the evidence in order to determine its admissibility. We agree with Mr. Ward QC that the present legal framework already in place, secures fairness in the admissibility of bad character evidence. In Hanson [2005] E.W.C.A. Crim. 824 the court set out the guidelines for judges in the form of the following questions:

• i. Does the proposed evidence have the capacity to establish a propensity on the part of the defendant to commit offences of the kind charged?

• ii. If yes, does that propensity make it more likely that the defendant committed the offence charged?

• iii. If yes, is it unjust to rely on the proposed evidence and in any event, will the proceedings be unfair if they are admitted?

16 The exercise conducted by the judge at paragraph (iii) above in the existing system cannot be distinguished from the voir dire process proposed by Mr. Khan. There is no need therefore to further complicate the trial process by conducting the time consuming procedure of a voir dire or any modified admissibility test concerning bad character evidence. That would be a deliberate recipe for the overloading of the already overburdened criminal justice system. In deciding whether it would be unfair to admit the evidence the judge must make some assessment of its strength and weight. In Hanson (supra) at paragraph 17- the court made the following observation with reference to propensity and the admissibility of previous convictions:

“We would expect the relevant circumstances of previous convictions generally to be capable of agreement, and that, subject to the trial judge's ruling as to admissibility, they will be put before the jury by way of admission. Even where the circumstances are genuinely in dispute, we would expect the minimum indisputable facts to be thus admitted. IT WILL BE VERY RARE INDEED FOR IT TO BE NECESSARY FOR...