The Crown v Foster
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Latchoo, J. |
| Judgment Date | 03 June 2015 |
| Neutral Citation | VC 2015 HC 52 |
| Court | High Court (Saint Vincent) |
| Docket Number | 35/2011 |
| Date | 03 June 2015 |
High Court
Latchoo, J.
35/2011
Crown: Assistant DPP Mr. Colin John, Crown Counsel Mr. K. Nelson
Defence: Ms. Kay Bacchus-Browne
Ratten v. The Queen 1972 AC 378 — Walton v. The Queen 166 CLR 283 — R v. Mcintosh [1992] Crim. L.R. 651
Evidence - Electronic communication — Admissibility of electronic correspondence — Hearsay evidence — Whether the electronic statements were an exception to the hearsay rule — Murder — Kidnapping — Whether there was sufficient evidence to link the deceased with the electronic correspondence — Voir dire — Whether the electronic correspondence had been tempered with — Intent of the declarant.
The Crown led the following evidence: the deceased Agassi Fraser, age 18, left home on the morning of October 8, 2009 at about 11 a.m. He did not return. The following day his mother Barbara Fraser received a telephone call; she did not recognize the male voice. The caller told her that he had her son; that he had found him on the beach with the caller's girlfriend Niasha Smith and the caller was going to kill her son but the victim begged for his life, saying that he should call his parents who would give him anything he asked for. The caller asked for $6,000, then, in the same breath, changed that to $60,000. The mother said okay. The caller said he would call back later but never did.
The mother made a report to the police. The body of Agassi Fraser was discovered the following day near a river in Amos Vale. The accused Odinga Foster, his cousin, was arrested and charged in August 2010 for the kidnapping and murder of Agassi Fraser.
The Crown opened its case on the basis that the accused was engaged in financial improprieties at his place of employment, the Kingstown Co-operative Credit Union, and was fired. The accused needed money to pay back his employer and devised a plan to kidnap the deceased for money, and such was the underlying motive for the murder. On the Crown's case, at the time of the kidnapping, the amount owed by the accused was a little over $6,000. The Crown relies upon the witness Brando Lockhart who testified that the accused told him of the plan to kidnap the deceased for money to settle his debt to the credit union.
During cross-examination of the Crown's witness Barbara Fraser, defence counsel Ms. Bacchus-Browne asked questions of the witness pertaining to electronic communication between the deceased and someone named Niasha Smith. Counsel asked similar questions of Shameika Chance, the girlfriend of the deceased. Both testified that the deceased had shown them a picture of a young woman on his laptop and on his mother's computer and identified the image as Niasha Smith. Neither witness had ever met or seen Niasha Smith.
Defence counsel sought to further cross-examine on the content of the electronic communication. The Court indicated to counsel that it would permit no questions describing the nature or content of the out-of-court statements unless counsel could show how such out-of-court statements avoided the hearsay rule.
Defence counsel at first submitted that the electronic statements were an exception to the hearsay rule because they fell into the res gestae category, and cited a single case, Ratten v the Queen 1972 AC 378. Counsel was under the impression that the utterances of the unknown caller could be relied upon testimonially via the res gestae principle, and counsel submitted that the electronic correspondence should be viewed similarly. Counsel subsequently amended that submission to contend that the statements or correspondence were evidence of the state of mind or intent of the deceased, and relied on Blastland 1986 AC 41.,
The relevance of the state of mind of the deceased, counsel contended, was that he intended to meet Niasha Smith. Such was relevant because it pointed to an alternative version of how the deceased met his death. The unknown caller said that he met the deceased on the beach with Niasha Smith.
The Crown replied that the electronic conversations were hearsay and inadmissible, and further, that the origin or attribution of the statements was doubtful. After some ventilation of the issue, in answer to the Court, the Crown stated that if the provenance of the correspondence could be established, the correspondence could be viewed as original evidence and its purpose would be limited; it would be admissible for the mere fact that the correspondence existed but not for the proof of truth of any fact in issue. Defence counsel maintained that the correspondence could be acted upon to indicate the deceased was going to meet Niasha Smith for sexual congress providing a motive for someone other than the accused to kill him.
