The State v Ross
| Jurisdiction | Trinidad & Tobago |
| Judge | Holdip, J. |
| Judgment Date | 28 June 2012 |
| Neutral Citation | TT 2012 HC 218 |
| Docket Number | CR 79 of 2008 |
| Court | High Court (Trinidad and Tobago) |
| Date | 28 June 2012 |
High Court
Holdip, J.
CR 79 of 2008
Mrs. Kathy-Ann Waterman Latchoo — for the state
Mr. Ian Brooks — for the accused
Criminal practice and procedure - Evidence — Admissibility — Bad character of accused.
The Accused is on trial for shooting with intent at two police officers and related firearm and ammunition offences arising out of an incident that occurred on December 1, 2000 at around 1:00 a.m. on the Lady Young Road, in the vicinity of the look-out. The prosecution's case is that the Accused was the driver of a white Nissan Sunny motor vehicle and he ignored a police command to stop, accelerated the vehicle, and ran through a police roadblock. Gunshots were fired from the vehicle in the direction of the police officers. Sergeant Michael Veronique fired one round of ammunition at the vehicle which then hit the embankment and flipped in the air and landed on its four wheels. There was a man in the front passenger seat as well as a man in the back seat. Two loaded firearms were found in the vehicle, one on the floor of the front passenger seat and one on the floor of the backseat. A spent shell casing was also found in the vehicle.
The State seeks to adduce evidence of the convictions of the Accused, to show his lack of credibility as well as to rebut his defence of innocent association.
Section 15N of the Evidence Amendment Act No. 16 of 2009 provides that the previous convictions of an accused can be adduced if it is admissible through one of the seven gateways. Through gateway 15N (g) the bad character of an accused is admissible where the accused has made an attack on another person's character. An attack is made where the accused or his attorney asks questions in cross-examination that are intended to elicit such evidence or are likely to do so, as provided by Section 15N(1) (g) (b). Evidence attacking another person's character includes evidence to the effect that the other person has behaved or is disposed to behave in a reprehensible way.
The State seeks to adduce the bad character of the Accused by gateways (g) and (d). Defence counsel in his response submitted that under Sec. 15 N (3) the evidence of any bad character of the Accused should be excluded.
Section 15K (1) of the Act defines bad character as “evidence of or a disposition toward misconduct on his part”. According to Section 15K (2) misconduct includes the commission of an offence or other reprehensible conduct. Evidence of an accused previous convictions would obviously amount to proof of the commission of an offence and would satisfy the definition of misconduct.
Section 15N (d) it is relevant to an important matter in issue between the Accused and the prosecution in that it is relevant to rebut the defence of innocent association.
The prosecution seeks to admit the 2008 conviction for possession of ammunition as to rebut the defence of innocent association. The facts of that incident are that on Friday, September 5, 2008, the police executed a search warrant for firearms and ammunition at the home of the Accused at LP21 Spring Side Avenue, Eastern Quarry, Laventille. The Accused said he had nothing noted in the warrant and pointed out his bedroom and found four rounds of ammunition wrapped in foil in the clothes basket. Both the Accused and Temica Huggins pleaded guilty. The Accused was fined $6,000 and Huggins was fined $4,000.
Section 15N (g) the Accused has made an attack on other persons' character — by his legal representative asking questions of Inspector Henry Dann, Corporal Veronique and Superintendent David Abraham.
To rebut the defence of innocent Association: counsel for the Accused has put to the prosecution witnesses the case for the Accused which includes the following:
That the Accused was unconscious when police officers arrived around vehicle at scene to look.
That the Accused did not respond to any questions including holder of a firearm user's licence.
That it was never asked of Accused whether he knew other occupants of car.
That it was never asked of Accused if he knew occupants had guns.
That the Accused received a blow to the left side of his head, which together with the impact of the collision rendered him unconscious.
That the Accused related at the Port of Spain General Hospital and at the police station that he was a PH driver who was doing a job for $40 and that he was hijacked.
That the other occupants of the car ordered him to accelerate through the road block.
That there was no evidence that flashes came from the right front window.
That during questioning whilst in police custody at the station, he constantly denied knowledge of the other occupants of the car.
The State Witnesses have denied that any of the above mentioned took place. The case for the Accused is that he was not the person who shot at the police officer, Michael Veronique, nor did he have anything to do with the shooting. He acknowledges ownership and that he was driving the motor vehicle PBD 6945, but he was not in possession of the firearms and ammunition found in that vehicle. The suggestion is that the other occupants of the left front seat and the right rear of the vehicle were the possessors. In other words if anyone is guilty it may be those two other persons or at least one of them who were in the car that night.
The prosecution's case is that the convictions of the Accused are being admitted to rebut the defence of innocent association, presumably the innocent association with the other two persons who were in the car with him.
It should be noted that the common law has long accepted that evidence may be admitted to rebut a defence of mistake, accident or innocent association see D.P.P. v Boardman 1975 AC 421.
In the case of R v Mark Jordan 2009 EWCA Crim 953 para 20 Lady Justice Hallet, allowed bad character evidence to be admitted to rebut the defence of innocent association. The bad character was admitted under gateway (d). In Mark Jordan the important issue was whether the defendant knew that there was a firearm in the car.
The prosecution is also relying on the case of R v Ishmail Kamara 2011 EWCA Crim 1156. The English Court of Appeal in that case pointed out that propensity, lack of knowledge and innocent association may be closely intertwined. The prosecutor's case was that he and his co-accused were jointly in possession of the drugs at the...
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