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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Magisterial Appeal No. P022 of 2015

BETWEEN

ALEESA ALI

Appellant

AND

WAYNE MC FARLANE (Police Sergeant #9492)

Respondent

PANEL: P. Weekes, J.A. R. Narine, J.A.

APPEARANCES:

Ms. Tricia Hudlin-Cooper for the Appellant Ms. Michelle Solomon-Baksh for the Respondent

Date Delivered: 15th March, 2016.

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JUDGMENT

Delivered by R. Narine, J.A.

1. This is an appeal against the appellant’s conviction for the offence of uttering a

forged document contrary to section 9(1) of the Forgery Act Chapter 11:13.

CASE FOR THE PROSECUTION

2. The appellant applied to the North West Regional Health Authority for the position

of Medical Laboratory Technician I. She was interviewed for the position, and was

requested to submit her academic certificates for verification. In support of her

application she presented a document purporting to be an original and copies of an

Associate Science Degree in Medical Laboratory Technology (the document) dated

25th August 2000, issued by the National Institute of Higher Education Research

Science and Technology (NIHERST). The document was signed by Dr. Merle

Hoyte, then Head of Student Services at NIHERST. The appellant was eventually

appointed to the position.

3. On 26th February 2003 Dr. Hoyte made a report to the Fraud Squad alleging that

the document submitted by the appellant in support of her application was false

based on the following:

(i) The document stated the year of graduation as 2000 when

there was no graduation in that year.

(ii) The document bore the signature of Dr. Hoyte, who was not

one of the signatories to the document and neither did she

authorize any one to sign such a document on her behalf.

(iii) The format of the document differed from the degree issued by

COSTATT which is oblong and not diagonal as was the

document presented.

(iv) The records of the department confirmed that the name of the

appellant was never issued on a graduation list.

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4. The respondent investigated the matter. On 29th September 2003 the appellant was

charged for the offence of uttering a forged document namely a NIHERST

Associate Science Degree in Medical Laboratory Technology Certificate knowing

the same to be forged and with intent to defraud.

5. Dr. Hoyte and Ajenny Boodoosingh-Dwarika gave evidence for the prosecution. Dr.

Hoyte testified that in order to graduate from the Medical Laboratory Programme

the student must attain the requisite number of programme credits and for the

purpose of graduation, must maintain a specific grade point average. She

explained that a grade slip is mailed to each student at the end of each semester.

When a student successfully attains the grades, that student is recommended for

graduation and the graduation list is prepared. Upon graduation the student

receives a Diploma or Certificate which bears the name of the recipient, the

programme, the crest or stamp of the institution and the signatures of the Vice

President and the President of the institution.

6. Ajenny Boodoosingh-Dwarika, the Chairperson of the department at COSTATT

responsible for the Associate Degree in Medical Laboratory, testified that the

requirements for graduation from the programme was a grade point average of 2.0,

69-76 course credits and a clinical internship of six to nine months with a minimum

pass mark of 85%.

7. She also confirmed that the appellant was registered as a student. However, she

had failed some courses and had only attained 59 credits and as a result she could

not have graduated. Consequently the appellant’s name was not on the list of

graduates for the programme from 1998 to 2001. She further confirmed that a

valid Associate Degree certificate issued by the institution would not have borne the

signature of Dr. Hoyte.

CASE FOR THE APPELLANT

8. The appellant gave evidence in the matter. She stated that she pursued an

Associate Degree programme in Medical Laboratory from August 1997 to August

1999. She indicated that she took leave from the programme for the period

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September 1999 to January 2000 to apply to medical school. She applied to St.

George’s University in Grenada and was accepted pending the receipt of an official

transcript from NIHERST.

9. She testified that she returned to NIHERST to start her internship programme in

February 2000. She further testified that to her knowledge she completed the

Associate Degree. She had attained the required grades and grade point average

and had completed the internship.

10. She gave evidence that there was no graduation ceremony in the year 2000.

However, there was a graduation ceremony which in 2001 she did not attend

because she was on a probationary period of her employment at Gulf View Medical

Laboratory. She testified that she requested a radiology science student who was

training at the Gulf View Medical Centre and who frequently went to COSTATT, to

collect her certificate for her. She testified that she gave an authorization letter to

that person which was used to collect her certificate. She could not remember the

name of that person.

11. The appellant testified that she could not account for the name of Dr. Hoyte

appearing on the document nor the differences in the format. She could not explain

why NIHERST did not have a record of her 71 credits on the transcript because it

was the same transcript she had used to get into St. George’s University. She

however agreed that her name did not appear on the gradation list for the years

2000 and 2001.

MAGISTRATE’S DECISION

12. On 7th March 2008 at the conclusion of the trial before the magistrate, the appellant

was found guilty and ordered to pay a fine of $2,000.00 forthwith or in default to

serve a period of six months imprisonment with hard labour.

