The State v Nawaz Ali
| Jurisdiction | Trinidad & Tobago |
| Judge | A. Yorke-Soo Hon, JA |
| Judgment Date | 27 October 2021 |
| Neutral Citation | TT 2021 CA 52 |
| Docket Number | Crim. App. No. P025 of 2018 |
| Court | Court of Appeal (Trinidad and Tobago) |
IN THE COURT OF APPEAL
A. Yorke-Soo Hon, JA
P. Moosai, JA
R. Boodoosingh, JA
Crim. App. No. P025 of 2018
CR001 of 2009
Mr. Nigel C. Pilgrim appeared for the Appellant
Mr. Ravi Rajcoomar instructed by Ms. Tiffany A. Ali appeared for the Respondent
I have read the judgment of A. Yorke-Soo Hon, JA. I agree with it and have nothing to add.
I have read the judgment of A. Yorke-Soo Hon, JA. I agree with it and have nothing to add.
Delivered by: A. Yorke-Soo Hon, JA
. In February 2009 Nawaz Ali (“the respondent”), was charged on an indictment containing one count of corruptly soliciting and one count of corruptly receiving money on 29 December 2005, and one count of corruptly receiving money on 4 January 2006. He was also charged with two counts of misbehaviour in public office but these counts were withdrawn by the Director of Public Prosecutions (“the DPP”) and the trial proceeded on the other counts. He was acquitted on the two counts with respect to the incident on 29 December 2005, but convicted on the one count arising from the incident on 4 January 2006. On appeal, a retrial was ordered and at the retrial, the trial judge stayed the indictment and discharged the respondent.
. On 29 December 2005, the respondent a police officer, solicited from Azard Hosein, the virtual complainant (“VC”) a “bribe” to forebear the prosecution of a criminal case against the VC. The two struck an agreement and the sum of $4,500.00 was paid by the VC to the respondent on that very day as part payment. That money was handed over to the respondent by Sheldon Hosein, the VC's son, on the VC's instructions. Those events formed the first two counts of solicitation and receiving on the indictment for which he was acquitted on 15 January 2010. Although Sheldon was able to give evidence of surrounding circumstances, he was not a witness to the actual solicitation. The main evidence against the respondent on those counts was from the VC.
. On 4 January 2006, the VC contacted the respondent and went to the Cunupia Police Station where the respondent was at work. There the VC gave the respondent the balance of the money in an envelope. The police officers who monitored this transaction from a remote location as part of a sting operation eventually approached the respondent and searched him. They found the marked bills in an envelope in the respondent's pants pocket. The incident on 4 January 2006 was the subject of the third count on which the respondent was found guilty.
. The respondent appealed his conviction on the sole ground that the verdict against him was inconsistent with the not guilty verdicts on the two other counts on the indictment. The Court of Appeal allowed the appeal on 29 July 2010, and held that the counts were inextricably linked and that there could be no rational explanation for the jury's verdicts. A retrial was ordered on the basis of the seriousness of the offence, the strength of the prosecution's case and the public's interest in having the matter fully ventilated.
. At the retrial, an application was made by the prosecution to admit evidence with respect to the two counts of the first trial, in particular, the evidence of the earlier arrangement as background to contextualise the count before the court. There was also an application made by counsel for the respondent to stay the proceedings. The court declined the prosecution's application on the basis that it would be unfair to admit the evidence from the first trial for the following reasons:
-
a) That the evidence on the acquitted counts one and two was inextricably linked to the count now on retrial;
-
b) That the order of retrial was not an order of the Court of Appeal that the respondent had to be found guilty, in fact all issues including fairness and whether or not the respondent could receive a fair trial were for the discretion of the trial judge;
-
c) That the evidence of the acquitted counts would amount to the jury being asked to undermine previous verdicts of not guilty;
-
d) That the evidence if admitted would lead to satellite issues which would detract the minds of the jury from the central issues in this case; and
-
e) That the evidence would contaminate the retrial and lead to confusion that could not be cured by any directions that the trial judge was capable of giving to a jury.
. In determining this appeal we start by addressing an issue which was not filed as a ground of appeal, but one which was raised by the court during the hearing. The issue is as follows:
Was there a miscarriage of justice in the manner in which the indictment was framed to include two counts of separate corrupt receipts which involved one transaction.
. Counsel for the appellant, Mr. Pilgrim submitted that whilst it was possible that the DPP could have drafted one count to include the totality of the offending, the count which was before the trial judge was neither defective, duplicitous nor oppressive. He submitted that the evidence in support of the acquitted counts was clearly different from the count before the court. In the acquitted counts, the main witness for the prosecution was the VC, an accomplice who knowingly paid a bribe. In the count before the court, there were three independent witnesses and the VC was not an accomplice.
. He also submitted that the count before the court was framed in accordance with section 13 (1) of the Criminal Procedure Act 1 and Rule 4 (1) of the Indictment Rules. He argued that the transactions occurred on separate dates and that several offences should not be charged in the same count ( R v Thompson [1914] 2 KB 99 as cited in Director of Public Prosecutions v Merriman 2).
. He contended that in separate counts the respondent is not misled and that he is allowed to answer each allegation separately and to deploy different defences as the case may be. He contended that the splitting of the counts redounded to the benefit of the respondent and the laying of separate counts allowed the trial judge to mark the seriousness of the criminality by applying consecutive sentences as in Kellon John v The State 3.
. Counsel argued that the count before the court did not overload the indictment and the issue involved was not complex neither was it oppressive or vexing to the respondent because it formed part of one indictment. This case, he submitted was
. In reply, counsel for the respondent, Mr. Rajcoomar submitted that the counts were inextricably linked and ought to have been dealt with as one count as set out under Rule 3 of the Indictment Rules to which the appellant conceded. He contended that the splitting of the counts was unfair and any continued prosecution was oppressive and referred to Bhola Nandlal v The State and R v Wangige. He argued that the respondent was entitled to benefit from the acquittal as much as he was entitled to seek a concurrent sentence if he was found guilty. He added that the application to admit the evidence on the acquitted counts would have resulted in a re-litigation of matters which were already determined on the merits and contended that if the respondent was found not guilty of the solicitation, he could not be found guilty of the receipt since the offences were indivisible factually.
. Counsel for the respondent argued that this was a case in which the doctrine of autrefois acquit was applicable, but we disagree. The doctrine of autrefois as conventionally expressed, that is, that ‘no person shall be vexed twice in the same cause’ was described as being narrow in scope by the House of Lords in Connelly v Director of Public Prosecutions 6. The court proceeded to identify two wider
. The principles in Connelly were applied in R v Beedie 7, a case in which a tenant died of carbon monoxide poisoning caused by a defective gas fire and blocked flue and the landlord was prosecuted for regulatory offences under the Health and Safety at Work Act 1974. He pleaded guilty and was fined. Following an inquest, he was charged with gross negligence manslaughter. It was held that the latter prosecution should have been stayed since it arose out of the same, or substantially the same facts as the first offence and there were no new facts. The principles in Beedie were followed in R v Phipps 8 where the court found that it was oppressive to charge the appellant for dangerous driving after he was already prosecuted for driving with excess alcohol arising from the same incident and the latter charges should have been stayed.
. In the very recent case of R v Wangige, the court followed the approach in Beedie and Phipps. In Wangige the appellant driver, collided with a...
To continue reading
Request your trial