IN THE COURT OF APPEAL BETWEEN AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO Cr. App. No. 13 of 2010 IN THE COURT OF APPEAL BETWEEN RICK GOMES Appellant AND THE STATE Respondent PANEL: P. Weekes, J.A A. Yorke-SooHon, J.A R. Narine, J.A APPEARANCES: Mr. R. Rajcoomar and Ms. N. Bansee for the Appellant Ms. D. Seetahal, S.C. and Ms. L. Seetahal for the Respondent DATE OF DELIVERY: December 08 th 2011 Page 1 of 11

2 JUDGMENT Delivered by: P.M. Weekes, J.A. 1. The appellant, Rick Gomes, was convicted on 14 th August 2010 at the Port of Spain Assizes of two counts of possession of a dangerous drug, namely cocaine, for the purpose of trafficking, possession of a firearm and possession of ammunition. He was sentenced to thirteen years imprisonment with hard labour on the first count; five years imprisonment with hard labour on the second; five years imprisonment with hard labour on the third and three years imprisonment with hard labour on the fourth, sentences to run concurrently. It is against these convictions that he now appeals. 2. This appeal involves three related issues. Counsel for the appellant at the hearing of the appeal summarised his submissions in the following terms: The simple issue... before the Court is whether or not the coming together of officers,... prior to the preparation of statement is correct in law. And secondly, whether there was sufficient evidence to raise the issue of collusion between witnesses,; and if there was, whether or not there were directions or sufficient directions by the learned trial judge to alert the jury to what we would submit are the dangers of such a conspiracy? 3. The issues can be further distilled into three questions. 1) Is the conferring of police officers before preparing their case statements objectionable? 2) In the instant case, was such conduct, without more, evidence of collusion? 3) Was there evidence of collusion in this case and did the trial judge give appropriate directions on the issue? Background 4. Briefly, the prosecution case was, that on 15 th May, 1998, a party of police officers including Superintendent Craig, Sergeant Fournillier, and Corporals Gilkes and Roberts, executed a search warrant for dangerous drugs at an apartment rented and occupied by the appellant. At the time the appellant was at his apartment and in the company of another man. Page 2 of 11

3 5. The police officers observed the appellant and his associate seated at a table on which there was a quantity of packaged cocaine. Two rental vehicles which were in the yard of the apartment building, and to which the appellant had keys, were searched and a quantity of cocaine was found in one vehicle and a firearm and ammunition found in the other. 6. At trial, under cross-examination, Fournillier, Roberts and Gilkes admitted that before they wrote their individual statements in the matter, they had conferred and discussed with each other the events leading up to the arrest of the appellant and his associate. They denied that they had composed or prepared their statements together. 7. The appellant s defence was that neither the cocaine, guns nor ammunition was found on the premises and that the police officers had put their heads together and fabricated their evidence against him. 8. Counsel for the appellant submitted that it was improper for police officers to confer before writing their statements and that that act, by itself, raised the issue of collusion. He submitted that collusion could arise from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring a witness s description of impugned events. 9. Counsel referred to the case of R v Gary Skinner [1994] 99 Cr. App. R In that case the appellant was convicted of possession of a prohibited drug. The issue on appeal was whether discussions between witnesses before testifying, were improper. One of the arresting officers admitted that before coming into court, he and other officers had gone into a room and discussed the case. The witness attempted to draw a distinction between discussing the case and discussing the evidence and said that it was common practice in these circumstances and at such a time for officers to talk together about the case. It was held that such conversations were improper. Farquharson, LJ stated at pg 216: The question then arises as to the propriety of such conduct. It has certainly been permissible, since Lord Goddard's time, for officers to Page 3 of 11

