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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