The State v Nicholas
| Jurisdiction | Trinidad & Tobago |
| Judge | Mon Désir, J. |
| Judgment Date | 14 December 2012 |
| Neutral Citation | TT 2012 HC 394 |
| Docket Number | CR. S 26 of 2006; CR. S. 109 of 2007 |
| Court | High Court (Trinidad and Tobago) |
| Date | 14 December 2012 |
High Court
Mon Desir, J.
CR. S 26 of 2006; CR. S. 109 of 2007
Ms. S. Dougdeen — for the State
Mr. L. Sanguinette — for Alaxender Don Juan Nicholas
Mr. R. Valere, instructed by Ms. M. Bubb — for Gregory Tan
Mr. L. Williams — for Oren Lewis
Criminal Law - Murder — Sentence — Guidelines for applying death penalty — Whether life sentence was appropriate.
This is the Court's ruling on sentence in respect of Indictment No. S-26 of 2006 (the murder of Jerry David Boodoo) and Indictment No. 109 of 2007 (the kidnapping, robbery with aggravation and false imprisonment of Nazim Dean). I will deal first with Indictment No. S-26 of 2006.
On September 23, 2002, Alexander Don Juan Nicholas, Gregory Tan and Oren Lewis (hereafter referred to as “Accused No. 1”, “Accused No. 2” and “Accused No. 3” respectively), were jointly charged with the offence of murder. The particulars of that offence are that, on a day unknown between August 26, 2002 and September 2, 2002 at Mayaro, they murdered one Jerry David Boodoo.
Due to the uniqueness, complexity and unprecedented nature of this case, I consider it important to first set out the relevant chronology of events that have culminated in the Court's decisions as regards the sentences handed down in this matter.
The Court robustly managed these proceedings from the inception with a view to distilling at a very early stage the main issues in the case. As a result of this, it became clear that the evidence upon which the State's case was founded were the testimony of a man named Junior Barthol, the caution statements of the three Accused and the interview notes of Accused No. 2.
The Jury were empanelled and the three Accused were put in their charge. However, due to the fact that counsel urged the Court to hear preliminary objections to the admissibility of the caution statements of the three Accused, these arguments were heard in the absence of the jury before the State opened its case. This course of action was desirable in this case because the State sought to rely heavily on the oral and written caution statements of each Accused and the Court took the view that it would be more appropriate for all parties to know beforehand if the State would be allowed to rely on such evidence.
Following the objections raised by Defence counsel for each of the Accused to these caution statements being admitted into evidence, voir dires were held to determine their admissibility. On September 19, 2012 the Court ruled that all of the statements were given voluntarily and they were therefore admitted into evidence.
Thereafter, on the same day, State counsel disclosed to the Court that having regard to the Court's ruling on the voir dires and the State's overall assessment of the case against the three Accused, the Prosecution was proceeding against each of the Accused on the basis of the felony/murder rule only.
The Court then ordered the trial to proceed and the State to open its case to the jury on September 20, 2012.
The State opened its case on that day and after calling two witnesses the matter was adjourned to September 25, 2012 for the trial to continue. However, when the matter again engaged the Court's attention on September 25, 2012 learned counsel for each Accused indicated orally in open Court that they either had obtained or were in the process of obtaining their respective clients' instructions to enter a plea of guilty to the offence of murder, on the basis of the felony/murder rule. State counsel then in turn indicated that she had the DPP's consent to accept such a plea, if it were tendered.
This is the first time in the history of this jurisdiction that an Accused wanted to plead guilty to the offence of murder on the basis of the felony/murder rule. The Court, therefore, directed counsel to examine the law and to specifically discuss with their clients the fact that the death penalty was still part of the sentencing options available to the Court in circumstances such as these. This was done by all counsel and the same was reported to the Court.
