THE REPUBLIC OF TRINIDAD AND...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Criminal Appeal No. 19 of 2011

BETWEEN

JAY CHANDLER Appellant

AND

THE STATE Respondent

**************

Panel:

P. WEEKES J.A.

A. SOO HON J.A.

R. NARINE J.A.

Appearances: Mr. R. Rajcoomar and Mr. R. Morgan for the Appellant

Mr. G. Peterson S.C.and Mrs. K. Waterman-Latchoo for the

Respondent.

Date delivered: 12th December, 2013.

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JUDGMENT

Delivered by R. Narine J.A.

1. On 17th August, 2011, the appellant was convicted of murder and sentenced to

death by hanging. He has appealed the conviction and sentence.

THE PROSECUTION’S CASE:

2. On 8th October, 2004, the appellant was an inmate at the Golden Grove Remand

Prison, Arouca. At about 11 am, the prisoners were being prepared for visits from

members of the public. Inmates who had visitors were brought to the holding bay. As

the inmates names were called, they were taken out of their cells and lined up in the

centre of the remand yard to be searched and handcuffed.

3. The appellant was the last inmate to be taken out of his cell. Kirn Phillip (the

deceased) had already been searched and was standing at the end of the line close to

Prison Officer Mohammed. The appellant asked Officer Mohammed to handcuff him to

the deceased, but Mohammed did not respond. As the appellant approached Officer

Mohammed, he lunged at the deceased. The deceased ran to the gate of the south

wing pursued by the appellant, who had a metal object in his hand, with which he was

making an upward and downward and sideways movement towards the back of the

deceased. The appellant came within one to two feet of the deceased, who eventually

ran through the gate to the south wing of the prison. The appellant stopped his pursuit

just before the deceased entered the south wing, and ran back towards his cell. The

appellant was then cornered by prison officers. He dropped the metal object after

officer Cadette struck him on his forearm with a baton. The metal object turned out to

be an improvised knife, which for reasons that remain unclear was not produced at the

trial.

4. The deceased had a wound to his chest. He was brought out of the south wing

by prisoners and taken to the infirmary. He was then sent to the Arima Health Facility

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where he was pronounced dead on arrival. The post mortem report revealed the cause

of death to be injury to the heart and haemorrhage into the heart sac due to a stab

wound to the chest. The appellant was charged with the murder of the deceased.

THE APPELLANT’S CASE:

5. At the trial, the appellant gave no evidence and called no witnesses. His defence

as put through cross-examination of state witnesses was one of denial. He did not

have a weapon. He did not ask to be handcuffed to the deceased, and he did not stab

him. It was suggested that the deceased was stabbed by some other person in the

south wing.

GROUNDS OF APPEAL:

6. On 21st September 2012, the appellant filed the following grounds of appeal:

Ground 1:

That the judge erred in law when he admitted evidence of bad character of the appellant

in particular, evidence of an incident in which the appellant pleaded guilty to stabbing

another prisoner with an improvised weapon.

Ground 2:

That the judge erred in law when he permitted extensive evidence to be led of the

stabbing incident. The evidence exceeded the permissible limits of collateral issues

and would have adversely affected the jury’s focus;

Ground 3:

Assuming but not admitting the correctness of the “Peter Blake” principle, the judge

erred when he applied the principle in an inconsistent manner during the trial;

Ground 4:

The judge failed adequately or at all to put the defence of the appellant to the jury during

the summation;

Ground 5:

The judge erred in that he failed adequately or at all to direct the jury on the significance

of the missing murder weapon;

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THE BAD CHARACTER ISSUES:

