Peters v The State

• Jurisdiction: Trinidad & Tobago
• Judge: Weekes, J.A.
• Judgment Date: 26 February 2010
• Neutral Citation: TT 2010 CA 5
• Docket Number: Criminal Appeal No. 34 of 2008
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 26 February 2010

Court of Appeal

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

Criminal Appeal No. 34 of 2008

Peters

and

The State

Appearances:

Mr. Jagdeo Singh for the appellant.

Mr. Roger Gaspard for the respondent.

Criminal practice and procedure - Attempted murder charge — Delay of 24 years and 8 months between date on which appellant was charged and trial — Jury informed that part of the delay was caused by the accused being out of the country for a 12 year period — Rest of delay caused by State — Jury directed to take the long delay into account if they believed that the defendant had been placed at a disadvantage — Given trial judge's direction fair trial was not impossible.

Criminal law - Sentence — 18 years imprisonment with hard labour — Attempted murder — Whether sentence too severe — Judge's comments on sentencing unimpeachable.

Evidence - Admissibility — Whether deposition of policeman which revealed that the appellant's co-accused who was not present at the trial, had handed over a firearm to police should have been allowed by trial judge — Finding by Court that the evidence did not bear directly on the appellant and the strength of the prosecution case.

Weekes, J.A.

1 The appellant was charged on the 6th September 1983 with two counts of attempted murder of Bhangwandass Cassiram and his wife Mala. On May 14th 2008 she was convicted of the two counts of attempted murder and was sentenced on 26th May 2008 to a term of eighteen years imprisonment with hard labour in respect of each count to run concurrently from the date of conviction.

2 The issues for determination in this appeal are:

• (1) Whether or not the trial judge erred in concluding that there was no abuse of process despite there being a delay of twenty-four years and eight months between the date the appellant was charged and the trial;

• (2) Whether on the sentence imposed on the appellant was too severe given the delay.

• (3) Whether the trail judge erred in law when he admitted evidence of a co-accused's complicity/guilt not probative of the issues joined between the appellant and the State.

Counsel relied exclusively on their written submissions.

3 To put the first two issues into context, the time line of the prosecution is set out. On the 2nd of September 1983, the alleged offences were committed. Four days later the appellant and her husband were each charged with two counts of attempted murder. On the 23rd May 1985 the preliminary inquiry commenced and was completed on the-8th April 1986. The appellant and her husband were both committed to stand trial and each granted bail with surety in the sum of $15,000. On December 4th 1986, committal documents were received by the Office of the Director of Public Prosecutions [DPP]. On the 18th August 1994 an indictment was filed by the DPP. The appellant voluntarily left the jurisdiction on the 10th October 1994 and consequently failed to appear when the matter came up for hearing on a Cause List on the 9th January 1995. A bench warrant was issued for her. On the 14th July 2006 the appellant voluntarily returned to this jurisdiction and on the 23rd May 2007 the bench warrant was executed. Her trial began without her co-accused husband on the 8th May 2008 and on May 14th 2008 the appellant was convicted.

Background of Facts.

4 On the 2nd December 1983, around 8.30 pm Bhangwandass Cassiram and his wife, Mala, were driving along Endeavour Road when they were blocked by a motor vehicle parked in the middle of the road. Endeavour Road was just 8-10 feet wide. One Ramkissoon (the co-accused) was in the driver's seat and the appellant, his common-law wife, was in the front passenger seat. Some doors of the parked car were open and its house lights were on. The car was 300-400 feet from a shop which had a floodlight near the roadway. There were no street lights.

5 Cassiram stopped his car about 3 feet from the parked vehicle. Ramkissoon came out of his vehicle and asked the appellant to hand him the gun. No one else was in his car and its house lights were still on. The appellant took something out of the glove compartment and handed it to Ramkissoon. It appeared to be a gun. Cassiram then came out of his car and stood by the door and Ramkissoon shot him twice in the abdominal region. Cassiram fell to the ground. Ramkissoon walked up closer and shot him three more times. The appellant was at all material times in the parked motor vehicle. Ramkissoon returned to his car and turned off the house lights. The appellant told Ramkissoon that his (Cassiram's) wife was in their car and to “finish her too.” He then walked to the front of Cassiram's car, approached the left front passenger seat where Mala was seated, placed the gun to her left arm and shot her. He took the gun, put it to her head and said “Ah kill your husband, I'll kill you too.” He then walked to his car and drove off.

