The State v Abu Bakr (a/c Phillip)
| Jurisdiction | Trinidad & Tobago |
| Judge | Mohammed, J. |
| Judgment Date | 17 July 2012 |
| Neutral Citation | TT 2012 HC 249 |
| Docket Number | CR. No. 75 of 2006 |
| Court | High Court (Trinidad and Tobago) |
| Date | 17 July 2012 |
High Court
Mohammed, J.
CR. No. 75 of 2006
On behalf of the State: Ms. D. Seetahal, S.C., instructed by Ms. R. Rambhajan, Ms. S. Gajadhar, and Ms. R. Reyes
On behalf of the defendant: Mr. W. Sturge, Mr. N. Maraj, Ms. V. Pargass, Mr. M. Merritt, Ms. H. Shaikh
Criminal practice and procedure - Evidence — Admissibility — Bad character evidence.
The history of the defendant and, in particular, the attempted coup of 1990 and the connected failed prosecution, have led to extraordinary measures being taken to attempt to secure the fair trial of the defendant in the matter at Bar. Jurors, after extensive questioning on a challenge for cause procedure, have been selected principally upon the basis of their declared ability to divorce the events of 1990 from their interpretation of the subject sermon. In less abstract terms, the majority of the empanelled jurors are of a reasonably young age, comparatively speaking, where they would not be expected to have a particularly distinct independent recall of the events of 1990. Because of the ages of many of the jurors, the events of 1990 did not appear to resound significantly with them and many said as much in the challenge for cause procedure.
In assessing the meaning and context of the subject sermon, and the interview of the defendant and the intention of the defendant alleged by the State to be seditious, on the one hand, and said by the defendant to contain religious metaphor on the other, is it realistic to expect a jury to extricate and to isolate the events of 1990? Is it legally necessary to do so, or is it permissible to factor in the events of 1990? And, if so, in what specific way and to what degree? These are examples of some of the general questions raised by the present application. A summary of the events of the attempted coup are contained in the judgment of the Privy Council in The Attorney General and another v. Lennox Phillip and Others (1994) 45 W.I.R. 456, under the heading “The Facts” from page 463 D, to page 465 E.
Skeleton arguments have been filed on both sides. The State's arguments, together with transcript references and a bundle of authorities, were filed on July 9th, 2012. The State contends that the evidence, of the 1990 coup is admissible under the following statutory gateways as evidenced of bad character:
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i. Important explanatory evidence under Section 15N(1)(c) and 150 of the Evidence Act, as amended, without which the jury would find it impossible, or at least difficult to understand the meaning of the sermon and the value of which, in understanding the case as a whole, is substantial.
The State's main argument here is that the 1990 attempted coup is relevant as part of the background evidence, without which the jury would not have the full and complete and an intelligible picture in order to be able to assess the state of mind and the intention of the defendant when he made the subject speech, and whether the defendant was speaking in abstract, theological terms on the occasion of Eid in his capacity as a religious leader, or was effectively making a largely coded and, at times, explicit call to arms to his followers to go out and to collect zakat. The State submits that the evidence of the 1990 coup provides an important context or framework in which to rationally assess the sermon, which would otherwise stand to be assessed in an unrealistic and potentially misleading vacuum. The State says that its case, without the evidence, would be incomplete, incomprehensible, in-cohesive and distorted.
A secondary argument advanced under the important explanatory evidence gateway, by the State, is that the defendant's history is also relevant to rebut the suggestion made in cross-examination that the charges laid against the defendant were unfair, in the sense that others similarly circumstanced who ought to have been charged were not charged.
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ii. Gateway 15N(1)(d) — Relevant to an Important Matter in Issue between the defendant and the Prosecution, and the supplemental section, 15P.
The State submits that there are two aspects of this gateway: first, that the evidence is relevant to the defendant's state of mind in respect of all four counts in the indictment.
Was the defendant speaking of ‘fighting’ figuratively or literally; and secondly, that the evidence is relevant to the important matter of what the State says is the defendant's specific propensity to commit offences against lawful and established order and governance, which makes it more likely that he is guilty of the subject offences by making it more likely that the speech was meant literally as a call to war, and not merely as a figurative expression of theological concerns.
