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Trinidad and Tobago Court of Appeal |
] [Hide Context] REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
CrA. No.26, 27 & 28 of 2003
BETWEEN
(1) ARNOLD HUGGINS
(2) LESLIE HUGGINS
(3) JUNIOR PHILLIP APPELLANTS
AND
THE STATE RESPONDENT
PANEL: R. Hamel-Smith, J.A.
M. Warner, J.A.
P.M. Weekes, J.A.
APPEARANCES:
Mr. I. S. Brook for the 1st Appellant
Mr. D. Allum, S.C. and Mr. R. Persad for the 2nd Appellant
Mr. I. S. Brook and Ms. D. Mohan for the 3 rd Appellant
Ms. D. Seetahal for the State
Date: April 21, 2005
JUDGMENT
R. HAMEL-SMITH, J.A.
The appellants were charged with the murder of Clint Huggins. They were found guilty and sentenced to death. Clint was one of the main witnesses in a murder charge brought by the State against Dole Chadee, Joey Ramiah and others. At the time of his death Clint was in protective custody.
The story began when Clint decided to leave protective custody on Sunday February 18, 1996 to visit his family at the home of the second appellant, Leslie Huggins, (his first cousin). Leslie lived at Mulchan Street, Guaico, Clint had gone to enjoy the carnival celebrations on this occasion but it was not unusual for him to leave protective custody from time to time to visit his family .
Leslie lived with Swarsatee Maharaj (“Satee”). They had been living together as man and wife. Satee had apparently inherited a small fortune from her father when he died. This enabled her in 1995 to finance the building of the house at Mulchan Street. She had also acquired two cars, a Lancer, PAY 9654 and a Laurel, PAS 2134. Both vehicles however were registered in Leslie’s name. Satee would eventually become the principal witness for the prosecution in the case against the appellants for the murder of Clint.
Leslie was friendly with the third appellant Junior Philip. He had employed Junior to build the house at Mulchan Street. It was there that Junior met Satee. In February 1996 Junior moved into an apartment next door to Satee and Leslie. Sometime after the death of Clint, Satee left Leslie and moved in with Junior at a house in Chaguanas.
The first appellant, Arnold Huggins, was Leslie and Clint’s second cousin and he lived in Matura with his mother, Merle, and her brother, Simon Ragunanan. Arnold and Simon would visit Satee and Leslie occasionally. Leslie’s brother, Richard Huggins, was also a frequent visitor.
At the material time, Leslie’s father (David) was married to Joey Ramiah’s sister. According to Satee, sometime late in 1995, Leslie visited Joey Ramiah in prison where he was awaiting trial. On his return home, Leslie told Satee that Joey knew about Clint’s movements from time to time between protective custody and his visits to the family and had promised to pay him three million dollars to kill Clint. A few days later Leslie told Satee that he was going to do the job and collect the money as he felt that Clint deserved to die; he had accepted a sum of money not to testify against Dole Chadee but had not kept his word.
Clint arrived at Mulchan Street very early on Sunday morning, February 18. It was shortly after Vishwanath Jawahir (“Sharkey”) had dropped Satee, Leslie, Junior and Simon home from a fete at Bel Air. They were all in bed when Clint knocked on the door. Leslie let him in and they talked for some time. At around 9 am Junior, Philip and Simon joined in the lime. David cooked lunch for them. Later that day Leslie took Clint and Junior for a drive in the Laurel. In the evening, after a few beers and spending some time in Sangre Grande, they returned home. Clint spent the night by Leslie.
The following day (Carnival Monday) Satee overheard a conversation between Leslie and Simon. According to her, Leslie asked Simon “ How we going to do this ?” and Simon replied “ We’ll go to Matura for Arnold, he has a gun ”.
At around 8 pm that night Leslie, Junior, Satee, Clint and Simon, went to Sangre Grande where they joined in the Monday night Carnival celebrations. At around 11 pm they were walking along the Eastern Main Road when Leslie asked Satee to accompany him to Market Road (off the Eastern Main Road). There, between two stalls, she could see Arnold Huggins standing. At that time Clint was in the crowd at the corner of Market Street and Eastern Main Road. According to Satee, Leslie told her that Arnold was going to shoot Clint in the crowd. Satee and Leslie then walked back along the Eastern Main Road where they met Junior. Satee heard Junior (presumably aware of the plan) say “ It cannot be done tonight because there is too much people.”
Clint had also been seen that night by PC Thompson and Inspector Lloyd. They spoke to him in Sangre Grande on separate occasions. PC Thompson had a word with him at around 10 pm and Insp. Lloyd at about 11.45 pm in a bar. On both occasions Leslie and Junior were present.
Haile Selassie Amoroso also testified to the fact that on carnival Monday night he met his cousin, Junior and well as Leslie, Clint, Satee and others in a bar in Sangre Grande. He actually purchased a beer for Clint. He accompanied Junior and others to Royal Castle and whilst there, he saw Leslie talking to Junior.
The party proceeded to Brierly Street where the car was parked. They all had cups of dhal. Clint lay down on the bonnet of the car, obviously somewhat intoxicated. Leslie was nearby and when Amoroso approached he said, “ This is the right time to take him out” . Amoroso asked Leslie if he was joking and left shortly after. Nothing happened however and the party eventually left for Mulchan Street.
All retired to bed but about an hour later Clint was awakened by Leslie who told him that they were going to “town” for J’Ouvert. This was in the early hours of the morning of Tuesday February 20, 1996. Shortly thereafter Arnold, Leslie, Junior, Clint, Satee and Simon left for Port of Spain in the two cars, i.e. in the Laurel and Lancer with Leslie and Simon driving the respective cars.
In the vicinity of the University Field Station on the Uriah Butler Highway, Leslie stopped on the western shoulder of the Highway (northbound lane) and Simon pulled up behind. Arnold got out of the Lancer and told Satee to go and sit in the Lancer, which she did.
According to Satee, Arnold had a long gun in his hand. She saw Clint alight from the Laurel and stand up by its front right side, across from Arnold. Leslie remained in the driver’s sear. Arnold pointed the gun over the roof of the car and fired a shot at Clint. He staggered and started to run easterly, across the highway. Arnold fired another shot. Leslie immediately drove the Laurel across the median to the other side of the Highway, bouncing and throwing Clint onto a chain link fence on that side of the road. He fell in front of the car. Blood and wadding from the pellets were later found in the road leading to the eastern side of the Highway.
Leslie got out of the Laurel and, with Junior and Arnold’s help, pulled Clint into the back of the car. Leslie produced a knife and said to Arnold, Junior and Simon, “ the man still living, come and stab him .” Leslie then stabbed Clint in the chest several times. Junior proceeded to hit him on the head with what appeared to be a piece of wood. Leslie then walked back to the Lancer and said, “the man dead now ”. The post mortem report would later show that he died from gunshots injuries to the head, stab wounds to the upper torso, a lacerated wound on the head and extensive burns.
Arnold told Leslie that they had to burn the car. Before setting fire to it, however, he removed the music amplifiers and placed them in the Lancer. The car was then set afire with Clint in it. They bundled into the Lancer and drove off. At the Valencia Stretch, Leslie and Junior threw their jerseys and sneakers out the window but Arnold refused to do so, saying that his jersey was clean and he did not have another pair of sneakers.
They returned to Leslie’s home where Arnold had a bath and left. Leslie, Junior, Satee and Simon met in the kitchen. Leslie told them that it was likely that they would be questioned about the killing so they had to get their story straight. They would hold to the story that Clint had borrowed the Laurel to go and buy a pack of cigarettes and he never returned. Leslie then told Satee to page Clint, the idea being that a message would be found on his pager to the effect that they were trying to contact Clint to find out where he was. Satee testified that she had done so.
