REPUBLIC OF TRINIDAD AND TOBAGO

REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL PORT OF SPAIN

CRIMINAL APPEAL NO. 1 OF 2009

BETWEEN

SHIFFIE ROBERTS

APPELLANT

AND

THE STATE

RESPONDENT

CORAM: P. Weekes, J.A A. Yorke-Soo Hon, J.A. R. Narine, J.A.

APPEARANCES: Appellant – Ms. Sophie Chote Respondent – Ms. Dana Seetahal, S.C.

DATE DELIVERED: 20th April, 2011

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Delivered by: A. Yorke – Soo Hon JA After a trial for the murder of Reynold Loudon, also called “Rodger Loudon”, “Goutiman” and “Duckie” (hereinafter called “the deceased”), Shiffie Roberts (hereinafter called “the appellant”) was convicted of manslaughter. CASE FOR THE PROSECUTION 1.

On the night of 9th May 2003, the deceased, along with Joseph Alexander and

Angus Ifill went to the Home Turf Club in Rio Claro. They were joined by Mary Ann Ifill, Angus’ sister, and two other female relatives. Angus and Mary Ann Ifill were cousins of the appellant. The group spent a considerable time that night socialising in the club. 2.

Around 2:00 AM on 10th May 2003, they left the club and went to the

deceased’s vehicle which was parked outside. They discovered that all of the tyres on the vehicle were flat. 3.

The deceased and Joseph crossed the road to make a report to the nearby

police station. A man called Bolo approached them. An argument ensued between Bolo and the deceased. The police intervened and took Bolo away. The group then decided to walk home and the deceased went to secure his vehicle. While doing so, he removed a cutlass which was stored in the vehicle. Joseph took the cutlass from the deceased and stuck it in his waist band. 4.

The group began to walk along the Guayaguayare Road. The deceased and

Angus were in front, while Mary Ann, Joseph and the other two female relatives were behind. Joseph heard a noise and turned around to see a man lying on the roadway a short distance away and noticed something in the man’s hand. At the same time, about four or five men ran out from the bushes. The men were all armed with cutlasses. Some were masked but the appellant who was among these men was unmasked. They all attacked the deceased.

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5.

The deceased attempted to escape but one of the men chased him,

brandishing a cutlass. The deceased ran towards Joseph, shouting for the cutlass which Joseph has earlier placed in his waistband. Joseph gave him the cutlass. The appellant, together with the man who had been lying on the roadway, began to attack the deceased. While they were chopping him, the deceased was running and attempting to defend himself. 6.

Joseph sought to intervene and assist the deceased but he too was attacked

and was chased away. By this time, the deceased was on the ground and the appellant and another man were repeatedly chopping him. The deceased attempted to run to a nearby house, but was unable to do so because he continued to be attacked by the men with their cutlasses. Joseph had reached a short distance and was able to see the attack on the deceased. 7.

A neighbour, Sita Dwarika, who came out of her house upon hearing noises,

observed three men hitting another man on the ground. She said the man got away and a man whom she recognised to be the appellant chased after him with a cutlass in hand. 8.

By this time, Angus ran to the appellant’s father’s house and when his father

came outside, he told him that “Shiffie and them fighting” down the hill.

The

appellant’s father came outside and shouted at the group and pretended to be coming down the hill. The appellant and the other attackers dispersed. 9.

By this time the deceased had found his way into a nearby yard. When

persons came out he said “Shiffie and them chop me, help me!” 10.

Mary Ann and one of the female relatives who had observed the deceased

being chopped, ran away. While running, Mary Ann heard a voice calling. She turned back and saw her cousin, the appellant, who said, “Wait for me, I would not do allyuh anything.” He then showed them a chop wound on his hand. He told them

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that he was going to the police station to make a report. They walked together to the junction where Mary Ann saw him go into the Rio Claro Police Station. 11.

At the Police Station, the appellant made a report that he and his younger

brother were walking along the Guayaguayare Road when two men came out of the bushes and attacked them. One of the men had a cutlass and chased and chopped them. They ran into the bushes to escape. Police Corporal Ramlakhan, who took the report, gave them medical forms and advised them to seek medical attention at the Mayaro District Hospital. 12.

Meanwhile, Joseph had run over to Poole Trace where he met Angus and

another man in a car. They spoke to a neighbour and then called the police. This phone call was received by Cpl Ramlakhan, who communicated the conversation to Sergeant Bebe who in turn left the station with other officers. 13.

Joseph and Angus then went to the home of the deceased’s parents and

spoke with them. They all went to where the deceased lay bleeding on the ground. Joseph and the driver of the car left to go to the police but on their way they saw the police coming in their direction. 14.

Sgt Bebe arrived and observed the deceased lying in the yard and bleeding.

The deceased was then put into the police vehicle and the police, Joseph and the deceased’s parents all left for the Mayaro District Hospital. 15.

On their way to the Mayaro District Hospital, Joseph spotted the appellant

(who had by that time left the police station) and another man near the police station and pointed them out as the men who had attacked him and the deceased. Sgt Bebe approached the appellant and told him of the report and cautioned him. The appellant replied, “Officer dem man and dem rush meh because they say I tief their weed.” The appellant and the other man were bleeding from wounds to the hands. Sgt Bebe arrested the appellant and took him to the station.

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16.

Meanwhile, the deceased was treated at the Mayaro District Hospital but

subsequently succumbed to his wounds. 17.

