THE REPUBLIC OF TRINIDAD AND TOBAGO

CR-HC-SDO-IND-167-2021-1-1-2
CRS 73 /2013

IN THE HIGH COURT OF JUSTICE

SAN FERNANDO

The State

(1) Kelt Kirk

And

(2) Sherry Ann Lalloo

For Murder

Before the Honourable Madame Justice Gail Gonzales

Date: February 18, 2022.

Appearances: Mrs. Laloo Chong and Ms. Gray for the State

Ms. Rekha P Ramjit and Ms. Ramjohn for Accused No 1

Mr. Selwyn RamlalMs. A Edwards for Accused No 2

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 RULING ON APPLICATION FOR SEVERANCE MADE BY ACCUSED NO 1

INTRODUCTION

1. This is an application by way of motion dated December 20, 2021, brought by Accused
No 1 Kelt Kirk (Kirk) to sever the count in the indictment in this matter. Kirk is asking
that he be tried separately from his co -accused, as he wants to be tried by a Judge
sitting without a jury. Accused No 2 Sherry Ann Lalloo (Lalloo) has reserved her right to
be tried before a Jury.

2. After considering Kirk’s application, the submissions of the State in response and the
law as it relates to the severance of trials where accused are charged jointly, the
application for severance is dismissed. The following are my reasons.

THE BACKGROUND

3. Kirk is jointly charged with his common law wife, Lalloo, for the murder of nine month
old Rahiim Clarke (the deceased), on July 2, 2008, at Mayaro. On February 16, 2009,
Kirk and Lalloo were committed to stand trial for murder. On the September 26, 2013,
they were indicted on one count for the murder of the deceased. Counsel for Kirk filed
this application on the December 20, 2021and the State replied on February 2, 2022.

4. The State’s case against Kirk is founded on the notes of his interview dated July 2, 4,
and 8, 2008, as well as, circumstantial evidence.

5. To prove its case against Kirk, the State is relying on the principle of joint enterprise,
on the basis that the deceased was in the joint care of Kirk and Lalloo during the four
days that culminated in his demise. Kirk admitted hitting the deceased while he was in
his care and he was complicit in the alleged assault of the deceased by Lalloo.

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The application to sever

6. In support of the application for severance, counsel for Kirk advanced, that because
murder is a non-bailable offence, Kirk would have to remain incarcerated on remand
until the matter is determined. During the case management hearing, Kirk consented
to be tried by a judge alone. I declined to proceed with a trial by judge alone because
under section 6 of the Criminal Procedure Act as amended, where more than one
person is charged on an indictment, all must elect trial by judge alone. Lalloo has not
consented to be tried by a judge sitting without a jury.

7. Counsel for Kirk contended that in March 2020, jury trials were suspended due to the
Covid-19 Pandemic and have not resumed to date. There is no projected date for the
resumption of jury trials. A separate trial will ensure that Kirk can exercise his right to
a trial by judge alone.

8. Counsel for Kirk also contended, that the inability of Kirk to get a bench trial in such
circumstances was a breach of section of 5(2)(c)(iii) of the Constitution as it would
deprive Kirk of his right to be brought promptly before the court. She also contended
that that would be in breach of section 5(h) of the Constitution, which prohibits
parliament from depriving a person of the right to such procedural provisions as, are
necessary for, in this case, ensuring that persons can be promptly brought before the
court.

The State’s response

9. State Counsel objected to the application and submitted that, in cases where accused
persons are jointly indicted for the commission of an offence as a joint enterprise, the
interests of justice require that they be tried together and that exceptional
circumstances must be shown for the Court to exercise its discretion to sever the
indictment. In support, Counsel relied upon the principles ventilated in the cases of R v
Mohammed Ilias Moghal 1977 65 Cr. App. R. 56, Akim Carter &Another v The State

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 Cr App 32/05and Aroon Mohammed &Others v The State Cr App 7-9/99.