Around 10 am that morning (Tuesday February 20) Leslie, Junior, Satee and another person left for Manzanilla beach. They crossed Sharkey on the way in his vehicle and Leslie told him that they had burnt the Laurel for insurance and asked him to go near Mt. Hope Hospital where the car was burnt to see whether it had been destroyed completely. Sharkey did as instructed. He later confirmed that it was burnt but since several police officers were on the scene he avoided getting too close. Leslie then paid him $100 for his effort. Later that night, Leslie told Satee he would collect the reward from his uncle Joey and would bury it in the back of the house.
Meanwhile the police had discovered the burnt car with Clint’s body in the vicinity of the University Field Station. Superintendent Quashie and Inspector Khan were in charge of the investigations. Khan collected various items from the scene and took several measurements.
On February 21, a post mortem examination revealed that Clint had suffered multiple stab wounds, other penetrating wounds and extensive burns. Death was due to shock and hemorrhage owing to the wounds. Shotgun pellets were also removed from the body. A blood sample taken from the deceased showed that he was under the influence of alcohol at the time of death.
On that same day Leslie and Junior were questioned. They denied having any involvement in the death of Clint Huggins and elected to give statements. These were non-incriminating and in keeping with the prepared story. Satee also gave a similar statement. No charges were laid and Leslie and Junior were released.
Almost four years later, on November 3, 1999, Junior, by appointment, went to the Sangre Grande Police Station to meet Sergeant Moses. By this time he was living with Satee. Her relationship with Leslie had come to an end sometime in 1996. The meeting had been arranged to allow Junior to give the police certain information concerning Clint’s murder.
On the night of November 4, 1999, Junior told the police that he was present when three persons murdered Clint. On November 6 he gave a cautioned written confession in which he admitted participation in the murder and on November 8 he pointed out certain areas at the Valencia River Bridge to the police.
Satee was arrested and taken into protective custody on November 11, 1999. She subsequently gave statements to the police implicating the three accused.
On November 12, 1999, Arnold was arrested. At first he denied any involvement in the murder but, later that day, he gave a cautioned written statement to the police. It was a mixed statement to the effect that he had the gun and shot the deceased but the actual shooting was accidental.
Leslie gave no statement to the police and maintained his innocence.
All three accused were charged for the murder of Clint on November 15, 1999. On September 27, 2000, Satee was granted immunity from prosecution and became the main witness for the prosecution.
At the close of the prosecution’s case, if Satee’s evidence turned out to be credible in the eyes of the jury, there was a formidable case for the appellants to answer. The prosecution would have established that Clint had been in the company of the accused at the material time and had actually been found in Leslie’s Laurel motor-car. Additionally, it was in possession of two statements (Arnold and Junior’s) which implicated them both in the murder, albeit Arnold claimed that the shooting was accidental.
Arnold Huggins testified at the trial and called his mother as a witness. His defence was one of alibi. He claimed that from Carnival Saturday, 1996 he was at his girlfriend’s home in Balandra and had remained there until Wednesday after Carnival. His mother supported his story to the extent only that she was present when he left home, saying that he was going to Balandra. She claimed that he would spend all his holidays and spare time there.
Arnold nonetheless had to contend with Satee’s evidence that he had shot at Clint on two occasions, shots that had contributed to the cause of death. He countered by claiming that Satee had fabricated the evidence against him because he had broken off the relationship in 1996 (denied by Satee) and put her out of the house where she had been staying for two or three months. He agreed that he had given a statement to the police but claimed that he had done so only after he had been slapped about his head, severely beaten and repeatedly questioned by the police. According to him, he had to get the police off his back so he told them what he felt they wanted to hear, based on their questions. He was not prepared however, to admit shooting Clint.
Leslie testified at the trial and he too raised an alibi. According to him, he last saw Clint on the night of Carnival Monday when he returned from Sangre Grande. Clint borrowed the car and $200 from him and left. He remained at home in Guaico, sleeping. He contended that Satee had deliberately fabricated the story against him because she had found out he had a relationship with another woman while they were living together.
He denied ever having had any conversation on Carnival Monday night with Amoroso. Nor did he have any conversation with Sharkey or ask him to check out the burnt Laurel at Mount Hope. He had nothing to do with Clint’s death. Clint was someone he was accustomed protecting.
Junior also testified and he too raised an alibi. He admitted going to Sangre Grande Carnival Monday night. He returned with Leslie and the others to Mulchan Street but went to his apartment next door. While there he overheard Clint asking Leslie to borrow the car and agreeing to return it later that evening. He then went to sleep. He had nothing to do with Clint’s death.
He too maintained that Satee had fabricated the story against him but did not suggest any reason for her doing so, as the others had done. He agreed that in 1999 when he went to the police, the relationship was still on a firm footing. He denied making any oral admission to the police or pointing out anything to them at Valencia Bridge. As for the written statement, he claimed the police concocted it and tricked him into signing it under the guise of granting him immunity.
It is quite apparent that the case would turn to a great extent on whether the jury was prepared to believe Satee’s version of events concerning the plot to kill Clint. Her story was filled with inconsistencies and errors but the trial Judge properly directed the jury how to deal with them in deciding whether she was a reliable witness or not. The jury, from its verdict, found her to be reliable and truthful and convicted the appellants.
Counsel raised several grounds of appeal but we have found that there is no merit in any of them. Several of the grounds were applicable to all three appellants and where possible were taken together. For the reasons that follow, we would dismiss the appeals and confirm the convictions and sentences.
Ground 1 ( Argued on behalf of all the Appellants.)
The learned Trial Judge erred in the exercise of her discretion when her Ladyship rejected the application to stay the indictment based on the inability of the State to produce Professor Chandu-Lal, the forensic pathologist to give evidence.
It appears from the trial transcript that trial counsel for the third named appellant was equivocal when asked whether he was joining in an application to stay the indictment made on behalf of the second named appellant. Nevertheless, this ground is taken on behalf of all Appellants
The history giving rise to this ground is that an application had been made before the Trial Judge to have the indictment against the Accused stayed on the ground that to allow the Prosecution to proceed would be an abuse of process. The reason for the application was that the State was unable to have Dr. Ramnath Chandu-Lal, Forensic Pathologist, available at trial. He had left the jurisdiction as his contract had come to an end and his whereabouts could not be ascertained even after a diligent effort. Dr. Chandu-Lal had performed the post mortem on the body of the deceased, Clint Huggins, and at the Preliminary Inquiry his post mortem report had been put into evidence. At trial, the Defence wished to cross-examine the pathologist as to his findings and observations, (some going outside of the matters on which he had included in his report) for the express purpose of demonstrating that Satee’s account of the killing was not credible. This issue did not go to the root of the defence (which was alibi) but was intended to be a serious attack on the credibility of the State’s sole eyewitness. There also arose the question of whether the deceased had expired before he was allegedly struck on the head with a piece of wood by the third named Accused.
The Learned Trial Judge refused the application. In her written ruling she concluded that the areas of proposed cross-examination did not go to the root of the defence and that in any event any inconsistencies between the findings of the pathologist and Satee could be made apparent to the jury and that forceful cross-examination of Satee could serve to discredit her in the eyes of the jurors. The Trial Judge also held that robust directions to the jury on the issue would also assist in ensuring the Accused a fair trial. She noted that there was no allegation of mala fides on the part of the State in not having Dr Chandu-Lal present. She ruled that she would exercise her discretion to proceed in the absence of the witness since no injustice would be incurred by her so doing.
