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The State v Ross, Marlon. [2012] TTHC 102 (28 June 2012)

TRINIDAD AND TOBAGO

_{IN THE HIGH COURT OF JUSTICE}

CR 00079 of 2008

Between

THE STATE

and

_{MARLON ROSS Applicant}

_{Before the Honourable Mr. Justice HOLDIP}

_{RULING ON NO CASE SUBMISSION}

_Appearances:

Mrs. Kathy-Ann Waterman Latchoo for the State

Mr. Ian Brooks for the Accused

_{DATED: July 4th 2012}

The Background:

On Friday 1^st December 2000, the Accused Marlon Ross was driving motor vehicle PBD

6945 south east along the Lady Young Road. Upon reaching the vicinity of the lookout a police officer dressed in uniform gave the Accused a front stop signal. This officer was one of the several police officers dressed in uniform and plain clothes who were conducting a road block exercise.

The said vehicle slowed down and when it reached approximately fifteen (15) feet away from that officer, the motor vehicle accelerated. This caused that officer and others to

scamper for their safety. Thereafter loud explosions sounding like gunshots emanated from that vehicle. There were also flashes seen inside the vehicle. Officers Michael Veronique and Henry Dann were located in the vicinity of the junction of St. Francois Valley Road and Lady Young Road. In reaction to the sound of the gunfire, Sergeant Veronique discharged a single shot from his service revolver in the direction of PBD

6945. The vehicle swerved into the northern embankment, ran off the road, flipped several times and landed on its four (4) wheels a short distance away.

When the police ran to the vehicle they found the Accused seated in the driver’s seat. There was a male occupant on the left front passenger seat and another on the right rear seat. A search of that vehicle uncovered two (2) pistols, with loaded magazines and a spent shell in the area of the driver’s seat. The two pistols were in the vicinity of the two other male occupants.

The police state that they identified themselves to the Accused and other occupants and cautioned them. At the end of the search conducted by Inspector Abraham the Accused and other two persons were asked whether they were the holders of firearm user’s licence. They responded in the negative. The Accused and others were arrested and taken to the Port of Spain General Hospital. The Accused was released next day into custody at the Barataria Police Station where he remained until he was formally charged

_{and brought to Court on the 6}^th _{December 2000 to answer the several charges for which}

he has been committed and now stands before this Court. The other two male occupants are not before the Court and the State has proceeded against this lone Accused on the

concept that he was acting in concert with the other two occupants as part of a joint enterprise. Subsequent investigations revealed that the Accused was also the joint owner of the motor vehicle with his mother.

Mr. Brooks, Attorney for the Accused has submitted that he the Accused, should not be called upon as he has no case to answer. Mr. Brooks indicated that his authority was based on the Practice Note 1962 1 All ER 448 and Sanjit Chaitlal v The State 1985 39

WIR 295 which approved the approach in R v Galbraith 1981 2 All ER 1060, 1062.

1. If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty – the judge will stop the case.

2. The difficulty arises where there is some evidence but it is of a tenuous character for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence:

1. where the judge concluded that the prosecution evidence, taken at its highest is such that a jury properly directed could not properly convict on it - it is his duty on a submission being made to stop the case.
2. where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally within the jury’s province and where on one possible view of the facts there is evidence on which the jury could properly conclude that the defendant is guilty, then the judge should allow the matter to be tried by the jury.

The defence is relying on both limbs in its submission.

Counsel contends that the State’s case is built on the concept of joint enterprise. That the Accused was acting in concert with others and the Court was invited to peruse carefully the evidence of police officers Abraham, Veronique and Dann. That apart from the admitted evidence that the Accused was the driver and owner of the vehicle – there is no evidence that the Accused knew the other occupants or that he knew they had guns.

Counsel does not deny that shots were fired at the police officers or that the firearm and ammunition were found in the motor vehicle. He however insists that the Accused knew nothing of these things.

I would like to point out the several counts on which the Accused is before the Court that the essential elements of those offences were proven beyond reasonable doubt by the prosecution evidence.

The main issue therefore is does the State have to prove the joint enterprise in the manner suggested by Mr. Brooks. In other words that the State must prove that there was communication between the Accused and other two male occupants, that Accused voluntarily broke the road block by disobeying the front hand signal, that the State has not led any evidence that the Accused knew of the existence of the firearms.