6 Cassiram eventually was taken to hospital in critical condition. His injuries were life-threatening. Mala was also hospitalised and found to have perforating bullet wounds to her left arm resulting in a compound fracture and deformity. She also suffered injuries to her back.

Submissions

7 The submissions of the appellant in summary were that: Firstly, that the trial of the appellant constituted an abuse of process of the court because of the lapse of time between the commission of the offence and the date of the trial and ought properly to have been stayed by the trial judge, even though the appellant contributed to almost half of that delay, and that contributing to the delay, whilst being an important factor is not the only or overriding factor. Counsel submitted that the abuse of process flowed from both the prosecution having manipulated or misused the process of the court so as to deprive the appellant of a protection provided by law and the defendant having been prejudiced in the conduct of her defence by delay on the part of the prosecution. He summarised this issue as coming down to what is a fair trial as expressly guaranteed by our Constitution. Secondly, that the sentence of the appellant is manifestly severe having regard to the extraordinary delay in bringing the case to trial, since the court retains a discretion to discount the sentence of the offender where the delay is of a kind which has amounted to a denial of the rights of the accused person; and thirdly that the trial judge erred in law when he allowed the prosecution to adduce evidence which was prejudicial and non probative of the issues joined between the State and the appellant at trial, even though the trial judge expressly warned the jury that they should not use this evidence against the appellant.

8 The submissions of the respondent in summary were that: firstly, that notwithstanding the long and unusual length of time between the commission of the offences and the date of the trial, the trial did not constitute a nullity, nor did it constitute any abuse of process of the court. The respondent further submitted that the failure of the State to proceed more expeditiously with the trial of the appellant did not amount to a breach of her constitutional rights since there is no constitutional right to a speedy trial or to a trial within a reasonable time, whether expressly or by implication. The respondent also submitted that the right of the appellant to be tried within a reasonable time is a common law right and court should exercise its discretion to stay a criminal trial only in the most exceptional circumstances.

9 Although the lapse of time between the charging of the appellant and the appearance of the matter at the Cause List was lengthy, it was not a “most exceptional circumstance”, given the systemic and institutional constraints existing at the time in this country. In support of this argument, the respondent relied on an affidavit of Eunice Augustine filed on the 21st January 2009. Mrs. Augustine deposed as follows:

• “1. I was an acting Indictment Officer at the Office of the Director of Public Prosecutions (hereinafter called the “D.P.P.'s Department'). I held this post from 1982 to 1995……

• 3 ……that the documents concerning the indictment of DULARIE PETERS (hereinafter called “the Appellant”) were forwarded by the Magistrates’ Court and reached the D.P.P.'s Department on 4'h December, 1986. The indictment was filed in the High Court on 18th august, 1994 and the matter was first listed before the Assizes in Port of Spain on 9th January, 1995.

• 5. As a result of a huge backlog of committal indictable matters in the D.P.P.'s Department, and for the indictment to be preferred and the matter listed before the Court was in keeping with the average time it took a matter of that nature to be dealt with. The delay was unavoidable given the huge volume of matters pending at any given time, the inadequate number of State Attorneys and the limited number of Courts in the Assizes.

• 6. In the circumstances existing in the country between December 1986 and January 1996 (hereinafter called “the material time”) the period of time taken for the matter involving the Appellant to be processed at the D.D.P.'s Department, and for the indictment to be preferred and the matter listed before the Court was in keeping with the average time it took a matter of that nature to be dealt with. The delay was unavoidable given the huge volume of matters pending at any given time, the inadequate number of State Attorneys and the limited number of Courts in the Assizes.

• 7. In December 1986 there were 2172 outstanding committal/indictable matters at the Department; by December 1987 the number of outstanding matters grew to 2358. By December 1988 the number was 2452. By December 1989 the number was 2665. By December 1990 the number grew to 2712. As at December 1991 the number was 2719. As at December 1992 the number was 26677 and as at December 1993 the number was 2720. As at December 1994 the number...