TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
MAG. APP. NO. 68 OF 2008
BETWEEN
HAYDEN TONEY
Appellant
AND
PC JOSEPH CORRASPE 12639
Respondent
PANEL: P. WEEKES, JA
A. YORKE SOO HON, JA
N. BEREAUX, JA
Appearances: F. Hosein S C, R. Dass & A Toney for Appellant
D. Seetahal S C for the Respondent
D. Mendes S C, R. Harnanan, S. Alsaran for the Attorney General
DATE DELIVERED: FEBRUARY 26TH, 2010
Page 1 of 47
JUDGMENT
DELIVERED BY: BEREAUX, JA
The Facts
[1]
The appellant was the holder of a firearm users’ licence (FUL) which permitted
him to hold a Baretta .380 pistol as well as ammunition. It is a requirement of
section 28(1) of the Firearms Act Chap. 16:01 (“the Act) that “the holder of a
licence, certificate or permit in respect of any firearm or ammunition… shall,
within twenty-four hours after he discovers the loss or theft of his licence… report
the loss or theft at a police station”.
On Sunday 13th November, 2005, he
reported to the respondent at the Belmont Police Station, that the pistol and
twenty-two rounds of ammunition had been stolen from under the front seat of his
Mitsubishi Pajero SUV, registration number PBH 2020. He had parked and
secured the vehicle at 2.30 pm that day in the compound outside his office,
located on Jerningham Avenue, Belmont, Port of Spain.
[2]
The appellant told the respondent that he had left the pistol and ammunition,
together with six thousand dollars ($6,000.) in cash and certain documents, in a
pouch under the front seat of the vehicle and went into his office a few yards
away. When he returned to the vehicle at approximately 7.00 pm, he opened it
with the alarm control and drove off. After driving about three hundred yards, he
checked for the pouch and discovered that it was not there.
Page 2 of 47
[3]
On 14th November, 2007, the firearm never having been recovered, the appellant
was convicted of the offence of negligently losing a Baretta .380 pistol and
twenty-two rounds of ammunition, contrary to section 28(1A) of the Act. He was
fined four thousand dollars ($4,000.), in default of payment, to serve six months
imprisonment. The maximum penalty under the Act is a five thousand dollar
($5,000.) fine.
[4]
The offence set out in section 28(1A) was created by a 2004 amendment to
section 28(1) by which two subsections were added. Subsection 28(1A) made it
an offence to “lose” a firearm or ammunition “through negligence”. Subsection
28(1B) requires every person who finds a firearm or ammunition to deliver such
items to the police officer in charge of the nearest police station and “shall give a
written statement as to the time [at] which and the circumstances in which he
found the firearm and ammunition”.
[5]
Unlike section 28(1)(B), section 28(1) which was never specifically amended,
does not expressly require that full particulars of the circumstances of the loss or
theft be given. But the effect of the creation of the offence in subsection 1A was
to change the character of section 28(1) by potentially exposing the holder of the
firearm to the risk of a criminal charge if the police officer to whom he reports,
considers that he was negligent in its loss. Prior to the creation of the offence the
holder was simply required to report the loss or theft.
Page 3 of 47
[6]
At the hearing of this appeal, Mr. Hosein for the appellant made a very cogent
argument that section 28(1) breaches the appellant’s right of silence and the
privilege against self-incrimination, contrary to section 5 2(d) of the Constitution.
Because of the constitutional importance of the argument, the court directed that
the grounds of appeal in respect of this constitutional issue be served on the
Attorney General who is now represented in this appeal by counsel.
The trial
[7]
At the trial which proceeded summarily before Her Worship Magistrate Quinlan,
evidence was led that it was a condition of the FUL that the firearm and
ammunition, when not in the actual possession of the holder, should be kept in a
safe place, to avoid unauthorized access to them.
[8]
The respondent, who laid the charge, admitted under cross-examination that when
he interviewed the appellant on 13th November, 2005, it was “merely in the
capacity of someone making a complaint about the loss of a firearm”. He also
admitted that when he conducted the interview it was with a view to discovering
how the firearm was stolen and “to apprehending the persons who stole the
firearm”. He said that the appellant was not a suspect at that stage “in respect of
anything”; there was no need to administer any caution and none was
administered during the interview.
Page 4 of 47
[9]
Earlier, in his evidence in chief, P C Corraspe testified that after the appellant’s
initial report, he accompanied him to his car, looked at the vehicle and observed
“what appeared to be indentations around the keyhole on the front door of the
vehicle”. The vehicle was checked for fingerprints but none was found. He then
accompanied the appellant to the scene where the appellant pointed out “certain
things” to him. He requested a written statement from the appellant who agreed
and subsequently provided one. That statement was never admitted into evidence
at the trial and is not an issue in this appeal.
[10]
The appellant, in his evidence in chief, stated that his vehicle was fitted with an
alarm and automatic lock both of which automatically engage one minute after he
exits the vehicle. Before he went upstairs to the office, he heard the doors lock
automatically. He said that the office at 45B Jerningham Avenue was located in a
private driveway which leads onto Jerningham Avenue. In addition to the office
buildings, there are eight residences on the other side of the driveway, occupied
by officers of the Ministry of Health. The compound is enclosed with a concrete
fence and at the entrance there is a guard booth. The guard would normally open
and close the gate to facilitate entry. No evidence was led however that there was
a guard on duty at the time of the disappearance of the firearm and ammunition.
[11]
His office was located on the first floor of the building and the vehicle was parked
about three feet from the office entrance, just beneath his office window. He
could see the top of the vehicle and the entire left side if he looked outside. He
Page 5 of 47
had intended to stay about half an hour but stayed until 6.30 pm because he had
difficulty accessing information on the internet. He did not hear anything unusual
while in the office and had never had difficulty with thefts at that office.
[12]
When he returned to the car he accessed the vehicle by using the automatic
control. He said that he had left the firearm, ammunition and monies there
because “I thought it was reasonably safe to leave it there under the seat in the
car just outside my office”. Under cross-examination the appellant stated that
when he left the firearm and ammunition in the vehicle “he knew what he was
doing”, and it was not one of the conditions of the licence that the firearm and
ammunition were to be kept in the vehicle. He conceded that the vehicle was not
in his view during the period he spent in the office and that he did not hear the
alarm go off. He added that it was not the first time that he had left the firearm
and ammunition in the pouch under the seat.