The State in response states that it does not have to provide evidence of how the agreement was arrived at; that it is relying on all the circumstances of what happened at the lookout including that the Accused was always in control of the vehicle, that he did not behave like a hijacked victim – he was conscious while the police searched the vehicle and he did respond that he was not the holder of a firearm user’s licence – he had made no overt objection to what was said to him nor did he in any way distance himself from the other two persons. He never disowned them.

Mr. Brooks has also suggested that his client had only a mere presence at this scene and that the investigation carried out by Inspector Abraham was deficient and so his evidence cannot be relied upon in support of the concept that the Accused was acting in concert with the other persons.

Both parties referred to and offered for support of their respective positions the case of Chang Wing-Siu & Others v The Queen 1984 3 All ER 877, @ p 881 para b per Lord Parker C.J. – criminal culpability lies in participating in the venture with foresight:

“Where two persons embark on a joint enterprise each is liable for the acts done in pursuance of that joint enterprise and that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (and this is the crux of the matter) .. if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise his co-adventurer is not liable for the consequences of that unauthorized act. Finally... it is for the jury in

every case to decide whether what was done was part of the joint enterprise or

went beyond it and was in fact an act unauthorized by that joint enterprise.”

As it relates to no case submission based on circumstantial evidence, the Court was referred to Teper v R 1952 AC 480 where it was held that although circumstantial evidence may sometimes be conclusive, it must always be narrowly examined, if only because it may be fabricated to case suspicion on another. For this reason it has been said

“it is also necessary before drawing the inference of the Accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.” Per Lord Normand at p. 489.

I found assistance in the Australian case of Case Stated by DPP (No. 2 of 1993) 1993 70

A Crim R. 323 (CCA) per King C.J.

“I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence and that evidence if accepted is capable of providing in a reasonable mind a conclusion of guilt beyond reasonable doubt and this is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the

prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence”

The State is proferring that reasonable inferences can be drawn from the behaviour of the Accused when after the accident he did nothing to distance himself from the other two Accused and that further when one considers all the circumstances that the circumstantial evidence of joint enterprise could properly be put before the jury.

In R v Lam [2008] VSCA 109; 2008 185 A Crim R 453 (Vic CA) the court in a joint judgment stated:

“it is crystal clear that simple being present at the scene of a crime being committed by another is insufficient to render an individual also guilty”

_{The effect of aid and abet}

In R v Lowery & King [No. 2] [1972] VicRp 63; 1972 V R 560 Smith, J gave the following approved directions to the jury:

“Even if there is a prior understanding or arrangement that the crime shall be committed a person is guilty in law of a crime committed by the hand of another – another whom the law calls the principal in the first degree – if the person is present when the crime is committed and aids and abets the commission of it. In such circumstances he is called the principal in the second degree and is equally guilty of the crime with the principal in the first degree aiding and abetting in this

crime is being committed: first, intentionally helping the principal in the first degree to commit the crime; or secondly intentionally encouraging him by words or by your presence and behaviour that you are assenting to and concurring in his commission of the crime. A person present at the scene of the crime and so aiding and abetting a person to commit a crime is in law a principal in the second degree and is guilty in law of the crime committed by the hand of the principal in the first degree.”

The State is asking the jury that they can accept that the firearms having being found in closer proximity to the other two occupants that they could be the principals in the first degree. Also in cross examination the Officer Veronique indicated that he did not see any flashes coming from the driver’s window. When one adds the behaviour of the Accused in disobeying the front stop signal and thereafter accelerating the speed of the vehicle there is sufficient prima facie evidence of the Accused assisting the other two occupants in breaching the road block.

In Doney v The Queen [1990] HCA 51; 1990 171 CLR 207 the High Court said:

“It follows that if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be

sustain a verdict of guilty.”

The test is whether the defendant could lawfully be convicted and as the trial judge I am required to take into account all inferences most favourable to the prosecution which could reasonably be drawn from the primary facts.

I hold therefore that a prima facie case has been made out against the Accused and call upon him to answer the charges.

Malcolm Holdip

Judge

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