7. For the sake of convenience, I will deal with grounds 1 and 2 of this appeal

together. Counsel for the appellant submits that the trial judge erred in admitting the bad

character of the appellant into evidence, in particular, evidence of a prison stabbing

incident. During the trial, counsel for the prosecution made two applications to admit

evidence with respect to the bad character of the appellant. The first such application

was brought under section 15 N(g) of the Evidence Amendment Act No. 16 of 2009, to

adduce evidence of previous convictions for larceny in 1996 and robbery with violence

in 1998, and disciplinary findings of assault on two prison officers in 2003. The

application was based on allegations of dishonesty and fabrication of evidence made to

state witnesses by the defence in cross-examination. The application was relevant to

only to the credibility of the accused, not to propensity. After hearing submissions from

both sides, the trial judge granted the state’s application through this gateway. It has

not been suggested by the appellant that the trial judge misguided himself on the law or

the evidence, or that he considered irrelevant matters, or did not consider relevant ones,

in exercising his discretion under section 15 N(g) to admit the evidence.

8. The appellant’s complaint is focused on the state’s second application made

under section 15 N(1)(d) of the Act, to lead evidence of an incident in prison in May

2009, in which it was alleged that the appellant ran from his cell to that of a prisoner

named Hilbert Haynes, stabbed him in the neck with an improvised weapon, and ran

back to his cell. The purpose of leading this evidence was to establish that the

defendant had a propensity to violent, aggressive conduct consistent with intent on his

part to cause grievous bodily harm, and involving the use of an improvised weapon.

Counsel for the prosecution submitted that the evidence could lead to the inference that

the appellant had a propensity to commit offences of the kind charged and made it more

likely that he committed the offence with which he was charged. After hearing

submissions and considering the relevant authorities, the court granted the

prosecution’s application.

9. Section 15 N (1)(d) of the Evidence Amendment Act provides that evidence of

the accused’s bad character is admissible where it is relevant to an important matter in

issue between the accused and the prosecution. Before ruling in favour of the

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prosecution, the judge considered the relevant authorities and existing guidelines,

including those in R v. Hanson (2005) 1 WLR 3169 to determine whether to admit the

evidence would be unfair to the appellant.

10. In Hanson the Court of Appeal gave several useful guidelines, inter alia:

Where propensity to commit the offence is relied upon there are

three essential questions to be considered. (i) Does the history

of the conviction (s) establish a propensity to commit offences o

the kind charged? (ii) Does the propensity make it more likely

that the defendant committed the offence charged? (iii) Is it

unjust to rely on the conviction(s) of the same description or

category; and, in any event, will the proceedings be unfair if

they are admitted.

The section is not exhaustive of the types of conviction which

might be relied upon to show evidence of propensity to commit

offences of the kind charged, nor is it necessary that a

conviction should be of the same description or category as the

offence charged.

There is no minimum number of events necessary to

demonstrate such a propensity. The fewer the number of

convictions the weaker is likely to be the evidence of propensity.

A single previous conviction for an offence of the same

description or category will often not shows propensity. But it

may do so where, for example, it shows a tendency to unusual

behaviour or where its circumstances demonstrate probative

force in relation to the offence charged:

Old convictions, with no special feature shared with the offence

charged, are likely seriously to affect the fairness of

proceedings adversely, unless, despite their age, it can properly

be said that they show a continuing propensity.

It will often be necessary, before determining admissibility and

even when considering offences of the same description of

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category, to examine each individual conviction rather than

merely to look at the name of the offence or at the defendant’s

record as a whole.

Where past events are disputed the judge must take care not to

permit the trial unreasonably to be diverted into an investigation

of matters not charged on the indictment.

It a judge has directed himself correctly, an appeal court will be very

slow to interfere with a ruling as to admissibility, unless it can be shown

that the judge is plainly wrong, or the discretion has been exercised

unreasonably in the Wednesbury sense: Associated Provincial Picture

Houses v. Wednesbury Corpn. [1948] 1 KB 223.

11. In giving his ruling the trial judge made specific reference to the following

principles:

(i) Circumstances demonstrating probative force are not confined

to those sharing striking similarity. But if the modus operandi

had significant features shared by the offence charged it might

show propensity;

(ii) Striking similarity is not a pre-condition to admissibility but there

must, however, be a degree of similarity, or what is known as a

common thread. The test is one of simple relevance, and not

enhanced relevance or enhanced probative value;

(iii) Propensity evidence may be proved by the prosecution relying

on incidents which have occurred after the alleged incident

which is the subject of the trial.

