The State v Dexter Brown & Nichia Outram

• Jurisdiction: Trinidad & Tobago
• Court: High Court (Trinidad and Tobago)
• Judge: Madame Justice Nalini Singh
• Judgment Date: 16 December 2024
• Neutral Citation: TT 2024 HC 319
• Docket Number: CR No. 99 of 2007

The State

and

Dexter Brown & Nichia Outram

Before

THE HONOURABLE Madame Justice Nalini Singh

CR No. 99 of 2007

IN THE HIGH COURT OF JUSTICE

CRIMINAL DIVISION

SAN FERNANDO

REPRESENTATION:

Mr. Andrew Sharp & Ms. Sephra Alexander for Dexter Brown

Ms. Karuna Bisramsingh for Nichia Outram

Ms. Norma Perters, Mr. Keston Abraham and Mr. Teriq Smith appeared for the State relying on written submissions of Ms. Shabaana Shah.

RULING ON ABUSE OF PROCESS APPLICATION

1.0 The Application

1.1 The first accused has filed a motion to stay the indictment before the Court based on the lengthy period of time which has elapsed since the alleged commission of the offence, a period of approximately twenty-three years.

1.2 The matter originates from charges brought against the accused persons on the 6 ^th of December 1999, for possession of dangerous drugs for the purposes of trafficking. The case for the State is that the accused persons were in possession of two types of dangerous drugs namely: cannabis sativa (marijuana) and cocaine, and both were found in the living room of premises located at No. 15 Brazil Road Wallerfield. The second accused was seen weighing one of the packets on a scale in the living room while the first accused was heard commenting on its weight. The case for the State is that the second accused saw a police officer peeping through a window of the living room, at which point other police officers surrounded the house and shouted for the two accused persons to open the door. 93 packets of dangerous drugs were found of which 92 packets contained marijuana weighing 230.71 kilograms; and 1 packet contained cocaine weighing 4.093 kilograms. Both accused persons denied that the packets were ever in the house. The second accused further denied that she ever placed any of those packets on a scale. The initial trial was conducted in 2013, and the accused was found guilty and sentenced to 18 years of hard labour. However, following an appeal in 2014, the Court of Appeal ordered a retrial. Despite this ruling, the case remains unresolved, and over 23 years have now elapsed since the initial charge, giving rise to the application to stay the indictment.

1.3 One of the key arguments presented relates to the State's failure to provide timely and complete disclosure of evidence. This ongoing delay has severely stymied the defence's ability to prepare adequately for trial, thereby denying the accused the opportunity to mount the best possible defence.

1.4 Additionally, the defence raises concerns regarding the loss of critical evidence and witnesses over the prolonged timeline. The death of a key witness, Ousman Ali, in 2017 is raised as a concrete example of the prejudice caused by this undue delay. It is argued that the inability of this witness to attend the trial to be cross-examined creates an unfair advantage for the State, further exacerbating the prejudicial impact on the accused.

1.5 The defence cites the case of Director of Public Prosecutions and Another v. Tokai and Another [1996] 2 LRC 314, where Lord Keith emphasized that “the power to stop a prosecution arises only when it is an abuse of the process of the court.” The defence argues that this matter now squarely falls within the realm of an abuse of process, as the prosecution has not acted with the necessary diligence to ensure a timely retrial.

1.6 The defence also raises concerns regarding the balance between public interest and the rights of the accused. While the public interest in prosecuting serious offences is acknowledged, the defence contends that the hardship endured by the accused must also be considered. The accused says that he has diligently attended every stage of the judicial process and bears no responsibility for the accrued delays. Yet, the prolonged 23-year prosecution process has caused significant inconvenience, anxiety, and distress. Accordingly, he urges the Court to strike an appropriate balance between the perceived public benefit of continuing the retrial and the reality of the ordeal suffered by him.

1.7 He concedes that the Constitution of Trinidad and Tobago does not explicitly stipulate a right to a speedy trial, he argues that it is generally accepted that trials should be conducted promptly or, at the very least, within a reasonable period. The defence notes that the total duration of this case from the original charge in 1999 to the present, constitutes 23 years of prosecution. This duration is manifestly unreasonable and represents a fundamental breach of the principles of justice. In addition, the Court of Appeal itself previously expressed concern about the significant passage of time between the charge and the initial trial, a concern which has only been magnified by the eight years that have elapsed since the order for a retrial.