13. Written reasons were not provided by the magistrate for her ruling. An

examination of the notes of evidence did not reveal any oral reasons given by the

magistrate. A letter written by the Clerk of the Peace of the Tunapuna Magistrate’s

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Court dated 18th November 2014 indicated that no other notes of evidence were

available due to the unavailability of the note taker who took handwritten notes in

the matter.

GROUNDS OF APPEAL

14. By notice dated 13th March 2008 the appellant appealed the conviction on the

ground that she was not guilty. Further grounds of appeal were filed on the 22nd

June 2015 and include the following:

(i) A material irregularity occurred, when the learned magistrate

breached her duty under Section 130B of the Summary Courts

Act Chapter 4:20 and the common law by failing to provide a

memorandum of reasons for her decision.

(ii) The learned magistrate’s decision was unreasonable and could

not have been supported having regard to the lack of evidence

that the document was forged or that the appellant had the

requisite mens rea.

(iii) A material irregularity occurred during the trial which resulted in

a miscarriage of justice to wit, the omission to raise the issue of

good character.

GROUND 1 - Failure to provide reasons

15. By section 130B(1) of the Summary Courts Act Chapter 4:20, a Magistrate is

required to give written reasons for his decision within sixty days of an appeal being

lodged.

16. The failure to provide reasons for a decision may prejudice an appellant in the

exercise of his right to appeal in cases where his legal advisers are unable to

mount a meaningful challenge to the decision. In some cases the absence of

reasons may hamper an appellate in reviewing the decision.

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17. The approach of the appellate court where a statement of reasons is not provided

was outlined in the case of Francis Jones v. Sgt. Sheldon David Mag. App. No.

64 of 2014. Mohammed JA stated at paragraphs 38 – 39 of the judgment:

“38. In our opinion, the absence of written reasons by the Magistrate does

not automatically generate an iron-clad, free standing ground of

appeal. The appellant must show that the absence of reasons has

caused prejudice to the exercise of his legal right to an appeal. In very

exceptional cases the absence of written reasons may generate a

free standing ground of appeal where, for example, because of the

absence of those reasons, counsel is unable to even formulate a

meaningful appellate challenge.

39. The approach to be adopted by the Court of Appeal is a pragmatic,

functional one. This approach is context driven and it involves an

examination of the evidentiary record, the specific issues raised and

any brief oral reasons given by the Magistrate. If the case is (a)

factually, a straight forward one; (b) legally, not a complex case; and

(c) if the reasons for the magistrate’s decision are capable of being

ascertained by reference to the record of evidence, then the absence

of written reasons may be less likely to deprive the Court of Appeal of

its ability to perform the appellate function. The absence of written

reasons in such a setting will constitute less of a handicap than it

might otherwise be in other situations which fall at the opposite end of

the spectrum.”

18. In this case there were no complex issues of fact to be resolved. The following

facts were not in dispute:

The appellant presented the document to the clerk at the Human Resource

Department at North West Regional Health Authority (NWRHA) in support of

her application for the position of Medical Laboratory Technician I.

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The document stated that the year of graduation was 2000 and bore the

purported signature of Dr. Merle Hoyte, who was the head of student affairs

at the time.

There was no graduation in the year 2000.

At the material time as head of student services Dr. Hoyte would sign

transcripts of student grades. It was not part of her function to sign

certificates. She did not authorise anyone to place her signature on the

document presented to NWRHA by the appellant. The signature on the

document was not hers.

Certificates were signed by the chairman or president of NIHERST, not by

the head of student services.

The report of scientific officer at the Forensic Science Centre indicated that

the signature on the document was not written by the appellant or by Dr.

Hoyte.

19. Ms. Ajenny Boodoosingh, Chairperson of the Medical Laboratory Technician

Department COSTATT (into which NIHERST was incorporated in 2000) testified

that she reviewed the records of the appellant at NIHERST. The appellant had

accumulated 59 credits. She required 69 to 76 credits in order to graduate. From

her records the appellant did not graduate from the programme in the period 1998

to 2001.

20. The appellant testified that to her knowledge she completed the degree and the

internship and attained the grades and the grade point average required for the

award of the degree. She sent someone to collect the certificate from NIHERST

where she was a student. This person was a radiological science student who was

training at Gulf View at the time. She could not recall the name of the person. She

did not call the person as a witness. She authorised this person to collect her

certificate by means of a letter. She tried to track down this person. However, Gulf

View kept no records of students they train.

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21. From the decision of the Magistrate, it is clear that the Magistrate accepted the

evidence of the prosecution on the issue as to whether the appellant had obtained

the requisite grades and grade point average for the award of the degree. It is

equally clear that the Magistrate must have rejected the account given by the

appellant as to how she came to be in possession of the certificate. Having regard

to the implausibility of the explanation given by the appellant, it is hardly surprising

that the Magistrate would have rejected it. In addition, the evidence of the

prosecution was so cogent and compelling that the Magistrate would have had little

difficulty in finding as a fact beyond reasonable doubt that the certificate was a

forged document.

22. Accordingly, in my view the case did not involve complex issues of fact. Nor in my

view did it involve complex issues of law. The offence with which the appellant was

charged involved four essential elements:

(1) the appellant uttered a document,

(2) which was forged,

(3) knowing same to be forged, and

(4) with intent to defraud.