12. In his ruling on this issue, the trial judge referred to and applied the relevant

principles referred to above:

“I turn now to my analysis of this issue. The question that I

must ask myself is whether the single reported incident,

with respect to Hilbert Haynes in prison, shows a tendency

on the part of the defendant to unusual behaviour, or do

the circumstances demonstrate probative force in relation

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to the offence charged; being mindful that circumstances

demonstrating probative force are not confined to those

showing striking similarity, does the modus operandi of the

reported Hilbert Haynes incident have significant features

shared by the offence charged?

In my respectful view, the modus operandi of the Hilbert

Haynes incident has significant features shared by the

offence currently being tried, and they are, that in both

cases the defendant is said to have used an improvised

weapon; in both cases the defendant ran past prison

officers; in both cases therefore the general picture

emerging was not one of surreptitious attack, but one

easily capable of being viewed. In both cases the other

inmate was stabbed in a vulnerable part of the body and in

both cases the defendant returned to the area of his cell.

Striking similarity is not required to be displayed.

Probative force is derived from these significant linking or

common features shared. It is immaterial that death did

not ensue in the Hilbert Haynes incident. The mental

element for murder includes an intent to cause grievous

bodily harm, which is capable of being inferred from the

reported act of the use of an improvised weapon to stab a

person in a sensitive part of the anatomy”.

13. The trial judge found, based on his reasoning above, that the first and second

questions set out in Hanson were to be answered affirmatively. He went on to consider

the third question, that is, whether it was unjust or unfair to admit the evidence. He

considered the following factors:

- whether the conduct was reprehensible;

- the length of time between the Haynes incident and the offence charged;

- the fact that the Haynes evidence occurred after the offence charged;

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- the statement given by the accused in the absence of procedural safeguards

he would have had if he were before the court;

- the degree of similarity between the Haynes incident and the offence

charged; and

- the probative force of the evidence.

14. At the end of this exercise the trial judge concluded that it would not be unfair or

unjust to admit the evidence of the Haynes incident. He further went on to consider

whether there was any basis for the exercise of his residual discretion to exclude the

evidence, and concluded there was none. It is well settled that an appellate court will

not interfere with the exercise of a discretion by a judge unless it is shown that he erred

in principle, or that there was no material on which he could have reasonably based his

decision or that he was plainly wrong. The appellant has not put forward any ground on

which this court is entitled to set aside the judge’s discretion to admit the evidence in

respect of this application.

15. Counsel for the appellant further contends that the evidence led about the

previous stabbing incident exceeded the limits of collateral issues which resulted in the

jury’s focus and attention being distracted from the issues to be determined by them.

16. When considering if there was any basis for discretionary exclusion of the

evidence, the judge addressed his mind to the risk of the trial losing its proper focus. He

referred to R v. O’Dowd (2009) EWCA Crim 905 and distinguished O’Dowd from the

instant case on the basis that in O’Dowd there was a proliferation of satellite issues but

in the instant case, there was only one issue:

In this case there is only one issue with respect to the

Hilbert Haynes incident. There are different modes of proof

of it through direct evidence, that is, the evidence of the

alleged admission of the defendant; through circumstantial

evidence and through the guilty plea. Although there may

be quite a few witnesses to prove this, they all go centrally

to one issue in the case. So, in my view, there is no real

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risk of distraction or diffusion such as in the case of

O’Dowd where three other incidents were being relied on.

17. During the summing up, the judge reminded the jury that the evidence on the

Hilbert Haynes issue was but a small part of the State’s evidence. He also reminded

them, that the evidence was not evidence that the defendant committed the offence

being tried before them but it was evidence of circumstances concerning the defendant

that they were entitled to take into account when deciding whether he did.

