REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF...
Transcript of REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF...
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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 3rd
Appellant
Ms. D. Seetahal for the State
Date: April 21, 2005
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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.
Case for the Prosecution
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.
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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.
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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.
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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.
Case for the Defence
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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
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taken together. For the reasons that follow, we would dismiss the appeals and confirm the
convictions and sentences.
Grounds of Appeal
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:
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“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] 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
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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
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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
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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
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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
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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:
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You are again warned that you are not to discuss this matter with persons who do
not belong to your panel. You will recall that on Friday I gave you some rather
lengthy warnings, among them, you are not to discuss this matter with persons
who do not belong to your panel. Keep an open mind. You have only just begun
to hear the evidence. So keep an open mind, and again, do not discuss this matter
with persons who do not belong to your panel.(emphasis supplied)
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
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“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.
Ground 6 (This ground was argued on behalf of all the appellants).
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“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,
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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 24th
February, 1996; then she gave some information on
the 11th
November; more information on the 2nd
December and then, according to
her, by the 27th
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
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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.”
Both grounds can conveniently be dealt with together. The evidence under review
concerns the following statements –
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.’
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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.
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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.
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(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 20th
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”.
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(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.
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(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
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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
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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
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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.
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R. Hamel-Smith
Justice of Appeal
M. Warner
Justice of Appeal
P.M. Weekes
Justice of Appeal.