The State v Leacock
| Jurisdiction | Trinidad & Tobago |
| Judge | Mohammed, J. |
| Judgment Date | 07 December 2010 |
| Neutral Citation | TT 2010 HC 305 |
| Docket Number | HCA No. 10 of 2009 |
| Court | High Court (Trinidad and Tobago) |
| Date | 07 December 2010 |
High Court
Mohammed, J.
HCA No. 10 of 2009
Mr. A. Lucky for the defendant.
Ms. M. Joseph for the State.
Criminal practice and procedure - Admission of deposition evidence of deceased witness.
At issue is the proposed admission into evidence of the deposition of a deceased witness, Kevin Billy. The contents of that deposition are reproduced hereunder:
My name is Kevin Billy. I am a Police Sergeant #8664. Presently I am acting as a Police Inspector. I am attached to court and Process Section, Point Fortin Police Station. 1 am a witness in this enquiry. At around 11:00am on Thursday 26.10.06 I had a conversation with # 10886 Police Constable Garraway at the Siparia Criminal Investigations Department Office. Based on that conversation I was accompanied to an enclosed room at Divisional Headquarters, Siparia by # 14921 Police Constable Martin. In that room I was introduced to the accused Stephon Leacock (witness points to accused) by Police Constable Martin. At that time I was dressed in civilian clothes so I identified myself to him as a police officer by showing him my Trinidad and Tobago Police Service ID Card and I told him that I was assisting in the investigation of a report which was made on 16th April, 2006. 1 cautioned him but he did not reply. I told him it was my intention to have him placed on an ID parade which will be held in an enclosed room at Divisional Headquarters Siparia which is fitted with a one-way mirror which permits witnesses to see members of the parade without being seen. I told him of his right to have present during the parade either his friend, relative or representative. I told him that in the event that either of the persons who was mentioned before cannot be present a Justice of the Peace can be present. The accused requested that his girlfriend Ria Ravello be present. I also told the accused that it is his right to refuse to go on parade and that should he choose so to do there were other options open to him in that the witness or witnesses would be allowed to see him by himself in an enclosed room which would be a disadvantage, which is referred to as confrontation. At this stage, the accused Stephon Leacock elected the form of an ID parade which is referred to as confrontation. At 2.20pm on Thursday 26.10.06 I conducted an ID parade at Divisional Headquarters; Siparia in an enclosed room which has two doors. In that room, was Justice of the peace Dexter Soodeen. That ID parade took the form of confrontation. Dexter Soodeen and the accused Stephon Leacock and # 14921 Police Constable Martin and the accused girlfriend Ria Ravello. I then called the name of the witness S.B. (initials substituted) and I heard her name being relayed on the outside of that room. Shortly after, there was a knocking on the door that leads to that room. I enquired who was it and a voice answered from the outside S.B.. I called S.B. to enter that room. She was accompanied by her mother B.H (initials substituted). I identified myself to S B. by showing to her my Trinidad and Tobago Police Service ID Card and I told her to repeat aloud for me what had transpired on 16th April, 2006 and that she should do so loud enough so that all persons in that room should hear what she was saying. And she did what she was told. I also told her that the person whom she had come to identify may or may not be the person who committed the offence. And that she should look at the person and if she could make a positive identification she should say so. I then invited the witness S.B. to look at the accused and after some deliberation she said, “this is the man” by pointing at him. I did not indicate specifically anyone in the room when I said the person may or may not be in the room. I then caused S.B. and her mother B.H. to leave that room. I then told the accused Stephon Leacock that he had been positively identified and I cautioned him on the following terms: “you are not obliged to say anything unless you wish to do so, but what you say would be taken down in writing and maybe given as evidence”. The accused replied, “Officer, it is not me”. I then handed over the accused Stephon Leacock to # 14921 Police Constable Martin and I told Police Constable Martin in the presence and hearing of the accused that he the accused had been positively identified. I then dismiss the parade. I then ended the confrontation.
Cross Examination Reserved b Stephon Leacock.
