Vehicular Manslaughter (Death by Dangerous Driving)

Q:

Recently, a 10-year-old girl was hit and killed on the Priority Bus Route by a car allegedly driven by a police officer attached to the Barataria Police Station. Because he was apparently using the PBR illegally, will he be charged for murder?

 

A:

In order for the driver to be charged with murder, it will have to be proven that he deliberately hit and killed this little girl. If that can’t be proven, the more likely offence will be Vehicular Manslaughter, which is legally defined as the crime of causing the death of a human being due to illegal driving of an automobile.

In Trinidad & Tobago, the official archaic charge for this offence is “Causing Death by Dangerous Driving” according to section 71 of the Motor Vehicle and Road Traffic Act 1934, as amended:

71. (1) Any person who causes the death of another person by driving a motor vehicle dangerously on a road, commits an offence and is liable on conviction on indictment to imprisonment for fifteen (15) years.**

(2) A person convicted of an offence under this section shall, without prejudice to the power of the Court to order a longer period of disqualification, be disqualified for a period of fifteen (15) years from the date of the conviction from holding or obtaining a driving permit, and on a second conviction for a like offence he shall be permanently disqualified from holding or obtaining a driving permit.

Of course, “dangerously” is the operative word in the offence, which means that there is no Vehicular Manslaughter without clear evidence of dangerous driving… so what exactly is “dangerous driving”?

According to section:

71-B. (1) For the purposes of sections 71 and 71A a person is to be regarded as driving dangerously if—

 (a) the way in which he drives falls below what would be expected of a competent and careful driver; and

 (b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

The definition proffered in this Trinidad & Tobago legislation is clearly quite broad and very vague, so in order to further explain, some examples from the well-referenced Blackstone's Criminal Practice include:

• ·        Speeding
• ·        Driving under the influence of alcohol or drugs
• ·        Aggressive driving - such as sudden lane changes, cutting into a line of vehicles or driving too close to other vehicles
• ·        Disregard of traffic lights and road signs
• ·        Unsafe overtaking
• ·        Carrying dangerous loads
• ·        Driving with impaired ability – e.g. foot or hand in a cast
• ·        Driving when tired
• ·        Knowingly driving a vehicle with a dangerous defect
• ·        Using a hand-held mobile phone or other hand-held electronic equipment, or other distractions such and reading a newspaper/ map, etc.

Administratively, it is also important to comply with the requirements for the limitation time-frames during when charges must be brought against an accused driver:

73. (1) Subject to subsections (2) and (3), where a person is prosecuted for an offence under any of the preceding sections relating respectively to the maximum speed at which motor vehicles may be driven, dangerous driving or causing death by dangerous driving, and to careless driving, he shall not be convicted UNLESS either—

 (a) he was warned on the day the offence was committed that the question of prosecuting him for an offence under some one or other of the sections aforesaid would be taken into consideration; or

 (b) within fourteen days of the commission of the offence a summons for the offence was served on him; or

 (c) within the said fourteen days a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed was served on or sent by registered post to him or to the person registered as the owner of the vehicle at the time of the commission of the offence.

**Although the prescribed penalty is a maximum sentence of fifteen (15) years imprisonment, conviction of this offence is unlikely to result in the max sentence. Here are some examples of persons convicted of this offence in recent times:

• ·        Saddiq Ali was sentenced in January 2020 to 1 year and 11 months imprisonment
• ·  Jason Samaroo was sentenced in April 2019 to 11 months and two weeks imprisonment
• · Jairon Phillips was sentenced in Tobago in October 2016 to 18 months imprisonment

Citizen Rights during Police Roadblocks

 Q:

What are my rights with regards to being stopped and questioned by police officers at roadblocks during the COVID-19 lockdown in Trinidad & Tobago?

 

A:

Comply with all reasonable instructions because, as previously mentioned, the police have been empowered to enforce all of the special provisions associated with the current state of restricted movement and assembly during the novel coronavirus pandemic. However, please take note of the law on police vehicle searches without a warrant.

Additionally, if at any time you are stopped whilst operating a motor vehicle in Trinidad & Tobago, at the very minimum, you must be able to provide both a valid driving permit/license, as well as an up-to-date insurance policy.

According to the Motor Vehicles and Road Traffic Act 1934, as amended:

56. (1) A person who drives or is in charge of a motor vehicle on any road or a learner who is in a motor vehicle on any road receiving instruction shall have on his person or in the motor vehicle for production as required by subsection (2) his driving permit or provisional permit as the case may be.

(2) A Transport Officer in uniform or a police officer in uniform may require any person referred to in subsection (1) to produce his driving permit or provisional permit for examination, in order to ascertain the name and address of the holder of the permit, the date of issue and the Transport Officer by whom it was issued.