At about 7:00 pm that night, Sgt Bebe interviewed the appellant after reading

him his rights. The appellant, after being cautioned said, “I and Rodger had an argument. Rodger took a cutlass from his waist and chop me on my hand. Me and he had a struggle, fall to the ground and Rodger get cut. Me, my brother, Yafu, Kingfie and Romeo went to the pub in Rio Claro and let down the tyre in Rodger’s vehicle so he could walk home.” 18.

On 11 May 2003, around 3:00 pm, the appellant gave a statement under

caution, in the presence of his grandfather, Augustine Nelson and Justice of the Peace Mahabirsingh.

He said he was with a group of friends the morning in

question on the Guayaguayare Road when he noticed a crowd of persons coming up the road. When the crowd drew closer, one of the men, who was the deceased, said that he is not taking any “licks” tonight and pulled out a cutlass. The deceased tried to chop him and then tried to chop his brother.

His brother ran and the

appellant attempted to avoid a chop from the deceased but got cut on his hand. The appellant and the deceased fought for possession of the cutlass and fell to the ground.

Someone took the cutlass away and started to beat and chop the

deceased. He heard several blows while he was on the ground and he too got chopped. The deceased then got up and ran like he was running from someone. The appellant noticed that he and the deceased were bleeding. He observed that the deceased “got weak”. 19.

The appellant and his brother were charged for the murder of the deceased

on 14 May 2003. The appellant was eventually convicted of manslaughter, while his brother was acquitted.

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CASE FOR THE DEFENCE 20.

The appellant denied making the oral statements. He also denied dictating

the contents of the written statement, saying that he only signed it because he was in pain and was told by Cpl Bebe that if he signed he could go home. 21.

He testified that on 9th May 2003, between 8:00 pm and 9:00 pm, he and his

brother went to the Home Turf Bar.

He was there with friends, including the

deceased and Joseph Alexander. He was present while some of his friends let the air out of tyres of the deceased’s vehicle. He left before midnight with his brother and went to their father’s home, which is located on Guayaguayare Road. 22.

In the early hours of the morning, he and his brother left his father’s home to

go to their respective homes. On the way they both stopped to urinate, and in the process, he heard some talking. When he turned around, he saw approximately four persons, dressed in black, standing in the road. He said that he was attacked with a cutlass and suffered a blow to his head. In his attempts to avoid more blows, he obtained a cut to his hand.

He then heard his father’s voice shouting and the

persons ran off. He ran towards the police station and on his way there met Mary Ann and two other girls and his brother, who was also bleeding. He and his brother made a report to Cpl Ramlakhan and were sent to the Mayaro District Hospital. On their way to the Hospital, they were arrested, taken back to the police station and detained for questioning. They were later charged with the murder of the deceased. 23.

The trial judge left the issues of accident, self-defence, provocation and alibi

to the jury.

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GROUND NO. 1 – Self-Defence The appellant suffered a possible miscarriage of justice when the Learned trial judge erred in law by misdirecting the jury on the law in relation to self defence. The errors deprived the appellant of a possible acquittal after a fair consideration of the issue. SUBMISSIONS 24. i.

Counsel’s submissions were based on three (3) limbs. First, the learned trial judge failed to explain to the jury the onus and standard of proof in relation to self-defence. More specifically, the trial judge failed to clearly indicate to the jury that it is the prosecution who must disprove self defence and that self defence is not a “defence” in respect of which any onus rests upon the accused.

ii.

Secondly, the trial judge failed to identify the evidence which might be useful to the jury in their consideration of the issue of self defence. The trial judge further failed to assist the jury in analyzing that evidence as it related to self defence. Counsel argued that even if the learned judge did so direct the jury, it was in a manner which was of little assistance to the jury.

iii.

Thirdly, a material omission was made by the learned judge when she failed to direct the jury that an intention to kill was not inconsistent with the issue of self-defence.

It was further submitted that the prejudicial effect of the

omission had to be considered in light of the fact that the learned trial judge gave such a direction in relation to provocation. 25. i.

In response, counsel for the respondent submitted as follows: That any prejudice arising from the initial general reference to self defence as a “defence” was later eradicated by the trial judge’s references to specific evidence and to the “issue” of self defence. Ms. Seetahal further contended

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that the trial judge gave the required special directions and that the need for the prosecution to negate self defence was repeatedly made clear to the jury; ii.

That throughout the summation the learned trial judge did identify the evidence which might be useful to the jury in their consideration of the issue of self defence; and

iii.

That it was made clear to the jury throughout the summation that even if the appellant chopped the deceased intentionally he was entitled to be acquitted if he did so in self defence.

LAW Onus of Proof 26.

In R v Wheeler (1968) 52 Cr. App. R. 28, Winn LJ regarded it as unfortunate

that trial judges had the “regrettable habit” of referring to “the defence of selfdefence” as this may give the jury the impression that the accused has to prove his defence.

It was thus held in that case that if, on a charge involving killing, a

defendant puts forward a justification such as self-defence, it is essential that the jury should be directed that self-defence is not to be regarded as a defence in which any onus rests on the defendant, but that self-defence is a matter which the prosecution must disprove as an essential part of their case. Winn LJ did acknowledge however that there may be cases where the framework of the summing-up is sufficient to adequately make it clear to the jury. The suggestion is that one can look at the summing-up in its entirety to determine whether the jury was clear that self-defence was a matter to be disproved by the prosecution. 27.

