The State v Celsus Patrick & Lyndon Ford
| Jurisdiction | Trinidad & Tobago |
| Judge | Madame Justice Nalini Singh |
| Judgment Date | 28 April 2023 |
| Neutral Citation | TT 2023 HC 119 |
| Docket Number | CR No. 0123/2002 |
| Court | High Court (Trinidad and Tobago) |
BEFORE THE HONOURABLE Madame Justice Nalini Singh
CR No. 0123/2002
THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CRIMINAL DIVISION PORT OF SPAIN
Mr. Sheldon Guerra appeared for Accused Celsus Patrick.
Mr. Ian Brooks appeared for the Accused Lyndon Ford.
Ms. Charmaine Samuel and Mr. Dylan martin appeared for the State
This is an application by the accused Celsus Patrick for a stay of proceedings on the basis that the police have lost all pocket and station diaries pertaining to this matter.
Celsus Patrick, Lyndon Ford and two other men were indicted on six counts. The four were jointly indicted for possession of a firearm and ammunition. The particulars of these offences are that on the 2 nd July 1999, at Tacarigua, they had in their possession a .38 revolver and 5.38 cartridges whilst not being the holder of Firearms Users Licenses in respect of the firearm and ammunition. The accused men were also jointly indicted on four counts of robbery with aggravation. The particulars of these charges are that on the 2 nd July 1999, at Tacarigua, armed with guns, they:
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(i) robbed Conrad Charles of a wallet valued at $100 and $130 cash;
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(ii) robbed Deodath Nandlal of two bottles of rum valued at $140, a bottle of champagne valued at $500, five bottles of wine valued at $800, two bottles of mixed liqueur and $344 cash;
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(iii) robbed Richard Emmanuel of one gold chain valued at $750, one watch valued at $130 and $140 in cash; and,
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(iv) robbed Jason Phillips of two gold rings valued at $1000, one watch valued at $150, a wallet and $20 in cash.
The prosecution's case, in outline, is that the accused men held up a bar. They stole items from the bar's owner as well as the patrons who were present at the time. The police were called and arrived on the scene in time to meet three of the accused men in the bar. They found Celsus Patrick seated in his taxi which was parked outside the bar. The police found that the three accused men who were in the bar were in possession of a firearm, ammunition and the items they had stolen from the patrons. The accused Celsus Patrick made an oral utterance on the scene and he gave the police a statement under caution. Both statements incriminate him.
Celsus Patrick submits that both the oral utterance and the statement given under caution were obtained under oppressive circumstances. According to him, when the police arrived on the scene, the Emergency 999 officers found him seated in his car outside the bar. They placed him in their Emergency 999 vehicle. He was detained there for about 5-10 minutes. He says that after the 5-10 minutes elapsed, the police came with the accused Lyndon Forde and the two other men. According to Celsus Patrick, the police then took him out of the police vehicle and placed him to lie face down on the ground alongside Lyndon Forde. Celsus Patrick says in his voir dire grounds that it was from this point that the police and some of the patrons of the bar started to beat him about his body.
Celsus Patrick realized that some of the men beating him were prison officers as he heard one of them say “ All yuh come to rob where turn-key liming.” The beating according to Celsus Patrick, lasted for about 5-10 minutes and during the beating he was stamped on, at the back of his head, by one of the men who he was unable to identify. The stamp felt like it was from someone's foot. As a result of the stamp, his head slammed into the gate that he was lying close to and he received a cut over his left eye. The cut bled profusely and blood covered his entire face. It is against this backdrop and to stop the beating, Celsus Patrick says that he made the oral utterance “ me ain't do nuttin is a job I get, I workin taxi…”.
In so far as the circumstances surrounding the recording of the statement under caution go, Celsus Patrick says that from the bar, he was taken to the Arouca police station. When he arrived at the station he was placed into a prison cell. All this time, he was still bleeding from the cut over his left eye and continuously requested to be attended to by a doctor to no avail. He says that the investigator, PC Ashby, approached him and told him that if he gave a statement he would get to see a doctor and go home. He says, PC Ashby also told him that he had nothing to worry about since he was just a driver so if he gave a statement he could go home. Celsus Patrick states that he believed PC Ashby because he was not involved in any crime and was only doing a taxi job so he gave a statement.