It is not in doubt that there is a duty on the Prosecution to preserve evidence and retain such material in its possession that can reasonably be expected to be required by the Defence. The Evidence Act provides as follows:
“19(2) In any criminal proceeding any document purporting to be a certificate or report under the hand of a Government expert on any matter or thing which has been submitted to him for examination analysis or report is admissible as evidence of the facts stated in it without proof of the signature or appointment of the Government expert, unless the Court, acting ex proprio motu or at the request of a party to the proceeding requires the expert to be called as a witness. The Court is not bound to require the attendance of the expert as a witness if the Court is of opinion that the request for such attendance is made for the purpose of vexation, delay or defeating the ends of justice.
19(4) In this section –
“Government expert” means the following public officers:
(a) Senior Pathologist;
(b) Pathologist;
(c) Government Chemist;
(d) Armourer; and
(e) The holder of any other office declared by the President by Notification published in this Gazette to be an officer to which this section applies;
“report” includes a post mortem report.”
It can be argued that even before a specific request is made by the Defence the Prosecution ought to be put on notice that a person under whose hand a report is tendered should be available for questioning, if needed. It is inevitable however that on occasion such evidence which could have a bearing on the Accused’s case at trial would be unavailable, as in the instant matter. Mere unavailability does not however give rise to a successful argument for abuse of process.
The modern principles governing abuse of process are most clearly distilled in the case of Beckford [1996] 1 Cr. App. R. 94 . Two distinct categories were established into which one must fall in order to satisfy the Court that to allow a prosecution to continue would be an abuse of process. Firstly, it must be established that the Accused could not receive a fair trial in the absence of the unavailable evidence and/or secondly, that even if he could receive a fair trial, it would be unfair in all the circumstances to put the Accused on trial. In R (on the application of Ebrahim) v Feltham Magistrates’ Court [2001] EWHC Admin 130; [2001] 1 All ER 831, the law was further developed and in the second category in Beckford the Court would consider prosecutorial bad faith or behaviour or serious fault in not having the material available.
In applying the principles the burden of proof is on the Accused to satisfy the Court on a balance of probability that he is prejudiced
by a continuation of the prosecution. This was decided in
A-G’s Reference
(No. 1 of 1990)[1992] QB 630 and approved by the House of Lords in
Tan v Cameron
[
1992] 2 AC 205. In satisfying this burden the Accused would need to establish precisely how in relation to the defence to be advanced at trial prejudice
was suffered. To quote Bingham CJ in
R v
Cardiff Magistrates’ Court, ex p Hole
[1997] COD 84 “
it is necessary to look at the charges and see exactly what defence it is that they are impeded from advancing
”.
In applying the principles to the instant appeal it would be for the Accused to show that in the absence of Dr. Chandu-Lal for questioning they could not get a fair trial and/or it would be unfair to try them in all of the circumstances. While the pathologist might have been the preferred or ideal witness as far as the Defence was concerned, what was sought from him could equally have been explored through different sources. In fact, the Prosecution made available and the Defence examined a forensic scientist with expertise in the area of firearms. He was questioned on the issue of what would be expected when a shotgun is fired at close range. Additionally, while no burden of proof lay on the Accused at trial, nothing prevented them from calling an expert witness of their own to explore the desired subjects. The defence seems to have accepted that despite its best efforts the Prosecution was unable to locate the Pathologist so there is no allegation made of prosecutorial mala fides or serious fault in this matter.
Bearing in mind that the defence of all the Accused was alibi and the opportunities for the Defence to explore substantially the specific areas of interest it could not be said that to allow the prosecution of the Accused to continue was an abuse of process.
In the circumstances the Accused were not deprived of a fair trial and we find that the trial Judge exercised her discretion correctly. This ground is therefore unsustainable.
Ground 3 (This ground was argued on behalf of all the appellants.)
The Learned Trial Judge erred in law when directing the jury was to the approach to be taken to the expert, Prosecution witness, Mr. Derek Sankar
The complaint is that the Learned Trial Judge should not have given the direction she did on the issue of Expert evidence (the standard direction) but rather should have taken away from the jury the possibility of rejecting Mr Sankar’s evidence which Counsel described as “unchallenged”. A brief synopsis of the case on this issue may be helpful at this stage.
It was the case for the state that Arnold had shot the deceased and that this had happened when they were both standing outside the vehicle. The State’s only eyewitness placed the two men fairly close together at the time of the shooting; she described them was being on either side of the vehicle close to its front doors and the shot being fired over the hood of the vehicle. Despite probing cross-examination the witness never put the distance in terms of a measurement.
The Defence sought to show that the injuries received by the deceased and the absence/presence of certain physical evidence at the scene and in the relevant injury, i.e. a gunshot injury to the head of the deceased, cast significant doubt on the credibility of the account given by the eyewitness.
Counsel for the Accused contended that the best person through whom this issue could have been probed was Dr. Chandu-Lal, the Forensic Pathologist, who had examined the Deceased. He however, was unavailable. In his absence the State made available for questioning Mr. Derek Sankar, a Scientific Officer with specialist knowledge in the field of firearms. Mr. Sankar had done certain tests in respect of this matter but was called to give viva voce evidence to facilitate the Defence.
The evidence elicited from Mr. Sankar dealt largely with what might be expected when a particular type of firearm is fired at close range, particularly what would be expected to become of the wadding normally discharged from the firearm together with the pellets.
In closing addresses the Defence interpreted that evidence to suggest that the account given by the eyewitness was incredible if not impossible. The Prosecution interpreted it to be consistent or not inconsistent with the eyewitness’s evidence. It is against that backdrop that the Learned Trial Judge gave what can be considered the usual direction on expert evidence. She directed the jury as follows:
Now, a witness who is called as an expert is entitled to express an opinion in respect of his findings on matters which are put to him. And you are entitled, and you would no doubt wish to have regard to the evidence of all the expert witnesses in this case and to the opinions expressed by them when coming to your own conclusion about the various aspects of this case. You should bear in mind, Members of the Jury, that if, having given the matter your careful consideration, you do not accept the evidence of any expert, you do not have to act upon it. Indeed, you do not have to accept even the unchallenged evidence of an expert. It is for you to decide whose evidence and whose opinions you accept, if any. You should remember that their evidence relates only to particular aspects of the case, and while it may be of assistance to you in reaching a verdict, you must reach your verdict by considering all of the evidence.
Generally, a jury is entitled to accept or reject the evidence of an expert witness. Where such evidence is unchallenged or uncontradicted, for example on the issue of whether a substance is a dangerous drug within the classifications, the Trial Judge might express an opinion that there is little or no reason for them to do so, but it is always within their power. Even if expert evidence is unchallenged, the jury is entitled to reject it and convict, but they must have other evidence before them from which they could reasonably come to their verdict. The question to be asked is whether there are facts or circumstances, which can displace or throw doubt on the evidence of the expert.
This principle finds authority in a number of cases and while most of those cited deal with a factual situation of Diminished Responsibility, the principle’s application is not limited thereto. The cases of Sanders (1991) 93 Cr. App. R. 245 , Bailey (1961) 66 Cr. App. R. 31 ,Walton v. The Queen [1978] A.C. 100., Kiszko (1978) 68 Cr. App. R. 62. For an application of the principle outside of Diminished Responsibility see Anderson v The Queen [1972] A.C. 100 and Rivett (1950) Cr.App. R.87.
