The State v Khamraj Sahadeo
| Jurisdiction | Trinidad & Tobago |
| Judge | Madame Justice Brown-Antoine |
| Judgment Date | 27 September 2023 |
| Neutral Citation | TT 2023 HC 299 |
| Docket Number | CR-HC-SDO-IND-403-2021-1-6 |
| Court | High Court (Trinidad and Tobago) |
The Honourable Madame Justice Brown-Antoine
CR-HC-SDO-IND-403-2021-1-6
CR-HC-POS-IND-357-2023-1-6
IN THE HIGH COURT OF JUSTICE
Mr. Gilbert Peterson SC, Ms. Elaine Green, Ms. Giselle A. Ferguson-Heller and Ms. Ketisha Ambrose-Persadsingh for the State.
Mr. Israel Khan SC instructed by Ms. Arissa Maharaj for Accused Nos. 1, 2 and 5.
Mr. Ulric Skerritt instructed by Ms. Arissa Maharaj for Accused Nos. 3, 4 and 6.
The accused are charged with the murder of three (3) persons. All the accused are police officers. The killings are alleged to have occurred on 22 July 2011 during the course of a police exercise in which all of the accused were involved. There were two (2) alleged crime scenes.
At the preliminary enquiry, twenty-three (23) colour drawings of the crime scenes were admitted into evidence through Police Sergeant Gregory Hood (referred to as Sgt Hood), a Police Draughtsman.
At the trial, the defence has taken objection to twenty-two (22) of the drawings. The drawings objected to can be divided into three (3) categories:
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i) Drawings into which each of the accused had an input;
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ii) Drawings into which a main witness for the state (referred to as WPC N) had an input; and
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iii) Drawings into which several witnesses for the State had an input.
The drawings into which the accused had an input are labelled as follows:
page # 1 — drawing into which accused No. 1 had an input
page # 4 — Drawing into which accused No. 6 had an input
page # 5 — drawing into which accused No. 2 had an input
page # 6 — drawing into which accused No. 4 had an input
page # 7 — drawing into which accused No. 3 had an input
page # 8 — drawing into which accused No. 5 had an input
The defence objected to the admissibility of these drawings on the ground that at the time the accused were asked to attend the crime scene and point out various areas, they were under investigation for the offence of attempting to pervert the course of public justice. As a result of the above, they should have been cautioned under Rule 2 of the Judges' Rules before being asked to point out any areas at the crime scene. It was also submitted that the accused persons were therefore tricked into providing evidence in this case.
The State did not respond to these submissions but instead indicated that the prosecution will not tender into evidence any of these six (6) drawings.
The drawings into which the witness WPC N had an input are labelled page #12, page #15, page #16, page #17 and page #18.
The status of this witness is yet to be determined. The Court may have to make a ruling on this at a later stage of the trial. The State has indicated that they will not seek to tender these drawings at this stage but reserve the right to do so when the status of the witness is resolved.
The drawings into which the other witnesses for the State had an input are labelled as follows:
Page # 2 — Marvin Figaro
Page # 3 — Andrel Richard
Page # 9 — Ag Sgt Ragoo
Page # 9a — Mungal Singh
Page # 10 — Maniram Bagnath
Page # 11, # 11a, # 11b, #11c — Leeladeo Surujbally
Page # 13 — Renzie Ramsumair
All of these are drawings of the crime scene located at the intersection of Gunness Trace and Rochard Douglas Road, Barrackpore. The general layout of each drawing (with the exception of #11a, #11b, and #11c) is essentially the same in the sense that they all show the two roads, Gunness Trace and Rochard Douglas road, and their relation to each other. They also show two business places, “RT's Grill Foods” and “Singh's Auto Clinic”, four (4) residential structures and a shed and their relative position in relation to the roadway and to each other. They also show the position of two (2) electrical poles with lighting fixtures. Additionally, each of these seven (7) drawings has a box entitled “Notes” in which the Draughtsman listed certain aspects of his conversation with each witness.
Drawings #11a, #11b and #11c are three-dimensional drawings similar to drawing #3a, which gives a three-dimensional view of the crime scene at Gunness Trace and Rochard Douglas road. In this version, the roads are shown, together with an auto parts place attached to a residential structure and a BBQ Hut attached to a residential structure. Drawing #11a contains a car, a man and certain pen markings on the roadway; #11b contains a car, several men and two (2) police vehicles and #11c contains two (2) cars, two (2) police vehicles and several arrows drawn on the roadway, among other markings.
