The State v Phillip
| Jurisdiction | Trinidad & Tobago |
| Judge | Rahim, J. |
| Judgment Date | 23 March 2011 |
| Neutral Citation | TT 2011 HC 80 |
| Docket Number | Cr. 81 of 2001 |
| Court | High Court (Trinidad and Tobago) |
| Date | 23 March 2011 |
High Court
Rahim, J.
Cr. 81 of 2001
Ms. S. Dougdeen for the State
Messrs. R. Morgan and M. Rooplal instructed by Ms. S. Lakhan for the accused
Evidence - Admissibility — Evidence of bad character — Propensity of accused to commit offences of like kind — Propensity for untruthfulness.
By indictment filed on the 9th day of January 2002 as amended with leave, the accused faces trial on an indictment which contains one count of obtaining money and a valuable security by false pretences allegedly committed on the 25th day of May 2000.
On completion of the testimony of the complainant, then Police Corporal Loderick Marcelle, the State applied to have the evidence of four previous convictions of the accused admitted as evidence of bad character pursuant to sections 15N (1) (d), (the propensity gateway) and section 15N (1) (g), (the credibility gateway) of the Evidence Act, Chap 7:02 as amended.
It is accepted by both parties that bad character is defined in section 15 K to include the commission of an offence.
The record of previous convictions as set out in the Particulars of Convictions of Convicted Persons of the Criminal Records Office of the Trinidad and Tobago Police Service lists the following convictions;
- Obtaining money by false pretences for which the accused was convicted on the 8th April 2001 at the Couva Magistrates' Court and sentenced to a term of imprisonment of two years hard labour. 2. Obtaining money by false pretences for which the accused was convicted on the 8th April 2001 at the Couva Magistrates' Court and sentenced to a term of imprisonment of two years hard labour.
As appears in the evidence which the State proposes to lead and contained in the statement of Assistant Commissioner of Police Terry Young and filed by way of Notice of Fresh Evidence of the 17th March 2011, it appears that in both matters the accused pleaded guilty and the sentences were ordered to run concurrently.
- Obtaining money by false pretences for which the accused was convicted on the 21st November 2001 at the Tunapuna Magistrates' Court and sentenced to a term of imprisonment of two years hard labour. 4. Obtaining money by false pretences for which the accused was convicted on the 21st November 2001 at the Tunapuna Magistrates' Court and sentenced to a term of imprisonment of two years hard labour.
As was the case with the earlier convictions it appears that in both matters at the Tunapuna Magistrate's Court, the accused pleaded guilty and the sentences were ordered to run concurrently.
It is the case for the State that between the hours of 1:50 p.m. and 2:30 p.m. on the 25th May 2000, the accused Vern Phillip entered the Marabella branch of Republic Bank; where he presented a cheque for encashment to teller number eight Claire Craig. That cheque purported to be payable to one Keith Sosa in the amount of $115,800.00 and drawn on the account of Varma Iron and Steel Company. The accused presented a Trinidad and Tobago Identification Card purporting to be that belonging to Keith Sosa. That identification card bore the name Keith Sosa and a photograph which appeared to be the accused.
The teller Claire Craig then performed the required checks to satisfy herself that the cheque made payable to Keith Sosa was a valid cheque for payment to Keith Sosa and that the person tendering the cheque was in fact Keith Sosa. In so doing, and in addition to viewing bank records and the identification presented by the accused, Craig spoke with the accused and compared the photograph on the identification to the face of the accused. The accused informed Craig that the money was to pay construction workers. Craig's supervisor Egbert Williams also spoke with the accused who informed him that he was a contractor with Varma Iron and Steel and the money was to be used to pay workers and finish a job for one Jenny Rampersad. Williams also viewed the identification card presented by the accused and compared his face to the photograph on the card.