10. The State further submitted that the case had no special features or exceptional
circumstances for severing the indictment. Moreover, it may be difficult to
disentangle the prosecution evidence for separate trials in the instant matter. Neither
delay, nor the failure of a co-accused to consent to a bench trial was sufficient grounds
for severance.

THE ISSUES FOR DETERMINATION

11. The issues I had to determine were:

(i) Whether there are exceptional or special features of the case to warrant
severance,
(ii) Whether the suspension of jury trials made it desirable to sever the count on
the indictment, and
(iii) Whether Kirk’s inability to secure a trial by judge alone amounted to a breach
of his constitutional rights.

THE LAW

12. Section 14 (3) of the Criminal Procedure Act Chap. 12:02 gives the Court the power to
order separate trials. Section 14(3) states:
“Where, before trial, or at any stage of a trial, the Court is of opinion that a person
accused may be prejudiced or embarrassed in his defence by reason of being
charged with more than one offence in the same indictment, or that for any other
reason it is desirable to direct that the person should be tried separately for any
one or more offences charged in an indictment, the Court may order a separate
trial of any count, or counts of such indictment.”

13. Section 5(2) (c) (iii) of the Constitution provides that:

Without prejudice to subsection (1), but subject to this Chapter and to section 54,
Parliament may not—
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 …
(c) deprive a person who has been arrested or detained—
…
(iii) of the right to be brought promptly before an appropriate judicial authority;
…
(h) deprive a person of the right to such procedural provisions as are necessary for
the purpose of giving effect and protection to the aforesaid rights and freedoms.

14. The case of R v Lake (1976) 64 Cr App Rep 172, relied upon by the State, outlined the
general principle in exercising the discretion whether to grant separate trials. Lord
Widgery stated:

“it has been accepted for a very long time in English practice that there
are powerful public reasons why joint offences should be tried jointly.
The importance is not merely saving time and money. It also affects the
desirability that the same verdict and the same treatment shall be
returned against all those concerned in the same offence. If joint
offences were widely to be tried as separate offences, all sorts of
inconsistencies might arise. Accordingly, it is accepted practice, from
which we certainly should not depart in this Court today, that a joint
offence can properly be tried jointly even though this will involve
inadmissible evidence being given before the jury and the possible
prejudice which may result from that”

15. In case of R v Hayter [2005] UKHL 6, the House of Lords reaffirmed that a judge is at
liberty to exercise his discretion to order separate trials, however in the interests of
justice, there are powerful public reasons why joint offences should be tried jointly.
Lord Steyn stated the principle as follows:

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 'While considerations of the avoidance of delay, costs and convenience,
can be cited in favour of joint trials this is not the prime basis of the
practice. Instead it is founded principally on the perception that a just
outcome is more likely to be established in a joint trial than in separate
trials. The topic is intimately connected with public confidence in jury
trials. Subject to a judge's discretion to order otherwise, joint trials of
those involved in a joint criminal case are in the public interest and are
the norm…”

16. In the case of Lobban v R [1995] 2 All ER 602 their Lordships stated that the governing
test is always the interest of justice taking into account the particular circumstances of
each case. Further that where separate trials are not ordered, the interest of the
implicated co-defendant must be protected by the most explicit directions to the
effect that the statements of one co-defendant is not evidence against the other.

17. The prosecution relied upon the case of R v Mohammed Ilias Moghal 1977 65 Cr. App.
R. 56 which followed the principle that only in exceptional circumstances should
separate trials be ordered where two or more persons are charged with the same
offence. R v Moghal involved two accused, jointly charged with murder. Each accused
pinned the murder on the other. However, it was clear that the deceased was
murdered in circumstances in which only the appellant or his mistress or both of them
could have killed him. The mistress Sadiga applied for a separate trial and the trial
judge acceded to her request. The appellant Moghal appealed on the basis that the
trial judge erred as separate trials should not have been held and as a result, a miscarri
age of justice had occurred. The appellant’s conviction was upheld and his appeal
dismissed. Though the Court of Appeal opined that it would have been far better for
them to be tried together, the appeal was dismissed as the essential atmosphere and
features of the case were satisfactorily put vividly before the jury and the verdict was
safe.