18. It is clear that the evidence of the Hilbert Haynes incident that was led at the trial

was restricted to that single incident and the details thereof. The trial judge’s directions

on the issues were clear and during the summing up, he put the evidence of the Hilbert

Haynes incident in the appropriate context for the jury. In the circumstances, we find

that the evidence of the Hilbert Haynes incident was not extensive enough to distract

the jury from the matter at hand and that the judge correctly exercised his discretion to

allow the evidence to be led. Additionally, the judge’s directions to the jury in his

summing up were sufficient to focus the jury’s attention on the issues before them.

19. Counsel for the appellant also argues that admitting the evidence of the later

stabbing incident was prejudicial to the appellant since the State did not lead evidence

from Hilbert Haynes, the victim of the prison stabbing incident. Counsel contends that

because Haynes did not give evidence, hearsay evidence was wrongly adduced at the

trial through other witnesses.

20. R v. K [2000] Crim L.R. 517 CA, was a case of sexual assault in which a

previous conviction was admitted as evidence of propensity through the complainant did

not give evidence. The accused was convicted. On appeal he contended that the

judge had erred in admitting the previous conviction into evidence, because the Crown

did not have the evidence to support its explanation of the facts forming the background

to the conviction which, given that the appellant’s version was different, brought the

case within the principle set out in Humphris [2005] EWCA Crim 230. The court in

Humphris stated that the Crown must ensure that they have available the necessary

evidence to support what they require and that that will normally require the availability

of either a statement by the complainant relating to the previous convictions or

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availability of the complainant to give first hand evidence. The court in R v. K held that

given the extent of the common ground between the Crown and the defence as to the

background to the conviction, notwithstanding the absence of the complainant the

material had been rightly admitted as evidence of propensity.

21. In the instant case, the prosecution produced other witnesses to the previous

stabbing incident who provided ample evidence to support the prosecution’s assertions,

in the absence of evidence from the virtual complainant Hilbert Haynes. It was the

evidence of prison officer Mungal that he saw the appellant run into Haynes’ cell where

he observed them in a “tangled position”, and he saw that the appellant was making

thrusting motions with his hand clenched. He shouted at both men, whereupon the

appellant ran back to his cell. He heard the sound of a pail flushing, and observed

blood flowing from Haynes’ neck. Prison Officer Tesheira, corroborated the evidence of

Mungal that the appellant ran from his cell to Haynes’ cell and when confronted by

Mungal, ran back to his own cell. Prison Officer Kerol Joseph gave evidence that he

recorded a statement from the appellant on the same day of the incident. In the

statement, which was admitted into evidence the appellant admitted stabbing Haynes in

his neck and stomach and flushing the improvised weapon that he had used. Clearly

the evidence of these witnesses was not hearsay, since they spoke of events that they

witnessed firsthand. In addition there was common ground between the defence and

the prosecution, as the defence admitted that the appellant pleaded guilty to the offence

albeit for the sole purpose of obtaining leniency in punishment. In the circumstances,

the prosecution had sufficient admissible evidence to support its case and the absence

of Haynes caused no prejudice to the appellant.

22. For the forgoing reasons, we find that there is no merit in grounds 1 and 2 of the

appeal.

THE “PETER BLAKE” ISSUE:

23. In the third ground of appeal, the appellant argues that assuming but not

admitting the correctness of the “Peter Blake” principle, the judge erred when he

applied the principle in an inconsistent manner during the trial.

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24. The “Peter Blake” principle refers to a practice in which a document is placed in

the hands of a witness by cross-examining counsel, who asks the witness whether he

sees what the document purports to record, without the cross examiner going into the

contents of the document. If the witness responds that he sees it and accepts the

contents as being true, the witness may then be cross examined on the contents of the

document. If the witness does not accept the document as being true, or is not in a

position to say whether it is, then it constitutes hearsay evidence for all intents and

purposes, and the cross examiner can go no further with the document. The cross

examiner cannot ask the witness, if having seen the document whether he still abides

by his original evidence because that may bring out inadmissible hearsay evidence by

the back door.