/s/ Kevin Billy Ag. Inspector
Defence counsel has first of all opposed the admission of the deposition of the deceased witness, Kevin Billy, on the ground of statutory non-compliance, namely, the absence of a full opportunity to cross-examine the deponent. When cross-examination is spoken of in the statutory context under the provisions of section 39 of the Indictable Offences (Preliminary Enquiry) Act, Chap 12:01, this self-evidently refers to the stage of the preliminary enquiry, and not admission at the present stage, as counsel seems to suggest in his argument, where there will never be any cross-examination. The present stage is governed by principles relevant to the exercise of the common law exclusionary discretion.
In this case at the preliminary enquiry, the defendant was unrepresented and he cross-examined the main witness S.B. briefly. The defendant however, reserved his cross-examination of Inspector Billy. Under section 39(1) of the Indictable Offences (Preliminary Enquiries) Act, Chap 12:01, the conditions referred to include the condition set out at 39(1)(b) which is that it must be proved at the trial either by a certificate purporting to be signed by the Magistrate before whom the deposition purports to have been taken, or by the oath of a credible witness, that the deposition was taken in the presence of the accused person or the Prosecutor as the case may be, and that he or his legal advisor had full opportunity of cross-examining the deponent.
The meaning of the term “full opportunity for cross-examination” was discussed by Chief Justice de la Bastide (as he then was) in the case of Nankissoon Boodram & Others v. The State (53) W.I.R. 352, at 380 where Chief Justice de la Bastide said:
“We do not agree that the expression “full opportunity to cross-examine” can be given this construction in the context of this paragraph. The subsection contemplates that the magistrate will be competent to certify that a full opportunity to cross-examine has been given. The magistrate will not normally know what has or has not been disclosed by the prosecution to the defence, and can hardly be expected to embark in each case on an inquiry into that before signing the relevant certificate. The intention must have been that whether or not a full opportunity to cross-examine has been afforded should be determinable from what takes place in court before the examining Magistrate. In our view the significance of the epithet full' is not only must the accused (or his attorney) have been permitted to cross-examine the witness, but that this cross-examination must not have been curtailed, abridged or constrained except by considerations of relevance and admissibility, or so, far as may be necessary to prevent the right to cross-examine from being otherwise abused.”
I now turn to the original bundle in the committal proceedings from which I have identified the Certificate, relevant to the deposition of Police Sergeant Kevin Billy. At the very last two sentences of the Certificate it says: “And the accused had full opportunity of cross-examining the above named deponent” and it purports to be signed by the enquiring magistrate. Based on this Certificate, which is to be regarded as prima facie proof of the facts stated therein, there has not been a deprivation of a full opportunity by the defendant to cross-examine Kevin Billy at the Magistrate's Court. Whether the defendant chose to exercise that right to cross-examine is immaterial.
I turn now to the second limb of defence counsel's submissions, which relates to an issue of discretionary exclusion. Defence counsel submits that the proposed deposition evidence of Inspector Billy is material evidence in the case and that it would be unsafe and prejudicial to the defendant for the jury to rely on the untested deposition evidence. Defence counsel therefore urges the Court to exercise its common law exclusionary discretion and not to admit the deposition evidence of Inspector Billy.
The relevant principles that govern the exercise of this specific common law exclusionary discretion are set out in the Privy Council Decision of Barnes Desquottes and Others (37) W.I.R. 329, and in particular at pg 339, where it is stated:
“In the light of these authorities, their Lordships are satisfied that the discretion of a judge to ensure a fair trial includes a power to exclude the admission of a deposition. It is however, a power that should be exercised with great restraint. The mere fact that the deponent will not be available for cross-examination is obviously an insufficient ground for excluding the deposition, for that is a feature common to the admission of all depositions which must have been contemplated and accepted by the legislature when it gave statutory sanction to their admission in evidence. If the Courts are too ready to exclude the deposition of the deceased witness, it may well place the lives of witnesses at risk, particularly in a case where only one witness has been courageous enough to give evidence against the accused, or only one witness has had the opportunity to identify the accused. It will of course be necessary in every case to warn the jury that they have not had the benefit of hearing the evidence of the deponent tested in cross-examination and to take that into consideration when considering how far they can safely rely on the...
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