1.8 The accused therefore submits that justice requires a permanent stay of proceedings. To continue with the retrial would undermine the integrity of the judicial process and cause further prejudice to the accused, who has already endured significant distress over the 23 years.

2.0 The State's Submissions

2.1 On the other hand, the State contends that the continuation of the proceedings is justified and does not offend the principles of justice or fairness. While acknowledging that some delay was attributable to the prosecution, the State asserts that the Applicant himself contributed significantly to the overall delay. They developed the point in this way. Firstly, they argue that the Applicant's frequent changes of legal representation created discontinuity and disrupted the proceedings. According to the State, from January 2015 to May 2024, the Applicant shifted between multiple attorneys, including representing himself at certain points. Notably, from the 12 ^th of January, 2015 when the matter first appeared on the High Court listing after the appeal proceedings, and the 21 ^st of September, 2015, the Applicant was unrepresented. The Applicant was then represented by Mr. R. Rajcoomar until the 12 ^th of October 2016, when leave was granted for learned counsel to withdraw from the matter on the basis that the Applicant had failed to make himself available at his office and secondly, he had not been properly retained. The Court then ordered that an attorney from the Legal Aid & Advisory Authority (“LAA”) be appointed. The Applicant remained unrepresented until the 22 ^nd of February 2017, when an attorney from LAA was appointed, in the person of Mr. R. Rajah. It then appeared that from the 1 ^st of June 2018, the Applicant was represented by Mr. S. Kingston until the 7 ^th of May 2019, when the Applicant made known to the Court that he would represent himself. On the 12 ^th of December 2023, the Applicant informed the Court that he was making arrangements to retain an attorney, and so, the Court allotted time for same. This was the Applicant's position until the 8 ^th of May 2024, when he informed this Court that he wished to have an attorney from the Public Defenders' Department (“PDD”). New attorneys did not enter their first appearance in this matter until the 29 ^th of May 2024 when Mr. Andrew Sharpe and Ms. Sephra Alexander were appointed.

2.2 There is the second matter of the Applicant repeatedly providing fluctuating indications of readiness. On multiple occasions according to the State, the Applicant asserted that he was ready for trial, only to later claim un-readiness or request additional disclosure. So on the 23 ^rd of September 2015, the Applicant expressed that he was not ready for trial. Yet on the 1 ^st of December 2015, the Applicant informed the Court that he was in a state of readiness. This was the Applicant's continued position on the 1 ^st of March 2016, and then again on the 1 ^st of June, 2016. However, on the 3 ^rd of October, 2016, the Court ordered an adjournment for the Applicant to get his house in order. On the 5 ^th of July 2017, the Applicant again expressed readiness and on the 7 ^th of January 2019, the Applicant, through counsel, indicated to the Court that there were no outstanding issues for the Applicant — although his attorney indicated that he may need certain station diary extracts, they were ready.

2.3 The third issue is that the Applicant did not comply with Court orders, such as failing to file witness lists and defence statements within deadlines which only added to the mounting delay. According to the Court Records, the Applicant took 11 months and 22 days to comply with filing his defence statement.

2.4 Further, his occasional absences from hearings, including as recently as September 2024, caused additional delays. As such, the State's position is that the Applicant cannot entirely absolve himself of responsibility for the delays.

2.5 On the specific issues of delayed disclosure, the State argued that from the 22 ^nd May 2019, the Applicant began making requests for certain disclosure such as his financial record from prison dated the 7 ^th of October 1999 and the submission form for the exhibits dated the 23 ^rd of November 1999 from the Forensic Science Centre. The State concedes that these documents were outstanding. Then on the 12 ^th of December 2023, the Applicant outlined certain documents that were outstanding and mentioned that, having reviewed his file from his previous representation, he discerned those certain items were missing. The Court then ordered that the Applicant send a disclosure request to the then-appointed state attorneys. On the 15 ^th of April 2024, the Applicant informed this Court that he was unable to say whether he had received full disclosure. On the 8 ^th of May 2024, the issue of disclosure reared its head again when it became apparent to this Court that the correspondence which was sent by the Applicant was not a request for disclosure; in response, the Applicant conveyed his belief that since the then state counsel had the file, they would have...