4 confer together in the making up of their notebooks immediately after the events or interviews in which they have both been participating, as an aid to memory. That is shown by one of the cases that has been referred to this morning, namely the case of Bass (1953) 37 Cr.App.R. 51, [1953] 1 Q.B Furthermore, it has been the practice, certainly since the case of Richardson (1971) 55 Cr.App.R. 244, [1971] 2 Q.B. 484, that before coming into court witnesses can be shown their original statements, so that they can refresh their memory immediately before giving evidence. There has been no authority which directly bears upon the question of whether witnesses may discuss the matter together in the way it occurred in the present case. In some circumstances, of course, it is inevitable that discussions between witnesses will take place as where, for example, all the witnesses come from the same family. But it is a very different situation, in our judgment, when one is dealing with the evidence of police officers. Indeed, the rules should apply so far as they can be enforced in all circumstances. This Court is clearly of the opinion that Mr Mitchell is correct when he says that it is wrong for a discussion of that kind to take place immediately before the witnesses, or any of them, go into court to give their evidence. The difficulties are manifest, and he has shown through a review of such cases as do assist us, such as Richardson and Bass, that the general thrust of the court's findings are that such conversations should never take place. 10. Mr. Rajcoomar submitted that the meeting between the officers to discuss the case was analogous to what took place in the foregoing case, and thus was improper. 11. Counsel further contended that the judge in her summation erroneously justified or excused the conduct of the police officers by reference to the provisions of the Police Service Manual 1960, in particular Standing Order 26 rules which state (2) A policeman, when writing his own statement must not copy from another police officer. He must in his own words write down his recollections of the various incidents in the investigation which he took part with the help if necessary, of the things mentioned in Paragraph 1 that would be the pocket diary, Station Diary or notes (3) Nevertheless there is no objection to the investigating police discussing between themselves the facts of the case, or comparing notes before writing their statements. Indeed, they may do so up to the time they give evidence in the case, but they must, of course, admit if so asked in court. Page 4 of 11

5 12. He submitted that those provisions are archaic in relation to collusion as the law on the issue had developed beyond them. 13. In response to this first submission Ms. Seetahal for the State responded that the Police Service Manual 1960 was still relevant and that the officers acted quite properly and permissibly in meeting to discuss the case prior to the preparation of their witness statements and she continued that such conduct was not, without more, evidence of collusion. She referred us to the case of The State v Rick Gomes and Luis Gomez (2000) 59 WIR 479. In that case, the State appealed against a trial judge s ruling that the appellants (Rick Gomes in that case being the same appellant in this appeal) had no case to answer on charges of possession of cocaine for the purposes of trafficking. At the no case submission, one submission was that there was a conspiracy between the witnesses that had undermined the credibility of the case for prosecution. The Court of Appeal summarised the trial judge s findings and reasoning at pg 484: The trial judge then dealt with the submission that there was conspiracy between the three police officers. The basis of the submission was that the police officers had met before preparing their respective statements and had prepared them together, thereby ensuring that they were similar in all material respects. He expressed the opinion that the integrity of the prosecution would be compromised if the decision to prosecute was based on statements contrived by witnesses to ensure that they were similar in all material aspects. He referred to the 1960 police manual that dealt with this subject matter and in which it is recorded that a policeman, when writing his own statement, must not copy from that of another policeman but must in his own words write down his recollection of the various incidents in the investigation in which he took part, but there is no objection to the investigating police discussing between themselves the facts of the case and comparing notes before writing their statements. Indeed, they may do so up to the time they give evidence in the case but they must, of course, admit it if asked in court. It went on to hold that there was nothing improper in the conduct of the officers. Ibrahim, J.A. stated at pg 486: With respect to the conspiracy theory, there was no evidence that the conduct and behaviour of the police officers contravened the provisions in Page 5 of 11

6 the 1960 police manual. On the contrary, their conduct was consistent with the provisions in the manual. 14. Ms Seetahal also sought to distinguish R v Gary Skinner on its facts. She submitted that the officers in that case admitted to discussing the case before entering the courtroom to give evidence. She submitted that this did not occur in the instant case and that officers were not at fault for discussing the case before preparing their statements. She nevertheless highlighted the Court s observation in Skinner that it was permissible since Lord Goddard s time, for officers to confer together in the making up of their notebooks immediately after the events 15. We need say little more than that the Police Service Manual 1960 provides sensible and practical guidance on the issue at hand. It would be passing strange if police officers who were together part of an exercise or investigation were required by law never to discuss it before writing potential witness statements. Human frailties being what they are could cause inconsistencies in detail, sequence and other matters, not because of any desire to mislead but rather because human perception and memory differ from individual to individual. While each witness must write or give his/her own statement independently without prompting from another, there is nothing improper in having prior discussion to bring relevant matters to the forefront of the witness s mind. That is of course quite different from witnesses conferring just before giving their testimony or conferring for the purpose of fabricating evidence. 16. In the instant case we find nothing improper in the conduct of the officers in conferring before giving their statements and, without more, it cannot and does not amount to evidence of collusion. Counsel for the appellant conceded this latter position in his argument before us. 17. We now move on to whether there was evidence of collusion in this case. It was the case for the appellant that police officers had fabricated evidence about what took place in his apartment and on the compound. Clearly, if this was true, the police officers would have colluded in fabricating their account of events leading to the arrest of the appellant. It is Page 6 of 11