The English Court of Appeal in R v Abraham (1973) 57 Cr. App. R. 799 also

addressed the issue. Relying on Wheeler, Edmund-Davies LJ directed that the trial judge should give “a clear, positive and unmistakable general direction” as to the onus and standard of proof in criminal cases, and further direct the jury that that general direction has a particularly important operation in the circumstances of the

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case. He must direct them that by his plea of self-defence the accused is raising in a special form the plea of not guilty and that, since it is for the prosecution to show that the plea of not guilty is unacceptable, the prosecution must convince the jury beyond reasonable doubt that the accused was not acting in self-defence. Edmund Davies LJ noted, as in Wheeler, that a particular form of words was not necessary. Again the suggestion is that it is the import of the judge’s words as a whole which must be examined to determine whether the above was conveyed. 28.

The Court of Appeal of Trinidad and Tobago in Baptiste v The State (1983)

34 WIR 253 referred to both Abraham and Wheeler, applying the latter. It was held and expressly stated that in every case where self-defence, inter alia, is raised, the judge must, in addition to the general directions as to the onus of proof being on the prosecution, give a special direction that a further burden rests on the prosecution to negative, beyond reasonable doubt, the existence of self-defence1. 29.

We find that the summing-up was replete with directions to the jury on the

need for the prosecution to negate self defence. The trial judge began the summingup with a general direction on defences.

The trial judge fell into the Wheeler

criticism of referring to self-defence as a “defence”. However, she explained that they were not “defences" which needed to be proved: “I will direct you as we go along with the summing-up with respect to certain defences that were raised by the accused. They may raise a defence, for instance, they may raise provocation, they may raise selfdefence, but they do not have to prove it. It is the Prosecution who must negative those defences, so if you, the jury, find, after I have directed you, that self-defence is raised on the evidence, the prosecution must negative it, and they negative it by proving to you, that in fact, there was no self-defence...”2

1 2

(1983) 34 WIR 253, 265 Pages 2 – 3 of summing-up

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30.

Another example of where she fell into the Wheeler criticism is at page 35 to

36. However, she again corrected the error by instantly directing the jury on the onus of proof, this time expressly using self-defence and the facts of the case as an example: “...I want to go to the issue of several of the defences that were raised on the case. Now you bear in mind what I have directed you on earlier. The accused has nothing to prove, the burden of proof is on the Prosecution. The Prosecution must satisfy you beyond reasonable doubt... But the accused can raise certain defences, and it is for the Prosecution to negative those defences. How do they do that? They do it by satisfying you to the extent that you feel sure, that, for instance, when the defence of self-defence is raised on one of the statements of the accused, that he was not acting in self-defence, but that, in fact, he was part of a pre-meditated attack upon the deceased. If they satisfy you to the extent that you feel sure about that then they would have negatived the defence of self-defence...” 3 Having explained to the jury from the outset that beyond reasonable doubt means satisfaction to the point of feeling sure, the trial judge met the further requirement as stated in Abraham of explaining that the State must convince the jury beyond reasonable doubt that the accused was not acting in self-defence. 31.

Additionally, at the commencement of her specific directions on self-defence,

the trial judge expressly brought the issue to the minds of the jury: “You bear in mind what I told you before. He does not have to prove self-defence; he does not have to prove that issue at all... It is for the prosecution to negative self-defence... It is for the prosecution to prove that he was not acting in lawful self-defence, not for the accused to establish that he was.” 4

3 4

Pages 35 – 36 of summing-up Pages 50 – 51 of summing-up

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32.

Moreover, the point was reiterated at the end of the self-defence

directions: “[Self-defence] is entirely a matter for you, but you bear in mind when you consider that issue, as indeed when you consider the issue of provocation, alibi, and accident, that it is the Prosecution who must negative those issues that are raised on the evidence and the accused does not have to prove those issues.” 5 33.

We find that, considering the numerous above-mentioned references and

taking the summing up as a whole, it was made clear to the jury that the burden rested solely on the prosecution to disprove self-defence and that the accused was not required to prove that he was acting in self-defence. So that to refer to the issue as “defence” albeit erroneous did no harm in this case. Failure to Point Out and Analyse Evidence 34.

When discussing the oral statement, the judge explained that the issue of

self-defence was raised “because he says he was attacked by the deceased”. 6 35.

She stated that the explanation to Corporal Bebe that “they rush meh

because they say ah take they weed” raised the issue of self-defence. 7 36.

She also referred to the evidence: “… he said he saw a guy with a blade throwing chop at his little brother, and he said and then he cursed and his brother ran, and the guy with the blade came at him, throw a chop at his head he brakes he get cut, and he said the two of them held on and there was a struggle. So, in the written statement of Accused No, 1, he does not admit to participating in a premeditated attack, but he does speak of an attack upon him, an attack upon his brother, So he raises in the statement the issue of self-defence… what arises from here is

5

Page 54 of summing-up Page 38 of summing-up 7 Page 39 of summing-up 6

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the issue of self-defence, and I point it out in the various place before I give you direction on it, so you know what I am directing you on…” 8 “...he says that the deceased took out a cutlass from his waist and chopped him on his hand… if he was attacked with a cutlass, it is open to you to find that he was acting in self-defence.” 9 “…if you believe that the deceased took a cutlass and chopped him and then thereafter the accused chopped the deceased and he died, well certainly, it is open to you to find that he would have been acting in lawful self-defence.” 10 “If you believe he was acting in defence of his brother, as per the written statement, well then, of course, you would have to acquit him, because it would mean that he was under lawful attack, and I’ve already directed you as to how to treat with that.” 11 37.