The application for a stay of proceedings only arose in 2017 when State Counsel informed the Court that the diaries were lost. This indication was made after repeated requests by the Defence for disclosure of said documents dating as far back as 2006. Counsel on both sides have put in helpful written submissions. Celsus Patrick's position is that the Prosecution should be stayed as an abuse of the process on the ground that he cannot receive a fair trial. It is submitted that the lost diaries are highly relevant to the central issue of whether he gave the statements voluntarily. It is submitted further, that the lost diaries are also relevant in the wider context of the trial as a whole since the investigator, PC Ashby, was never on the scene at any point on the 2 nd July 1999. The lost diaries are therefore relevant to the question of PC Ashby's credibility. This in turn also impacts the credibility of PC Hosten; who spoke of observing PC Ashby search Lyndon Forde and the two other men in the bar, and find stolen articles in their possession.
Reliance is placed on the Police Standing Orders (SO 16 (11)) as well as the decision of the court in R (on the application of Ebrahim) v. Feltham Magistrates' Court [2001] EWHC 130 (Admin); [2001] 2 Cr App R 427.
State Counsel in turn readily acknowledges that there has been some failing on the part of the police. The State's position is that the failing by the police was not deliberate and in any event, it will not prevent the accused from having a fair trial. The question of law which therefore arises for the opinion of this Court is whether or not the indictment should be stayed on the basis that it is an abuse of process.
According to R v. Maxwell [2011] 4 All ER 941, in particular at paragraph 13, there are two categories of cases in which a criminal prosecution may be stayed as an abuse of the process: where it will be impossible for the accused to receive a fair trial; and where the circumstances are such that it would offend the court's sense of justice and propriety to try the accused. These are commonly referred to as category 1 or limb 1 abuse, and category 2 or limb 2 abuse, respectively.
The burden is on an accused person to show on a balance of probabilities that he is entitled to a stay on grounds of abuse of process. In the circumstances of this case, which is concerned only with a category 1 abuse, the Accused mush show, on a balance of probabilities, that it is impossible for him to have a fair trial.
In determining this application I remind myself that a stay of criminal proceedings is always an option of last resort. According to Gross LJ in DPP v. Fell [2013] EWHC 562 (Admin) at paragraph 15, the grant of a stay:
“… is, effectively, a measure of last resort. It caters for and only for those cases which cannot be accommodated with all their imperfections within the trial process”.
With this in mind, I start with a consideration of the landmark decision of R (on the application of Ebrahim) v. Feltham Magistrates' Court (2001) 1 WLR 1293. In this case, E, who had been charged with common assault, sought judicial review of a refusal to grant a stay of proceedings for abuse of process following the destruction of video evidence. E maintained that the video evidence was relevant to his defence.
In determining the issue, the Court offered guidance on the approach to be taken when confronted with matters of this nature. At paragraph 16 Brooke LJ noted that the first line of enquiry should be to:
“determine whether the prosecutors had been under any duty, pursuant to the 1997 Code and the new guidelines, to obtain and/or retain the material of whose disappearance or destruction complaint is now made. If they were under no such duty, then it cannot be said that they are abusing the process of the court merely because the material is no longer available. If on the other hand they were in breach of duty, then the court will have to go on to consider whether it should take the exceptional course of staying the proceedings for abuse of process on that ground.”
Noting also that Brooke LJ confirmed at paragraph 12, that the provisions of the Code preserve and amplify common law rules which were prescribed by the judges before the Code came into force, I adopt the approach outlined by Brooke LJ at paragraph 16.
Standing Order 16(10)(1) of the Trinidad and Tobago Police Standing Orders states that:
“It shall be the duty of all Police Officers to secure their pocket diaries against loss”.
This is an order which is set against the backdrop of Standing Order 16(6) of the Trinidad and Tobago Police Standing Orders which states specifically that:
“The Pocket Diary is the Police Officer's best safeguard against allegations of dishonesty and acting in bad faith when performing his/her duties.”
Additionally, before Standing Order 17(13) of the Trinidad and Tobago Police Standing Orders was struck from the Standing Orders of the Trinidad and Tobago Police Service in Keron Phillip v. The Attorney General of Trinidad and Tobago & The Attorney General of Trinidad and Tobago Claim No. CV2020-04432, there was a positive...
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