THE STATE v.

RAMDIAL ET AL
Add to List
icon
Citation # TT 2006 HC 55
Country Trinidad and Tobago
Court High Court
Judge Mohammed, J.
Subject Criminal practice and procedure
Date July 11, 2006
Suit No. Cr. No. 117 of 2004
Subsubject Right to reply Closing arguments - Whether the prosecutor had the
right to reply where the defence did not make closing arguments Prosecutor's
right to reply was not contingent upon exercise of defence Right of reply was
dependent only on whether witnesses had been adduced in support of the defence
Right of reply was discretionary.
Full Text Appearances:
Mr. I. Khan, S.C., Mrs. K. Waterman-Latchoo and Ms. T. Hudlin for the State.
Mrs. P. Elder S.C., and Mr. O. Hinds for Devindra Ramdial.
Mr. G. Peterson S.C., and Ms. A. Francis for Ansen Griffith.

MOHAMMED, J.: Section 39 of the Criminal Procedure Act, Chapter 12:02
provides, that the accused person or his counsel shall be allowed, if he thinks fit, to
open his case and after the conclusion of such opening, the accused person or his
counsel shall be entitled to adduce evidence in support of the defence and when all
the evidence is concluded, to sum up the evidence. (End of page 1)
Section 40 of that Act goes on to provide that the counsel for the Prosecution shall,
in all cases, have the right of reply. Section 15, subsection 2 of the Evidence Act,
Chapter 7:02 provides that in cases where the right of reply depends upon the
question whether evidence has been called for the defence, the fact that the person
charged has been called as a witness, shall not of itself confer on the Prosecution
the right of reply.
In this case, Accused No. 1 has elected not to give evidence but has called three
witnesses, one of those witnesses being as to character. Accused No. 2 has given
evidence and has called on his behalf two witnesses. One of the witnesses called on
behalf of the second named accused is Professor Hubert Daisley whose evidence is
relevant to the cases of both Accused.
Counsel for both Accused No. 1 and No. 2 have intimated that they propose not to
make closing addresses to the jury. Counsel for the State, Mr. Khan, has applied to
make a closing address to the jury. As observed by former Chief Justice de la
Bastide in the Court of Appeal judgment in Allie Mohammed v. the State, 1996,
Volume 51 W.I.R., page 320, at page 324 letter "d", there is an apparent conflict
between Section 40 of the Criminal Procedure Act and Section 15, subsection 2 of
the Evidence Act.
The relevant provisions in Guyana are identical to those in Trinidad. Under the
Guyana Criminal Law (Procedure) Act, sections 148 and 149 are of the same
content and appear in the same order as sections 39 and 40 of the Trinidad and
Tobago Criminal Procedure Act. (End of page 2)
In the case of DPP's Reference, (No. 1 of 1980) Vol. 29 W.I.R. at page 94, a
Submission of No Case to Answer at the end of the Prosecution's evidence had
been overruled. There has been certain weaknesses in the State's identification
evidence. The accused made an unsworn statement from the dock and he called no
witness. Defence counsel declined in that case to address the jury. State counsel
had then applied to address the jury claiming that he had a right of reply. The trial
judge ruled that he did not.
The Court of Appeal of Guyana, after a careful and thorough review of this point,
concluded within the factual context of that case as follows, and I will set out
various conclusions as I have been able to cull them from that case:

(1) That insofar as the trial judge had categorically ruled that the State did not have
a right of reply in the circumstances, he was wrong;
(2) That the prosecution had a statutorily conferred right of reply in all cases which
means exactly what it says;
(3) That while those words give and are intended to give counsel the right of reply,
that is, the power to reply in all cases, prosecuting counsel should not do so in
every case;
(4) The right conferred on counsel for the prosecution is not of an obligatory nature
but rather of a discretionary nature and it is in turn subject to the overriding
discretion of the trial judge to control excesses and possible abuse of discretionary
power and privileges; (End of page 3)
(5) Further, that the circumstances must be sufficient enough to warrant an exercise
of the power. Relevant questions were, did the interests of justice make it
necessary that counsel for the State should wish to reply and, did the interests of
justice make it compelling that he should do so;
(6) Further, the Court of Appeal decided in the DPP's Reference (No. 1 Of 1980)
that the interests of justice in that case could not have made it necessary that
counsel for the State should have wished to reply, where the identification
evidence was "palpably weak".