In the instant appeal, while there was no other expert evidence on the issue, there was the evidence of the eyewitness as to the relative positions of the parties when the shot in question was fired. Her account contradicted the hypothetical evidence of Mr. Sankar, as that evidence was construed by the Defence Both sides addressed the jury on the effect of the evidence of this expert. It is not possible to tell what they made of the evidence but if they did in fact reject it was entirely within their power so to do, i.e to prefer and accept the evidence of the eyewitness over that of Mr. Sankar.
In light of the foregoing we find no merit in this ground.
Ground 2A . (Junior Phillip)
The trial judge failed to direct the jury: (i) adequately as to the approach to take with Junior’s cautioned statement to the police and (ii) as to its impact with regard to his liability to be convicted of murder, if the jury accepted that it was true .
According to counsel, the judge correctly directed the jury along the well-established principles where each accused is said to have participated in a joint enterprise. In relation to Junior however, counsel submitted that there was no real evidence that he had participated in the enterprise. There may have been an awareness of the plot but mere knowledge was insufficient to found liability. Counsel was obviously referring to Satee’s evidence that Junior had said that “it cannot be done tonight because there is too much people”.
We do not consider this statement attributed to Junior on the night of the killing to be the only evidence showing that he was part of the enterprise. That remark, taken in its context, certainly reveals an awareness of the plan to kill Clint. His joining the party as they journeyed to Port of Spain was a clear inference that he was to be part of it. He sat in the Laurel with Leslie while Arnold who had the gun on him sat in the other vehicle. When Arnold got out Junior saw him point the gun at Clint and shoot. When they dragged Clint after he had been bounced against the fence Satee testified that it was Junior who assisted in putting him into the back seat of the Laurel. She then saw him strike Clint with a piece of wood over the head. One of the injuries that contributed to the death was a ‘split lacerated wound on the right side of the head with dent and extensive sub-dural brain haemorrhage”. A reasonable inference, even in the absence of the pathologist, was that the appellants beat and stabbed Clint to ensure that he was dead, even after being twice shot. He certainly was not ‘dead’ after the first shot hit him in the head.
Junior did paint a picture of reluctance to participate at the scene of the murder but from the verdict the jury did not believe his version of events. His statement to the police that he had struck Clint with a piece of wood was indeed corroborative of what Sateee had said viz., that he struck Clint on the head several times with what appeared to be a piece of wood. After the car was set on fire he left the scene with them. He, like the others, discarded his clothes and then joined them in setting up an alibi in the event the police questioned any of them.
No doubt the jury rejected his story and found that he had participated in the killing. We do not think that his version of events required any particular directions as contended for by counsel. His statement was not a difficult one to understand and his reason for giving it was a matter for the jury. It was either he had given it voluntarily or was tricked into it, in exchange for immunity. If the jury accepted that he had been tricked it is quite likely that they would have acquitted him. It is clear that the jury believed Satee’s evidence and in spite of his proclaimed reluctance to participate, the jury, having considered all of the evidence, was not prepared to accept Junior’s story and rejected it
Counsel relied on the case of S v Thomo [1969] 1 SA 385 (AD), but the facts there were completely different from those in the instant appeal. There, the accused # 4 arrived after the other accused had beaten and stabbed the victim and simply joined in beating him. There was no evidence of a plan between them to kill the victim but that the accused # 4 had engaged in an independent venture intending himself to kill after the victim had been mortally wounded. We would reject this ground of appeal.
Ground 2B (Junior Philip)
In Ground 2B, having regard to the weight of the evidence, in particular that of Satee and to what we have said in Ground 3 and Ground 2A, the trial judge correctly overruled the no case submission.
Ground 5( This ground was argued on behalf of all three Appellants).
The learned Trial Judge erred, in law, when her Ladyship permitted the alternate jurors to speak to the other 12 jurors, about the case , throughout the entirety of the trial. One cannot know to what extent the minds of those who brought in the guilty verdict had been affected by those who, ultimately, did not retire with them.
Counsel for the appellants makes two criticisms of the Trial Judge’s instructions to the jury. Firstly, that the jurors were told on the first day of hearing and this was repeated each time they separated during the course of the trial, that they should not discuss the case with persons who were not jurors and the inescapable inference is that they would have understood that to mean that they could speak among themselves thus coming to premature conclusions about the trial. Secondly, that in allowing the common panel and alternates to mix and (presumably) discuss the matter, the alternates who eventually played no part in deciding the verdict might well have “infected” the deliberations of the common panel.
It is helpful to first look at what the trial judge had to say to the jury on the first day of jury participation, very shortly after the State’s opening address. The Trial Judge instructed the jury as follows:
Before you go, I must give you two very important warnings, which you must observe during the entire course of this trial. They are very important warnings, because they secure or try to secure as best as we possibly can, a fair trial, both on the part of the State and on behalf of each of the accused.
Firstly, you are not to discuss this matter with persons who do not belong to your number. This means, very simply, Members of the Jury that you can talk to each other about the case, but you are not to talk to persons who do not sit on the panel with you in this trial.
Obviously, then, you are not allowed to speak to even close friends or relatives about this case; not even spouses or your children, or your closest friends or your priest, or your pastor, or your sister, or your brother, or your “tanty” or your “nennen”. You are not allowed to speak to anyone, except to each other about this case, and that, of course you will appreciate will occur when you are here together as a panel. So I want you to observe that warning at all times.
You may perhaps find yourselves, Members of the Jury in a situation where other people are talking about the case in your presence, perhaps in a deliberate attempt to influence you one way or the other about this case. If you were to find yourselves in such a situation, there is only one thing you can do, and that is to run from it, and depending on the nature of the conversation and the seriousness of it, you will bring it to my attention, through your foreman.
You are to be guided only by the evidence in this case, nothing more, and from time to time, I shall be reminding you about that. So, Members of the Jury, what may be reported in the newspapers, what you may hear from other persons is not to concern you. In other words, pay no regard to it. Your decision, at the end of the day, must be based only on the evidence that you would have heard in this courtroom and nothing more. And so, I want you to be very guarded, particularly about what may be reported or what you may have heard or what you may hear about this case. Pay no attention to it. Your decision must be in accordance with the oath which each of you have taken, which is to return a true verdict in accordance with the evidence. I trust that I have made myself quite clear to you on that.
I urge you, secondly, to keep an open mind. You have not yet heard the evidence. You have only heard the opening of the State’s case. Keep an open mind. The time will come when you will hear all the evidence, both on the part of the State and on the part of the Defence, and at that stage, you will be entitled to turn it over in your respective minds and try to decide what conclusions you are going to come to. But at this moment, Members of the Jury, do not jump to any conclusions. You can only come to conclusions when you have heard it all, not just the opening or not just a part of it, and as we go along, I will be reminding you about this.
So those warnings, as I told you, are important warnings. They are warnings to ensure, as best as we can that both sides have a fair trial. The criminal justice system, the fair administration of it depends upon you paying regard and attention to those warnings for the entire course of this trial. I trust that these warnings have been made quite clear to each of you.
On the following hearing as follows:
On the following date of hearing as follows:
So, Members of the Jury, again I must dismiss you with a reminder of the warnings, which I have been giving you since this trial began. Please do not discuss this matter with persons who do not belong to your panel. Continue to keep an open mind.