Grounds of Appeal
[13]
The appellant has filed eight grounds of appeal.
(1)
the appellant is not guilty,
(2)
illegal evidence was admitted by the court and there was
not sufficient legal evidence to sustain the decision after
such illegal evidence is rejected,
Page 6 of 47
(3)
the decision is unreasonable and cannot be supported
having regard to the evidence,
(4)
the decision is erroneous on a point of law, or
(5)
some other specific illegality not mentioned above and
substantially affecting the merits of the case has been
committed in the course of the proceedings,
(6)
the sentence imposed is unduly severe.
(7)
a specific illegality occurred in the course of the matter
which affected the merits of the case. In particular, the
magistrate erred in law when she failed to give sufficient
weight to a number of relevant circumstances which were
material to her determination of the issues.
(8)
the magistrate exceeded her jurisdiction [and her] decision
is erroneous on a point of law; that is to say, section 28(1A)
of the Act creates an offence in respect of someone who
loses his firearm through negligence but not in respect of
someone whose firearm or ammunition is stolen.
Page 7 of 47
The appellant’s submissions
[14]
Mr. Hosein’s submissions in this appeal were, in summary:
(i)
Section 28(1)A of the Act violates the right against self
incrimination enshrined under section 5(d) of the
Constitution and the appellant’s conviction under section
28(1)A should be quashed. (Grounds 4 and 5). This was
not an argument raised before the magistrate, nor could it
be, given her summary jurisdiction.
(ii)
The appellant’s oral and written statements should have
been excluded because they were obtained in breach of his
constitutional right of silence and the privilege against self
incrimination. (Grounds 2, 4 and 5)
(iii)
If the oral statement had been excluded there would not
have been sufficient evidence to ground a finding of
negligence. (Ground 1 and 3)
(iv)
Even if the appellant’s oral statement is not excluded and
section 28(1) is not void for inconsistency with the right
against self incrimination, the conviction should still be
quashed because the evidence does not support a finding of
negligence on the part of the appellant. (Grounds 1 and 3)
Page 8 of 47
In view of the fact that submissions (ii) and (iii) hinge on the unconstitutionality
of section 28(1A), it follows that if that section is upheld as constitutional those
arguments also fail.
[15]
In this regard, we wish to express our gratitude to counsel for their very helpful
submissions, particularly on the question of the constitutionality of section 28(1)
of the Act. We have considered them and have concluded that the appeal must be
dismissed.
We uphold the constitutionality of section 28(1) as well as the
conviction and sentence imposed by the magistrate. We now set out our reasons
for doing so.
Constitutionality of section 28(1A)
[16]
Because of the importance of the issues raised by Mr. Hosein, we shall deal first
with the constitutionality of section 28(1) of the Act. Mr. Hosein submitted that
the right of silence and the privilege against self incrimination are inherent in the
right to liberty and security of the person set out in section 4(a) of the Constitution
and the right to a fair hearing in accordance with the principles of fundamental
justice enshrined under section 5(2)(e). He added that it finds specific expression
in section 5(2) (d) which provides:
“without prejudice to subsection (1), but subject to this chapter
and to section 54, Parliament may not –
Page 9 of 47
authorize a court, tribunal, commission, board or other authority
to compel a person to give evidence unless he is afforded
protection against self incrimination and, where necessary to
ensure such protection, the right to legal representation.”
[17]
This right, he submitted, is to be given the fullest and broadest interpretation. He
contended that:
(a)
the 2004 amendment to section 28 of the Act infringes the
privilege against self incrimination in that it puts the maker
of the statement, compelled by subsection 1 to report the
loss or theft, in danger of self incrimination (in
circumstances where such a danger did not exist prior to the
amendment);
(b)
the section fails to provide adequate protection against self
incrimination, in that:
(i)
it does not limit the compulsion to give a
statement to circumstances in which that
statement would not be self incriminatory,
(ii)
it does not exclude the use of a statement
given under subsection (1) and any evidence
Page 10 of 47
derived from that statement, in criminal
proceedings;
(c)
the 2004 amendment having infringed the privilege against
self incrimination was not passed with the requisite special
majority under section 13 of the Constitution
[18]
He added that the wide scope of the right is confirmed by the language used in
section 5(2)(d) which refers to “courts,” “tribunals”, “commissions”, “boards”
or “other authorities” and the protection given by section 5 is thus not limited to
formal adjudicative settings. It applies once an authority is authorized to compel
“evidence” of a self-incriminating nature.
Evolution of the rights
[19]
The cases show that the right of silence and the privilege against selfincrimination have formed part of the English common law since at least the
sixteenth century. Though related, they are separate and distinct. See Lord
Bingham in Brown v Scott 2003 1A C 687 at 697 where he said:
“The right not to incriminate oneself and the right to silence,
although distinct rights, are closely related, as acknowledged by
the House of Lords in R v Director of Serious Fraud Office, Ex
p Smith [1993] AC 1, 40 where Lord Mustill said:
Page 11 of 47
“That
there is
strong
presumption
against
interpreting a statute as taking away the right of
silence, at least in some of its forms, cannot in my
view
be
doubted.
Recently,
Lord
Griffiths
(delivering the opinion in the Privy Council in
Lam Chi-ming v The Queen [1991] 2 A C 212,
222)
described
the
privilege
against
self-
incrimination as ‘deep rooted in English law’, and
I would not wish to minimize the importance in
any way.”
[20]
Lord Mustill’s judgment in R v Director of Serious Fraud Office ex parte
Smith provides very helpful material on the nature and evolution of both rights.
Of the right of silence Lord Mustill said that it:
“does not denote a single right but rather refers to a disparate
group of immunities which differ in nature, origin, incidence and
importance”,
He went on to identify some of these rights as follows:
(1)
A general immunity, possessed by all persons and bodies,
from being compelled on pain of punishment to answer
questions posed by other persons or bodies.
Page 12 of 47
(2)
A general immunity, possessed by all persons and bodies,
from being compelled on pain of punishment to answer
questions the answers to which may incriminate them.