In discussing the evidence of the prosecution’s eye-witness, the trial judge

also pointed out to the jury where self-defence did not arise. She said: “ …you would recall in my direction to you on the law of self-defence, the accused being the aggressor on the Prosecution’ case, the fact that Joseph Alexander gave to him a cutlass when he being pusued by a man with a cutlass, and he tries to defend himself when he is being attacked by three men with cutlasses, does not avail the accused of the defence of selfdefence. “In fact, let me explain it this way to make it clear for you: If the deceased had managed while he was trying to defend himself while he was under attack, if one of his attackers had died, the deceased would have been justified in 8

Pages 39 – 40 of summing-up Page 53 of summing-up 10 Page 53 of summing-up 11 Page 78 of summing-up 9

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killing him, because he the deceased was under attack. So I want you to get that absolutely clear. On the [eyewitness’ testimony], there is no issue of provocation, there is no issue of self-defence…” 12 38.

Having regard to the several issues as outlined above, we find that the

criticism that the judge failed to highlight and analyse the evidence is without merit.

Direction on Intention to Kill and Self-Defence 39. Self-defence in Trinidad and Tobago is governed by the common law and thus a trial judge’s direction to the jury must accurately reflect the common law. Palmer v R [1971] AC 814 is still regarded as the classic pronouncement upon the common law relating to self-defence. Lord Morris approved as correct the selfdefence direction given by the trial judge, who had stated: “A man who is attacked in circumstances where he reasonably believes his life to be in danger or that he is in danger of serious bodily harm, may use such force as on reasonable ground he believes is necessary to prevent and resist the attack; and if in using such force he kills his assailant he is not guilty of any crime even if the killing was intentional”.13 It must be clearly conveyed to the jury that a man can act in self-defence even if he has the intention to kill. 40.

It was in Baptiste (supra) that the Court noted that it is “important” for the trial

judge to direct the jury that on a charge of murder, a plea of self-defence is not inconsistent with finding an intention to kill. Although the appeal in Baptiste was allowed primarily on another ground, this does not reduce the applicability of the Court’s obiter statements on self-defence and intention to kill. It was said:

12 13

Pages 91 – 92 of summing-up [1971] AC 814, 823

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“Another important direction that the judge must give to a jury in appropriate cases is that an intention to kill is not inconsistent with the establishment of the plea, not only of self-defence, but also of provocation…”14 41.

The phrase “in appropriate cases” above must be taken to mean cases where

the facts give rise to the need for the jury to be told in the clearest of terms that the intent to kill is not inconsistent with the plea. On these facts, the jury could easily have found that there was an intention to kill, hence it became necessary for the trial judge to make it abundantly clear that such an intention was not inconsistent with the plea of self-defence. 42.

Further, it was said: “On the question of mens rea the judge should direct the jury that whereas an intention to kill negatives the plea of accident, this is not so in respect of self-defence and of provocation, where the pleas may succeed even though the defendant had formed the intention to kill.”15

43.

The point was re-emphasised nine years later in Sinanan v The State (1992)

44 WIR 383 where the main ground of appeal was the failure of the trial judge to direct the jury that an intention to kill was not necessarily inconsistent with a plea of self-defence. It was contended that since the trial judge had rightly pointed out to the jury that intent to kill was an essential ingredient in proof of murder, it was fatal to the conviction that he, nevertheless, failed to tell them what was the consequence in law if this mental element existed when a person was acting in lawful self-defence. The Court of Appeal held that a failure to direct the jury with regard to intent to kill where self-defence had been pleaded was a miscarriage of justice. Indeed, Bernard CJ regarded it as a “grave error”16.

14

(1983) 34 WIR 253, 263 (1983) 34 WIR 253, 265 16 (1992) 44 WIR 383, 391 15

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44.

The issue arose again for consideration in Allan Phillip v The State Cr. App.

No. 88 of 1995. The trial judge in his summing-up did not use the form of words suggested in Baptiste and although the Court of Appeal found the direction to be a bit muddled, in the end their Lordships held that the trial judge gave a sufficient direction. Ibrahim JA said: “Before us three grounds of appeal were argued. The first ground of appeal was that the learned trial judge misdirected and confused the jury by giving them conflicting directions on the issue of intent in relation to self defence. He told them: “In considering the plea of self-defence you must finally decide whether the act done was really done with the intent to defend or with the intent to kill or inflict grievous bodily harm which constitutes

aforethought

[…]

By

way

of

summary,

in

considering the issue of justification, you must clearly differentiate between an intent to kill or inflict grievous bodily harm on the one hand, and an intention to defend oneself on the other hand […] The intent to kill or cause grievous bodily harm to an attacker is not inconsistent with the intent to defend oneself, and is often included with the intent to defend. The issue is on selfdefence.”17 The above demonstrates that there are no precise words a trial judge must use when giving a direction on intention to kill in relation to self defence. It is clear that what is of paramount importance is that the jury understands that an intention to kill or to do grievous bodily harm and a plea of self-defence are not mutually exclusive concepts. 45.

In the instant case, we find that no such direction was given in relation to

self-defence. There can be no doubt that it is important for a trial judge to generally convey to the jury that the intention to kill is not inconsistent with the issue of self17

Cr. App. No 66 of 1995, page 3

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defence. However there is certainly no “magic formula of words” as to how this is to be communicated. The specificity with which such a direction need be given will invariably turn on the evidence proffered in the given case. In this particular case, aside from alibi, the trial judge was called upon to deal with three different justifications for the death of the deceased: accident, provocation, and self-defence. 46.

The trial judge in her summing up stated: “Now, the issue of provocation can be raised when an accused is charged with the offence of murder. Even where you the jury find that in fact the accused did in fact kill the deceased with the intention to kill him or cause serious bodily harm the fact that the action of the killing with the intent is there does not preclude the defence of provocation being available to the accused.”18

The clear import of these words is to indicate to the jury that the plea of provocation is not inconsistent with an intention to kill. 47.