A necessary first step was to see whether there was sufficient evidence to link the deceased with the electronic correspondence. The Crown itself was uncertain of the precise source of the printouts, which it had obtained from the police and disclosed to the defence.
The Court held a voir dire [Martin 1987 43 WIR 201] into the provenance of the electronic communication. Two witnesses testified, Jacqueline Jack, the secretary of Barbara Fraser, and police inspector Adolphus Delplesche. Jacqueline Jack testified that the user name of the deceased was “DonRizio” [Barbara Fraser had also testified that DonRizio was the username the deceased employed] and he used a laptop and his mother's computer in the office of the construction company, which was on the same compound as the family residence. She had seen a photograph of a young woman on the office computer screen which was shown to her by the deceased. He identified her by the name Niasha Smith. She had observed in real time an electronic conversation between the deceased and someone using the name “Diva” and that name was associated with Niasha Smith.
She said she printed out a record of electronic conversations she found on the office computer and laptop and handed them over to the police. She could not recall which police officer and when she handed over the record. She identified documents shown to her in court as the record she handed over. She was able to identify two conversations she observed in real time because the deceased had called her attention to the conversation. One conversation, on October 6, 2009, two days before the deceased disappeared, concerned “Diva” inviting the deceased to meet her at a beach, Salt Pond or Canash. There was some discussion as to how and when but no specific arrangements were concluded. The other conversation earlier in October involved “Diva” saying she had to give her grandmother insulin.
Ms. Jack testified that the deceased kept his laptop in no particular place in the office or in the residence. He also used his mother's computer in the office. He did not sign off or log off when he used the laptop or computer. She did not need to access any password in order to make the print-outs from the laptop.
Mr. Delplesche testified he collected print-outs from Ms. Jack. He identified the documents shown as the print-outs he collected, though one bundle was a copy.
Several factors are relevant when assessing whether electronic correspondence can be attributed to a particular person. These factors may include usernames; dates and time; distinctive characteristics of the communication; and testimony of witnesses with knowledge of the communication.
In the instant case, the appearance of the correspondence reveals the usernames “DonRizio” and “Diva”. Ms. Jack observed in real time two exchanges of messages between the deceased and someone operating the username “Diva”. The email address appears as ni asha@live.com
In another conversation on October 2, 2009, the deceased says he is sick with a cold. Ms. Jack testified around that time the deceased had a cold. She did not observe that conversation in real time.
The print-out contained correspondence beginning on October 1, 2009 and ending about an hour before the deceased left home. The correspondence contained sexually explicit details, with “Diva” expressing her desire for the deceased.
In the last conversation, pleasantries were exchanged and there was no correspondence about a meeting or plan to meet. Ms. Jack did not observe any of those other conversations in real time.
The Crown was granted leave to recall Ms. Jack to adduce evidence that the accused and the deceased were as close as brothers and that on at least one occasion she saw the accused using the laptop of the deceased. She had seen the accused visit the premises of the deceased on several occasions.
After the voir dire was concluded, the Crown submitted that only the portions of the transcript which Ms. Jack observed in real time could be attributed to the deceased. Mr. John contended that it was far too easy for someone (including the accused) to tamper with or fake the correspondence. The last line in the correspondence from “DonRizio” on October 8, 2009 at 10.20 p.m. (22:20:02) reads: “Were (sic) Agassi?” It was implausible, the Crown added, that the deceased would be asking for himself; and such indicates how easy it was for anyone to access his username and send an electronic message.
The defence replied that it was fanciful to suggest that the correspondence had been doctored or was faked. There was no evidence to indicate that the correspondence was faked and no expert evidence was adduced to raise any inference that tampering had occurred, or even to explain how such might be effected. It was also not in dispute that after the deceased disappeared that friends and relatives were accessing his laptop to find clues to his disappearance. The defence stated that if the correspondence were to be admitted,...
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