The State v Ramcharan
| Jurisdiction | Trinidad & Tobago |
| Judge | Mohammed, J. |
| Judgment Date | 22 November 2010 |
| Neutral Citation | TT 2010 HC 289 |
| Docket Number | HCA No. 5 of 2009 |
| Court | High Court (Trinidad and Tobago) |
| Date | 22 November 2010 |
High Court
Mohammed, J.
HCA No. 5 of 2009
Mr. M. Chatoor for the defendant.
Ms. M. Joseph for the State.
Evidence - Admissibility — Evidence of accused's bad character.
The State has applied to have admitted under gateway 15N(1)(d) (the ‘propensity gateway’) of the Evidence Amendment Act of 2009, evidence of the bad character of the defendant stemming from his conviction for the offence of Malicious Wounding in 2005. The State has also submitted that the evidence of the defendant's previous conviction for the offence of Malicious Wounding is admissible under gateway (g) of Section 15N(1) (the ‘credibility gateway’) because the defendant has made an attack on the character of the prosecution's principal witness Nigel Beharry. In order to put the application in context, it is necessary to refer to the salient features of the State's case.
The State's case is that on the 24th of October 1998, Nigel Beharry was walking along Coquet Street Extension in Ste. Madeline having come from a parlour there at around 6:30 p.m., when he saw the defendant, whom he had known for some time before, walking along the road pushing a bicycle with his left hand. He observed that the defendant had a cutlass in his right hand.
Nigel Beharry's evidence was that when he first encountered the defendant along Coquet Street Extension, he was about two to three feet away from him. According to Nigel Beharry's evidence, the defendant said to him “What happen now Bia?” ‘Bia’ was a name Nigel Beharry explained that he was also known by from when he was small. Nothing obstructed Nigel Beharry's view of the defendant according to his evidence. The defendant then told Nigel Beharry that he was passing him straight to which he replied, “1 has nothing to say to you” [sic]. Nigel Beharry also told the defendant “Ent you know what you did to me? Ent you threaten my life?” The defendant, according to Nigel Beharry, replied “No man you doh have to pass me straight so, like we have words.” It is Nigel Beharry's evidence that prior to October of 1998, the defendant had been blaming him for being with the defendant's girlfriend, who Nigel Beharry knew by the name of ‘Meetai’. At those times before the incident, Nigel Beharry says that the defendant's girlfriend would come to his house to ‘lime’, as he put it, with his grandmother, and whenever the defendant was passing and the defendant saw his girlfriend by Nigel Beharry's house, he would curse and say “Is the nigger man you want” [sic]. Nigel Beharry said that the defendant said those things to him a couple of times and as a result, he stopped the defendant's girlfriend from coming across to where he lived together with his grandmother and aunt.
Nigel Beharry's evidence was also that before the 24th of October 1998 the defendant had threatened to chop off his head. He says that he did not however make a report to the police, because he was “not taking the threat on”, and that “it was not bothering him”. Nigel Beharry's evidence is that one of his neighbours, “Vernon”, informed him about an apparent threat coming from the defendant about there being a gun for “Nigel”, and that he made a report to the St. Madeline Police Station before the 24th of October 1998 to P.C. Daniel.
Nigel Beharry gave evidence that the defendant told him that he was looking for a piece of land to buy and asked whether he “knew anyone”. Nigel Beharry replied that the defendant had a piece of land to the back of him, and asked the defendant why he had sold it for. According to his evidence, the defendant then responded “eh heh, how yuh know that?” [sic] to which Nigel Beharry replied “is right there I live.” Nigel Beharry gave evidence that words “just started” and the defendant then swung the cutlass which he had in his right hand, hitting him on the left side of his face. He said that his face got heavy and he felt something hot running down and he ran home and called out to his mother. Afterward he was taken for medical care at the San Fernando General Hospital.
The defence emerges from the instructions put to Nigel Beharry under cross-examination. Those instructions are to the following effect:
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- That Nigel Beharry told the defendant, on meeting him along Coquet Street that he wanted the defendant to drop the matter. Nigel Beharry denied this suggestion.
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- It was suggested to Nigel Beharry that the defendant told him that he wanted nothing to do with him. Nigel Beharry denied this suggestion.