(3)
A specific immunity, possessed by all persons under
suspicion
of
criminal
responsibility,
whilst
being
interviewed by police officers or others in similar
positions of authority, from being compelled on pain of
punishment to answer questions of any kind.
(4)
A specific immunity, possessed by accused persons
undergoing trial, from being compelled to give evidence,
and from being compelled to answer questions put to
them in the dock.
(5)
A specific immunity, possessed by persons who have been
charged with a criminal offence, from having questions
material to the offence addressed to them by police
officers or persons in a similar position of authority.
(6)
A specific immunity (at least in certain circumstances,
which it is unnecessary to explore), possessed by accused
Page 13 of 47
persons undergoing trial, from having adverse comment
made on any failure (a) to answer questions before the
trial, or (b) to give evidence at the trial.
[21]
He cautioned however that while each of these immunities is of great importance
... “the fact that they are all important and that they are all
concerned with the protection of citizens against the abuse of
powers by those investigating crimes makes it easy to assume that
they are all different ways of expressing the same principle,
whereas in fact they are not. In particular it is necessary to keep
distinct the motives which have caused them to become embedded
in English law; otherwise objections to the curtailment of one
immunity may draw a spurious reinforcement from association
with other and different immunities commonly grouped under
the title of a ‘right to silence’.”
Lord Mustill then undertook a brief examination of the motives which caused the
embedment of these rights into the common law, demonstrating in that the
emergence of these rights and their importance in the firmament were tied to “a
long history of reaction against abuses of judicial interrogation which had left its
mark on public perceptions of the entire subject”. But that these rights and
immunities have also been subject to qualification and erosion by the legislature
almost as long as they have existed. His analysis at page 31 bears examination.
Page 14 of 47
[22]
Having counselled against confusing the motives which brought about these
rights, he went on to examine them in these terms
We must look briefly at these various motives. The first is a
simple reflection of the common view that one person should so
far as possible be entitled to tell another person to mind his own
business. All civilized states recognise this assertion of personal
liberty and privacy. Equally, although there may be pronounced
disagreements between states, and between individual citizens
within states, about where the line should be drawn, few would
dispute that some curtailment of the liberty is indispensable to
the stability of society; and indeed in the United Kingdom today
our lives are permeated by enforceable duties to provide
information on demand, created by Parliament and tolerated by
the majority, albeit in some case with reluctance.
Secondly, there is a long history of reaction against abuses of
judicial interrogation. The Star Chamber and the Council had
the power to administer the oath and to punish recusants; and
literally to press confessions out of those under interrogation.
Even after the abuses of the Star Chamber had been curbed the
magistrates, who in the absence of a police force had some of the
Page 15 of 47
functions of a modern juge d’instruction, had power to
interrogate the accused before trial. It seems that the use of such
powers to obtain compulsory response to interrogation, gradually
faded away, and in practice were replaced by a caution, well
before the caution became mandatory in 1848. Nevertheless,
although the misuse of judicial interrogation is now only a
distant history, it seems to have left its mark on public
perceptions of the entire subject: and indeed not just public
perceptions, for in the recent past there have been several
authoritative and eloquent judicial reminders of the abuses of
our former inquisitorial system and of the need to guard against
their revival. Amongst these are the oft-cited dicta of Murphy J.
in Hammond v Commonwealth of Australia (1982) 152 C.L.R.
188. It may however be noted that the immunity against judicial
interrogation is no longer as complete as it was, for the abolition
by the Criminal Evidence Act 1898 of the rule that an accused
was not even a competent witness at his own trial opened up the
possibility that if he did give evidence he would expose himself to
questioning by counsel for the prosecution and in appropriate
circumstances by the judge himself; and his privilege against
self-incrimination whilst giving evidence was expressly removed
by section 1(e) of the Act of 1898.
Page 16 of 47
Next there is the instinct that it is contrary to fair play to put the
accused in a position where he is exposed to punishment
whatever he does. If he answers, he may condemn himself out of
his own mouth; if he refuses he may be punished for his refusal
on this, see Glanville Williams, The Proof of Guilt, 3rd ed. (1963),
pp 52-53.
Finally there is the desire to minimize the risk that an accused
will be convicted on the strength of an untrue extra-judicial
confession, to which the law gives effect by refusing to admit
confessions in evidence except upon proof that they are
“voluntary.”
This motive, which became prominent when
inquisitorial methods waned and extra-judicial confessions
became an important, and in many instances by far the most
important,
weapon
in
the
prosecution’s
armoury,
was
particularly weighty at a time when the accused could not rebut
or explain away the confession by giving evidence on his own
behalf. Even now, nearly 100 years after that disability has been
removed, the imprint of the old law is still clearly to be seen.
In these circumstances, I think it clear, given the diversity of
immunities and of the policies underlying them, that it is not
enough to ask simply whether Parliament can have intended to
Page 17 of 47
abolish a long-standing right of silence. Rather, an essential
starting-point must be to identify what variety of this right is
being invoked, and what are the reasons for believing that the
right in question ought at all costs to be maintained.”
[23]
These rights, to the extent that they were “embedded” in the English common law
were received into the law of Trinidad and Tobago by section 12 of the Supreme
Court of Judicature Act Chapter 4:01. In any event, they have been recognised
and declared to have existed in Trinidad and Tobago by section 4 of the
Constitution and section 5(2)(d) provides evidence of the recognition of the
existence of the privilege against self-incrimination.
The rights as they exist in section 4 of the Constitution
[24]
Mr. Hosein submitted that the privilege against self-incrimination is given
specific expression in section 5(2)(d) and that this provision is to be given the
broadest interpretation. We do not agree. Section 5 does not itself create any
rights.
It prohibits the passing by Parliament of any law which abrogates,
abridges or infringes (or authorizes such abrogation, abridgement or infringement)
any of the fundamental rights and freedoms set out in section 4. Section 5(2)(d)
specifically prohibits Parliament from compelling an individual to give evidence
in an adjudicative process without being afforded protection from selfincrimination.
