The State v Jeremy (No. 2)
| Jurisdiction | Trinidad & Tobago |
| Judge | Rahim, J. |
| Judgment Date | 22 October 2010 |
| Neutral Citation | TT 2010 HC 269 |
| Docket Number | 60 of 2006 |
| Court | High Court (Trinidad and Tobago) |
| Date | 22 October 2010 |
High Court
Rahim, J.
60 of 2006
Mr. R. Hector appeared on behalf of The State.
Mr. Morgan and Mr. Rooplal appeared on behalf of the accused.
Evidence - Shooting with intent — Possession of a firearm — Possession of ammunition — Second medical brought as evidence was relevant to a material issue in trial — Whether the evidence that the accused some 3 months subsequent to the commission of the offence had in his possession a firearm and ammunition should be taken along with other facts of the case — Attempt by the State to peremptorily lead rebuttal evidence in this case may have resulted in prejudice — Court upheld the objection to this evidence — The evidence that the accused when confronted by the police ran away may be considered relevant to his consciousness of guilty in relation to the offences — Objection to this evidence was overruled.
By indictment filed on the 24th day of March 2006 as amended with leave, the accused stands charged with one count of shooting with intent, one count of possession of firearm and one count of possession of ammunition allegedly committed on the 1st day of September 2002.
By grounds of preliminary objection filed by the defence on the 19th October 2010, the accused objects to the admission into evidence of the following items of evidence as appear on depositions.
- The evidence of Mr. K. Fung Kee Fung, Consultant Surgeon, Port of Spain General Hospital. 2. Evidence by Police Constable Roger Riley relating to the circumstances surrounding the arrest of the accused, in particular, the following as contained in the deposition of the witness.
a. “Ratty opened the door I then saw him get up from where he was sitting and ran in a southerly direction.”
b. “On entering that apartment I heard P.C. Bernard who was one of the officers present shout Ratty drop the gun, shortly after that I heard several shots being fired and I stood where I was for a while and then I entered the room on the southern side where I saw the accused, Wendell Jeremy lying on the ground with a. 38 revolver near to him. I also observed he was bleeding from a wound on his right leg.”
In summary the case for the State appears to be that on the night of the 1st September 2002, while at a dog show at Pinto Road Arima, the accused shot at and injured a police officer, namely Police Constable Brandon John. It is alleged that, having heard an explosion that sounded like a gunshot, the virtual complainant observed several persons running from the direction in which the explosion came. He then observed the accused whom he had known before that day, exiting the compound with what appeared to be a chrome coloured firearm in his hand. The virtual complainant approached the accused and called out to him. The accused then turned around, looked in the direction of the virtual complainant and fired a shot at him which caught him in the upper part of his left leg. The assailant was not apprehended.
On the 10th December 2002, a party of police officers including PC. Riley, journeyed to Railway Road Chaguanas where they saw the accused in a house, proceeded to call on him to step out of the house and he began to run away. At some point during the running, one of the officers present was heard ordering the accused to drop a gun. There was then a burst of gunfire and the accused was then observed lying on the ground with what appeared to be a wound. Lying near to him was a revolver. He was arrested and taken to the Port of Spain General Hospital.
Some days later, on the 13th December 2002, the Complainant spoke with the Accused at the La Horquetta police station and an oral admission in the form of a mixed statement was allegedly made. This statement has been ruled admissible, a Voir Dire.
By Notice of Fresh Evidence filed on the 21st August 2007, the State indicated its intention to seek the leave of the court to admit into evidence what purports to be a medical report (hereinafter referred to as “the second medical”) under the hand of Mr. K. Fung Kee Fung, dated 14th May 2003, in relation to injuries allegedly sustained by the virtual complainant. The full text of this document is as follows:
Reg. #706101
SURGICAL
General Hospital, Port-of-Spain
May 14, 03
MEDICAL RERPORT ON:
No. 11558 P.C.
THOMAS BENJAMIN
This Medical Report is taken from patient's Hospital Case Notes No. 706101.
Mr. Thomas Benjamin was admitted to the General Hospital, Port of Spain via Accident and Emergency on the 2nd September, 2002 having allegedly being shot in his left thigh the previous evening while on duty.