7 beyond dispute that the issue of collusion arose on the case for the defence and that the trial judge was duty bound to direct fully on it. 18. Counsel for the appellant submitted that the judge s directions on collusion were incorrect, misleading and amounted to a failure to put the appellant s defence properly to the jury by failing to alert them of the dangers of the conspiracy. 19. He referred us to the authority of Keith Bissessar and Gabriel Deosaran v The State Cr. App. Nos. 21 & 22 of In that case, both appellants were convicted for possession of marijuana, possession of a firearm, and possession of ammunition. The issue was whether the trial judge adequately directed the jury on collusion. John, J.A stated the following at para. 58: Counsel submitted that collusion was a serious allegation as it related to the fabrication of evidence. He claimed that the direction given on the matter failed to fully draw the jury s attention to the dangers inherent in such evidence or how they should deal with the witnesses if they believed that they had been in collusion. Furthermore, where collusion is proved or raised on the evidence, the judge must consider whether it would be safe to leave such evidence to the jury at all. In issue was the 1st appellant s trial attorney s suggestion to Samai that there may have been some collusion between himself and Birch, because their statements, which were not admitted into evidence, had similar grammatical errors. The trial judge said that the officers had vehemently denied that they in any way colluded with each other in their statements. He continued I think that Birch would have done his statement first, then Samai sometime after, maybe about ten days after. I think one is the 10th August 1999, and one the 20th January And it would only have been done at that point in time because he would have been awaiting the results of the forensic analysis so he could not sit down and seriously write a report when he did not have the forensic results, which would make the statement a complete one. The trial judge dealt with those examples of possible collusion in a very superficial manner. In our opinion, he should have directed the jury that if they found that there was collusion it went to the credibility of the witnesses and the reliability of their evidence. The judge s comments appeared to give his opinion of the context in which the statements were made. Whilst, a judge is entitled to express his opinion on the evidence, it is incumbent on him to impress upon the jury that they are not bound to Page 7 of 11

8 accept any view he may have expressed on the facts. In the circumstances, we find that the judge s directions on collusion were inadequate. 20. Counsel submitted that the trial judge did not direct the jury in the foregoing manner and consequently there was a failure to point out evidence that would have supported the appellant s defence of fabrication. 21. In response, Counsel for the State submitted that the trial judge very clearly and effectively explained that the appellant s defence was fabrication. Counsel submitted that the judge put the defence s allegation of fabrication and the supporting evidence before the jury. She referred to the judge s Summation of August 13 th 2010 and August 14 th 2010 at pgs 11, 24, 34, and Before going further, we refer to the case of R v H [1995] Cr. App. R437 pg. 455 in which Lord Mustill at pg. 455 has this to say about collusion: Finally, it is important to note the ambiguity of the word collusion. In its more limited sense this may denote a wicked conspiracy in which the complainants put their heads together to tell lies about the defendant, making up things which never happened. It is however clear that the argument for the appellant, and the authorities on which it is based, give the word a much wider meaning; wide enough to embrace any communications between witnesses, even without malign intent, which may lead to the transfer of recollections between them, and hence to an unconscious elision of the differences between the stories which each would have independently have told. 23. In the instant matter the collusion referred to is obviously in the more limited sense. We pause to say that in this jurisdiction the terms collusion and fabrication are used interchangeably when referring to a situation in which two or more witness have deliberately concocted an account of events which implicate an accused. fabrication without collusion but the term collusion implies fabrication. Of course there can be 24. The trial judge in the instant matter at no fewer than seven points in her summation dealt with the case for the defence and the issues raised thereby. She reminded the jury that the accused s defence was fabrication. She told them that he was denying that he was in Page 8 of 11