The Court of Appeal observed that the trial judge might well have removed the
case from the jury because of particular difficulties with respect to the visual
identification evidence. The Court of Appeal of Guyana was of the view that by
claiming the right of reply, an obvious attempt was being made on the part of the
prosecutor in that case, to bolster up a weak prima facie case.
In that case, apart from the unsworn statement of the accused, the accused did not
call any witnesses to substantiate it. At page 112, letter "j" and pg. 113, letter "a" of
the Judgment, Chancellor Crane said:

"But apart from his unsworn statement, he did not call any witnesses to
substantiate it. It would have been otherwise, I think, if he had called witnesses in
support because that might have been sufficient reason for counsel for the State to
exercise his discretionary right of reply." (End of page 4)
The facts of the locus classicus on this point in this jurisdiction, that is the case of
Allie Mohammed, are different in my view. There the accused alone had given
evidence. By the operation of section 15(2) of the Evidence Act, that by itself did
not confer upon the Prosecution the right of reply. Additionally, no closing address
had been made by defence counsel. It was plain, in those circumstances therefore,
that the prosecuting counsel had no right of reply under section 15 subsection 2 of
the Evidence Act, the accused alone having given evidence. The learned judge was
therefore wrong to have allowed him to make a closing speech and the error was
compounded by the inappropriate and unbecoming style of the prosecutor's closing
address.
A question has arisen during the course of the arguments in the case at Bar as to
whether, by practice in this jurisdiction, the prosecutor's right of reply is contingent
or partly contingent upon whether or not the defence makes a closing address.
Bearing this question in mind, the following paragraph from the judgment of
former Chief Justice de la Bastide in Allie Mohammed v. The State at pg. 325
letter "c" needs to be examined:

"The right given by section 40 is a right of reply in circumstances like these where
there is no address by or on behalf of the accused and no witnesses called by him.
There is nothing for the prosecution to reply to, save and except his own testimony.
To permit a reply by the prosecution, in those circumstances, would fly in the teeth
of section 15 subsection 2. There is no doubt that that is the section which deals
specifically with the situation that arose in this case and, in our view it should
therefore be regarded as the governing provision." (End of page 5)

While this paragraph appears, at first blush, to recognise that the making of a
closing address by defence counsel is a relevant factor to be taken into account in
determining whether the prosecutor has a right of reply, when the paragraph is
properly read, it seems clear that the conclusion was based on the prosecution's
purported exercise of the right of reply "flying in the teeth" of section 15,
subsection 2 of the Evidence Act, as former Chief Justice de la Bastide termed it.
No doubt the fact that the Defence counsel made no closing address may have been
a compounding or an exacerbating factor, but on a proper reading of Allie
Mohammed the decision really turned on section 15 subsection 2 of the Evidence
Act and nothing else.
In Allie Mohammed the Court of Appeal of Trinidad and Tobago followed DPP's
Reference (No. 1 of 1980) of Guyana. In Guyana, as I have already observed, the
relevant provisions are identical to those in Trinidad. Section 54 of the Guyanese
Evidence Act is identical to section 15, subsection 2 of the Trinidad and Tobago
Evidence Act. Sections 148 and 149 of the Guyana Criminal (Procedure) Act are
identical in content and sequence to sections 39 and 40 of the Trinidad and Tobago
Criminal Procedure Act, Chapter 12:02.
In DPP's Reference (No. 1 of 1980), the accused had made an unsworn statement
from the dock and the defence counsel had not addressed the jury yet, Chancellor
Crane was of the view that if witnesses had been called in support, there might
have been sufficient reason for counsel for the State to exercise his discretionary
right of reply see page 112, letter "j" and page 113, letter "a" of that judgment. This
suggests that whether or not the defence decides to make a closing speech is not a
relevant legal consideration in determining whether the (End of page 6) State has a
right of reply.
It is necessary to examine three other parts of the decision of the Court of Appeal
of Guyana in DPP's Reference (No. 1 of 1980). Chancellor Crane, at page 109 of
the judgment, letter "a", referred to the position in England prior to the introduction
of the English Criminal Procedure (Right of Reply) Act of 1964:

"In England, prior to the Criminal Procedure (Right of Reply) Act, 1964, the order
of the closing speeches used to be as follows: if the defence called any witnesses
other than the accused or witnesses to character only, the prosecution had a right of
reply whether or not the defence made a closing speech. If this right was exercised,
the speech was made after the closing speech for the defence, if any."

In answering the reference, Chancellor Crane concluded at pg. 113, letter "e":

"Failure of defence counsel to sum up on all the evidence cannot deprive counsel
for the State of his right to reply because, quite apart from any unworn statement,
the right to reply has from very ancient times been [DEPENDENT ONLY ON
WHETHER WITNESSES HAVE BEEN ADDUCED IN SUPPORT OF THE
DEFENCE] [Emphasis added], save after 1900 when the accused alone gives
evidence, that fact will not by itself entitle the prosecution to reply (see s 54 of the
Evidence Act)." (emphasis mine) (End of page 7)

At page 121, letters "b" to "e", Justice of Appeal Luckhoo said:

"I find myself unable to accede to the argument that because the right of reply was
denied the Prosecution in a situation to which Section 54 of the Evidence Act
applied, the position since 1900 would have to be reviewed and that the Court
should hold that, a fortiori, there was no right of reply where only an unsworn
statement was made without witnesses being called for the Defence and without an
address being made to the jury on behalf of the Defence. [IT MUST BE
REMEMBERED THAT THE RIGHT OF REPLY IS A STATUTORY,
SUBSTANTIVE RIGHT, ALBEIT SECRETED IN THE INTERSTICES OF
PROCEDURE, AND THAT THE QUALIFICATION CONTAINED IN
SECTION 54 OF THE EVIDENCE ACT WAS EXPRESSLY LIMITED TO THE
SITUATION THERE PROVIDED FOR. ANY FURTHER RESTRICTION OR
QUALIFICATION OF THAT RIGHT WOULD BE MATTER FOR
PARLIAMENT'S ATTENTION, NOT THE COURT'S. THE NON-EXERCISE
BY THE DEFENCE OF THEIR RIGHTS UNDER THE PROVISIONS OF
SECTION 148 OF THE CRIMINAL LAW (PROCEDURE) ACT, FOR
EXAMPLE, THE WAIVER OF THE RIGHT TO OPEN THE CASE FOR THE
DEFENCE OR, IN ANY WAY TO ADDUCE EVIDENCE OR, TO SUM UP
WAS NO BAR TO THE EXERCISE BY COUNSEL FOR THE PROSECUTION
OF HIS RIGHT OF REPLY UNDER SECTION 149. THE ENJOYMENT OF
THE LATTER, SAVE IN THE ONE INSTANCE NOTED, WAS NOT TO BE
CONSTRUED AS BEING CONTINGENT UPON THE EXERCISE OF ALL OR
ANY OF THE DEFENCE RIGHTS]." (emphasis mine)

Applying these principles, I am of the respectful view that the position in this
jurisdiction and in this particular case is as follows:

(1) The exercise of the prosecution's right of reply is not contingent upon the
exercise by (End of page 8) the defence of their option to deliver a closing address.
Insofar as this has been assumed to be the "procedural law" in this jurisdiction, I
say with great respect, that his assumed position does not appear to be properly
founded in law. The right of reply is dependent only on whether witnesses have
been adduced in support of the defence;
(2) The right of reply is not of procedural nature as is frequently assumed, but is a
substantive, statutory right, as described by Justice of Appeal Luckhoo in DPP's
Reference (No. 1 of 1980) and it is subject only to the limitation contained in
section 15, subsection 2 of the Evidence Act. Any further restriction or
qualification would be a matter for Parliament and not the Courts;
(3) The case of Allie Mohammed turned on section 15, subsection 2 of the
Evidence Act, the accused alone having given evidence in that case. Allie
Mohammed properly read, is not support for the proposition that the prosecutor's
right of reply is contingent or partly contingent upon whether the defence makes a
closing address. In any event, the facts of Allie Mohammed are distinguishable
from those of the case at Bar;
(4) In a case such as this, where in both cases the accused have called witnesses
and the defence intends not to address, in my view, the Prosecution have a
statutorily conferred right of reply;
(5) That right of reply is however not obligatory but rather discretionary;
(6) It is moreover subject to the Court's overriding discretion to control possible
abuses (End of page 9) and excesses of discretionary power and privileges.
(7) In exercising this supervisory discretion, relevant questions, to my mind are, as
postulated in DPP's Reference (No. 1 of 1980), do the interests of justice make it
necessary that the State should wish to reply, and do the interests of justice make it
compelling that the State should wish to do so? In answering these questions I do
not consider it appropriate to factor into account that the defence have made quite
detailed opening arguments. The law in this regard is clear, and I refer to Archbold
Criminal Practice 2006, paragraph 4-310:

"Where the rights exists, counsel for the defendant is entitled to open his case fully
to the jury; this includes not only outlining the defence's case, but also criticising
the prosecution's evidence, see R v. Randall, the Times, July 11, 1973, United
Kingdom Court of Appeal."

Accordingly, I do not think that it is appropriate to factor this into account. In an
opening address for the defence, the defence is entitled to criticise the prosecution's
evidence. The main question, as I see it, is this: is the prosecutor seeking to address
for any apparent oblique motive such as was the case in DPP's Reference (No. 1 of
1980), to prop up a palpably weak prima facie case?
While in this case there are potential weaknesses in Barrymoore Briggs' evidence, I
do not think, respectfully, that the prosecution's case can be properly characterised
as palpably weak. It must be borne in mind that this is almost purely a credibility
case and, therefore, everything turns, at the end of the day, on what the jury makes
of the witness. As much as (End of page 10) there may be factors potentially
adverse to Briggs's credibility, there may as well be potential factors in favour of it.
I therefore am unable to conclude that there is any oblique motive on the part of
the prosecutor in seeking to exercise the right of reply. This being a credibility
case, where there are factors which speak both possibly against and in favour of
Briggs' credibility in the context of all the evidence on all sides of the case, I think
that the interests of justice make it necessary that the State should wish to reply.
The circumstances are sufficient enough to reasonably warrant, in my respectful
view, the prosecution's exercise of its discretionary statutory right.
This is therefore an appropriate case for the State to seek to rely on its
discretionary right of reply. (End of page 11)
New search | Revise Search | Back to search results | First | Previous | Next | Last