25. This practice is of some antiquity as it first appears in Birchall and Ors. v.

Bullough [1896] 1 QB 325. The cases dealing with this practice, including Birchall, R

v. Mullarkey [1919] 14 Cr App R 61; Gillespie v. Simpson [1967] 51 Cr App R 172

and R v. Duncombe [1972] ER 535) were reviewed and applied by the Jamaican Court

of Appeal in the decision of R v. Blake [1977] 16 JLR 60. Following the decision in

Blake the practice has since been commonly referred to as the Peter Blake principle.

26. In the instant case, the trial judge allowed the prosecution to place a report by a

prison medical doctor, Dr. Roopchand, (who examined Hilbert Haynes) into the hands of

infirmary officer Marcus Phillip, a defence witness, for the purpose of testing his

reliability on the precise location of the injury to Haynes. In our view the trial judge was

correct in doing so. Dr. Roopchand was the infirmary doctor who examined Haynes

after the incident. It is routine to place the report of one expert into the hands of

another expert witness, in order to test the credibility of the witness or to establish some

fact or finding contained in the report itself. In this case, although the infirmary officer

was not an expert witness he was giving evidence of the injuries sustained by Haynes

and can be likened for the purposes of this discussion to an expert witness. In effect,

he was giving medical evidence. It was not improper for the medical report of Dr.

Roopchand to be shown to him in order to test an aspect of his evidence. It has not

been demonstrated that the trial judge was wrong in exercising his discretion to allow

the cross-examination.

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27. However, Counsel for the appellant further contends that the trial judge applied

the Peter Blake principle inconsistently during the trial and as a result, infringed upon

the appellant’s ability to properly challenge the bad character evidence which was

placed before the jury. Counsel referred specifically to the judge’s ruling that disallowed

the use of the Peter Blake principle to cross examine Officer Steve Mungal by inviting

him to look at the witness statement of Hilbert Haynes. In our view this was not an

issue of inconsistency. Each application must be decided on its merits. It has not been

shown that the trial judge erred in principle in making his decision on this application.

28. A review of the relevant case law shows that where cross examination is allowed

on a document to test the credit of a witness, the witness either has some knowledge of

or is familiar, or has some connection with the document as in Birchall and Ors. v.

Bullough (a promissory note signed by the defendant), R v. Mullarkey (a medical

report that a doctor had seen but not made), Gillespie v. Simpson (sales receipts

where the defendants were store workers handling sales), R v. Duncombe (a paper on

which the witness had written something), and R v. Cooper (letters written by the

defendant’s wife and signed in both their names). In other cases, the document itself

bears an objective element as in Wiltshire v. Flaviney (a photograph of premises) and

R v. Blake (a newspaper clipping).

29. In his ruling disallowing the application by defence counsel to cross examine

Officer Mungal on the witness statement of Hilbert Haynes the trial judge clearly

articulated the reasons for his decision as follows:

1. Cross examination of Officer Mungal, bringing out parts of

the Hilbert Haynes’ witness statement, cannot be relied on

as evidence, for that will plainly infringe and/or circumvent

the hearsay rule;

2. The relevant parts of Hilbert Haynes’ witness statement, if

the fact of a contradiction is brought out, is not relevant in

any identifiable manner as original evidence; because the

state of mind or the subsequent conduct of Prison Officer

Mungal would not be relevant to any issue in the case in

this regard

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3. A witness’ credibility in terms of the issue of account

inconsistency can only be impeached by his own prior

inconsistent statements under the relevant provisions of

the Evidence Act. Reliance, of course, may be made on

external contradictions that emerge between the evidence

of various witnesses, either in a submission of no case to

answer, or before the jury; once they have emerged in the

proper manner.

4. Insofar as cross examination may bring out external

contradictions between the account of prisons Officer

Mungal and Hilbert Haynes, such contradictions cannot be

properly evaluated by the Tribunal, and cannot be properly

assessed, because the witness, under cross examination,

can only proffer explanations for any prior inconsistencies

that appear in his own account under the impeachment

provisions of the Evidence Act, but the witness cannot

account for any incompatibility with the account of another

witness.