Craig attempted to accumulate the entire amount of $115,800.00 in cash but was unable to do so. She then informed the accused that he could only receive $75,000.00 in cash and the balance would have to be paid by way of a manager's cheque. The accused told Craig that he had to enquire whether they would take cash and a manager's cheque. He then left the bank and returned some minutes later and said that they would take the cash and manager's cheque. The cheque was then prepared by bank employee Indira Ramdeen Bachu who also spoke with the accused and viewed the identification card that he presented. Having prepared the manager's cheque Ramdeen Bachu then walked the accused over to teller number 8, Craig, where Craig then paid out to the accused, cash in the sum of $75,000.00 and the manager's cheque payable to Keith Sosa for the balance in the sum of $40,800.00.
It is the State's case that the accused, at the time he presented the cheque from Varma Iron and Steel Company payable to Keith Sosa and produced an identification card allegedly belonging to Keith Sosa with a photo which looked like the accused was falsely pretending to be Keith Sosa. Further, it is the State's case that the accused was falsely pretending that he was as Keith Sosa, entitled to cash a valid cheque for the sum of $115,800.00 but that the said cheque was not a valid cheque for payment it not having been signed by the authorized signatory, Mr. Kamta Persad or his wife Dhanmatee. Further the State contends that as a result of these false pretences the accused obtained the sum of $75,000.00 cash money and a valuable security in the form of a manager's cheque in the sum of $40,800.00.
On the 2nd June 2000, at the Marabella Police Station the accused was separately identified by Craig, Williams and Ramdeen Bachu at a confrontation in the presence of then Police Inspector Mervin Welch, Justice of the Peace Yusuff Mohammed and another police officer, then Police Inspector Young. Inspector Welch and the complainant were the only two witnesses called to give evidence in this regard. According to the evidence of Welch, the confrontation procedure was used as the accused refused to go on an identification parade when informed by Welch of the intention to so place him.
As is abundantly clear from the cross examination of the State's witnesses by attorneys for the accused, the case for the accused is that the witnesses for the State are all mistaken when they purport to identify him as the man who entered the bank on the 25th May 2000 and proceeded to commit the various acts as alleged.
By section 15 N (1) of the Evidence Act, Chap. 7:02 as amended, evidence of the bad character of an accused is admissible where –
“(d) it is relevant to an important matter in issue between the accused and the prosecution;”
Section 15 N (1) (d) is supplemented by section 15 P. In subsection (1) “an important matter in issue between the accused and the prosecution is said to include:
“(a) the question of whether the accused has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
(b) the question whether the accused has a propensity to be untruthful in any respect.”
The State submits;
- That the evidence of the four (4) convictions of the accused falls under both section 15 P (1) (a) and section 15 P (1) (b). 2. That according to section 15 P (2) (a), an accused person's propensity to commit offences of the kind with which he is charged may be established by evidence he has been convicted of an offence of the same description as the one with which he is charged. 3. In section 15 P (4) (a), offences are said to be of the same description if the statement of the offence in the charge or indictment would be in the same terms. 4. The previous convictions upon which the State seeks to rely are for obtaining money by false pretences. The statement of offence in the Indictment before the court is for obtaining money and a valuable security by false pretences. 5. The very description of the offence for which the accused was previously convicted being identical in terms to the offence for which he now stands charged satisfies the terms of section 15 P. That, the facts and circumstances of this case make full details unnecessary and have the potential to distract the jury with satellite issues in a case which is very simple. As such, the mere fact of these convictions would be sufficient to show a propensity to commit offences of the kind with which the accused now stands charged.
The three questions that must be asked of the judge hearing such an application to admit bad character evidence under the propensity gateway are set out in the case of R v. Hanson [2005] EWCA Crim 3429 and they are;
First, does the proposed evidence have the capacity to establish a propensity on the part of the defendant to commit offences of the kind charged? If the answer to that is yes, the second question is:
Second, does that propensity make it more likely that the defendant committed the offence charged? If the answer to that second question is also yes the third question is:
Third, is it unjust to rely on the proposed evidence and in any event, will the proceedings be unfair if they are admitted?
In Hanson, the Court of Appeal upheld a conviction for stealing a carrier bag containing £600 from a bedroom to which the defendant had access, the defendant having pled guilty when the judge ruled that he would permit the prosecution to prove his previous convictions for dishonesty. In the case of Gilmore decided together with Hanson supra, the Court of Appeal upheld a theft conviction against a man caught in suspicious circumstances...
To continue reading
Request your trial