Page 18 of 47
[25]
But, section 5, while it recognises the existence of the privilege, does not itself
create it. We must look to the provisions of section 4(a) and 4(b) for the creation
and existence of the privilege. This is consistent with the long standing dictum of
Lord Diplock in de Freitas v Benny 1976 A C 239, 245 who, in considering
sections (1) & (2) of the 1962 Constitution of Trinidad and Tobago (which
correspond to sections 4 & 5 of the 1976 Republican Constitution) said:
“The specific prohibitions upon what may be done by future Acts
of Parliament set out in paragraphs (a) to (h) of section 2 and
introduced by the words “in particular,” are directed to
elaborating what is meant by “due process of law” in section 1(a)
and “the protection of the law” in section 1(b). They do not
themselves create new rights or freedoms additional to those
recognised and declared in section 1.
They merely state in
greater detail what the rights declared in paragraphs (a) and (b)
of section 1 involve.”
[26]
The language of section 5 of the 1976 Constitution is somewhat different from
that of section 2 of the 1962 Constitution.
It does not use the words “in
particular” but in our judgment its purport is the same and Lord Diplock’s dictum
applies with equal force to it. A similar view to Lord Diplock’s had first been
expressed in 1974 by Georges J (as he then was) in Thornhill v Attorney
General of Trinidad and Tobago 1974 27 WIR 281, in a judgment which
anticipated the decision of the Privy Council in de Freitas v Benny (supra).
Page 19 of 47
[27]
In Thornhill the central question was whether the applicant had been denied his
constitutional rights, including the right to retain and instruct without delay a legal
adviser of his choice, set out in section 2 (c) (i) – (iv) of the 1962 Constitution.
Georges J said at page 284:
“The existence of the various rights having been proclaimed in s
1, s 2 protects them from legislative interference – subject to
certain exceptions – and to make abundantly clear what it seeks
to protect, spells out and particularises aspects of these rights
which are not in the large generalizations under s. 1.
phrasing is quite clear.
The
No law shall abrogate, abridge or
infringe any of the rights proclaimed in s. 1 and in particular no
Act of Parliament shall - followed by the specific prohibitions. I
am satisfied therefore that the rights mentioned in s 2(c)(i) – (iv)
have been regarded by the Constitution makers as specific
examples of the rights proclaimed in s. 1.
[28]
The judgment of Georges J in Thornhill v The Attorney General was affirmed
on appeal to the Privy Council in a decision reported at [1981] A C 61. Lord
Diplock, at page 70, reiterating his dictum in de Freitas v Benny, said of section
2 (section 5 of the 1976 Constitution):
Page 20 of 47
“Section 2 is directed primarily to curtailing the exercise of the
legislative powers of the newly constituted Parliament of
Trinidad and Tobago. Save in the exceptional circumstances
referred to in section 4 or by the exceptional procedure provided
for in section 5 the Parliament may not pass any law that
purports to abrogate, abridge or infringe any of the rights or
freedoms recognised and declared in section I or to authorize any
such abrogation, abridgement or infringement. But section 2
also goes on to give, as particular examples of treatment of an
individual by the executive or the judiciary, which would have
the effect of infringing those rights, the various kinds of conduct
described in paragraphs (a) to (h) of that section.
These
paragraphs spell out in greater detail (though not necessarily
exhaustively) what is included in the expression “due process of
law” to which the appellant was entitled under paragraph (a) of
section I as a condition of his continued detention and “the
protection of the law” to which he was entitled under paragraph
(b).
In our judgment it is the same in this case, the right of silence and the privilege
against self-incrimination form part of the due process provision set out in section
4(a) and the right to the protection of the law set out in 4(b).
Page 21 of 47
[29]
The appellant has been fined four thousand dollars ($4,000.) in default of payment
to serve a six month term of imprisonment. To that extent, he is in danger of a
loss of property and (in default of payment) loss of liberty, through evidence he
alleges was obtained from him. We are thus concerned in this case with a breach
of section 4(a). The question is whether the loss of his property or of his liberty
will be effected in breach of due process of law, by the use of evidence, obtained
from him mandatorily, pursuant to the provisions of the Act, which proves his
guilt.
[30]
As to the meaning of “due process” see the dictum of Lord Millett in Thomas v
Baptiste [2000] AC 1 at 21, in which he stated:
“The due process clause in the Constitution of Trinidad and
Tobago can be traced back to the confirmation of Magna Carta
by Edward III in 1354 when the expression “due process of law”
replaced “the law of the land” in chapter 39 of the original
version.
Coke regarded the two expressions as synonymous.
They protected the subject from absolute monarchy and the
exercise of arbitrary executive power. This interpretation may
have been appropriate in the absence of either a written
constitution or a doctrine of the separation of powers and at a
time when a sovereign legislature was in the habit of passing
Acts of Attainder. But such expressions mean different things to
Page 22 of 47
different ages. The words “due process of law” were introduced
into a New York statute in 1787 for the purpose of protecting the
individual from being deprived of life, liberty or property by act
of the legislature alone. Madison had the same object in 1791
when he drafted what became the Fifth Amendment to the
Constitution of the United States of America. The due process
clauses in the Fifth and Fourteenth Amendments underpin the
doctrine of the separation of powers in the United States and
serve as a cornerstone of the constitutional protection afforded to
its citizens. Transplanted to the Constitution of Trinidad and
Tobago, the due process clause excludes legislative as well as
executive interference with the judicial process.
But the clause plainly does more than this.
It deliberately
employs different language from that found in the corresponding
provisions of the Universal Declaration of Human Rights and the
European Convention on Human Rights. They speak merely of
“the sentence of a court of competent jurisdiction.” The due
process clause requires the process to be judicial: but it also
requires it to be “due”. In their Lordships’ view “due process of
law” is a compendious expression in which the word “law” does
not refer to any particular law and is not a synonym for common
law or statute. Rather, it invokes the concept of the rule of law
Page 23 of 47
itself and the universally accepted standards of justice observed
by civilized nations which observe the rule of law:”
Included in such universally accepted standards of justice, no doubt, are the right
of silence and the privilege against self-incrimination. The question is whether
section 28(1) infringes these rights in a manner which renders it a breach of due
process and therefore unconstitutional.