Additionally, and despite some initial uncertainty by counsel as to the necessity for so doing in this case, the Court also invoked the provisions of section 13 of the Mental Health Act, Chap. 28:02 and ordered a psychiatric evaluation of and report in respect of the fitness of each of the Accused to plead guilty to the offence of murder on the basis of the felony/murder rule. The reports dated October 22, 2012 and prepared by Dr. Hazel A. Othello, Consultant Forensic Psychiatrist, were duly submitted to this Court and copies furnished to each counsel. The Psychiatrist's conclusions in respect of each Accused were, in all material respects, exactly the same and revealed the following:
“1. [The Accused] possesses the ability to understand the charges laid against him. He is aware that he has been charged with murder, knows what these charges mean and understands the possible consequence of being found guilty of such an offence.
2. [The Accused] possesses the ability [to] decide whether to plead guilty or not. [He] understands the concept of felony murder, knows how the felony murder rule may be applied to his case and appreciates how a plea of guilty to a charge of murder made on the basis of this rule may affects the sentencing options available to the Court.
3. [The Accused] is able to exercise his right to challenge jurors.
4. [The Accused] is able to instruct his attorney. He is expected to have no difficulty understanding his lawyer's questions, applying his mind to answering them or conveying intelligibly to his lawyers the answers which he wishes to give. He is therefore able to convey intelligibly to his lawyers the case which he wishes to advance on his own behalf and the matters which he wishes to put forward in his own defence.
5. [The Accused] possesses the ability to follow the course of proceedings.
6. [The Accused] is able to give evidence in his own defence. He is able to understand questions he is asked in the witness box, to apply his mind to answering them and to convey intelligibly to the jury the answers which he wishes to give.”
The learned Psychiatrist also opined that: “[the Accused] is fit to instruct his attorney, fit to plead and fit for trial. It is also my opinion that [the Accused] is fully mentally fit to plead guilty to murder on the basis of the felony murder rule, having decided to do so after consultation with his attorney.”
This Court is respectfully of the view that this is a course that should be adopted in all cases where an Accused person, as in the case here, wishes to take the extraordinary step of tendering a plea of guilty to murder [ Habib v The State (1989) 43 WIR 391], even where the basis for such a plea is the felony/murder rule. In my view, until such psychiatric assessment is made of the Accused, it would be unwise of counsel for the Accused to have his client enter such a plea – even if counsel has already obtained the requisite written instructions to that effect. It is also undesirable that a Court should allow such a plea to be entered before having the benefit of an independent psychiatric assessment of the Accused. I am respectfully of the view that the Court should order such an assessment even if the Accused is represented by counsel and irrespective of whether on an assessment of the evidence as foreshadowed in the depositions the case is unlikely to attract the death penalty.
When, therefore, an Accused wishes to plead guilty to murder either before, during or after his arraignment for such an offence, the Court should immediately direct counsel for the Accused to interview him and carefully explain to him the implications of him entering such a plea. In other words, he should provide the Accused with guidance as to the gravity of his plea and the consequences that would necessarily flow from such a plea. Counsel should, of course, reduce to writing the notes of such an interview and have the Accused sign same. counsel should then report to the Court in open Court, and preferably in writing, whether or not he has interviewed the Accused and carefully explained to him the implications of him entering such a plea and whether or not he has his client's written instructions for such a plea to be entered [ James Robert Vent v. R (1936) 25 Cr. App. R. 55.]
The Court should then order that a psychiatric assessment of the Accused be conducted as to his fitness to plead to the specific charge of murder and on what basis it is proposed to be done. In my view, it is not necessary, as a condition precedent, in cases of this nature that there be any material or evidence for a supposition or suspicion that the Accused is or might be unfit to plead. In other words, in cases where an Accused wishes to plead guilty to murder on whatever basis, there need not be any overt reason to question whether he appreciates the nature of his confession or the consequences that may result from it, before the Court orders a psychiatric assessment of the Accused. The mere fact that an Accused person wishes to adopt the extraordinary and unusual course of entering a plea of guilty to murder, on whatever basis is, in my view, sufficient to trigger the requirement for this assessment to be made. This is particularly so where the imposition of the death penalty is a live or real possibility in the case.
This is so in order to have as clear an indication as possible that a plea of guilty to murder is what the Accused actually intends to enter, and...
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