And the instructions continued daily in the same vein. At the close of the Prosecution’s address the trial Judge instructed the jury as follows;
You, no doubt, have been thinking a lot about the evidence, thinking about what you have heard from the addresses, turning it over in your minds, trying to decide what conclusions you are going to come to, based on the evidence. Now, you would have heard me say to you in the past that you are entitled to do so and at the appropriate stage, you will be able to share your views with each other individually and then collectively arrive at a decision. And, of course, as you will appreciate, that will better be done when you have heard the directions in law. Because, at that stage you will then be able to apply the law to the evidence and then come to your conclusions
So while you are entitled to think about the evidence, the addresses and all the points that you have heard for and against each of the three accused, you can do that , but save your conclusions for the appropriate stage, which will be after you have heard the directions in law. So that at that stage you can apply your minds then in a better way by applying the law to the evidence that you have heard, and then coming to your conclusions. That will happen after my summation is completed
In summary then it is quite clear that the jurors were told at every opportunity that they should keep an open mind i.e. not come to any conclusions even though they were able to discuss the matter.
In support of his argument Counsel relied heavily on the case of Nankissoon Boodram v The State (1997) 53 W.I.R. 352. In that matter the common panel and alternates mingled freely until the time came for the jurors to retire to consider their verdict. This was the subject of a ground of appeal. The Court of Appeal held that such mingling was not precluded by the Jury Act. Counsel stressed the words of de la Bastide CJ at page 379 of the judgment when he said
“The presumption is that all jurors, alternates as well as common jurors, will obey the injunction of the judge (repeated at every adjournment) that they are not to discuss the case among themselves until they retire to consider their verdict”
and (counsel) construed them to mean that jurors are not to discuss a case among themselves until they retire to consider their verdict.
That is not an accurate interpretation of the dictum. The Learned Chief Justice was dealing with the particular background of the matter with which he was concerned and in that case the Trial Judge had so directed the jury. The Chief Justice was merely commenting that in general one would expect jurors to follow the instructions given to them by a Trial Judge. That can clearly be seen in his immediate reference to the case of Prime (1973)57 Cr App R 632,637 . He quotes Lord Widgery CJ
“It is important in all criminal cases that the judge should on the first occasion when the jury separate warn them not to talk about the case to anybody who is not one of their number. If he does that and brings that home to them, then it is to be assumed that they will follow the warning and only if it can be shown that they have misbehaved themselves does the opportunity of an application of the kind now before us arise.”
It is to be noted that the warning referred to by Lord Widgery CJ does not extend as far as that given by the Trial Judge in Nankissoon Boodram . All that concerned both de la Bastide CJ and Lord Widgery CJ was the question of the jury’s adherence to the injunction of the respective Trial Judges and de la Bastide CJ, like his counterpart, accepted that one must presume that the instructions were followed.
In the instant appeal this Court must also presume that the Learned Trial Judge’s instructions were followed by the jury so that while they may well have had discussions among themselves about the case, as the Judge permitted, they kept an open mind, came to no premature conclusions, and they came to their decisions only at the appropriate time, i.e. after hearing all the evidence, the addresses and the Judge’s summation. The Learned Trial Judge’s warning on the date of the Prosecution’s address cannot be taken in isolation, as Counsel for the Appellants sought to do, but as a reinforcement at an appropriate stage of what she had been telling the jury from the outset. Any views expressed by the alternates could hardly be said to have influenced or “infected” the common panel in its deliberations and decisions since such views would have been expressed before the panel retired to deliberate and while the jurors still maintained an open mind.
In light of the foregoing this ground of appeal is without merit.
“The learned trial judge, having decided to give a full corroboration warning in respect of a possible finding by the jury that Swarsatee Maharaj was an accomplice, failed to direct the jury as to how she may have been a participant in law.”
The argument was that the trial judge, in directing the jury to consider whether Swarsatee Maharaj was an accomplice, ought to have further directed them how ‘in law’ she would fall within that category.
When the manner in which the trial Judge dealt with the evidence of Satee is traced through her summation we find it unlikely that that the criticism was warranted. These are some of the crucial areas –
“So, Members of the Jury, you must consider all this evidence and decide whether or not Swarsatee Maharaj was an accomplice in the murder of the deceased, Clint Huggins. By that I mean consider whether or not she was a participant in the commission of this crime. An accomplice is someone who is actually involved in the commission of a crime regardless of the part played. If you were to conclude that she was indeed an accomplice, then you will have to approach her evidence, Members of the Jury, with some caution.
You see, Members of the Jury, it has happened and it is not unknown that persons, in the past, in all types of cases, for all sorts of reasons and sometimes for no reason at all, make up allegations against other persons. The accusation that a person is involved in a crime and a serious crime, is sometimes an easy one to make but may be a very difficult accusation to refute, even by persons who are innocent. It is my duty to warn you that it is dangerous to convict the accused unless the testimony of Swarsatee Maharaj is corroborated.
Now, corroboration in law is independent evidence, that is evidence that does not come from Swarsatee Maharaj but evidence which confirms in some important respects not only the evidence that the crime was committed, but also that the accused committed it. It is now for me, Mr. Foreman and Members of the Jury, to point out to you the evidence, if there be any, which is capable of independently confirming the testimony of Swarsatee Maharaj.
Now, if you were to accept the statement of Accused no. 3 ,(Junior) both the written and the oral statements, you will notice that Accused no. 3 said that he struck the deceased three times on his head with the gun butt. If you consider the evidence of Swarsatee Maharaj, she, too, is also saying that Accused no. 3 struck the deceased to his head; she says, however, with something like an object resembling a piece of wood. So, Members of the Jury, that is evidence which is capable of independently confirming the testimony of Swarsatee Maharaj insofar as Accused no. 3 is concerned.
So that if you were to conclude that Swarsatee Maharaj is an accomplice, that she was a participant in what is alleged to have taken place at the Uriah Butler Highway on the morning in question, then, as I direct you, approach her evidence with caution. Consider the material which is capable of confirming her testimony, not only that the crime was committed, but also that the Accused no. 3 was involved in the commission of it.”
“…Is Swarsatee a witness with an interest to serve in the sense that she needs to protect her own self-interest; she needs to save her own skin from prosecution and, in order to do so, does she put the blame on these accused? Can you trust her evidence?”
“The immunity was granted before she gave evidence at the Preliminary Inquiry at the Magistrate’s Court. It was granted after she had four opportunities to give statements to the police. You will no doubt observe that the statements are progressive in the sense that she began firstly by saying she knows nothing about the murder. That is on the 24 th February, 1996; then she gave some information on the 11 th November; more information on the 2 nd December and then, according to her, by the 27 th September, she had to spill everything out, she needed to get everything out. Swarsatee Maharaj gave a written acknowledgement of the receipt of the undertaking. That acknowledgement is found at the end of the document.”
“Members of the Jury, Swarsatee Maharaj, a witness testifying under an immunity, do you find her to be a witness upon whom you can rely? Is she giving the evidence against the three accused because she needs to save her own skin from prosecution? Is she a witness with an interest to serve, her own self-interest that she herself not be prosecuted for this murder? In these circumstances, is she a witness upon whose evidence you can rely?”
“So you have got two sides to it, and you are going to have to decide what you are going to accept. So when you look at Swarsatee Maharaj’s evidence, you have got to look at her, members of the Jury, in the context in which she lived and moved and operated at the material time. You are going to have to decide whether or not she is lying on these three accused . Is she lying on Accused No. 1? Consider his case. Is she lying of Accused No. 2? Consider his case. Is she lying on Accused No. 3? Consider his case. Why would she make up this evidence against the three of them? Is it because, as Accused No. 1 and 2 says, that the relationship turned sour? And as we say, when the fox can’t get the grapes, it sour, what happens. Is that why she is now getting back at them? Would she make up these serious allegations on account of broken relationships, on account of a broken heart? Is she that type of woman?”