23. There is no dispute in this case that the appellant uttered the document by

delivering it to the clerk at the Human Resource Department at NWRHA. In

addition, as we have noted above, there was cogent and compelling evidence

before the Magistrate that the document was a forgery.

24. The only issues that remained for the Magistrate to determine as a matter of law

and fact were whether the appellant knew that the document was forged, and

uttered it with an intend to defraud. It is clear from the decision of the Magistrate

that she found these elements to be proven having regard to the clear evidence

before her.

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25. Applying the reasoning set out by Mohammed JA in the Francis Jones case

(supra), the appellant has not shown that the absence of written reasons of the

Magistrate has prejudiced her in any way. In fact from the record, counsel for the

appellant has been able to formulate intelligible and arguable grounds of appeal,

and has been able to put forward clear and detailed submissions to support them.

Likewise, this court has had no difficulty in exercising its appellate function in

reviewing the decision.

26. Accordingly, I find no merit in this ground.

GROUND 2 – No evidence of mens rea

27. The appellant submits that the decision of the Magistrate was unreasonable and

cannot be supported having regard to what she regards as “the lack of evidence”

that the document was forged, or that the appellant had the requisite mens rea.

28. As I have noted above the evidence that the document was forged was quite

strong, and would have presented little difficulty to the Magistrate in making this

finding beyond reasonable doubt.

29. The issue then narrows down as to whether there was evidence from which the

Magistrate could find the mens rea of the offence proved beyond reasonable doubt,

that is, whether at the time of uttering the document the appellant knew that it was

false, and uttered it with intent to defraud or deceive.

30. It is trite law that the elements of an offence may be proved by direct evidence or

inferences that may be reasonably drawn from such evidence. Matters of

knowledge and intention often fall into the latter category. There was direct

evidence in this case from which the requisite knowledge and intention could have

been reasonably inferred by the Magistrate. These inferences reasonably arise

from the following evidence:

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The appellant admitted uttering the documents in support of her application

for employment.

The evidence that the document was in fact forged, and that she did not

attain the requisite credits and grade point average to be awarded the

degree, facts which ought to have been within her knowledge.

The implausible explanation that she gave as to how she came to be in

possession of the document.

There was on the evidence, no one else who would have benefitted from

uttering the forged document.

31. Having regard to the evidence the Magistrate was entitled to make reasonable

inferences that the appellant knew the document to be forged and uttered same

with an intent to defraud, that is, to secure for herself a benefit to which she was not

entitled.

32. Accordingly, I find no merit in this ground.

GROUND 3- Failure to raise appellant’s good character

33. The appellant complains that evidence of her good character was not placed before

the court during the trial, and was not raised in mitigation. She submits that her

credibility was of crucial importance in the context of a proper assessment of the

evidence by the Magistrate and the failure to raise her good character resulted in a

miscarriage of justice.

34. It is well settled that a defendant is entitled to have his good character considered

by the tribunal of fact in assessing both his credibility and propensity to commit the

offence: R v. Aziz [1995] 3 All ER 149. A failure to give a good character direction

may be held to render the conviction unsafe: Teeluck and John v. State [2005]

UKPC 14; Jagdeo Singh v. State [2005] UKPC 35.

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35. In Vijai Bhola v. The State [2006] UKPC 9, the Board noted that the cases of

Teeluck (supra) and Jagdeo Singh (supra), were cases in which the issue of the

credibility of the appellant was said to be crucial. However, the Board noted at

paragraph 17 of its opinion that the statement in Teeluck that the direction – “will

have some value and will therefore be capable of having some effect in every case

in which it is appropriate [to give it and that if] it is omitted in such a case it will

rarely be possible for an appellate court to say that the giving of a good character

direction could not have affected the outcome of the trial” needs to be applied with

some caution.

36. In Vijai (supra), the Board went on to hold that the failure to give the good character

direction was not necessarily fatal to the fairness of the trial or the safety of the

conviction. Each case must depend on its own facts, and the test to be applied was

whether a jury properly directed would inevitably have convicted the accused.

37. In this case the prosecutions’ evidence that the document was a forgery was quite

compelling. There was no dispute that the appellant did in fact utter the document.

The explanation offered by the appellant as to how she came into possession of the

document was far from credible. There was cogent direct evidence from which the

Magistrate could have properly inferred that the appellant knew the document was

forged and that she had the requisite intention to defraud or deceive the NWRHA.

In my view, in this case the tribunal of fact, having properly directed herself on the

appellant’s good character would have inevitably convicted her.

38. It follows that this ground also fails.

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DISPOSITION

39. The appeal is dismissed. The sentence of the Magistrate is affirmed. The fine of

$2,000.00 is to be paid within twenty-eight days. In default the appellant will serve

a sentence of six (6) months simple imprisonment.

Dated the 15th day of March, 2016.

P. Weekes Justice of Appeal

R. Narine Justice of Appeal