REPUBLIC
OF TRINIDAD AND TOBAGO
IN
THE COURT OF APPEAL
Mag.
App. No. 58 of 2001
BETWEEN
AND
WAYNE
RAHIM
RESPONDENTS
DATE
DELIVERED:
Monday, July 23, 2001.
Judgment Delivered by M.A. de la Bastide, C.J.
CHIEF JUSTICE DE LA BASTIDE: In this case the four respondents were charged with being in possession of marijuana for the purpose of trafficking and also with being in possession of ammunition in the form of a 16-gauge shotgun cartridge without being the holders of the appropriate licence. The Magistrate dismissed both charges on a no-case submission and the complainant has appealed against that decision. Counsel for three of the respondents—the fourth did not appear either in person or by attorney—has very frankly conceded that the Magistrate was wrong to have upheld the no-case submission.
The circumstances in which he came to do so are these: the complainant testified that he and some other police officers stopped the vehicle in which the four respondents were travelling at a roadblock and the respondents were made to alight from the car. Two of them had been in the front seat, one driving, and two in the back seat. On the front seat the police officers found a plastic bag containing what appeared to be marijuana and also a 16-gauge cartridge. The respondents were arrested and taken to the station where the complainant placed certain identification marks both on the cartridge and on the bag containing the plant material. He subsequently took the cartridge to the armourer for examination and at that point the armourer placed an identification number of his own on the cartridge. Similarly, the plant material was taken to the Forensic Science Centre for analysis and there was given an identifying number which was marked on the exhibit.
This is one of those cases in which there has been shocking and inordinate delay in the trial of the charges. I don’t know whether this has something to do with the fact that the venue of the trial was in Rio Claro, but the case was adjourned on nearly 50 occasions over a period of about eight years. The offences were alleged to have been committed on the 31st August, 1990. Not surprisingly, by the time of the trial, the exhibits were the worse for wear because of the passage of time and the frequent trips which they had made to and from the court house.
In the result, when the cartridge which was produced in court was examined, it was found that while the markings placed by the police officer on it were visible, the markings which had been put by the armourer were partly obliterated. The Magistrate on that basis upheld an objection in relation to the cartridge although it is by no means clear either from the transcript of the Notes of Evidence, or from the Magistrate’s reasons exactly what the objection was. I would like once again to repeat for the benefit of Magistrates that the identification of exhibits is not a game where, if you mis-pitch as Prosecutor, you lose. The Magistrate must at all times bear in mind what the issues are in relation to the exhibit, particularly when it is something like a substance alleged to be a drug or a firearm or ammunition.
The first crucial issue is whether or not the substance or object, which is the subject of the charge, was found in the possession of the accused. The second crucial issue is whether that substance was a prohibited drug, or in the case of a charge under the Firearms Act, was either a firearm or ammunition within the meaning of that Act.
There is no requirement in law that the object which is the subject of the charge, must be produced in court, although that is what one would expect, unless there is some satisfactory explanation offered for its non-production. But if, for instance, the building in which the exhibit was kept is destroyed by fire, that does not mean that all those who are charged with offences to which exhibits kept in the burnt premises relate, must be acquitted. The more important issue is often whether or not the object which is the subject of the report from the scientific officer or the armourer was the object which was found in the possession of the accused.
Of course, there is another issue which may arise and, that is, whether the object which is tendered in court is the object which was both found in the possession of the accused and also examined by the scientific officer or armorer. But that is a separate issue, though admittedly, if again there is no satisfactory explanation for the failure of the Prosecution to produce that object and prove that it is the same object as that which was seized and examined, this may cast doubt on the whole of the Prosecution’s case.
The markings that have been placed on an object, because of the passage of time or for other reasons, may deteriorate so that they are no longer as clear and as legible as when they were first put on. That is not of itself a good reason for excluding the object from evidence, far less, for refusing to admit the report issued in respect of it by the Forensic Officer.
In this case the Magistrate was wrong to have excluded the cartridge from the evidence. She would also have been wrong to have excluded the armourer’s report although that does not appear to have been formally tendered. That brings me to another point, which is that it is the duty of the Prosecution, provided some basis has been laid, to tender in evidence both the object seized as well as the report from the Forensic Science Centre obtained in relation to it. The Magistrate may or may not allow them to be put into evidence but they must be tendered.
In this case, however, there was evidence from the police officer himself and, indeed, real evidence (as the cartridge was before the court, though not admitted into evidence) that there was a cartridge, or a cartridge case, that was found on the front seat of the vehicle. That, in my view, was sufficient to bring it within the definition of ammunition under the Firearms Act and, therefore, despite the failure of the Prosecutor to tender the cartridge or the armourer’s report, there was sufficient evidence for the Magistrate to have called on the respondents on the charge of being in unlawful possession of ammunition.
Now, on the other charge which was for possession of
marijuana for the purpose of trafficking, the Magistrate in her reasons states
that she did not call on the respondents to answer this charge, because “there
was no evidence that the respondents were informed of their Constitutional
rights to retain and instruct without delay a legal advisor of their choice and
to hold communication with that advisor,” and she referred to the case of The
Attorney General of Trinidad and Tobago v. Wayne Whiteman (1991) 2 West
Indian Reports, 1200.
It is fairly obvious, with all due respect to the Magistrate, that this reason is an afterthought. No point was raised at the trial with regard to it, although arguments were made in support of the no-case submission by counsel for the respondents. There were submissions related to the unsatisfactory condition of the exhibit containing the marijuana. But there was no question raised either with the policeman in evidence or by counsel in argument, about failure to inform the accused of their rights to counsel. In any event, that failure could not have provided any basis whatever for the upholding of the no-case submission as failure to give that advice to an accused person is relevant when the Prosecution relies on some statement given by the accused person.
In this case there was no question of any such reliance and the Magistrate should have been concerned solely with whether or not the evidence disclosed a prima facie case and, certainly in relation to the drug offence, she ought to have held that it did.
I hope that our judgment in this case will assist Magistrates to avoid falling into error when they are faced with objections to the production of objects and substances, that are the subject of a charge of unlawful possession or reports in relation to them.
The Magistrate’s decision was therefore wrong and we must quash the decision to acquit all four respondents. In the normal course they would have to either have their matter remitted for further hearing by this Magistrate or face a retrial before another Magistrate.
In the circumstances of this case, we order that the matter be heard de novo before another Magistrate. We do so subject to this observation, that nearly eleven years have elapsed since the occurrence of the events which gave rise to these charges. The question is whether the pursuit of the Prosecution will amount to an abuse of process. This is a matter in the first instance for the Director of Public Prosecutions. We think that it would be proper to give him the opportunity to consider the matter and to direct such action as he may think proper.
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