After consultation with counsel, the trial judge further directed the jury further on the issue of corroboration:
“Now, I had given you some directions as to Swarsatee and how you should treat her. I told you about considering whether or not she may be an accomplice in this crime and how you should approach her evidence with care and I told you that when you consider her evidence, consider, therefore, that allegations such as these are very easy to make up and very difficult to refute and so it would be dangerous to convict unless her evidence is corroborated, meaning unless her evidence is supported by other independent evidence in this case. I pointed out to you the evidence, in my view, which is capable of corroborating or confirming Swarsatee’s evidence in the case of Accused no. 3.”
It was never suggested either by the prosecution or the defence that Swarsatee Maharaj had committed the murder, or that she had participated in it. The prosecution had adduced evidence that she was present when Clint Huggins was killed. That factor, standing alone, would not have made her an accomplice.
Even before the abrogation of the rule which required that a mandatory warning be given in respect of alleged accomplices, there would have been no obligation to give an accomplice warning where the witness was not a participant or in any way involved with the crime. (See R v Beck 74 Cr. App. R.221). See also Wanzar v The State (1994) 46 WIR 439 per Hamel-Smith JA at 450-51.
We do not think that in these circumstances there was any necessity for the application of the dictum in Ashby v The State [1994] 45 WIR 360 where this Court held that where there was evidence on which a jury could have found that the accused was an accomplice, although not clearly established, the jury should be directed that if they considered that the witness was an accomplice, it would be dangerous to convict on his or her evidence unless it was corroborated.
The trial judge, applied the dictum in Ashby, and no doubt, impelled by the fact that Swarsatee Maharaj had been granted immunity from prosecution as a result of which her evidence might have been ‘tainted by an improper motive,’ went on to give the full corroboration warning. However, because Swarsatee Maharaj may well have been a witness with an interest to serve, a direction to the effect that they should proceed with caution would have sufficed. In those circumstances, the impugned direction would have been favourable to the applicant. We can therefore find no cause for complaint. There is accordingly, no merit in this ground of appeal.
Ground 7 ( Grounds 7 and 8 were relevant to Arnold Huggins only).
“The learned trial judge having ruled that certain evidence was admissible against the first defendant, directed the jury that it was inadmissible against him, and gave the jury no other direction as to how it should be approached.”
Ground 8
“The learned trial judge having ruled that certain evidence was admissible against the first Defendant, went on to direct the jury that it was inadmissible against him, as a hearsay, out of court statement, but merely admissible as an act or declaration in furtherance of a joint enterprise against the second defendant.”
1. Simon, a person who did not testify was alleged to have said ‘Arnold has a gun.’
2. Leslie Huggins is alleged to have said to Swarsatee Maharaj ‘Arnold is going to shoot Clint in the crowd tonight.’
These issues can be addressed briefly. The general principle is that ordinarily, acts done or words uttered by an offender will not be evidence against a co-accused, absent at the time of the acts or declarations. However, it is now well established that the acts and declarations of any conspirator made in furtherance of the common design, may be admitted as part of the evidence against any other conspirator, provided that there was some further evidence to link him or her with the crime. (See Archbold 2005 Edition, at para. 34-60 )
Such acts and declarations may provide evidence not only of the existence, nature and extent of the conspiracy, but also of the participation in it of persons absent when those acts and declarations were made. (Ibid 34-60 ). It is a matter for the trial judge whether any act or declaration is admissible to prove participation of another (34-60c). The authorities were reviewed in detail in the case of R v Davenport and Pirano [1996] 1 Cr. App. 221.
These impugned statements were clearly admissible against Arnold Huggins since they constituted declarations, it was alleged, that he made in furtherance of the crime. There was of course a wealth of other evidence to establish the necessary link.
The trial judge did fall into error when she directed the jury that the statements were inadmissible against him. The error, however, would not have prejudiced the applicant’s case. To the contrary, it would have operated to his benefit.
These grounds of appeal are therefore rejected.
Ground 4 (Arnold Huggins)
Prosecuting counsel was guilty of making prejudicial and inflammatory remarks in his address to the jury, misquoted evidence, distorted the first defendant’s case on his statement under caution and failed to discharge his duty as a minister of justice, so that a miscarriage of justice occurred.
Counsel relied on Alexander Benedetto & William Labrador v The Queen, PC Appeal No. 88 of 2002, Allie Mohammed v The State, 53 WIR 444, 456 and Gonez [1999] All ER (D) 674 (unreported) summarized in Blackstone, 2003, D13.4
The Prosecutor’s closing address to the jury was spread over a period of two days. According to counsel for Huggins, it was delivered in a highly emotive and theatrical manner, full of scorn, disdain, contempt, at times often wholly inaccurate and took evidence wholly out of context and demonstrated a lack of understanding of certain crucial evidence and certain aspects of Arnold’s case. Moreover, he added, there were elements of zenophobia and bigotry, together with wholly inappropriate attacks on the integrity of counsel for Arnold. Somewhat unusually, counsel pointed out, counsel for all three defendants addressed the learned trial Judge on the contents of the address who, in his view, took the unusual step of what, in essence, amounted to an attempt at damage limitation, prior to delivering her summation.
Counsel further submitted that the prejudice occasioned to Huggins was irremediable and no amount of direction from her Ladyship could erase the seeds of doubt, mistrust and ridicule which had been sown in the minds of the jurors in respect of the outrageous attack on Counsel for Arnold.
It was noteworthy, he said, that Senior Counsel for the third defendant rallied to the aid of Counsel for Arnold, whose integrity and credibility in the eyes of the Jury had been besmirched. Learned Senior added his support to the objections made by Counsel for Arnold to the effect that the address was seriously flawed and that the prosecutor went out of his way to make a statement which did not fit into his role as a prosecutor and that he went above and beyond his position of seeking, so it seemed to him, at all costs, perhaps to ensure a conviction.
Counsel also pointed out that the learned trial Judge clearly agreed with some of the objections made and decided to take such remedial action as her Ladyship was able, by giving directions/corrections to the jury, in respect of the items that were “ more dangerous than the others ” at the close of the objections and State Counsel’s response to the allegations.
He submitted, however, that much of the prejudice caused to Arnold was quite irremediable by any direction that was given by the learned trial Judge. He was concerned “for the fairness of the trial in relation to his client .” since his integrity had been unjustifiably impugned and he must have been left standing without any credibility whatsoever, in the eyes of the jury.
We set out below a summary of the complaints made by Counsel for the first defendant:
(i) The prosecution arranged, it is submitted, quite clearly and most unusually, to have the vast majority of the prosecution witnesses, who had been released, sitting directly across from the jurors, during his address to them and dramatically and theatrically indicated that if they were of the view that all of these witnesses were lying, then they should acquit the defendants It was noteworthy, counsel said, that the highly significant prosecution witness, Garvin Armstrong, whose evidence was highly suggestive that the deceased had been killed by others dressed in camouflage uniforms, was not sitting in the array of witnesses who had been summoned to the Court, whilst this address was being delivered.
(ii) The prosecutor encapsulated together the reasons how, why and in what circumstances the statement under caution of the first and third defendants had been given with the result that the jury were left with the impression that both of these defendants were stating that the police had used sleight of hand tactics and concocted and/or fabricated evidence implicating these accused in the murder. It was not the first defendant’s case that the police had used such tactics against him or concocted any of the evidence against him.
(iii) The prosecutor stated that not only was the whole of the State’s evidence being disputed, but that it was fabricated. This was inaccurate. Certain of the prosecution witnesses, for example, Garvin Armstrong, were of assistance to Arnold and, of course, Arnold had not alleged that his statement was a fabrication, but averred that he had given it after constant interrogation and the use of violence upon him and out of a sense of frustration.