5. A witness cannot be asked to comment on another

witness’ evidence. Such comment may be explicit, or it

may be of an implicit nature by a rejection of the relevant

part of that other witness’ account.

30. The trial judge’s reasons for refusing to allow the cross-examination of the

witness are unassailable.

31. Counsel for the appellant further contends that the trial judge erred in law in

permitting cross-examination on the medical report without considering whether the

document was admissible.

32. A review of the case law reveals that there is no requirement that the cross-

examiner must first establish that the document which he seeks to put in the hands of

the witness is admissible.

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33. In Birchall and Ors. v. Bullough (supra) the defendant was shown a promissory

note which was inadmissible to prove the debt because it was insufficiently stamped. In

dismissing the defendant’s appeal Bruce J, noted that although a document may be

inadmissible into evidence, a witness may be asked to look at it, and having looked at it,

say whether he did not in fact borrow a certain sum of money.

34. In R. v. Peter Blake, (supra) the Court of Appeal of Jamaica, held that the trial

judge was wrong in not permitting defence counsel to cross-examine a police officer on

a newspaper clipping which he had placed in the hands of the witness. The clipping

was clearly inadmissible in the absence of the reporter who had produced it.

35. In Michael Wiltshire & Ors. v. P.C. Windell Flaviney, (supra) this court held

that a Magistrate was wrong to prevent defence counsel from showing the witness a

photograph of certain premises and asking questions on it. The photograph was clearly

inadmissible in the absence of the photographer being called to give evidence.

36. In State v. Andy Brown & Ors. H.C. No. 112 of 2003, Mohammed J (as he then

was) reviewed the authorities and concluded that the document shown to the witness

need not be admissible. This conclusion accords with an understanding of the purpose

of the procedure, which is usually to challenge the credibility or reliability of the witness,

or to elicit a fact in issue. The purpose is not to get the document or its contents into

evidence without calling the maker. That would be permitting hearsay evidence in by

indirect means. What becomes evidence in the case is the response of the witness

having seen the document, provided that he accepts the contents of the document to be

true. If he does not accept the contents to be true the cross-examiner can go no further,

and the document itself is valueless as evidence. It would drastically and unnecessarily

diminish the availability of the procedure if a requirement of admissibility of the

document is imposed.

37. We have studied the judgment of our Court of Appeal in Chadee v. The State

Cr. App. No. 72 of 2000. It is clear to us that the remarks of the court were obiter when

it dealt with the issue of admissibility of the document proposed to be shown to the

witness. The ground of appeal related to this issue had been withdrawn at the hearing

after the court had given its ruling on the admissibility of fresh evidence in the form of

an affidavit of trial counsel. The court’s comments came as it explained its reasons for

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disallowing the evidence. Having had the opportunity to do a full and focused

examination of the relevant authorities, we conclude that the relevant document need

not be prima facie admissible.

38. Before leaving this issue, we have been invited by counsel to provide general

guidance with respect to the procedure to be followed in applying the Peter Blake

principle. This will be done by way of an addendum to this judgment.

FAILURE TO ADEQUATELY PUT THE DEFENCE CASE:

39. Grounds 4 and 5 of this appeal concern the adequacy of the judge’s directions on

the defence case, and a particular defence issue. Counsel for the appellant contends

that the trial judge failed adequately or at all to put the defence of the appellant to the

jury during the summation and he also failed adequately or at all to direct the jury on the

significance of the missing knife/murder weapon.

40. The Court of Appeal gave guidance on the duty of a judge during a summing up

in Ramsingh Jairam and Krishna Persad v. The State Cr. App. Nos. 35 & 36 of 1988

as follows:

“Without attempting to lay down any rigid formula or format

we consider that a summing up should contain inter alia the

directions in law both general and special in the first part and

a summary of the facts of the case for the prosecution and

the case for the defence...then, there should be an

identification of the issues or questions in the case that arise

for the jury’s determination. The judge should then proceed

to evaluate and analyze the evidence on each issue or

question identified by him (both for and against) to enable the

jury to better appreciate the significance of the evidence led

and to assist them in properly discharging their function in

accordance with the oath they have taken” (per Ibrahim JA at

page 5).