In a case such as this, where both self-defence and provocation were raised,

it was even more critical for the trial judge to clearly direct the jury on the compatibility of an intention to kill with respect to both pleas and perhaps, its incompatibility with accident. Not having done so, the jury may have erroneously given weight to the fact that such direction was applicable only to the plea of provocation. That is, the jury may have considered that of these two defences, if they found that the accused formed an intention to kill, only provocation, and not self-defence, would have been available to the appellant. This approach would have the effect of depriving the appellant of the jury’s full consideration of the plea of selfdefence. 48.

It is true that the trial judge defined the various elements of murder and in

discussing the meaning to be attributed to the word “unlawfully” she pointed out: 18

Pages 40 – 41 of summing-up

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“Now, of course, a killing may be justified where it is either in defence of oneself or in defence of another. Another example of unlawful killing, of course, may be, that carried out by some lawful authority. The allegation on the Prosecution’s case is, of course that these two accused, without any issue of self defence arising, ambushed, together with three other men, the deceased and his friends, and they chopped him until he died. It would be a matter for you, Ladies and gentlemen of the Jury, at the end of the day, having considered all of the evidence, whether you are satisfied to the extent that you feel sure that this killing was carried out unlawfully, that it was done by the accused.” 19 Although the judge attempted to explain the lawfulness of self-defence and intention, we find the above insufficient in light of the specific direction to provocation. When contrasted with the clear and express direction on intention in relation to provocation, we consider that the direction given on self-defence and intention had the potential to confuse the jury. 49.

We are therefore of the view that, in the circumstances of this case the trial

judge ought to have given a specific direction on intention to kill in relation to the plea of self-defence. This was a material omission and is fatal to the conviction. 50.

This ground therefore succeeds on the basis that the learned trial judge failed

to direct the jury on the correlation between an intention to kill and the plea of selfdefence.

19

Pages 7 – 8 of summing-up

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GROUND NO. 2 – Hostile Witness The learned trial judge erred in Law by allowing the witness Angus Ifill to be treated as hostile after being cross examined. In addition her directions to the jury as to how they should treat with the evidence of Angus Ifill were insufficient. SUBMISSIONS 51.

During the cross examination of the witness Angus Ifill, he resiled from his

evidence in chief and stated that shortly after the incident had begun, he ran and had not seen what had transpired. At the end of his cross-examination, the judge granted leave to the prosecution to treat him as a hostile witness.

Ms. Chote

submitted that though this was technically possible, leave is granted at such a stage only in exceptional circumstances.

She complained that the double cross-

examination of Ifill was unfair to the defence because it had the effect of nullifying the cross examination of the defence.

Further, it allowed the Prosecution the

opportunity to place all his previous consistent statements before the jury. 52.

Ms. Seetahal submitted that the judge had an absolute discretion in deciding

whether to treat the witness as hostile after his cross examination. She contended that it is settled law that a witness may be treated as hostile even in re-examination and that there is no basis in law for the appellant to contend that it is “technically possible”. Further, there is nothing advanced to suggest why the judge’s directions were insufficient. LAW 53.

Section 5 of the Evidence Act Ch. 7:02 provides as follows: “A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may in case the witness in the opinion of the Judge proves adverse, contradict him by other evidence or by leave of the Judge prove that he had made at other times a statement inconsistent with his present testimony; but before such last mentioned

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proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.”

The word “adverse” is taken to mean hostile and not just “unfavourable”. Assistance as to when a witness should be regarded as hostile is found in the case of R v Prefas and Pryce (1988) 86 Cr. App. R. 111 where the court adopted Article 147 of Stephen’s Digest on the Law of Evidence20: “If a witness appears to the judge to be hostile to the party calling him, that is to say, not desirous of telling the truth to the court at the instance of the party calling him, the judge may in his discretion permit his examination by such party to be conducted in the manner of a crossexamination to the extent to which the judge considers necessary to the purpose of doing justice”.

54.

In R v Powell [1985] Crim L.R. 592 the prosecution was allowed to treat a

witness as hostile in re-examination, the witness having shown no signs of hostility during examination-in-chief. Upon conviction, the appellant contended that it was wrong to allow the witness to be treated as hostile at that late stage. It was held that an application to treat a witness as hostile could be made at any stage during the witness’s evidence. It would depend upon the facts and although the application during the re-examination was a little unusual, it was a matter for the trial judge’s discretion. 55.

The commentary on Powell is helpful and reads as follows: “Section 3 of the Criminal Procedure Act 1865 [same as Section 5 of Evidence Act Ch 7:02] gives the judge power to determine whether a party’s own witness has proved hostile, with the result that he may then

20

(1988) 86 Cr. App. R 111, 114

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be in substance cross-examined by the party calling him.

There is

nothing in the statute to suggest that the judge’s power is in any way limited to examination-in-chief: when a witness is re-examined the party calling him is still “producing a witness” without leave of the judge, for section 3 also contains the general prohibition that it is not for the party calling a witness to seek to discredit him by general evidence of bad character.” 56.

The case of R v Norton and Driver (No.1) [1987] Crim L.R. 687 suggests

that even in cross-examination the witness is still being “produced” and as such hostility can emerge during cross-examination. In that case, the appellants were convicted of making off without payment. One of the prosecution witnesses, in his examination-in-chief, repeatedly stated that he could not remember what had happened. During cross-examination however, he regained his memory and gave evidence exculpating the appellants. On re-examination, the Crown was given leave to treat the witness as hostile. The English Court of Appeal relied on Powell and held that there is no distinction between hostility arising during the course of evidence in chief and hostility arising in cross-examination or thereafter, particularly since Section 3 [our Section 5] made no such differentiation. 57.