(3) A person who fails to comply with the requirements of this section is liable on conviction to a fine of five hundred dollars.

Notwithstanding the above, if your driving permit/license has recently expired, you may still be able to drive if you fall within the category mentioned in this recent Trinidad & Tobago Legal Rights blog post.

The law on having valid vehicle insurance is as follows, according to the Motor Vehicles Insurance (Third-Party Risks)Act 1933, as amended:

3. (1) Subject to this Act, it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle or licensed trailer on a public road unless there is in force in relation to the user of the motor vehicle or licensed trailer by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third-party risks as complies with the requirements of this Act.

(2) If a person acts in contravention of this section, he is liable to a fine of seven thousand, five hundred dollars ($7,500) and to imprisonment for two years, and a person convicted of an offence under this section shall (unless the Court for special reasons thinks fit to order otherwise and without prejudice to the power of the Court to order a longer period of disqualification) be disqualified for holding or obtaining a driving permit under the Motor Vehicles and Road Traffic Act for a period of three years from the date of the conviction.

Voluntary Relinquishment of Parental Rights

Q:

Is it possible to remove a father's name from a birth certificate due to him not wanting to be involved?

 A:

It is not legally possible for either parent to voluntarily relinquish their parental rights & responsibilities towards a child (with the exception of adoption).

According to section 4 of the Family Law (Guardianship of Minors, Domicile and Maintenance) 1981, as amended:

4. (1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other.

(2) An agreement for a man or woman to give up in whole or in part, in relation to any child of his or hers, the rights and authority referred to in subsection (1) shall be unenforceable.

Expired Driving Permits during Coronavirus Lockdown

Q:

I’d like to know what the law is on driving with an expired permit/license… because I need to drive during this COVID-19 pandemic, but I cannot renew due to the Licensing Authority being closed.

A:

According to the Motor Vehicles and Road Traffic 1934, as amended:

42. (1) Save as in this section provided, no person shall drive a motor vehicle on a road unless he is the holder of a valid driving permit for a motor vehicle of that class, and no person shall employ any person to drive a motor vehicle on a road unless the person so employed is the holder of a valid driving permit for a motor vehicle of that class, and if any person acts in contravention of this provision, he shall be liable to a fine of seven hundred and fifty dollars ($750) or imprisonment for six (6) months...

However, on 20^th March 2020, the government passed the Miscellaneous Provisions [2019-Novel Coronavirus (2019-nCoV)] Act 2020 to amend certain pieces of legislation to introduce special provisions during the novel coronavirus lockdown in Trinidad and Tobago; one such amendment being to the Motor Vehicles and Road Traffic 1934, as amended on the validity of expired driving permits (in law, this is referred to as a moratorium):

61B. (1) Notwithstanding any provision to the contrary contained in this Act, any driving permit, taxi driver licence, badge, certificate or other document issued by the Licensing Authority which expired prior to or during the period 27th March, 2020 to 31st July, 2020 shall be deemed to be valid until 31st August, 2020.

Offences Against the Person: Manslaughter

Q:

A police officer ‘bredrin’ recently posted this video in a WhatsApp group chat asking for an opinion on criminal liability by stating that the older man was kicked, fell, hit his head, and later succumbed to the injury… 

A:

Homicide is the act of one human killing another, which then results in a criminal charge for murder, or with certain defences, a reduced charge of manslaughter.

The facts here do not meet the threshold for murder, so look out for a more detailed post on murder at some point. In the meantime, this post is about manslaughter, which is the killing of a human being without malice aforethought or mens rea (Latin for ‘guilty mind’).

There are complete defences to murder like self-defence whereby a person will be fully exonerated; however, a partial defence will only reduce a charge for murder to either Voluntary Manslaughter or Involuntary Manslaughter.

In this case, the strongest argument can be made for Voluntary Manslaughter, which occurs when a person kills another in the heat of the moment without the intention to kill. This usually is due to an incident that is precipitated by the defendant’s loss of self-control / provocation, which is for the jury to decide at trial… according to the Offences Against the Person Act 1925, as amended:

4B. Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.

The widely accepted definition of loss of self-control / provocation comes from Devlin J in the case of R v Duffy [1949], where a woman killed her sleeping husband with an axe after she was prevented from leaving the house with her child to escape years of alleged abuse:

"…the provocation must cause a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”

Now, once successfully reduced, the penalty for manslaughter in Trinidad and Tobago ranges from life imprisonment to a fine:

6. Any person who is convicted of manslaughter is liable to imprisonment for life or for any term of years, or to pay such fine as the Court shall award.

In the end, “winning” a fight can potentially land a person in prison for life, so it’s probably best to walk away from such situations.