The bullet entered the medial aspect of his left thigh and exited on the posterior lateral aspect lower down. There was full range of movements, no loss of sensation and no paralysis. His pulses were normal and he had a full range of movement.
X-rays were performed and there were no bony injuries.
He was admitted to Ward 24 and treated with antibiotics, tetanus toxoid, pain relief and elevation of the left leg. He was reviewed by Dr, Byam, and medications continued.
He was kept under observation until the 3'd September, 2002 and subsequently discharged to the Surgical Outpatients' Clinic. He was seen in the clinic on the 18'h September, 2002 complaining of intermittent pain in the left leg. There was no loss of power and he had a normal gait. The wounds had healed well.
He was subsequently asked to return in two months time for a final review but there is no evidence in his file that he kept this appointment.
Signed
Mr. K Fung Kee Fung, FRCS
Consultant Surgeon
At the Magistrate's Court, another document purporting to be a medical report was admitted into evidence and marked NA1 (hereinafter referred to as “the first medical”.
Prima facie, NA1 appears not to be in conformity with the provisions of section 19 of the Evidence Act as far as permitting its reception into evidence. In recognition of this deficiency the State has indicated to the court that it will not be seeking the admission at trial of NA1, neither will the State be calling the doctor who purportedly issued NA1. The defence subsequently indicated that they require the said doctor for cross examination.
It is nonetheless important, notwithstanding the argument against the admission of NM for non compliance with section 19 of the Evidence Act, to set out in full the contents of NA1.
They are as follows:
This is to testify that on 01-09-02I examined Benjamin Thomas at Arima A&E and found him/her to be suffering from the following injuries:
- Bullet entry would 1/4” diameter on the back of the (l) thigh
- Exact bullet injury 1/4” diameter on the front of (r) thigh
- Bleeding
The injuries were probably inflicted with a bullet injury.
Signed
Dated this day of 01-09-02
A signature appears but is indecipherable. During argument before the court, the State articulated that they were not seeking the admission of the document purportedly issued by Mr. Fung Kee Fung, but were in fact seeking leave to call Mr. Fung Kee Fung as a witness to give evidence in the terms of the document.
It therefore follows, as was accepted by Attorneys for the accused and for the State, that the issue of whether the document under the hand of Mr. Fung Kee Fung amounts to a report by an expert as defined by the Evidence Act and is therefore admissible no longer arises.
The objection becomes in this regard, an objection to the State eliciting oral testimony from the witness Fung Kee Fung as fresh evidence.
The objection to the evidence to be given by Mr. Fung Kee Fung as set out by attorneys for the accused can be summarised as follows:
- There appears to be a material difference between the results as detailed in the first medical when the virtual complainant was first examined at the Arima Accident and Emergency department and that contained in the second medical when he was examined and treated at the Port of Spain Hospital. This material difference is fundamental in that the first medical suggests that the entry wound of the bullet was sustained at the back of the thigh and the exit wound to the front of the thigh. This contradicts what is contained in the second medical, that is, that the entry wound was to the medial aspect of the thigh with an exit to the posterior lateral aspect of the thigh. The defence suggests that the results of examination as set out in the second medical are more favourable to and supports the State's case more so than those set out in the first medical, having regard to the evidence to be given by the virtual complainant. In particular, the defence submits that the second medical is capable of supporting the evidence of the virtual complainant when he testified at the Magistrate's Court that he called out the accused by name, the accused then turned around, looked in his direction and shot him in his leg. The defence contends that while the position of the wounds in the second medical may be more in keeping with such an attack, the position of the wounds as set out in the first medical is not. It is therefore unfair to permit the State to call such evidence now. 2. No excuse has been provided by the State for failing to call such evidence at the committal proceedings and as a consequence such failure is inexcusable. The defence submits that such inexcusable omission must result in the automatic exclusion of the evidence. 3. That in all the circumstances, it would be unfair and highly prejudicial against the accused to admit such evidence.
There is no want of authority in this jurisdiction on the test and exercise of discretion on the part of the court when considering...
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