It is clear that the power to treat a witness as hostile lies within the discretion

of the judge and that his discretion is absolute: R v Howard (1886) 16 QBD 681. In R v Manning [1968] Crim L.R. 675, it was noted that the Court of Appeal rarely interfered with the exercise of the discretion of the trial judge who sees the witness and is better able to assess him. Moreover, it must be noted here that in the exercise of his discretion, the judge has a delicate balancing act to perform and must be careful not to whittle away the effect of a penetrative cross-examination simply because the witness is forced to resile from the initial position he adopted in examination in chief.

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58.

However, before a judge can exercise his discretion to deem a witness

hostile, certain procedural steps must be observed. Section 5 of the Evidence Act provides two options for dealing with an adverse witness. The witness may be contradicted by “other evidence”. Alternatively, the prosecution may prove that the witness made a statement inconsistent with the evidence now being given. It is imperative that the prosecution first inquire into the occasion when the statement was given, the circumstances in which the statement was given, and ascertain from the witness whether or not he made such statement. 59.

In R v Maw [1984] Crim LR 841 where C gave contradictory evidence-in-

chief, evidence exonerating the appellant in cross examination and in re-examination said he was not sure, the steps in treating a witness as hostile were discussed and can be summarised as follows: i.

It is undesirable to proceed immediately on not getting the expected answer to treat the witness as hostile except in cases where the witness displays an excessive degree of hostility.

ii.

Where a prosecution witness gave evidence contrary to his statement, and failed to give the evidence expected, the prosecution and the trial judge should consider inviting him to refresh his memory from legitimate material such as his statement or his depositions.

iii.

If the witness did not allow his memory to be refreshed and did not give an explanation of why he chose to give different evidence, the judge could then consider whether he ought to be deemed as hostile.

iv.

It is the duty of the prosecution or any party inviting the jury to rely on such evidence to explore the inconsistencies and reluctance to testify.

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v.

Having decided to deem the witness as hostile, the witness could not only be cross-examined but could be cross-examined on previous statements.

60.

In the instant case, the procedure was not followed.

Instead, upon the

emergence of the inconsistencies in Angus Ifill’s evidence and at the conclusion of cross-examination, prosecuting counsel made an application to deem Angus Ifill hostile. The judge acceded and prosecuting counsel was allowed to cross-examine the witness forthwith. Ifill was asked whether he gave a statement to the police on 10th May 2003 but he was not probed about the circumstances in which the statement was made, or whether he in fact made the statement and could confirm its contents. Although he was shown his statement, it was done for the sole purpose of validating his signature at the end.

The witness was not invited to refresh his

memory. 61.

Further, the prosecution did not seek to extract from the witness the reason

for choosing to give different evidence. We note however that during crossexamination he explained that: “The police and them make me give the statement.” The prosecution did not explore that explanation although it implied some impropriety on the part of the police.

Such an implication required a thorough

investigation by way of cross-examination in order to get the bottom of it. Very often in those circumstances the witness may venture reasons for the switch in evidence such as fear of reprisal or threats by the defendant. If this were to occur, then the jury may be in a position to readily accept the explanation and to rely upon the witness’ evidence-in-chief. 62.

Although, the witness deviated from his evidence-in-chief in material aspects,

this by itself was no basis upon which he ought to have been treated as hostile. We are therefore of the view that in performing her balancing act, the judge’s failure to adopt the stipulated procedure was critical. It had the result of depriving her of information which may have assisted in making a judicious decision as to whether

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the witness Ifill ought to have been treated as hostile in the first place. Had the proper procedure been followed, the judge would have had sufficient evidence before her to make a reasoned decision about the hostility of the said witness. 63.

In the circumstances, we find merit in this ground.

GROUND NO. 3 – Unbalanced Summation The learned trial Judge failed to leave the case for the appellant to the jury in a fair and balanced manner. SUBMISSIONS 64.

In respect of this ground, counsel for the appellant made the following

complaints: i.

That the evidence of the appellant was juxtaposed unrelentingly with reminders by the judge of the points made by the prosecution;

ii.

That the judge invited the jury to form the view that the appellant had lied and suggested that this would help them to determine whether or not he was guilty of the offence;

iii.

That the medical evidence was inadequately and incorrectly addressed;

iv.

That the appellant was unfairly cross-examined at length about what his attorney had put to various witnesses; and

v.

That the judge unfairly reminded the jury of the prosecution’s case to the effect that certain witness had no motive to lie and that the appellant could advance no reasons for them having done so.

The effect of these complaints made the summing up unfair and unbalanced.

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65. i.

In response, counsel for the respondent submitted as follows: That the judge did not juxtapose the evidence unrelentingly but fairly analysed and cross-referenced the evidence on both sides;

ii.

That the judge’s direction on lies are consistent with the law;

iii.

That the medical evidence was properly left with the jury who were reminded of the salient aspects;

iv.

That prosecuting attorneys were entitled to question the appellant on matters not put to prosecuting witnesses by his counsel.

Such a course was

important in order to highlight the issues omitted. v.

That the appellant has not demonstrated how the direction that certain prosecution witnesses had a motive to lie placed him unfairly before the jury. In any event, wherever this arose in the summing-up it did not suggest that the appellant had to provide a motive for lying but was in the context of logic only.

Taking the summing up as a whole, it was not unfair to the appellant. The evidence was juxtaposed unrelentingly 66.