[31]
In answering this question it is important to recognise, as Lord Mustill
demonstrated, that neither right is absolute. This is also consistent with universal
standards accepted by all civilised societies. The observations of Wooding CJ in
Collymore & Abraham v The Attorney General (1967) 12 WIR 5, 8, on this
issue continue to illuminate any discussion on this question. Wooding C J was
there concerned with the meaning of the term freedom of association set out in
section (i) of the 1962 Constitution and the question whether included in that
freedom were the right of free collective bargaining and the right to strike. He
said:
“My first observation is that individual freedom in any
community is never absolute. No person in an ordered society
can be free to be antisocial.
For the protection of his own
freedom everyone must pay due regard to the conflicting rights
and freedoms of others. If not, freedom will become lawless and
end in anarchy. Consequently, it is and has in every ordered
Page 24 of 47
society always been the function of the law so to regulate the
conduct of human affairs as to balance the competing rights and
freedoms of those who comprise the society. Hence, although at
common law, as is now under the Constitution, every person was
free to associate with his fellows, a clear distinction was at all
times drawn between the freedom to associate the objects to be
pursued in association and the means to be employed to attain
those objects. If the objects or the means offended against the
law, then, notwithstanding the freedom to associate all or any of
the associates could be charged with the commission of a crime
or might be held liable in damages for the commission of a tort.
In either case, the crime or tort was conspiracy. And while the
legislature has from time to time intervened when it has found
intervention necessary or expedient to redress any imbalance
between the competing rights and freedoms, the distinction
between association on the one hand and objects and means on
the other has nonetheless remained unaffected.”
[32]
Thus, the mere curtailment of fundamental rights by the enactment of laws which,
in the public interest, may criminalise certain categories of behaviour, does not
per se render the law unconstitutional, if it is reasonably directed to a clear and
proper public purpose. It is a matter of great public notoriety that there has been
an alarming increase in gun related crimes, many of them gang related, in
Page 25 of 47
Trinidad and Tobago. Gun related murders are now a source of very serious
concern and there is a considerable disquiet in our society over the degree and
extent of gun related violence in our country.
[33]
In this regard therefore, the need to exercise control over the possession and usage
of firearms is obvious. The intention must be to provide a safe and secure
environment for the citizens of this country by the provision of legislation which
controls the holdership and possession of firearms and punishes offenders. Such
legislation, once rationally related to the aims and objects of the legislation, is not
unconstitutional.
[34]
In our judgment, the need to protect the greater public interest renders it unlikely
that the right of silence and the privilege against self-incrimination are rights
“which ought at all costs to be maintained”.
Indeed, as Lord Mustill
demonstrated in R v Director of Serious Fraud Office ex parte Smith (supra),
both rights have been eroded time and again by the legislature. It is necessary to
revisit more fully the dictum of Lord Mustill to which we have indirectly referred
at paragraph 19. The relevant comments begin at page 40 of Lord Mustill’s
judgment. They also provide an effective answer to Mr. Hosein’s submissions set
out at paragraph 17(a) and (b) above; Lord Mustill said:
“… That there is strong presumption against interpreting a
statute as taking away the right of silence, at least in some of its
forms, cannot in my view be doubted. Recently, Lord Griffiths
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(delivering the opinion in the Privy Council in Lam Chi-ming v
The Queen [1991] 2 A C 212, 222) described the privilege against
self-incrimination as “deep rooted in English law and I would
not wish to minimize its importance in any way. Nevertheless, it
is clear that statutory interference with the right is almost as old
as the right itself.
Since the 16th century, legislation has
established an inquisitorial form of investigation into the
dealings and assets of bankrupts which is calculated to yield
potentially incriminating material and in more recent times there
have been many other examples, in widely separated fields,
which are probably more numerous than is generally
appreciated”
These statutes differ widely as to their aims and methods. In the
first place, the ways in which the overriding of the immunity is
conveyed are not the same. Sometimes it is made explicit. More
commonly, it is left to be inferred from general language which
contains no qualification in favour of the immunity. Secondly,
there are variations in the effect on the admissibility of
information obtained as a result of the investigation. The statute
occasionally provides in so many terms that the information may
be used in evidence; sometimes that it may not be used for certain
purposes, inferentially permitting its use for others, or it may be
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expressly prescribed that the evidence is not to be admitted, or
again, the statute may be silent. Finally, the legislation differs as
to the mode of enforcing compliance with the questioner’s
demands.
In some instances failure to comply becomes a
separate offence with prescribed penalties; in others, the court is
given a discretion to treat silence as if it were a contempt of
court.
In light of these unsystematic legislative techniques there is no
point in summarizing the various statutes drawn to our attention.
They do no more than show that the legislature has not shrunk,
where it has seemed appropriate, from interfering in a greater or
lesser degree with the immunities grouped under the title of the
right to silence.”
The absence from a statute of express language preserving the privilege
against self-incrimination, even when an individual is required to provide
information on demand, is thus a common feature of modern legislation.
[35]
The decision of the Privy Council in Brown v Scott (supra) on appeal from the
High Court of Justiciary of Scotland is also relevant. It was a decision on article
6(1)(b) of the European Convention for the Protection of Human Rights and
Fundamental Freedoms (1950). The facts of that case require elaboration since
Page 28 of 47
these are of some relevance to the present appeal. Lord Bingham’s judgment
provides important guidance on the history of the approach of the European court
to the language of the Convention.
[36]
In that case, the police were called to a store in which the appellant, Miss Brown,
had been suspected of having stolen a bottle of gin. They considered her to be
under the influence of alcohol and asked how she had come to the store. She
replied that she had travelled by car and pointed to a car in the store car park. She
said the car was hers. In exercise of their powers under section 172(2)(a) of the
Road Traffic Act 1988, which applied only where the driver of a vehicle was
alleged to have committed certain specified offences, the police required Miss
Brown to say who had driven the car to the store car park. Failure to comply with
such a requirement was a criminal offence punishable inter alia by a fine of not
more than one thousand pounds (₤1000).
[37]
In compliance with section 172(2)(a), she admitted being the driver. The police
then administered a breath test which proved positive. She was charged with one
of the offences to which section 172 applied and her admission under section
172(2) provided a basis for her prosecution.
She contended that the use in
evidence of that admission would infringe her right to a fair hearing under article
6(1)(b) of the European Convention for the Protection of Human Rights and
Fundamental Freedoms 1950 (as set out in Schedule 1 to the Human Rights Act
1998). The High Court of Justiciary of Scotland upheld Miss Brown’s contention,
Page 29 of 47
holding that the use of the admission would infringe Brown’s right not to
incriminate herself, a right implicit in article 6(1) of the Convention.
