The State v Derek Badree
| Jurisdiction | Trinidad & Tobago |
| Judge | Madame Justice Nalini Singh |
| Judgment Date | 22 January 2024 |
| Neutral Citation | TT 2024 HC 26 |
| Docket Number | CR-HC-POS-IND-28 of 2021 |
| Court | High Court (Trinidad and Tobago) |
THE HONOURABLE Madame Justice Nalini Singh
CR-HC-POS-IND-28 of 2021
IN THE HIGH COURT OF JUSTICE
CRIMINAL DIVISION PORT OF SPAIN
Mr. Chase J. Pegus and Mr. Danyal Mohammed appeared for Derek Badree
Ms. Rebecca Trim-Wright and Ms. Kezia Gray-Birkette appeared for the State
The prosecution requests the Court to grant its application for the video link testimony of three witnesses who are currently abroad.
The background to this application now follows.
The accused, Derek Badree, is charged with one offence of rape contrary to section 4(1) of the Sexual Offences Act 1986 as amended, one count of grievous sexual assault contrary to section 4A(1) of the Sexual Offences Act 1986, as amended, and one count of attempted buggery contrary to section 13(1) of the Sexual Offences Act 1986, as amended.
The charges are based on an allegation that on the 14 th of November 2008 at the Santa Maria Hotel in Chase Village, Caroni, the accused contracted with the virtual complainant, a Columbian national, to have sex for TTD $240.00. After entering a room at the Santa Maria Hotel, the virtual complainant handed the accused a condom. He threw it away and this prompted the virtual complainant to tell him that if he didn't use the condom there would be no sex. At this point, the accused took out a pistol, pointed it at the virtual complainant and had sexual intercourse with her without her consent. He then attempted to insert his penis into her anus. After this, the accused forced the virtual complainant to perform oral sex on him. In time, someone knocked on the door and while the accused was speaking to that person, the virtual complainant ran out of the room naked.
On the 29 th of March 2023, a list of thirteen witnesses the prosecution intended to call during the trial against the accused, was filed. The list included three witnesses who are currently abroad: Gary Fitz-Gerald Hughes, WPC Nickita Thomas and Christopher Eastman.
The anticipated evidence of Gary Fitz-Gerald Hughes, the manager of the Santa Maria Hotel, is that on the 14 th of November, 2008, the accused approached him within the hotel. The accused pointed to the virtual complainant, expressing an interest in her. In response, Gary Fitz-Gerald Hughes instructed the accused to approach and communicate with her to make any necessary arrangements. Approximately half an hour later, Hughes received notification of a disturbance on the upper floor. Upon investigation, he encountered the virtual complainant descending the stairs. She was visibly distressed, partially unclothed, crying, and trembling. Christopher Eastman accompanied her. Gary Fitz-Gerald Hughes proceeded to the Chaguanas police station, where he provided a statement to the police regarding the incident. He later attended an identification parade where he pointed out the accused as the person who had expressed an interest in the virtual complainant on the 14 th of November 2008.
The anticipated evidence of WPC Nickita Thomas is that on the 14 th of November 2008, she accompanied the virtual complainant to a medical examination conducted by DMO Dr. Trim. Following the examination, WPC Thomas obtained a detailed medical report outlining Dr. Trim's findings. Subsequently, she delivered this document to the lead investigator, Sgt. Joseph. Further, WPC Thomas retrieved a swab from Dr. Trim during the examination, and she submitted it to the Forensic Science Centre for testing as part of the investigative process.
Christopher Eastman is a friend of the virtual complainant. The anticipated evidence of this witness is that he was the person she contacted following the alleged incident. He met her as she was hurrying down the stairs of the hotel, in a partially unclothed state. She shared the details of the incident with him. During the conversation, the accused came down the steps, and the virtual complainant pointed him out as the person she had just spoken about. Later, Christopher Eastman discovered that the man in question was identified as Officer Badree who he observed leave the premises in a marked police van. This witness attended a police identification parade where he positively identified the accused as the person pointed out to him by the virtual complainant on the 14 th of November 2008.
The only issue before me is whether Gary Fitz-Gerald Hughes, Nickita Thomas and Christopher Eastman should be permitted to testify in this trial via video link.