(iv) The jury was informed that all the defendants had branded as liars every single police officer who had given information that was averse to them, Satee Maharaj and the JP, Mr. Akbar Khan. The allegations of lying had been directed at Satee only, not Superintendent Quashie and Akbar Khan.
(v) It was said that Satee took out a restraining order against Arnold on 20 th September, whilst out of the relationship with him and out of Leslie’s home or out of Arnold’s mother’s home. This was inaccurate as Satee had given evidence that she had left the house after she had taken out the restraining order.
(vi) The prosecutor informed the jury that Arnold contended that whilst he did give the police a statement, they had fabricated the evidence against Junior and that they had beaten Arnold to such an extent that, coupled with the prolonged interrogation, he was forced to dictate his statement to get them off his back. It had been no part of his case that the police had fabricated the evidence against Junior.
(vii) After a short break the prosecutor made reference to the defendants making out the police officers as despicable and detestable, with a further reference to fabrication. It had been no part of Arnold’s case to paint any of the police officers in the vein of their being despicable and/or detestable.
(viii) Yet another reference followed to the possibility of the police framing the defendants and making up all of the statements and the evidence. Arnold’s case was that Satee was lying; it had been no part of his case that the police had made up his statement and any of the evidence against him.
(ix) A further reference was made to the JP, Akbar Khan, lying on persons whom he met in police custody. He was said to have told a “deliberate falsehood” against Arnold. This was never part of Arnold’s case.
(x) The prosecutor’s speech, in respect of the JP, became quite emotive and inflammatory when he said that Arnold and Junior’s accusations that he was telling deliberate lies, were nothing short of “contemptuous and disrespect”. The theme of framing and fabricating was perpetuated when the prosecutor asked “ why do you accuse him, an independent officer…to frame Arnold Huggins and Junior Phillips? To participate in making up evidence against them. You see the attack that he came under, I submit was fallacious and it demonstrates the depth, the depth to which these defendants are willing to sink because as I say to you before, they had to cast the most serious allegations upon these people to get the defence train in motion. Make up allegations against everything, make it up, throw the mud around, pelt it around, slap the JP with some and hope that what will happen, it will attach itself to him. You see, that’s why I had decided to tell you very earlier that mud slinging exercise must come to a stop”.
(xi) The jury was asked to consider whether the JP was lying when he gave evidence and whether he was an honest person, an honest witness; was he credible and would the jury believe him? It had never been any part of Arnold’s case that the JP was lying; such little challenge as there was to his evidence was on the basis that he may have been mistaken.
(xii) Junior, of course, had make an outright attack on the honesty and integrity of the JP and went as far as alleging what was tantamount to a conspiracy between him and the police to frame him. The prosecutor’s speech, whether accidentally or otherwise, counsel submitted, must have had the effect of tarring Arnold with the same brush as Junior and must have prejudiced him in the eyes of the jury.
(xiii) Despite being aware of Arnold’s case that he accepted he was responsible for dictating his statement, the prosecutor presented the jury with a lengthy argument designed to show that the police could not be fabricating evidence against him as, if they were, his statement would have been coincident with that of Junior; see, in particular, “ I thought the police officers wanted to make up the evidence against [the first defendant ] and “Quashie didn’t realize that when he wrote up the statements…..”,. It is inconceivable that the prosecutor persisted with the arguments that Arnold was alleging that the police had fabricated his statement when, at the outset of this argument, it was plain that he had an awareness that his case was that he had, in fact, given the statement to the police from his own lips.
● (xiv) Having this awareness, it is bizarre why the prosecutor posed the question to the jury, “is it really that the statements [of Arnold and Junior], they were the words of the defendants?”. Arnold had always contended that he had spoken the words contained within his statement, but gave explanations as to why and how.
(xv) There then followed an argument that if Quashie had made up two statements, he would have made one in connection with Leslie too. Arnold’s case was never that his statement had been made up by the police.
(xvi) Contrary to the picture painted, Quashie did not have a note in his pocket diary of everything about which he had given evidence. At one stage counsel for Arnold examined the pocket notebook of Sgt. Dick. It contained an entry supporting of evidence which he had given. The prosecutor addressed the jury in a wholly inaccurate inflammatory fashion with regard to what happened next, designed, it would seem, and not merely accountable to exuberance or over enthusiasm, to belittle and pour scorn on defence counsel and to paint him as a fazed fool in the eyes of the jury.
(xvii) Counsel submitted that the remark “the biggest crooks and the biggest villains they are also capable of telling the truth” was highly inappropriate, as suggested that the defendants fell into that category.
(xviii) The analysis of the evidence of the Forensic Science Officer, Mr. Sankar, was inaccurate when it was stated that by shooting someone across the roof of a motorcar, over a space of 4 and a half to 5 ft., one would expect the wadding to be found somewhere within a radius of about 15 ft. away. In fact, Mr. Sankar’s evidence was to the effect that if one were shot at this close proximity, one would expect the wadding to be found in the wound. This was one of the major arguments developed on behalf of the first defendant, albeit with some difficulty, on account of the absence of the forensic pathologist. Nevertheless, the argument was developed to a certain extent, through the evidence of Mr. Sankar, which, it is submitted, was misrepresented by the prosecutor.
(xix) In relation to Arnold’s evidence, the prosecutor stated “…you know something, I hope he has a publisher, I really do. Because you see that elusive imagination it wasn’t only concocted by him, you know, he had assistance to write that piece of fiction, that novel. I will tell you why I say that this morning…. I want you to remember very clearly Arnold’s language.” He submitted that Prosecuting counsel suggested to the jury that Arnold had assistance in writing the script of his evidence based on the fact that the people in Trinidad do not use words such as lukewarm ; I was lying on the ground with my head in an easterly direction , my feet facing upward at the material time . The eastern corridor ; it was Eastside , the said level; in the cell it had a small ventilation to the back….the door was a green steel door…..it had a high stench of ammonia .” Arnold was not cross examined at all as to his use of such language and, counsel submitted that the natural inference from the question “do we speak that naturally in Trinidad and Tobago?”; was that someone who was not from those parts, had written the script for him. Counsel submitted that it was reasonable to conclude that the only inference that the jury were being invited to draw was that he had had assistance in the drafting of a concocted script by his British Counsel.
(xx) Moreover, there was a scandalous suggestion that the use of the word “right” in questions from his counsel was a signal to Arnold, whilst giving evidence that he was saying things correctly from the supposedly pre-prepared script. It is interesting to note that prosecuting counsel occasionally used the same word. Counsel admitted that his case had been prepared with great detail but, he submitted that this is to be expected, in particular, when one is facing a capital charge. This was apparent from the way even police officers recalled the evidence. As serving police officers, dealing with an incident that happened several years before the trial, it is obvious that they had, in the usual way, memorized the entirety of their deposition and, in some cases, entries in pocket note books, desk and station diaries. If anything was parroting out evidence it was this, but no one criticized the police officers for giving their evidence in this way.
It was submitted that the suggestion that Arnold was parroting out a prepared script was totally uncalled for. It is to be expected, counsel submitted, that a defendant should be as equally prepared as any prosecution witness and have a thorough working knowledge of the evidence that he is about to give to the Court from his witness statement. It was also submitted that the suggestions were nothing more than cheap tricks on behalf of State Counsel, simply designed to destroy any credibility that the jury might have in defence Counsel and his client.