The
decision was reversed on appeal to the Privy Council which held that use of the
admission did not infringe her right under Article 6(1).
At page 704, Lord
Bingham said the following:
“The jurisprudence of the European court very clearly
establishes that while the overall fairness of a criminal trial
cannot be compromised, the constituent rights comprised,
whether expressly or implicitly, within article 6 are not
themselves absolute.
Limited qualification of these rights is
acceptable if reasonably directed by national authorities towards
a clear and proper public objective and if representing no greater
qualification than the situation calls for. The general language
of the Convention could have led to the formulation of hardedged and inflexible statements of principle from which no
departure could be sanctioned whatever the background or the
circumstances.
But this approach has been consistently
eschewed by the court throughout its history.
The case law
shows that the court has paid very close attention to the facts of
particular cases coming before it, giving effect to factual
differences and recognizing differences of degree.
Ex factor
oritur jus. The court has also recognised the need for a fair
balance between the general interest of the community and the
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personal rights of the individual, the search for which balance
has been described as inherent in the whole of the Convention:
see Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, 52,
para 69; Sheffield and Horsham v United Kingdom (1998) 27
EHRR 163, 191, para. 52
The high incidence of death and injury on the roads caused by
the misuse of motor vehicles is a very serious problem common to
almost all developed societies.
The need to address it in an
effective way, for the benefit of the public, cannot be doubted.
Among other ways in which democratic governments have
sought to address it is by subjecting the use of motor vehicles to a
regime of regulation and making provision for enforcement by
identifying, prosecuting and punishing offending drivers.
Materials laid before the Board, incomplete though they are,
reveal different responses to the problem of enforcement. Under
some legal systems (Spain, Belgium and France are examples)
the registered holder of a vehicle is assumed to be the driver
guilty of minor traffic infractions unless he shows that some
other person was driving at the relevant time or establishes some
other ground of exoneration. There being a clear public interest
in enforcement of road traffic legislation the crucial question in
the present case is whether section 172 represents a
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disproportionate response, or one that undermines a defendant’s
right to a fair trial, if an admission of being the driver is relied on
at trial.
I do not for my part consider that section 172, properly applied,
does represent a disproportionate response to this serious social
problem, nor do I think that reliance on the defendant’s
admission, in the present case, would undermine her right to a
fair trial.”
[38]
In Suratt v The Attorney General [2008] 4 LRC 502, Baroness Hale speaking
for the majority, which upheld the constitutionality of the Equal Opportunity Act
2000, of Trinidad and Tobago, said at page 524:
“It cannot be the case that every Act of Parliament which
impinges in any way upon the rights protected in ss4 and 5 of the
Constitution
is
for
that
reason
alone
unconstitutional.
Legislation frequently affects rights such as freedom of thought
and expression and the enjoyment of property. These are both
qualified rights which may be limited either by general
legislation or in the particular case, provided that the limitation
pursues a legitimate aim and is proportionate to it. It is for
Parliament in the first instance to strike the balance between
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individual rights and the general interest. The courts may on
occasion have to decide whether Parliament has achieved the
right balance. But there can be little doubt that the balance
which Parliament has truck in the EOA is justifiable and
consistent with the Constitution. Section 7 does impinge upon
freedom of expression but arguably goes no further in doing so
than the existing law, if it does go further, by including gender as
well as racial or religious hatred, it is merely bringing the law
into conformity with all modern human rights instruments,
which include sex or gender among the prohibited grounds of
discrimination. Sections 17 and 18 do impinge upon freedom of
contract but in ways which are now so common in the common
law world that it can hardly be argued that they are not
proportionate to the legitimate aim which they pursue.
Section 28 of the Act
[39]
It is with these principles firmly in mind that we turn then to the question whether
section 28(1) infringes the right of silence and the privilege against selfincrimination. It is necessary to look at the entire section.
Section 28 provides:
“1
The holder of a licence, certificate or permit in respect of
any firearm or ammunition and any other person lawfully in
possession of any firearm or ammunition by virtue of section 7(2)
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shall, within twenty-four hours after he discovers the loss or theft
of his licence, certificate or permit, if any, or of such firearm or
ammunition, report the loss or theft at a police station.
A.
The holder of a licence, certificate or permit in respect of
any firearm or ammunition and any other person lawfully in
possession of any firearm or ammunition by virtue of section 7(2)
who loses such firearm or ammunition through negligence on
his part commits an offence and his liable, on summary
conviction, to a fine of five thousand dollars.
1B
Every person who finds a firearm or ammunition shall,
within twenty-four hours of finding such firearm or ammunition,
deliver such firearm or ammunition to the police officer in
charge of the police station nearest to the place at which he
found the firearm or ammunition and shall give a written
statement as to the time on which and the circumstances in
which he found the firearm or ammunition.
(2)
A person who fails to comply with subsection (1) and (1B)
is liable on summary conviction to a fine of five thousand
dollars.”
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Section 28(1) requires that the holder “report” the loss or theft within twenty-four
hours of his or her discovery of the loss. The word “report” is not defined and,
unlike subsection 28(1)(B), and as Mr. Mendes submitted, there is no express
requirement for the holder to do anything more than simply inform the police
officer of the fact of the loss or theft.
[40]
We believe that to be a pedantic distinction at best. Section 28(1) must be given a
purposive construction, that is to say, a construction which promotes the intention
and purpose of Parliament arising expressly or impliedly from the words of the
statute. Consequently, the better view is that the holder, as he did in this case,
must report the details of the loss or theft of the firearm and ammunition, giving
full particulars of the facts and circumstances under which the loss or theft
occurred. This is consistent with the intention behind the making of a report to
wit; (1) that the fact of the loss or theft be made known to the police quickly so
that they are aware that the firearm is no longer with its authorized holder, (2) to
facilitate speedy investigations towards its recovery and the apprehension of he or
she, who may have stolen it, or who, having found it, has not reported it to the
police.
[41]
Mr. Mendes went on to argue that while the word “report” is limited to merely
informing the police of the fact of the loss or theft, because such a fact constitutes
an element in the offence created in section 28(1A), the necessity to report it
impinges upon the right of silence and the privilege against self-incrimination.