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18. In the case of Grondkowski v. Malinowski (1946) 31 Cr.App.R. 116; [1946] K.B. 369 a
case referred to in Moghal Lord Goddard, Lord Chief Justice stated:

“prima facie it appears to the court that where the essence of the case is
that the prisoners were engaged on a common enterprise, it is obviously
right and proper that they should be jointly indicted and jointly tried,
and in some cases it would be as much in the interest of the accused as
of the prosecution that they should be. Suppose, for instance, that the
defence of one was that he or she was acting under the positive duress
of the other. It would be obviously right that they should be tried by the
same jury, who might see in one prisoner a harmless or nervous looking
little man or woman, and in the other a savage brute whom they might
deem capable of forcing his co-prisoner against his will into assisting in a
crime.”

19. The case of Bain v R [2020] 1 LRC 497 a decision of the Supreme Court of the Eastern
Caribbean, affirmed that it was settled law, that there were powerful public reasons
why joint offences should be tried jointly and that while a Judge had a wide discretion
to order separate trials, the discretion had to be exercised judiciously.

20. In Bain, the Crown’s case was that of joint enterprise. The appellant applied for a
separate trial on the ground that there were statements under caution of his co-
defendants contained in the evidence, which was inadmissible and prejudicial to him.
Additionally counsel for the appellant also submitted that if a separate trial was
ordered that the trial period would be shortened. The trial judge did not grant
separate trials and edited the caution statements of the co-accused. In the summing
up he gave directions to the jury to counter any potential prejudice to the co-
defendants. On appeal, it was held that though the potential for prejudice to the co

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 defendant an the desirability of having a shorter trial were critical factors for
consideration, it had to be weighed against the public interest that joint offenders
should be tried jointly. Further that the interest of justice and fairness could have
been secured by editing the caution statements and giving the appropriate directions.

21. The Court found that the case had no exceptional circumstances to justify separate
trials, the facts were not complex and it was a straightforward case of an alleged
robbery, which resulted in the death of the deceased, with the appellant being the
mastermind of the offence. Clear and detailed directions, regarding the statements of
the co-accused, had cured any potential prejudice suffered. As a result, the appeal
was dismissed, as it was held that the trial judge did not err by not ordering separate
trials.

22. In arriving at the decision the court looked at the law as laid down in R v Lake (1976)
64 Cr App Rep 172, R v Hayter [2005] UKHL 6 and Lobban v R [1995] 2 All ER 602 and
summarised the applicable principles as follows:
i. “A trial judge had a discretion whether or not to order separate trials;
ii. The general principle was that persons who were charged jointly for an
offence should be tried jointly;
iii. Only in exceptional circumstances should separate trials be ordered;
iv. Whether a separate trial should be granted would depend on the facts of
the case;
v. The complexity of a trial might necessitate a separate trial;
vi. The fact that certain evidence which would not be admissible in the case of
one co-defendant tried alone would be admissible in a joint trial was a critical
factor to be taken into account by a judge in the exercise of his discretion; and
vii. Where a separate trial was not granted, the judge had to ensure that the
fairness of the trial of an accused was not compromised.”

ANALYSIS

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Whether there are exceptional or special features of the case to warrant severance?

23. In this case, Kirk is not alleging that a failure to severe would cause him any prejudice
or embarrassment in his defence. He is not alleging that the statements made by
Lalloo during her interview are prejudicial to him and therefore he should be tried
separately to avoid undue prejudice, which cannot be cured by robust directions. He is
not contending that his, is an exceptional case or that there are special features in his
case that warrants a separate trial. He is not contending that it is a lengthy or complex
case that can best be managed by a separate trial. I have found no basis for severing
the count on the indictment.