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41. In R v. Nelson [1997] Crim. LR 234 Simon Brown LJ gave the following

guidelines:

“Every defendant, we repeat, has the right to have his

defence, whatever it may be, faithfully and accurately placed

before the jury. But that is not to say that he is entitled to

have it rehearsed blandly and uncritically in the summing up.

No defendant has the right to demand that the judge shall

conceal from the jury such difficulties and deficiencies as are

apparent in his case. Of course the judge must remain

impartial...........Impartiality means no more or no less than

that the judge shall fairly state and analyse the case for both

sides. Justice moreover requires that he assists the jury to

reach a logical and reasoned conclusion on the evidence.”

42. A review of the summation reveals that the trial judge reminded the jury that the

appellant’s defence was one of denial. The judge went through the different aspects of

the appellant’s defence including the appellant’s contention that he did not ask to be

handcuffed to the deceased, that he did not have a weapon, that he did not stab the

deceased and that the prisons officers were being untruthful and falsely blaming him for

the stabbing. A perusal of the summing up in this case reveals that the trial judge did in

fact painstakingly set out the case for the defence as put to state witnesses, and as put

forward by defence attorney in address.

43. Accordingly we find no merit in this ground.

THE MISSING WEAPON:

44. At pages 6 and 12 of the transcript dated 17th August 2011, the trial judge dealt in

great detail with the arguments advanced by defence counsel. He reminded the jury of

the defence’s submission that the failure of the state to produce the knife was a major

flaw in the prosecution’s case. During the course of the trial, the pathologist testified

about the dimensions of the wound to the chest of the deceased. The wound was 9 cm

long, 2 cm wide and 14.5 cm deep. Trial counsel submitted in his address that the knife

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was estimated by prison officer Cadette to be about 3 inches in length and this was

inconsistent with the depth of the wound. However, there was evidence before the jury,

given by the crime scene technician that the blade of the knife was about 6 inches long

and the blade and the handle together was about 8 to 9 inches long. Counsel for the

appellant argues that the judge should have told the jury that the knife which would

have caused the injury was much smaller than the knife found on the appellant. The

submission is misconceived. It is not for the trial judge to make findings of fact.

45. The function of the judge is to provide directions of law and to summarise the

evidence. The function of the jury is to analyze the evidence carefully and come to their

findings of fact. In this case, the trial judge reviewed the evidence on this issue, and

reminded them of trial counsel’s submission when he addressed them on the issue. It

was then for the jury to consider the evidence in the light of counsel’s submission.

46. The appellant further submits that the trial judge should have directed the jury

that the appellant was at no time within range of the victim, and so he could not have

inflicted the fatal wound to him. In fact the evidence was that the appellant was about

one to two feet away from the victim when he was pursuing him and he had a metal

object in his hand and was making movements towards the back of the victim with it.

Further, defence counsel put to witnesses that the appellant in fact cuffed the victim,

thereby conceding that the appellant was in such close range of the victim as to be able

to make contact with him.

47. After carefully reviewing the summation, we find that the trial judge’s summation

was balanced, fair and detailed and dealt adequately with the issues raised by the

defence. As such, we find there is no merit in this combined ground of appeal.

DISPOSITION:

48. Accordingly, we dismiss this appeal and affirm the conviction and sentence.

49. This is an advance copy of this judgment which is dispositive of all issues in this

appeal. The final copy will contain the addendum referred to in para. 38 which in no

way affects the outcome of this appeal.

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Dated the 12th day of December, 2013.

P. Weekes Justice of Appeal.

A. Soo Hon Justice of Appeal.

R. Narine

Justice of Appeal.

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