The defence objected to these ten (10) drawings on two (2) grounds, namely, that they are inadmissible as they contain hearsay evidence and that they amount to previous consistent statements of the witnesses.
Mr Skerritt submitted that the drawings contain assertions upon which the Prosecution relies in proof of its case. The Prosecution will be asking the tribunal of fact to accept these assertions. Each witness attended the crime scene and pointed out areas to Sgt. Hood and told him something. The “Notes” on the drawings reveal the conversation that each witness had with Sgt. Hood. It was submitted that what should have been done was that Sgt Hood should have created a general drawing and each witness could be shown that drawing in Court to point out the areas relevant to their testimony.
The drawings are also previous consistent statements of the witnesses because they appear to support the testimony of the witness. If each witness is shown his drawing he will see thereon, the information he gave to Sgt Hood. He will be able to say, “ This is what I said to Sgt Hood.” The impression will be given that what he has said in evidence was given before in documentary form. In effect the witness will be asked to confirm his previous testimony.
Mr Khan adopted these submissions.
Mr Peterson submitted that the State will edit the drawings to remove all the contents of the boxes labelled “Notes”. He also indicated that the State would be willing to further edit the drawings to remove words such as “ victims vehicle” ( sic) which were placed in boxes on the roadway. The box would remain but the words would be removed.
With respect to both grounds he submitted that the drawings as edited in the manner suggested above do not offend the hearsay rule nor the rule against previous consistent statements. He referred the Court to the case of R v Smith [1976] Crim LR 511 (CA) (UK) where it was held that a sketch drawn by a police officer under the direction of a witness was admissible in evidence. The policeman was treated as a mere “conduit pipe” so that the sketch was not his but that of the witness.
He also relied upon the cases of R v Cook [1986] 1 Q.B. 417 and R v Constantinou (1989) 153 JP 619.
In Cook ( supra), objection was taken to a photofit picture which was drawn by a police officer upon the direction of a victim of robbery. The headnote states:
“A victim of robbery and indecent assault in the street described her attacker to a police officer, who pieced together a photofit picture. At the appellant's trial for robbing and indecently assaulting the victim he submitted, as a preliminary point, that the photofit picture was inadmissible in evidence as being hearsay and a previous consistent statement of the victim. The submission was rejected, the victim adduced the photofit during examination-in-chief and the appellant was convicted.
On appeal against conviction:–
Held, dismissing the appeal, that a photofit was not a statement in writing so as to come within the rule against hearsay and, therefore, could not come within the description of an earlier consistent statement; and that, accordingly, the trial judge had correctly admitted the photofit in evidence (post, p. 425A–D).”
He furthered relied on this statement in the headnote of Constantinou ( supra), where the defence objected to a photofit:
“Held (dismissing the appeal): Following the decision in R v Cook (1987) 84 Cr App R 369, photofit pictures, together with photographs and sketches, were in a class of their own to which neither the rule of hearsay nor the rule against the admission of an earlier consistent statement applied. The Judge was right to admit the photofit in law. He had correctly directed the jury as to its use, saying “Nobody pretends to identify [the appellant], all they do is give descriptions and produce the photofit which are consistent, you may think, with [the appellant], but it does not go any further than that.” It was unnecessary for the Judge to add some kind of “Turnbull” warning about the photofit as, in his summing-up, he had stated the description of the robber which had been given by M.” ( emphasis added)
Mr Khan submitted that this Court should not follow either of these two cases as they were not binding on this Court. He also described the reasoning as superficial and ridiculous.
Mr Skerrit indicated that the learning in Cook and Constantinou had been rejected by many critics, particularly Phipson on Evidence.
In 20 th edition of Phipson (ibid) at paragraphs 28–41 the authors criticized the decisions in these three cases. With respect to Smith (supra) it was said:
“This solution is far from convincing. Even if a human intermediary can act purely passively in transmitting information given by a witness, this is not what happened in R v Smith.”
With respect to Cook it was said:
“The decision to admit photfit...
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