24. In fact, when one looks at this case, this is exactly the type of case that the authorities
suggest should be tried jointly, once the accused are jointly indicted. The case is one of
joint enterprise, where each accused is running a cutthroat defence. I find that there is
nothing exceptional or special on the facts that would justify a move away from the
general rule that accused who are jointly indicted should be tried together.

Whether the suspension of jury trials makes it desirable to sever the indictment?

25. The wording of section 14(3) of the Criminal Procedure Act gives a wide discretion to
the judge to sever the indictment. The caveat, however, comes from the case law. In
Bain it was said that the judge must exercise the discretion judiciously.1 That means
that the judge must not take into account irrelevant matters or fail to take into
account relevant matters. Is the suspension of jury trials a relevant matter I should
take into account in deciding whether the count on the indictment should be severed.

26. In Lake it was said that:

1 [2020] LRC 497 at 506

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 “It has been accepted for a very long time in English practice that there
are powerful public reasons why joint offences should be tried jointly.
The importance is not merely one of saving time and money. It also
affects the desirability that the same verdict and the same treatment
shall be returned against all those concerned in the same offence. If joint
offences were widely to be tried as separate offences, all sorts of
inconsistencies might arise.”

27. It is in the public interest that persons who are charged jointly should be tried jointly,
except in exceptional circumstances. It is also in the public interest that persons who
are charge be tried as expeditiously as possible.

28. The suspension of jury trials has rendered expeditious jury trial non-existent. At this
time there is no date fixed for the resumption of jury trials. The very nature of the
pandemic points to jury trials not resuming in the near future. It seems that there
must be a balance between the public interest in having persons tried together and
the public interest in having an expeditious trial process. In striking a balance I
considered what prejudice could occur if I exercised the discretion to sever solely to
allow for a trial by judge alone.

29. Severance in a case such as this is almost bound to work injustice, not only to the State
but also to the co-accused. The tribunal of fact must be in a position to deliberate on
the case as a whole. The same tribunal of fact must be able to deliberate in a single
trial on the issues that arise between not only the State and each accused but also the
issues as they arise between the co-accused. The issue is one of fairness of the trial.
Fairness applies not only to the accused but also to the State. I adopt the sentiments
expressed by Lord Goddard in the case of Grondkowski v. Malinowski when referring
to the courts approach to severance:

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 “The law is, and always has been, that this is a matter of discretion for
the judge at the trial…The discretion, no doubt, must be exercised
judicially, that is, not capriciously. The judge must consider the interests
of justice as well as the interests of the prisoners. It is too often
nowadays thought, or seems to be thought, that the interest of justice
means only the interests of the prisoners”.

30. I find that it would be unfair to the State to have separate trials given the nature of the
State’s case and the potential defence of each accused. I also find that it may be
potentially unfair to the co-accused if there is a separate trial. This requirement for
fairness demands, that I place the public interest in having a joint trial in these
circumstances, over the public interest in having a speedy trial. I find therefore that
the suspension of jury trials does not make it desirable that I exercise my discretion in
favour of severance.

Whether Kirk’s inability to secure a judge alone trial amount to a breach of his rights under the
Constitution?

31. Counsel for Kirk relied on section 5 of the Constitution. Section 5 of the Constitution
declares certain rights, upon the arrest or detention of an individual. The particular
provision relied upon covers a situation where a person has been detained or arrested
and establishes a right to be taken to court without delay. Such a person cannot be
deprived the right of procedural provisions necessary to give effect to that right. I fail
to see how this section applies to Kirk who is already before the court and has been
since July of 2008.

32. What is immediately apparent is that there has been delay of almost 14 years but that
is not a breach of any of the rights enunciated under section 5 of the Constitution. It is
settled law that there is no right to a speedy trial. There is also no right to a particular

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CONCLUSION

33. I find no basis on which I can properly exercise my discretion to sever therefore the
application to sever the count on the indictment is dismissed.

G Gonzales

Judge

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