The State v Nathaniel Augustine, otherwise called Kevin Dass
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Justice Hayden A. St.Clair-Douglas |
| Judgment Date | 09 October 2023 |
| Neutral Citation | TT 2023 HC 311 |
| Docket Number | CR No. 0046 of 2016 |
| Court | High Court (Trinidad and Tobago) |
The Honourable Mr. Justice Hayden A. St.Clair-Douglas
CR No. 0046 of 2016
IN THE HIGH COURT OF JUSTICE
PORT OF SPAIN
Ms. Rhea Libert and Ms. Ananda Gobin appear for The State
Ms. Gretel Baird and Mr. Josiah Soo Hon appear for the accused.
Nathaniel Augustine (sometimes referred to as “the accused”) has been indicted for the murder of Kellon Howard, which is alleged to have occurred on September 28, 2009 at Diego Martin, County St. George. Mr. Augustine was committed to stand trial on April 12, 2013, at the conclusion of the preliminary enquiry.
Mr. Augustine has moved the court to quash the indictment against him, contending that his committal was defective, to the extent that the defect in the committal proceedings rendered his committal invalid. He contends that, because the committal was invalid, the Indictment, which is founded on that committal, is a nullity.
It is not considered necessary, in order to resolve the issues thrown up by this application, to extensively discuss the details of the allegation or the facts on which the prosecution founded its case. It is sufficient to state that the State alleges that the accused shot and killed the deceased. During the course of the preliminary enquiry the court heard from several witnesses; the complaint of the accused in this application, and the basis upon which it is contended that his committal was invalid, surrounds the reception of the evidence of the witness Fabien Prescod (sometimes referred to as “Prescod”).
With the exception of Fabien Prescod, all the witnesses called by the prosecution during the preliminary enquiry gave oral testimony. Fabien Prescod did not testify; his evidence was received by way of statements he had given to the police during the course of their investigation into the killing of Kellon Howard. His statements did not consist of sworn prior testimony; they were unsworn statements. His statements were adduced pursuant to s 15C(1) of the Evidence Act, Ch 7.02. Subsections (1) and (2) of section 15C are reproduced for ease of reference:
15C. (1) Subject to subsection (2), a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if it is proved to the satisfaction of the Court that such person—
(a) is deceased;
(b) is unfit, by reason of his bodily or mental condition, to attend as a witness;
(c) is outside of Trinidad and Tobago and it is not reasonably practicable to secure his attendance;
(d) cannot be found after all reasonable steps have been taken to find him;
(e) is kept away from the proceedings by threats of bodily harm and no reasonable steps can be taken to protect the person; or
(f) is fearful and no reasonable steps can be taken to protect the person or others or to protect him or others from financial loss.
(2) Leave may be given by the Court under subsection (1) (a), (e) and (f) only if the Court considers that the statement ought to be admitted in the interest of justice, having regard to—
(a) the statement's contents;
(b) any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the person who made the statement does not give oral evidence); and
(c) any other relevant circumstances.
Section 15C(1) provides for the admissibility, in criminal proceedings, of statements that have been reduced into writing, as proof of any fact of which a person (the “absent witness”) might have given direct oral evidence. In order for such statements to be admissible the court must be satisfied that one of the six “gateways” to admissibility contained in s 15C(1)( a)–( f) has been established or demonstrated in respect of the person whose evidence is sought to be admitted.
The basis, or the “gateway”, on which it was sought to adduce the evidence of Fabien Prescod, was that he was fearful (s 15C(1)( f)).
The accused does not assert that the magistrate was not empowered to admit Prescod's evidence. Section 15F of the Evidence Act provides that s 15C applies to a preliminary enquiry; this represents statutory authorization for the enquiring magistrate to admit the statement of an absent witness. The contention of the accused is that, before the magistrate admits a statement made by a person in a document pursuant to s 15C, he must actively satisfy himself that the criteria set out in the “gateway” that forms the basis of the application to adduce that person's evidence have been established. The accused submits that the magistrate did not satisfy himself that Fabien Prescod was in fear.