Page 35 of 47
He added however, that the statute was still constitutional because its provisions
were not disproportionate to the aims and objects of the Act.
[42]
In our judgment, whatever interpretation is placed on “report” in section 28(1),
there is no unconstitutionality. While the necessity to report the loss or theft may,
impinge upon the right of silence and the privilege against self-incrimination, we
do not consider that it is an “infringement” of the “due process” clause or the
appellant’s right to the protection of the law. We say so for a number of reasons.
(a)
The right of silence and the privilege against selfincrimination are not absolute rights. An abridgment or
abrogation of either or both rights by legislation, which in
the public interest also creates criminal offences out of
particular conduct or specific circumstances, does not
infringe the “due process” provision, nor does it deny an
individual the protection of the law. The very concept of
the rule of law which is embedded in the term, “due
process” recognises that individual rights must sometimes
be subservient to the common good of society.
(b)
Section 28(1) of the Act is not directed at the public at
large. Not all of our citizens choose to bear arms. Indeed,
many find such a prospect repugnant. The possession and
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use of firearms are matters which affect the safety and
security of the general public. They affect natural security
and must be subject to strict and careful regulation. A lost
firearm is liable to be discovered by anyone, including
children. Where it falls into criminal hands, it will be used
no doubt, in the furtherance of crime. Strict control of
firearms is therefore necessary. Those who choose to carry
firearms have also chosen to subject themselves to the
stringency of the provisions of the Act.
(c)
It is not every occasion on which a report under section
28(1) is made, which will result in a criminal charge being
laid. There will be many genuine cases in which the loss of
the firearm occurred through no fault of the holder. The
public interest in having all cases of loss or theft reported to
the police outweighs the prejudice caused to individual
firearm holders whose report may ultimately result in their
prosecution.
(d)
Having regard to the high incidence of gun related crimes
and the increasing incidence of theft of firearms from
licensed firearm holders, including companies providing
security services (another matter of public notoriety), the
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amendments to section 28, which have resulted in a change
in the character of the section 28(1), are intended to place
greater responsibility and accountability on the holders of
firearms.
(e)
The provisions of section 28 are not disproportionate to the
legitimate aims of the legislation.
There is no term of
imprisonment but a fine of five thousand dollars ($5,000.)
at maximum.
Indeed, having regard to the alarming
prevalence of gun related crimes in Trinidad and Tobago,
there may well be a compelling case for an increase in the
penalty.
(f)
The provisions of section 28(1) go no further than any
modern statute which governs the use of firearms. It is
consistent with modern trends (as is demonstrated by Lord
Mustill’s in his judgment in R v The Director of Serious
Fraud Office ex parte Smith.
In the result the section 28(1) does not infringe the appellant’s right to due process
or the protection of the law There was thus no requirement that it be passed with
a special majority. It follows that the appellant’s oral statements are not to be
excluded on the basis of unconstitutionality.
Page 38 of 47
[43]
It also follows that the second and third submissions of Mr. Hosein must fail since
there is no ground for exclusion of the oral statement on the basis of
unconstitutionality and the question of insufficiency of the evidence without it,
does not arise.
In view of our conclusion as to the constitutionality of section 28(1), we do not
consider it necessary to address whether section 28(1) is an existing law for the
purposes of section 6 of the Constitution.
Ground 2 - Was the oral statement wrongly admitted
[44]
We turn, in any event, to the question of the admissibility of the oral statement.
The magistrate found that the oral statement was admissible for two reasons.
Firstly, she held it to have been given before the respondent had begun
investigating any report or offence and, because the appellant did not then come
under suspicion, no need arose to caution him in accordance with the Judges’
Rules. Secondly, she also found the statement to have been made voluntarily, a
matter about which there is no dispute.
[45]
The respondent had testified that at the time when the appellant gave his oral
statement, he was not a suspect and the interview was conducted with a view only
to gathering information to apprehend the perpetrator of the theft.
The
Administrative Directions to the Police contained in the Ministry of Home Affairs
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circular No. 1 of 1965, which sets out the Judges’ Rules, make clear “that two
forms of caution are to be prescribed according to the stage which an
investigation has reached. One is to be given when an officer has evidence which
would afford reasonable grounds for suspecting that a person has committed an
offence”. It adds that:
“The rules are concerned with the admissibility in
evidence against a person of answers oral or written given
by that person to questions asked by the police and if
statements made by the person.”
and that they were made;
“as a guide to police officers conducting investigations.”
The rules are thus directed at police officers gathering evidence who, during their
investigations, question persons for that purpose. Having regard to the evidence
of the respondent, the magistrate was right to find that the oral statement given by
the appellant was given before any investigation was commenced, and that it was
given voluntarily. We find that there has been no breach of the Judges’ Rules and
that there is no basis on which to interfere with the decision of the magistrate.
Page 40 of 47
Insufficient weight given to relevant factors
[46]
We turn to ground 7 (which includes ground 3). The appellant contends that the
magistrate erred in law by failing to give sufficient weight to the following
circumstances material to the issues;
(a)
that the appellant’s office was located in a private
driveway, which, apart from being fenced, had a guard
booth at the entrance to the compound with guard services
provided there and normally the guard will lock the gate
when people enter and leave.
(b)
that the appellant testified that the vehicle was locked with
the alarm and was parked three feet from his office.
(c)
that the applicant had been at that office three years and
had never had any difficulty with thefts or anything of that
sort.
[47]
Mr. Hosein submitted that not only were these factors relevant in determining
whether a reasonable person would have foreseen the risk of the gun being lost or
stolen but they also constituted material that went to the reasonableness of the
conduct of the appellant. By failing to accord any weight to them, the conclusion
of the magistrate is open to review.
Page 41 of 47
[48]
It is correct that the magistrate did not set out these considerations in her reasons
(although it does not necessarily follow that she did not consider them). It is also
correct they were relevant to the question of the negligence of the appellant.
Given her apparent omission, it is open to this court on appeal to review the
evidence. But having done so, we can find no fault with the decision of the
magistrate for the following reasons (some of which she did herself consider).
(a)
While it is correct that the appellant’s office is located in a
private driveway, there were other residents living on the
compound with access to it.
