The State v Ken Foster
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Justice Hayden A. St.Clair-Douglas |
| Judgment Date | 18 March 2021 |
| Neutral Citation | TT 2021 HC 55 |
| Docket Number | CR No. 32 of 2011 |
| Court | High Court (Trinidad and Tobago) |
IN THE HIGH COURT OF JUSTICE
PORT OF SPAIN
the Honourable Mr. Justice Hayden A. St.Clair-Douglas
CR No. 32 of 2011
Ms. Giselle Ferguson-Heller and Ms. Indira Chinebass for The State
Mr. Peter Carter for Ken Foster
The accused, Ken Foster, is charged with offences of shooting with intent, possession of a firearm and possession of ammunition. The offences are alleged to have been committed on April 3, 2002. The accused has sought leave of the court to adduce evidence at trial which will seek to demonstrate that Kerwin Phillip (now deceased) was of bad character. It would appear that Kerwin Phillip was the driver of a car in which the accused was a passenger at the time of the alleged incident that led to the charges which the accused faces.
The nature of the bad character alleged against Kerwin Phillip is that he was a member and/or the leader of a criminal gang known as the G-Unit Gang.
Evidence which has the effect of demonstrating that a person is a member of a criminal gang is evidence of bad character. Section 15K of the Evidence Act provides that a reference to evidence of a person's bad character is a reference to evidence of misconduct by that person or a reference to evidence of a disposition on the part of that person towards misconduct. By definition therefore, evidence that a person is a member, or the leader of a criminal gang is either evidence of misconduct or of a disposition toward misconduct.
The admissibility of evidence of a person's bad character is governed by s 15M of the Evidence Act, Chap 7:02 (if that person is not charged in the proceedings), or by s 15N (if that person is accused in the proceedings).
Kerwin Phillip was not charged with the instant offences; he was not a co-defendant, s 15N therefore does not govern the admissibility of his misconduct or disposition toward misconduct. Because Kerwin Phillip was not a co-accused, the ostensible means by which evidence of his misconduct or disposition can be admitted would appear to be s 15M.
The allegation of Phillip's membership in the G-Unit Gang is clearly an allegation that he was of bad character, nevertheless the primary contention of the instant application is that the admissibility of evidence establishing Phillip's membership or role in the G-Unit Gang is not governed by s 15M. The application submits that this is so because the definition of evidence of bad character set out in s 15K excludes evidence of Phillip's misconduct or disposition toward misconduct in the circumstances of the instant charges.
While defining evidence of bad character as evidence of misconduct or of a disposition toward misconduct, s 15k provides that evidence of bad character does not include evidence which (a) has to do with the alleged facts of the offence charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence. The accused contends that the evidence which he seeks to adduce in relation to Kerwin Phillip is evidence that has to do with the alleged facts of the offence with which he is charged.
As an alternative to his main contention, the accused submits that evidence of Phillip's bad character would nevertheless be admissible via s 15M(1)(a) that is to say, that it constitutes important explanatory evidence.
In response to the application, the State opposes both bases on which the instant application seeks to adduce evidence related to Kerwin Phillip. The State contends firstly, that evidence relating to Kerwin Phillip is irrelevant to the instant charges against Ken Foster. It is contended further that evidence of reputation is unreliable and will not assist the court in resolving the issues at bar in the instant case. The State also warns that the suggested evidence of reputation cannot be elicited without an excursion into satellite issues. As to the alternative basis of s 15M(1)(a) on which the accused submits that evidence of bad character of Kerwin Phillip ought to be admitted, the State contends that evidence of Phillip's bad character does not amount to important explanatory evidence.