We are of the view that this criticism is without merit.

67.

Throughout the summing-up, the judge reminded the jury of the evidence led

by both sides and cross-referenced the evidence. For example, the judge reminded the jury of the evidence of Cpl Ramlakhan that he was on duty at about 2:45 am on 10th May 2003 when the appellant and another man came to the police station and reported that they were walking out of Guayaguayare Road and upon reaching the vicinity of the 1¼ mm two men came out of bushes and attacked them. She then juxtaposed this evidence with that of the appellant who denied making such a report to the officer and who asserted instead that he told the officer that four men were on

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the road and one attacked them with a cutlass. The judge then told the jury that it would be for them to determine where the truth lies.21 68.

Cpl Ramlakhan testified that the appellant’s account of the incident was that

one of the men had a cutlass in his hand and he chased the appellant and the other man and chopped them and they both ran into the bushes to escape the attackers. At trial, the appellant said that he had been urinating on the wall, he turned around and a man was there. The man came up with the cutlass and chopped him, he put up his hand, he got chopped on his forearm and on his toe. The judge having reminded the jury of the evidence on both sides then invited the jury to decide whether they accepted Ramlakhan’s version or whether the appellant was making up as he went along, an appropriate inference in our view because of his varying versions in his evidence22. 69.

The prosecution’s case was that the appellant’s mother came to the police

station on 11th May after the statement was taken. The appellant said that his mother was there since 10th May, he saw her but did not speak with her. The judge pointed the jury to these two accounts and then left it for them to decide which version they favoured.23 70.

As outlined, the summing-up is full of examples of this approach and we find it

commendable. The purpose of a summing-up is to help the jury. A jury is not helped by a colourless reading out of the evidence as recorded by the judge in his notebook: R v Sparrow [1973] 57 Cr. App. R 352. The judge’s duty also extends to those set out by Lord Halisham L.C in R v Lawrence [1982] AC 510: “A direction to a jury should be custom built to make the jury understand their task in relation to a particular case... It should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences 21

Page 79 of summing-up Page 80 of summing up 23 Page 88 - 89 of summing up 22

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which the jury are entitled to draw from their particular conclusions about the primary facts.”24 71.

In our view the judge fairly and adequately addressed the issues of fact by

reminding the jury of the evidence on both sides and inviting them to draw the appropriate inferences. Accordingly, this criticism is unfounded. Lies 72.

The prosecution’s case is that the appellant first reported that he had been

attacked by two men. In his testimony the appellant claimed that he was attacked by four men. 73.

Ms. Chote contended that the judge unfairly invited the jury to form the view

that the appellant had lied and that this would help them in determining his guilt or innocence. 74.

This is what the judge said: “Well, Ladies and Gentlemen of the Jury, of course, you have heard Constable Ramlakhan, you have heard Accused No. 1 and you will determine what you believe. But this is an instance where you may very well form the view that he is lying, and I’ve already directed you with respect to that. You and you alone will determine first of all whether this is a lie. You will go on to determine if there in an innocent explanation for this lie, for instance, if he is just afraid to say well he did tell Ramlakhan it was two men because he would seem to be agreeing with them. You will determine that. If you determine there is no innocent explanation for it because you may very well say, well, this is his case – this is his case that he was attacked by four masked men, and is it likely that you would make a mistake about something like that, assuming that you believe Ramlakhan? And if you go on to say that you believe he lied and there is

24

[1982] Ac 510, 519

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no innocent explanation it is only then that you may use this in determining whether he is guilty or not guilty of the offence.”25 75.

We are of the view that the judge was correct in inviting the jury to determine

whether or not the appellant had lied on this issue and if they were to so find, then this is one of the factors to be taken into account when deciding on his credibility. 76.

In her oral presentation, Ms. Chote admitted that she had overstated this

criticism of the trial judge. Medical Evidence 77. The evidence was that on 10th May the appellant was taken by the police to the Mayaro District Hospital for medical treatment. Medical reports were produced. When he appeared before the Magistrate on 15th May, he was again sent for medical examination. This time the doctor noted an injury on his head. Cpl Bebe who had taken him on 15th May heard the appellant tell the doctor that he had been taken for medical attention on 10th May but at that time his head was not hurting so he did not point out that injury to the doctor. The appellant’s case was that he had in fact pointed it out on 10 May but nothing was done. 78.

The judge invited the jury to determine the issue by “surely” asking

themselves whether Dr. Kulu (the first doctor) would have prepared and submitted medical reports of having examined and treated the appellant if that were not so and whether Dr. Kulu was in some kind of conspiracy with the police against the appellant.

26

The judge later addressed the issue on two occasions and left its

assessment to the jury27. Then, she raised it in this context: “Now, in respect to his medical treatment, what he basically said in crossexamination is that he told Dr. Kulu about the head injury and Dr. Kulu failed to note that injury on the medical form. Again, as I mentioned to you

25

Pages 145-146 of summing-up Pages 84 – 85 of summing-up 27 Page 142 of summing-up 26

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yesterday, you will determine whether you believe Dr. Kulu whom, you may imagine, has no interest in this matter.

He is a professional,

someone is brought to him with injuries, and his duty is to note the injuries on the medical forms, to examine the person, treat them and submit that medical form to the police. You will determine if it is that he is saying that he would tell the doctor that and he would deliberately exclude it. When you look at the report of Dr. Rampaul you would see the head injury is described as a laceration, so that if it was pointed out to Dr. Kulu he would have seen it. It’s a matter for you.”28 79.