Street-obstructing protests

Q:

After reading this Trinidad Express news article, can you tell me what law (if any) these protesters would have broken?

A:

Laws were broken from the very first paragraph of the article, which reads:

“Commissioner of Police, Gary Griffith, has launched an investigation into a report that about 15 persons blocked Bridge Road, Sangre Grande, with burning debris last night in protest of the reported removal of COVID-19 patients from the Couva Hospital to a building in their area.”

According to the Summary Offences Act 1921, as amended:

64. (1) Any person who commits any of the following offences in any street is, for each offence, liable to a fine of two hundred dollars or to imprisonment for one month, that is to say, any person who:

…

(j) throws or lays down any stone, timber, or any other materials

…

(n) in any way wilfully obstructs the free passage of any street

Coronavirus Stay At Home Law

 Q:

Does the government have the power to order citizens to stay home in the absence of a State of Emergency?

A:

During the COVID-19 pandemic, the Minister of Health allegedly has the power to, and has been making various Public Health [2019 Novel Coronavirus (2019-Ncov)] Regulations under the Public Health Ordinance (however, for the latter, I have not been able to find the most recent online version inclusive of all amendments… but I will update this blog post when I do).

The first part of this process was this proclamation by the President of the Republic of Trinidad & Tobago, Her Excellency Paula Mae-Weekes, on 31st January 2020 to declare the 2019 Novel Coronavirus to be a dangerous infectious disease.

When that was done, not only did it lay the groundwork for the possibility of a State of Emergency to be declared at any point during the pandemic, in accordance with section 8 of the Constitution of the Republic of Trinidad and Tobago, but it also put the Quarantine Act 1944, as amended into play:

4. (1) The Minister may, (strangely, this Act does not specify which Minister, although one can surmise that it means the Minister responsible for health) subject to affirmative resolution of Parliament, make Regulations, as respects the whole or any part of Trinidad and Tobago, including the ports and coastal waters thereof, for preventing—

(a) danger to public health from ships or aircraft or persons or things therein, arriving at any place; and  

(b) the spread of infection by means of any ship or aircraft about to leave any place, or by means of any person or thing about to leave any place in any ship or aircraft.

 (2) Without prejudice to the generality of the powers conferred by subsection (1), regulations under that subsection may, for the purposes therein set forth, make provision for all or any of the following matters:

 (a) the collection and transmission of epidemiological and sanitary information;

 (b) the signals to be displayed by ships or aircraft;

 (c) the questions to be answered and information (whether oral or documentary) to be supplied by masters, commanders and other persons who are or have been on board any ship or aircraft or are desirous of boarding any ship or aircraft;

(d) the detention of ships or aircraft and of persons and things that are or have been on board them;

…

6. (1) When in the opinion of the Quarantine Authority an emergency exists, the Quarantine Authority may by Order direct special measures to be taken during the continuance of that emergency for any of the purposes specified in sections 4 and 5, and any such Order shall have effect notwithstanding anything to the contrary in any regulations or rules in force by virtue of those sections.

 (2) An Order made under subsection (1) may be varied or rescinded by Order of the Minister.

The offences and penalties under this Act are:

7. (1) Any person who—

 (a) refuses to answer or knowingly gives an untrue answer to any inquiry made under the authority of this Act, or intentionally withholds any information reasonably required of him by an officer or other person acting under the authority of this Act, or knowingly furnishes to any such officer or other person any information which is false;

 (b) refuses or wilfully omits to do any act which he is required to do by this Act, or refuses or wilfully omits to carry out any lawful order, instruction or condition made, given or imposed by any officer or other person acting under the authority of this Act; or

 (c) assaults, resists, wilfully obstructs or intimidates any officer or other person acting under the authority of this Act, or offers or gives a bribe to any officer or person in connection with his powers or duties under this Act, or being such officer or person, demands, solicits or takes a bribe in connection with his powers or duties under this Act, or otherwise obstructs the execution of this Act,

is liable on conviction to a fine of six thousand dollars and to imprisonment for six months.

N.B.: There has been at least one conviction to date.

Which are to be enforced by members of the Trinidad and Tobago Police Service:

10. (1) Every member of the Police Service shall enforce (using force if necessary) compliance with this act and with any order, instruction or condition lawfully made, given or imposed by any officer or other person under the authority of this Act; and for such purpose any member of the Police Service may board any ship or aircraft and may enter any premises without a warrant.

 (2) Any member of the Police Service may arrest without a warrant any person whom he has reasonable cause to believe to have committed any offence against this Act.

 (3) In this section the expression “member of the Police Service” includes a member of any police organisation constituted by law who has the general powers of a member of the Police Service.