The indictment alleges that Ken Foster shot at Roger Alexander, and at Phillip Forbes, and at Andrew Lawrence, with intent to do them grievous bodily harm. The indictment also alleges that Ken Foster was in illegal possession of a firearm and ammunition. Roger Alexander, Phillip Forbes and Andrew Lawrence were, at the material time, members of the Trinidad and Tobago Police Service. A brief summary of the circumstances of the shooting, as told by the case for the prosecution, is that the police officers were on mobile patrol in a marked police vehicle when they received a wireless message relating to a robbery. They were informed of the registration number of a car that was alleged to have been involved in that robbery. While proceeding toward the area where the robbery had been reported they observed the suspicious car whose number had been provided to them. When the police vehicle began to follow the suspicious car, it sped off. As the police gave chase shots were fired at the police vehicle from the left side of the car. The suspicious vehicle eventually came to a stop. The driver came out with his hands up, but the occupant of the passenger seat shot at the police as he emerged; he ran a short distance from the vehicle and fell to the ground. A loaded firearm was found on the passenger as he lay on the ground. The accused was the passenger.
The defendant denies the charges and contends that they amount to fabrication. During the course of oral amplification of his submissions, counsel intimated that the defence will contend that the police officers sought to ambush and shoot at the car, which Phillip was driving and in which he was a passenger. It appears that the defence will contend that the police sought to ambush the car because of Phillip's presence in the car and because of his reputation and activity as a gang member/leader. It is this contention which will have the effect of introducing evidence that is either evidence of misconduct or is evidence of a disposition toward misconduct. Phillip was not charged with the offences, therefore any evidence that demonstrates misconduct on his part should be governed by s 15M, unless it is not ‘evidence of a person's bad character’ as defined by s 15K. The application contends that it is not ‘evidence of (Phillip's) bad character’ because it is evidence that ‘has to do with the alleged facts of the offence with which (Ken Foster) is charged’. 1
The question, whether evidence of alleged reprehensible acts falls outside the definition of bad character by virtue of being connected with the alleged facts of the offence under consideration, is usually judged or considered or determined in accordance with the narrative of those ‘alleged facts of the offence’ as told by the case for the prosecution. But should the ‘alleged facts’ be considered exclusively from the perspective of the case for the prosecution?
J R Spencer notes that a narrow reading of the phrase ‘evidence which has to do with the alleged facts of the offence with which the defendant is charged’ might lead to view that the ‘alleged facts’ can only be the facts alleged by the prosecution. Spencer is of the view that this narrow reading has nothing to commend it, however, and he suggests that it ought to be rejected. 2
The appellant in R v Machado 3 had been convicted of robbery; the victim had testified that he had been robbed while walking home in company of the appellant and others. The appellant's case was that he had not robbed but had merely touched the victim, who immediately fell to the ground. He stated that he noticed that the victim's wallet had fallen to the ground, but when he attempted to return it the victim had already run off. The appellant's counsel had wished to cross-examine the victim to allege that in the course of their encounter he (the victim) had offered to supply drugs to the appellant and further that he (the victim) had told the appellant that he had taken an ecstasy tablet. The prosecution had resisted this line of cross-examination, contending that any evidence which tended to show that the victim had taken drugs or had offered to supply drugs would amount to evidence of bad character on the part of the victim, and ought not to be permitted. The trial judge had prohibited the proposed line of cross-examination.
The English Court of Appeal ruled that the trial judge had been wrong. Section 98 of the Criminal Justice Act 2003, UK (the equivalent of s 15K of the Evidence Act) defines ‘bad character’ to exclude evidence of misconduct or a disposition toward misconduct which has to do with the alleged facts of the offence with which the defendant is charged. The evidence which the appellant wished to lead was evidence of the very circumstances in which the offence had occurred. 4 This was not evidence of the circumstances according to the prosecution case; the evidence of these circumstances would have come from the case for the defence, but it nevertheless was ‘evidence of the alleged facts of the offence’ within the meaning of the relevant section. No issue
In the instant case the response of the accused to the charges involves demonstrating that a person who was present at the time of the alleged commission of the offences was a gang member or gang leader. That person is not charged in these proceedings. This description of that other person does not form part of the case for the...
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