An examination of the procedure adopted by the magistrate shows that he did not satisfy himself that the criteria set out in s 15C(1)( f) had been established. This was not an oversight. The magistrate was of the view that it is for the judge at the High Court, during the course of the trial, to determine the admissibility of evidence. The magistrate, therefore, formed the view that he was simply required to send forward the statement of the absent witness, together with the depositions of the witnesses who had attended during the preliminary enquiry and had been cross-examined. The accused contends that the magistrate effectively admitted the evidence of the absent witness Fabien Prescod at the preliminary enquiry, without requiring the party who sought to adduce that evidence to prove to his satisfaction that the witness was in fear.
The issue raised by the instant application to quash the indictment is not so much whether the statements of Fabien Prescod should or should not have been admitted; the issue is whether the magistrate was correct in declining or refusing to address his mind to the procedural aspects of the question of admissibility of his statements. The further issue, if the magistrate was wrong not to have addressed his mind to the question of admissibility, is whether this failure is fatal to the committal of the accused for trial. Having regard to what I apprehend to be the issue, it is not considered necessary to examine and discuss the law relating to the admission of statements of witnesses who are in fear.
The State, in resisting the application, has contended that the committal proceedings were properly conducted by the magistrate and that the impugned evidence was both admissible and properly admitted. The State has mounted a procedural challenge to the application, suggesting that the complaints made by the accused should more properly be the subject of an application for judicial review. The State's response seeks to take the court along the route of considering the sufficiency of the evidence presented at the committal proceedings. I do not perceive that the instant application complains that the accused was indicted for an offence other than that with which he was originally charged. I do not propose to consider the quality of the evidence presented during the committal proceedings; I consider it necessary to examine the procedure adopted by the examining magistrate in admitting the evidence of the absent witness. It is intended that the discussion that follows will demonstrate that the impugned material could legally have been admitted during the preliminary enquiry. The discussion seeks to determine the issue whether it was properly admitted.
Section 15C(1) provides that subject to subsection (2), a statement made by a person in a document shall be admissible. When the basis of the application is that the absent witness is dead — (ss(1)( a)), is kept away — (ss(1)( e)), or is fearful — (ss(1)( f)), s 15C(2) sets out factors to which the court should address its mind in determining whether it is in the interest of justice to admit the statement. These factors include the content of the statement, and the consideration of whether admitting or excluding the statement will result in unfairness to any party to the proceedings. Despite the provision in s 15C(1) that the statement shall be admissible, it is clear that where it is sought to admit the statement of an absent witness on any of the three bases of death, being kept away, or fear, the statement is not automatically admissible.
Section 15C closely follows s 116 of the Criminal Justice Act 2003 UK. The English Court of Appeal discussed the approach to the admission of statements of absent witnesses in R v Riat 1. The Court began by noting that the common law prohibition of hearsay evidence remains the default rule and that although the circumstances under which hearsay evidence may be admitted have been expanded by statute, that does not make it the same as first-hand evidence. 2 The Court continued that the admissibility of hearsay must be justified under one of the statutory exceptions (s 116 UK, or s 15C Trinidad and Tobago). The principle underlying the preliminary gateway question in s 116 of the UK statute (or s 15C) is that the necessity to resort to second-hand evidence must be demonstrated. The Court noted, further, that where the hearsay evidence is sought to be admitted on the basis that the absent witness is in fear there are supplemental provisions. The requirement in s 116 (4) (which is practically identical to s 15C(2)) imposes a specific secondary gateway: the court must be satisfied that it is in the interests of justice that the statement should be admitted. 3
It would appear that despite the apparently mandatory nature in which it is couched, s 15C(1) does not confer automatic admissibility on statements of absent witnesses. It is necessary for the court to address its mind to i) whether the criteria...
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