While we think that the judge’s reference to a conspiracy was somewhat

inflated and uncalled for in the circumstances, her subsequent approach was quite tempered. There may be a variety of reasons resulting in Dr. Kulu’s failure to note the injury. It may be because he forgot or that he thought it was not necessary, or simply because it was not pointed out to him. Therefore, it would have been unfair to pin the “conspiracy theory” on the appellant.

Nonetheless, we think that the

judge’s later directions on the issue were fairly and adequately put and had the effect of cancelling her earlier indiscretions. Accordingly, we find no merit in this issue. Matters Not Put 80.

During cross-examination of the appellant, state counsel raised several

material issues which were not put by counsel to prosecution witnesses and the judge in her summation reminded the jury of them. Ms. Chote complained that this was not fair because the trial was long and convoluted and that there may be a number of reasons for something not being put by counsel.

28

Page 148 of summing-up

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81.

In Jackson (Warren) v The State (1998) 53 WIR 431, the exact complaint

was made. The Board found that the matters upon which counsel for the appellant omitted to cross-examine the prosecution witnesses were important and that the omissions were quite properly raised by state counsel before the jury.

In the

absence of any explanation from the appellant’s counsel, the judge was bound to deal with them as he best thought just. The trial judge had carefully explained to the jury the various reasons why certain matters may not have been put. The jury was directed to consider all the evidence in the case and not to punish the accused because either he or his attorney had forgotten something. 82.

In Reed Richards v The State Cr. App. No. 12 of 2008, a complaint of like

kind was made. The Court noted the judge’s approach in Jackson and observed that the jury in Reed Richards did not have the benefit of such a direction. The Court formed the view “that there was a grave danger that the jury would have ascribed the failure to put evidence to witness to the doubtful veracity in the appellant’s evidence.”

The Court concluded that the judge’s omission to address

the variety of reasons why certain evidence was not put was prejudicial to the appellant. 83.

In the instant case, the trial judge allowed cross-examination on all the issues.

However, the judge failed to give the jury a direction for the different reasons why these matters may not have been put. We therefore conclude that such an omission created a “grave danger” since the jury may have allotted the failure to put evidence to the witness to the “doubtful veracity in the appellant’s evidence”.

Motive to Lie 84.

During the course of the summing-up the judge on more than one occasion

reminded the jury that certain prosecution witnesses had no motive to lie.

She

invited the jury to consider why would the police have made up a statement against the appellant especially if it is an exculpatory one. A similar question was raised in relation to the medical report – the judge posted the following question:

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“But one question you must surely ask yourselves, would Dr. Kulu prepare and submit medical report of having examined and treated Accused No. 1 and Accused No. 2 and that were not so.”29 85.

In relation to the witness Mary Ann, the judge asked the jury to consider why

would this witness come here to testify that she saw her two cousins whom she practically grew up with, who are close in age to her that she saw them attacking the deceased. 86.

In Reed Richards v The State30, after careful consideration of the authorities,

this court distinguished between cases in which there is no motive to lie and those in which there were. In the former, where, for example, Justices of the Peace or police officers were concerned, it would be clearly improper for the judge or the prosecution to ask the jury why would they lie. However, in cases where there is such a motive, such as cases involving sexual offences, the question may be a legitimate one. 87.

In this case, the taking of the statement involved both the police and the

Justice of the Peace. There is no evidence that Mary Ann had any motive to lie. Indeed she was present at the club and in the company of the appellant on the night in question. There is also nothing to suggest that Dr. Kulu had a motive to lie. 88.

In the circumstances, we are of the view that the judge erred when she invited

the jury to consider why these witnesses would lie. She did not tell the jury that even if they could find no reason why the police, the doctor or Mary Ann would lie that it did not mean that they were necessarily telling the truth. The jury may have been left at risk thinking that if these witnesses had no apparent motive to lie, by that fact alone, they were telling the truth.

29 30

Page 84 of summing-up Supra

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89.

As in Reed Richards we are of the view that the asking of these questions

may have caused a miscarriage of justice. Retrial 90.

We now turn to the guiding principles on the issue of retrial. These are set

out in the Privy Council decision of Reid v R (1978) 27 WIR 254. The Privy Council noted factors which should be considered in deciding whether to retry a case. They are: (i) the seriousness and prevalence of the offence, (ii) the expense and length of time involved in a fresh hearing, (iii) the ordeal suffered by an accused person on trial, (iv) the length of time that would have elapsed between the offence and the new trial, and (v) the strength of the case presented by the prosecution. It was noted that this list is not exhaustive. It was otherwise held that it is in the interest of justice and the interest of the public that those persons who are guilty of serious crimes should be brought to justice and not escape it merely because of some technical blunder by the judge in the conduct of the trial or in his summing up to the jury. 91.

The taking of a life must always be viewed with seriousness. However, we

must also consider the youthfulness of the appellant at the time of the offence, he was only nineteen. The offence was committed in 2003, thus the appellant has already been incarcerated for seven years. Securing the availability of the several prosecution witnesses may be easier said than done. There were serious errors in the conduct of trial, particularly concerning self-defence and the treatment of Angus Ifill as a hostile witness. The prosecution has already produced one witness who has turned against them (Angus Ifill). A retrial would unfairly give the prosecution an opportunity to correct its errors.

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92.

In light of the above, this appeal is upheld and the conviction and sentence of

the appellant are quashed. We do not order a retrial as that would not best serve the interests of justice.

__________________ Paula-Mae Weekes Justice of Appeal

__________________ Alice Yorke-Soo Hon Justice of Appeal

__________________ Rajendra Narine Justice of Appeal

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