Moreover, there was no
evidence that a guard was actually on duty during the
incident. We find the lack of such evidence critical to the
issue since the presence of a guard would not only have
been a deterrent to potential intruders but would also have
added to the comfort level of the appellant. A fortiori the
absence of a guard should have put the appellant on notice
to be more vigilant with the pistol and ammunition.
(b)
A locked vehicle which is fitted with an alarm is no great
obstacle or deterrent to those wishing to enter the vehicle
unlawfully. That too was a consideration for the appellant.
Page 42 of 47
(c)
The appellant did not have a sight of the entire vehicle
while in his office. When he did look out the window he
could see only the top and side of the vehicle.
(d)
The appellant conceded that when he left the items under
the front seat he was well aware of the conditions of the
licence and knew what he was doing.
(e)
The marked increase in recent times in the theft of guns
from persons authorised to own and carry them requires
that such licenced firearm holders be vigilant in their care
and control of those firearms and that they be held
accountable for lapses in that standard of care.
[49]
By failing to take the firearm with him to his office and by leaving it in his motor
vehicle for over four hours, in all of the prevailing circumstances, the appellant
was guilty of negligent conduct.
We cannot ignore what have become the
realities of life in our country, particularly in Port of Spain. Motor vehicles are
never places in which to leave valuable items, far more so, a dangerous weapon.
We find it highly incredible that the appellant would not only have left his firearm
in the vehicle but also six thousand dollars ($6,000.) in cash.
[50]
The law recognises varying degrees of negligence.
We agree with the
submissions of Miss Seetahal that, in this case, given that it is a summary offence
Page 43 of 47
and the penalty moderate, all that is required is proof of negligence simpliciter,
akin to that of careless driving as opposed to wilful negligence. The test is still
one of reasonableness. Given the realities of life in Port of Spain, we do not
believe that a reasonable man, knowing those realities, would have left his firearm
in his vehicle in the circumstances which existed in this case.
For these reasons we consider that the magistrate was right to have convicted the
appellant and that there was ample evidence upon which she could have done so.
Ground 8 –Loss by theft not a crime within the meaning of section 28(1A)
[51]
Mr. Hosein, in his written submissions contended that section 28(1A) of the Act
did not create a criminal offence in circumstances of a theft of the firearm. He
submitted that section 28(1) distinguished between “loss” of a firearm and
“theft” of a firearm but section 28(1A) spoke only of a person who “loses” a
firearm through negligence. The exclusion that in section 28(1A) of the reference
of the “theft” of a firearm necessarily meant that negligent loss of the firearm
through theft was excluded from the statute. He submitted that the Act was a
penal statute which was to be strictly construed and when taken with the plain and
rational meaning of the words of the section, there is a sufficient basis to assert
that the statute was directed only to the criminalizing of the loss (but not theft) of
a firearm which occurred through the sole fault of the holder.
[52]
We do not agree. Certainly, the argument becomes attractive when one considers
that section 28(1B) appears to complement section 28(1A) by providing that the
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finder of a firearm is mandated to report it. But one would hardly expect that
provision can be made for someone who steals a firearm, also to report it. So that
the exclusion of reference to the word “theft” in section 28(1B) is of no
assistance.
[53]
One must again look to the purpose of the amendment. The intention is to place
greater responsibility and accountability on firearm holders, in the care and
control of firearms and ammunition. Failure to properly secure a firearm can
result in the firearm falling into the wrong hands, including those of children. A
stolen firearm will be used, almost inevitably, for criminal purposes. Thus, loss
of a firearm whether by theft or otherwise, poses serious consequences for the
public at large. We can discern no difference in the degree of accountability
between the holder of a firearm who negligently loses it through theft or his own
inadvertence. Common to both types of loss is the negligence of the holder. It is
to the negligence of the holder that section 28(1A) is directed. The word “loses”
in section 28(1A) is thus concerned with loss of possession by the holder and it
matters not that the loss may have been through theft, if such loss is brought about
by the negligence of the holder. The argument is without merit.
Severity of sentence
[54]
We turn to the final ground of appeal. Mr. Hosein, in his submissions, accept that
the magistrate was entitled, in imposing sentence, to consider that persons who
possess firearms have to take seriously their responsibility for securing them. He
also accepted that she was right to factor in the seriousness of the offence having
Page 45 of 47
regard to the number of violent offences perpetrated with the use of illegally held
firearms in 2005.
[55]
The magistrate also considered that the appellant had no previous convictions.
She clearly had the deterrent aspect in mind when she spoke of sending the right
message so that firearm holders may take their responsibilities seriously.
[56]
Mr. Hosein submitted however that the appellant, as a member of the Bar of
Trinidad and Tobago, could be adversely affected by a conviction recorded
against him and it was open to the magistrate to treat this case as one falling
within the category of exceptional circumstances in section 71 of the Summary
Courts Act, Chap.4:20.
[57]
In a further effort to persuade us on this ground, he exhibited testimonials which
show that the appellant is an upright citizen and a very distinguished professional.
It does not appear that these matters were before the magistrate when she
considered sentence and she cannot be faulted for not addressing them in her
reasons. We are empowered to consider them on appeal and we have. We
consider that with the high prevalence of gun related crime, the magistrate was
very much entitled to exercise her discretion in the way that she did.
The
maximum fine of itself is not unduly onerous and in this case was not imposed.
[58]
Membership at the Trinidad and Tobago Bar cannot serve to absolve the appellant
from the responsibilities visited upon holders of FULs. He ought to have been
fully aware, perhaps more so than the ordinary citizen, of the onerous
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responsibility placed upon him, given the current climate of criminal activity and
therefore, the need to exercise extreme caution in the safekeeping of a firearm.
Unfortunate though it is, the appellant must submit to the consequences which
flow from his conviction.
[59]
We find that the magistrate applied her mind to the relevant considerations and
even with the additional submissions put to us, can find no basis on which to
disturb her decision.
We uphold the conviction and sentence. The appeal is dismissed.
.…………………………….
P. WEEKES
Justice of Appeal
…………………………….
A. YORKE-SOO HON
Justice of Appeal
…………………………….
NOLAN P.G. BEREAUX
Justice of Appeal
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