(xxi) State Counsel incorrectly alleged that Arnold had not mentioned the fact that the gun with which he was allegedly struck had been wrapped in a towel, initially in his evidence, but merely, later on, as an afterthought. The clear suggestion was that he added this into his evidence in an attempt to explain why they were no marks on his body.
(xxii) State Counsel was extremely disparaging of the defence witness, Merle Huggins, seemingly as he had some difficulty with her accent. He submitted that his mocking, scathing and sarcastic comments were totally uncalled for, see, for example “ Merle Huggins is a woman who has been living it up in Upper Rio Grande Road, Matura, up in Toco side for 27 years. Came down from Matura …possibly BWIA have a new flight… Toco to Port of Spain by Gatwick, via JFK ….you know when you come down here with your “freshwater” Yankee accent what does happen, you does take everything you say with a dose of salt, very skeptical with them things, right. You looking for a tag to see if it mark “keep refrigerated ”. She was not cross examined on any connections that she may have had with the North American continent which may have explained any accent which might have been detected.
(xxiii) Prosecuting counsel chose to call Garvin Armstrong as a prosecution witness. He gave evidence of seeing three persons dressed in camouflage uniforms at the locus in quo, around two small motor vehicles at about 1.45 a.m., there was evidence before the Court, that certain army officers had, on previous occasions, tried to kill the deceased and certain persons had been convicted of offences in relation thereto. The defence relied heavily on Garvin Armstrong’s evidence as, there being no evidence before the Court, that the defendants were dressed in camouflage uniforms, it is a reasonable conclusion that it was not them who Armstrong saw at the scene. This evidence appeared on deposition and, counsel submitted, that the prosecution, having taken the decision to call this witness, must have viewed him as a witness of truth, otherwise he would have been tendered to the defence. He submitted that the prosecutor’s remark “you would determine…whether Armstrong is honest and mistaken or whether for some other reason he has given you that story ” was highly inappropriate. If Armstrong was not considered by the State as a witness of truth, upon whom reliance could be placed, he ought not to have been called in the first place, but merely tendered to the defence. Counsel submitted that it was inappropriate to disparage him in this way. The prosecutor then stated that in his view, Armstrong was mistaken on this point. If this is so, once again, he ought to have been tendered to the defence, when it was known that he was able to give evidence favourable to the defence and not the State, from the PI. The prosecutor also misquoted the evidence by stating that Garvin Armstrong said that there was a light on the eastbound carriageway close to the building at the locus in quo.
(xxiv) Finally, it was submitted that the prosecutor’s speech could hardly be said to have been efficiently performed “ with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings ” (per Rand J in the Supreme Court of Canada in Boucher v The Queen (1954) 110 Can CC 263) It was over zealous, highly inflammatory, often inaccurate, prejudicial, xenophobic and delivered full of scorn, sarcasm, contempt and disdain, not only towards the first (and other) defendant(s), but, somewhat unusually, his Counsel. He submitted that it was irremediable by any direction from her Ladyship – the damage was already done.
We carefully read and re-read the address by prosecuting counsel and, indeed, the trial judge’s intervention to correct some of those errors she felt required remedy. It is instructive to note that the trial judge pointed out to counsel on all sides that the failure to conform to a certain standard of conduct did not fall solely on the shoulders of prosecuting counsel. She found that defence counsel were equally to blame. This is not to suggest that counsel for Arnold behaved in that way but we entertain no doubt that the trial judge must have been exasperated by the behaviour she spoke about, as is evident from her remarks. There seems to be a pattern lately for counsel, particularly defence counsel, to insult and belittle prosecuting counsel personally (see Record of Appeal in Cr.App Boodram & ors v The State) and this seems to persist in spite of the trial Judge’s frequent intervention. It is a practice that reflects poorly on counsel and is to be deprecated.
Nonetheless, it cannot be doubted that prosecuting counsel did fall into error when e.g. he suggested that Arnold claimed that the police had concocted the statement but these errors were corrected by the trial Judge. According to counsel for the State (before us) the trial was an inordinately long one and counsel may have fallen into error from time to time. Where he did, counsel for the State before us was able to point out where the trial Judge had corrected the errors before the jury was called upon to consider the verdict.
Arnold did say that he gave the statement but when the context in which it was given is examined it cannot be doubted that he was saying that he had been virtually bullied by the police into giving it. In other words, while the words were not concocted, they certainly were as a result of what the police had been putting to Arnold for some time. The statement would not have been made had the police not behaved as he claimed they did. As regards Junior’s statement, his statement had indeed been concocted, albeit in the sense that he claimed to have been tricked into signing it. We do not consider that the error on the part of the prosecutor would have confused or affected the jury in appreciating exactly what the defence was saying.
This however, is not to condone the inaccuracies in the address; they are of great concern to the Court and while care must be taken in preparing one’s address, particularly prosecuting counsel, we do not think that given the errors complained of that the fairness of the trial was at risk. Counsel was present at the trial and has expressed his perception of the tone and manner of speech of prosecuting counsel. It may well be that prosecuting counsel was somewhat high spirited in his address and overplayed the dramatics but we think that the trial judge was there to prevent any unfairness and took adequate steps to correct any major errors that might have occurred.
Counsel, for example, complained about what could be considered picong meted out to Merle concerning her Yankee accent. Counsel’s exposure to local culture may be limited but any jury would have understood the context in which such remarks were made. On another note, to suggest that prosecuting counsel was targeting counsel’s British ancestry when he made observations about Arnold’s choice of words to describe certain events is to take matters a bit far. The observations did suggest assistance in preparing his evidence but that was merely to show that Arnold could not be considered a reliable witness, particularly given the unusual vocabulary used by him.
The suggestion that prosecuting counsel had deliberately lined up the witnesses in court and that the one witness who was not supportive to its case was absent may be more imaginative than real. Witnesses are allowed in court for the addresses and are seated in a designated area. There is nothing to suggest that they were seated otherwise and without more it would be wrong to suggest ill motive on the part of the prosecutor. The fact that Armstrong was not present at the time really adds nothing to the complaint. The prosecutor’s observations about Armstrong’s evidence was a fair assessment; it was quite possible that he may have been mistaken as to the time (1.30am) he saw the soldiers around the burning car, given the fact that at about 5.30am the vehicle was still well ablaze. The State nonetheless presented the evidence for what it was worth, knowing precisely what he would say.
Prosecuting counsel certainly fell into error when he suggested to the jury about the importance of convicting the appellants but the trial judge quite properly directed the jury to ignore totally the remarks. We cannot say that this led to any miscarriage of justice. The trial judge spent quite some time correcting what she considered the major errors in the address and her summation followed afterwards. In those circumstances, we are of the view that the jury would have considered the evidence in its corrected form before arriving at its verdict.
The case against the appellants turned substantially on the evidence given by Satee. By the verdict the jury found her to be a truthful witness in spite of her many errors and inconsistencies. Junior, on the other hand, at least from his written statement, placed himself at the scene of the crime but could only present himself as an unwilling onlooker, a position the jury obviously declined to accept. The jury must have rejected Arnold’s alibi and his claim that the firing of the shots was accidental.
We have not dealt with all the issues complained of but in the round it seems to us that the complaints in this ground did not result in any miscarriage of justice and would reject same.
Accordingly, leave to appeal is refused and the applications for leave to appeal are dismissed. The convictions and sentences are affirmed.
R. Hamel-Smith
Justice of Appeal
M. Warner
Justice of Appeal
P.M. Weekes
Justice of Appeal.
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URL: http://www.commonlii.org/tt/cases/TTCA/2005/17.html