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- It was suggested that because the defendant did not want to drop the case, a struggle ensued between the defendant and Nigel Beharry. Nigel Beharry denied this suggestion.
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- It was suggested to Nigel Beharry that both men fell to the ground with Nigel Beharry falling face-down, and that Nigel Beharry hit his face on a stone on the gravel surface when he fell on the surface face-down and that is how he got the injury to his face. Nigel Beharry denied this suggestion.
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- It was further suggested to Nigel Beharry that the defendant did not have a cutlass in his possession that day. Nigel Beharry denied this suggestion as well.
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- Nigel Beharry denied the suggestion that he did not receive the injury to his face as described by him, but rather when he fell to the ground on the gravel road surface.
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- Nigel Beharry denied that he was peeved with the defendant because of the court matter and that is how the entire episode started on the day in question.
The defence case, as may be gleaned from the instructions put to Nigel Beharry under cross-examination, is that Nigel Beharry was the aggressor on the material date and that he fell to the ground and accidentally hit his face on the stony road surface, thereby sustaining the injuries to his face.
The bad character evidence which the State seeks to adduce, under the ‘propensity gateway’ and/or the ‘credibility gateway’, comes from a previous conviction of the defendant for Malicious Wounding. The relevant extract provided by the Trinidad and Tobago Police Service (TTPS) database reveals that around 9:00 p.m. on the 12th of December 2005, the victim Reshma Ramkissoon, an ‘Indo-Trini’ aged 32 years of Victoria Village, Cipero Railway Line, St. Madeline, complained that she had had an altercation with the defendant who was her ex-spouse over their child, when he cuffed her about her face causing injuries to her face.
Those injuries are described in the extract taken from the TTPS database and they are described as follows:
“Doctor's Minutes -
Injuries:
- 2 cms x 2 cms Contusion to Left Temporal Region; 2. 2 cms Long Laceration Over Obital Arc, Left Eye; 3. Penorbatal Haeuratouna Left Eye; 4. Contusion Over Zygeinatic Arch; 5. Subjencen Junctual Haemorrhage Medical O Iris Left Eye.” [sic]
The defendant pleaded guilty to the charge of Malicious Wounding.
A central issue in the present case is a determination of who was the initiator and the aggressor on the material date. The State's case is that it was the defendant. The defendant's case is that it was Nigel Beharry and that, as a consequence of the initial aggression by Nigel Beharry, there was a struggle which ended up on the stony surface of the gravel roadway which then lead to an accidental cutting of Nigel Beharry's face.
I first refer in my examination of the law, to the relevant provisions of the Evidence Amendment Act.
Under section 15N(1) of the Evidence Amendment Act:
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“(1) In criminal proceedings, evidence of the accused's bad character is admissible where…
…
…
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(d) it is relevant to an important matter in issue between the accused and the prosecution.”
Section 15N(3) says that:
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“(3). The Court shall not admit evidence under (1) if on an application by the accused to exclude it, it appears to the Court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it.”
Section 15P says that:
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“(1). For the purpose of section 15N(1)(d), an important matter in issue between the accused and the prosecution includes -
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(a) The question 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 off nce. “
Section 15P(2) says that:
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“(2). Where subsection 1(a) applies, an accused person's propensity to commit offences of the kind with which he is charged may, without prejudice to any other way of doing so, be established by evidence that he has been convicted of -
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(a) an offence of the same description as the one with which he is charged; or
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(b) an offence of the same category as the one with which he is charged “
15K(2) of the Act provides that:
“(2). For the purpose of this section and sections 15L to 15W, “misconduct” includes the commission of an offence or other reprehensible behaviour.”
I next refer to the case of R v. Hanson [2005] EWCA Crim 3429, where the United Kingdom Court of Appeal (UKCA) stated that the purpose of the legislation was to assist in the evidence based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice.
In the case of Lawson [2006] EWCA Crim 2572 at para. 23, it was said:
“As this Court has had occasion to say before, the Criminal Justice Act of 2003 introduced a wholly new scheme for the admission of evidence of bad character. The previously existing common law and statutory rules are abolished. The correct approach is not to start with what the old law would have been but to address the law as it is set out in the new Act.”
- See also the text “Evidence of Bad Character” by JR Spencer, Second Edition, 2009 at para. 5.33, under the rubric “Deciding Applications to Admit Bad...
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