Neither a formal application nor an affidavit was filed, either by the complainant or someone else with evidence in support of the order sought. In the oral application which was made to the Court, the prosecutor stated that the application was based on the fact that the witnesses were out of the jurisdiction. So it appears that the prosecution's position is that sworn evidence is not necessary in the present instance for the Court to properly exercise its discretion.
In objecting to the Court making the order sought in this application, the defence raised the following points in their written legal arguments:
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(a) Based on the representation of the prosecutor, the issue of a hybrid trial was never canvassed at the case management stage and it was the expectation of the accused that he would be given the opportunity to confront his accuser.
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(b) Video link testimony cannot facilitate a complete assessment of a witness's demeanour.
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(c) It is unjust to allow the witnesses to testify via video link.
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(d) Prior case management of the matter which came at considerable mental exertion to the accused has been rendered completely useless by this proposed course of action.
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(e) If the accused had foreseen the introduction of virtual evidence, he would have contemplated choosing a judge-alone trial a choice which is now unavailable to him. During oral arguments, counsel clarified that by opting for a judge-alone trial in the present circumstances, the accused could have benefited from an assessment made by a judge trained in assessing the demeanour of a witness testifying remotely. Unfortunately, he is now compelled to rely on lay individuals lacking such specialized training to make determinations relating to credibility and reliability from witnesses giving video link evidence.
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(f) Evidence would be given from a room in which there is little safeguard against external influence.
I have determined the prosecution's request despite the absence of any supporting evidentiary foundation. I want to emphasize that while the lack of sworn evidence does not render the application fatally flawed, that is not to say that formal evidence is never necessary. According to Chief Justice Goodridge at paragraph 42 in R. v. Merdsoy (1994), 1994 CanLII 9770 (NL CA), 121 Nfld. & P.E.I.R. 181, 91 C.C.C. (3d) 517 (Nfld. C.A.),
“The exercise of a trial judge's discretion is generally not attended by extended arguments or evidence. An application is made and the reasons for it are expressed; it may be opposed and the reasons for opposition are expressed. Knowledge of things arising out of the trial process which must be obvious to the trial judge may be presumed.”
In this case, I have exercised my discretion based on the existing record and submissions. The record indicates that the alleged offence took place in 2008, and approximately fifteen years have elapsed since then. It is reasonable to expect that not every civilian witness and police officer involved in the case would still be available to testify in person at the trial. The trial judge may presume knowledge of matters arising from the trial process that are evident and this is what I have done. However, this does not negate the importance of formal evidence, as it is not always dispensable.
For the reasons that follow, I am satisfied that in the unique circumstances of this case, permitting Gary Fitz-Gerald Hughes, Nickita Thomas and Christopher Eastman to testify by video link does not negatively impact trial fairness, and therefore their testimony by way of video link should be permitted. I grant the application of the prosecution to lead evidence from the three aforementioned witnesses via video link.
I have based my decision on five planks.
Section 3 of the Miscellaneous Provisions ( Administration of Justice) Act 2020 amends the Supreme Court of Judicature Act by inserting after section 14 the following new section:
“14A. The Chief Justice may, when the circumstances warrant, issue directions as deemed necessary for regulating and prescribing the manner in which—
(a) criminal and civil trials may be conducted by audio and video link; and
(b) evidence may be given by audio and video link or other communication medium, from a remote point both in criminal and non-criminal matters.”
This is the statutory framework from which the Criminal Procedure Rules 2023 were issued.
A court has the authority to regulate how evidence is received during a trial. According to rule 7.3(1)(e) of the Criminal Procedure Rules 2023 courts have a duty to ensure that evidence, whether disputed or not, is presented in the shortest and clearest way. This means that courts are entrusted with the crucial duty of ensuring that evidence, whether contested or undisputed, is presented in a manner that is both succinct and easily comprehensible. This rule reinforces the court's pivotal role in regulating the entire process of introducing, examining, and presenting evidence during a trial.
Further illustrating the point that the court is empowered by the rules to control the manner in which evidence is received, is rule 11.4(k) of the Criminal Procedure Rules 2023. This rule allows the court to...
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