9 possession of the seventeen (17) packets of cocaine found in his apartment, the single packet found in the Toyota Corolla, and the firearm and ammunition found in the Hyundai; pg. 11 line 19. In giving directions on the discrepancy in the weight of the cocaine packages and additional markings made on the single packet, the trial judge told the jury to bear in mind the appellant s defence of fabrication because these two inconsistencies were being relied upon to support the alleged fabrication. She explained further that the defence was alleging that the officers made up the case against the appellant. Therefore, they had to be sure of Sgt. Fournillier s evidence, and be sure that he was telling the truth that there was no collusion. She summarised Sgt. Fournillier s explanation of getting together with the other officers to discuss the case. He stated that they could do so because the police are allowed to have discussions pursuant to Standing Order 26 of the Police Service Manual. She further directed them that they had to determine whether the accused was speaking the truth, because there were major differences between the evidence of the State s main witness Sgt. Fournillier and the accused. She went on to outline again the evidence of the accused and highlighted the differences. She directed them that those were the critical issues they had to decide on to determine where the truth lay and further to determine whether the Prosecution satisfied them so that they were sure. She reiterated again that all the evidence could not be true because there was a significant distinction between the State s evidence and the evidence of the accused; pg 24 line 28 to Pg 26 line 46. The trial judge returned to the issue in reviewing the evidence of Cpl. Roberts. She again highlighted the issue of the discrepancy in the weight of the cocaine packets. The scale that was initially used to weigh the packets at the police station could not be produced at trial. She directed them to consider whether the scale s absence affected their ability to determine whether they were sure the officers were speaking the truth about finding seventeen cocaine packets in the appellant s apartment; one cocaine packet in the trunk of the Toyota Corolla; and finding a firearm and ammunition in the Hyundai. She directed them that they had to consider whether the scale would have assisted them in making a determination and to remember that the scale s absence was being used by the defence to support the allegation collusion and fabrication; pg 34 lines 2-9. The trial judge also gave extensive directions on Cpl. Gilkes s previous inconsistent statement. She reminded them of his explanation that his statement in the Magistrates Court gave the Page 9 of 11

10 impression that the officers prepared their statement together. In re-examination he stated that they discussed the matter together to have agreement on the salient points and that it was unfortunate that it came across as though they sat together and wrote the statements together. He stated that that never happened. The trial judge directed the jury to factor in the explanation Cpl. Gilkes gave and that it would be for them to determine what to believe and where the truth lay. She further directed that it would be up to them to determine which account was true and it would be for them to determine the reliability and credibility of Cpl. Gilkes as a whole; pg 40 lines 25 to pg 43 lines 11. In reviewing the evidence of Ms. Lewis, the judge again referred to the discrepancy in the weight of the packets. The judge directed the jury to recall that the defence was fabrication and that they were pointing to the discrepancy in the weight of the packets to support it. In essence, the defence was saying that the weight discrepancy cast doubt on whether those were the same exhibits. The State s response was that there was a logical explanation for the discrepancy which was explained by the expert evidence of Ms. Lewis, which was a difference in the scale used by the police and the scale at the Forensic Science Centre; pg 45 lines The trial judge referenced a statement the accused made at the Magistrates Court. The accused had asked the magistrate if his keys could be returned to him because he said nothing illegal was found in the apartment. After reviewing the statement the judge reminded the jury that the accused s defence was fabrication, in essence denying that anything illegal was found in his apartment. The judge therefore directed the jury that his statement in the Magistrates Court was consistent with the evidence he gave at trial. She directed them to use this in his favour when assessing his credibility; pg 58 lines And finally in concluding her directions to the jury, the trial judge directed at pg 71 lines 43 50: You must ask yourself the question, do you believe that defence of fabrication by the police and the outright denial of possession by the accused, if you believe it, your verdict would be not guilty. And if you cannot say if you believe the Defence one way or another, if you are saying it might be so, or it might not be so, your verdict must still be not guilty. 25. The jury could have been left in no doubt what was the case for the appellant and were alerted repeatedly of the issue that they had to resolve in coming to a finding in respect of Page 10 of 11

11 that case. They were also instructed on where the burden of proof lay and directed to the evidence that had to be assessed in order to come to their findings. 26. We are unable to agree with Mr. Rajcoomar that the trial judge did not properly and fully advance the appellant s case rather we find that she did so with painstaking thoroughness and afforded the appellant a fair trial. 27. The appeal is dismissed. Convictions and sentences affirmed with sentences to run from the date of the appellant s conviction. P.M. Weekes Justice of Appeal A. Yorke-Soo Hon Justice of Appeal R. Narine Justice of Appeal Page 11 of 11