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iii. Section 15N(b), the evidence having been adduced by the defendant himself, or given in answer to a question asked by him in cross-examination, and intended to elicit it.
The State relies on the cross-examination of the prosecution witness, Noble Khan, and whether he had ever sought to ascertain from the defendant the truth about 1990. The State submits that to ignore the events of 1990, after the Defence has raised it, would distort the evidence before the jury.
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iv. Gateway 15N(f) a to Correct a False Impression given by the defendant, and its supplemental provision, which is Section 15R.
The State submits that there are two sets of false impressions engendered. The first is that the defendant is a benevolent, father-type figure, whose dominant motive is to assist the dispossessed in society and who is misunderstood, and whose motives are misinterpreted as sinister when they are, in reality, benign. And secondly, that Noble Khan is, in effect, a biased witness and a willing pawn in a conspiracy between former senior Government officials to falsely accuse the defendant, primarily because of alleged animosity between a former Prime Minister and the defendant because of the defendant's previous claim that the former Prime Minister had had advanced notice of the 1990 attempted coup.
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v. Section 15N(1)(g) of the Evidence Amendment Act, Attack on Another's Character, and the related Section 15S, the so-called ‘credibility’ gateway.
The State submits that, in particular, with respect to the prosecution witness, Noble Khan, there were specific allegations in cross-examination of serious impropriety and, essentially, that as a Muslim, he knew that the defendant's sermon was not capable of generating fear and concern, but that he had simply said this to help the State make out a case. The State submits that a real issue in the case about the conduct and evidence of an important witness, which the jury will inevitably have to resolve, and that it is only fair that the jury should have before them material about the defendant's character, in a broad general sense, going to his credit and the believability of his accusation.
These are the State's arguments in support of its applications under the various statutory gateways.
Mr. Sturge, on behalf of the Defence, filed skeleton arguments on July 12th, 2012, and these are the main arguments in response, on behalf of the Defence:
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i. Gateway 15N(1)(b)
The Defence submits that this gateway, to be accessible, the evidence must have been originally elicited for the express purpose of placing the defendant's bad character before the jury. It is submitted that the State has not shown that this was the explicit purpose of eliciting this evidence under the cross-examination of Noble Khan. And it is submitted that this evidence was elicited, in cross-examination for the limited and narrow purpose of probing the level of partiality of Noble Khan, that is, exploring the issue of bias in his not seeking to inquire into the defendant's version of events of 199o, bias being the major thrust of cross-examination.
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ii. Gateway 15N1(c) — Important Explanatory Evidence
The Defence submits that it is not impossible, nor difficult for the jury to understand the issues in this case without the evidence of the 1990 attempted coup and, also, that the value of such evidence in understanding the case, as a whole, is not substantial. It is also submitted by Mr. Sturge that as a consequence of Section 3(3) of the Sedition Act, a seditious intent is only capable of being gleaned from the words used and the conduct exhibited at the time of the speech and not also from action taking place before, but to put it more broadly, extrinsic evidence or extrinsic conduct. It is submitted that the bad character evidential principles must be subordinate to the substantive law, statutory definition of Sedition and the prescribed objective intent in s. 3(3) of the Sedition Act. It is further submitted that if the evidence is allowed in, there is a real risk that the events of 1990 may become the central focus of the trial, and may also generate multiple satellite issues which could lead to the essential focus of the trial being seriously diverted.
Mr. Sturge has indicated the areas that are not disputed and those which are. The areas that are not disputed are: That in 1990 the defendant was the Imam in charge of the Jamaat Al Muslimeen; that the defendant led young men into an insurrection and hence committed the offence of treason; that at TTT or Television House, the defendant was in possession of a firearm; and that at Television House, the defendant falsely imprisoned persons. It is also not disputed that lives were lost as a consequence of the attempted coup.
I do not believe that it is disputed, in a general sense, that the defendant has taken overall responsibility for the invasion of the Red House pursuant to the declared insurrection and, of course, given the initial announcement by the defendant on television on the night of the 27th July 199o, that the Prime Minister and his Cabinet were under arrest and that the Government had been overthrown. I do...
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