IN THE COURT OF APPEAL

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO Criminal Appeal No. 45 of 2008 IN THE COURT OF APPEAL BETWEEN AKO MORRIS Appellant AND THE STATE Respondent ************* Panel: P. Weekes J.A. N. Bereaux J.A. R. Narine J.A. Appearances: Mr. J. Singh instructed by Ms. H. Shaikh for the Appellant. Mr. G. Peterson S.C. and Mr. G. Busby for the Respondent DATE DELIVERED: 18 th December 2013 Page 1 of 15

2 JUDGMENT Delivered by R. Narine J.A. 1. The appellant and another accused were charged with the murder of Antonio Jacob. On 29 th June 2008, the appellant was found not guilty of murder but convicted of the lesser offence of manslaughter. He was sentenced to a term of imprisonment of twenty (20) years with hard labour. He has appealed the conviction and sentence. THE PROSECUTION S CASE: 2. On 24 th December 2002, Antonio Jacob (the deceased) and his father were on their way to Capital Insurance Company located at Piccadilly Street, Port of Spain. Due to the heavy vehicular traffic, the deceased decided to walk to the insurance company while his father returned to his office at lower Henry Street Port of Spain. 3. The deceased proceeded to the insurance company where he was attended to at the counter by Valerie Allen. While the deceased was at the counter, two men came into the office and stood on either side of him. Shortly after, the appellant came in and stood to the back of the deceased. The appellant then put his right hand into his right pants pocket and took out a shiny object that appeared to be a gun. He placed it to the right side of the waist of the deceased, and at that point the other two men who were on either side of the deceased moved closer to him. The deceased turned around and raised his arm as if to punch the appellant, and there was a loud explosion. The deceased then slumped to the ground and said, Take it. One of the men then pulled a ring off the deceased s finger. 4. A post mortem conducted on the body of the deceased established that death was due to internal thoracic injuries and haemorrhage due to a gunshot injury to the left chest. During the post mortem examination, a copper jacketed bullet was removed from the left chest cavity of the deceased. 5. On 8 th January 2003, Police Constable Charles and Inspector Stewart were on patrol in the Port of Spain area. Constable Charles observed the appellant acting suspiciously, chased him and caught him at the top of the stairs of building number on George Street. Constable Charles searched the appellant and found a black and Page 2 of 15

3 silver metal object resembling a firearm in the appellant s front left pants pocket. On examining the object, he found cylindrical objects resembling ammunition. He then cautioned the appellant, arrested him and took him to the CID office in Port of Spain. 6. Constable Charles later submitted the objects resembling a firearm and ammunition found in the appellant s possession to the Forensic Science Centre for analysis. The objects were examined by Mr. Neil Clapperton, Scientific Officer and found to be a firearm and 0.32 calibre ammunition. Mr. Clapperton concluded that the copper jacketed bullet that had been removed from the deceased s body had been discharged from the firearm found in the appellant s possession. 7. On 10 th January 2003, Inspector Mc Intyre spoke to the appellant at the Homicide Bereau of Investigations in Port of Spain in the presence of Sergeant Veronique. McIntyre told the appellant that he was investigating the deceased s death, cautioned him and told him of his rights and privileges and the appellant replied, I did not go to kill him. Is when he start to fight back, I shoot him and is not until the next day I hear he dead. 8. Later that day, Inspector McIntyre, in the presence of Inspector Veronique and Justice of the Peace Steven Young recorded a statement from the appellant. In that statement the appellant said that he was liming when he was approached by two men, Fish and Male and asked to go on a robbery with them on Piccadilly Street. He said when they arrived there, the two men entered first and he followed them. He took out his gun and announced a hold up. He approached the deceased and said don t move. Then Fish dived at the deceased. An altercation ensued between the appellant and the deceased and the deceased was shot. On 11 th January 2003 Inspector McIntyre charged the appellant for the murder of the deceased. THE APPELLANT S CASE: 9. The appellant gave evidence in his defence. He denied being at the Capital Insurance office on the day in question. He said that he was at his home at Rose Hill doing repairs to his house. He agreed that he was arrested by Constable Charles on 8 th January 2003 at building on George Street, but he denied that a loaded firearm was found on his person at that time. He said that he was taken to his home by the Page 3 of 15

4 police who conducted a search but found nothing. He also said that when they were leaving, he saw Inspector Stewart with a firearm and Inspector Stewart showed it to him and he was then taken to CID. 10. The appellant further testified that he saw Inspector McIntyre and Sergeant Veronique on 10 th January 2003 and Inspector McIntyre questioned him about the death of the deceased. He denied telling Inspector McIntyre anything about the murder and said that he was never taken to the homicide office on 8 th January 2003, and it was on 10 th January 2003 he spoke with the Inspector in a room at the Homicide office. He denied making any oral utterance to the police and he denied giving a written statement to Inspector McIntyre. He said he did not agree to give any statement in writing. He did not dictate or sign any statement and the signatures appearing on the statement tendered into evidence were not his. He also claimed that he was not cautioned or told of his constitutional rights and privileges. GROUNDS OF APPEAL : 11. On 9 th January 2013, the appellant filed the following grounds of appeal: 1. That the judge erred in law when she failed to properly direct the jury on the issue of self-defence in that she neglected to tell the jury that the plea of selfdefence was not inconsistent with the appellant having an intention to kill. 2. That the judge erred in law by directing the jury that the verdict of manslaughter was available to them where there was no sufficient basis on the evidence to raise same. 3. That the judge erred when she admitted the oral and/or written admissions of the appellant into evidence and left the issue of fairness to the jury. 4. That the judge failed to take time spent on remand by the appellant into account when assessing the sentence to be given. Page 4 of 15

5 GROUND 1: 12. The appellant submits that the trial judge failed to properly direct the jury on the issue of self-defence in that she neglected to tell the jury that the plea of self-defence was not inconsistent with the appellant having an intention to kill. Counsel argues that such a direction would be effectively to tell the jury that if they found an intention to kill the plea of self-defence would not be made out. In support of this submission Mr. Singh relied on the cases of Baptiste v. The State 34 WIR 253, and Sinanan & Ors. v. The State 44 WIR 383, in which this court held that in cases of self-defence or provocation the trial judge should direct the jury, where appropriate, that such a plea is not inconsistent with an intention to kill or cause grievous bodily harm. 13. In this case, the issue of self-defence arose from the contents of the oral admission and the written statement of the appellant and the testimony of the prosecution witness Phillip Greaves. According to Greaves evidence, the deceased raised his arm as if he was going to throw a punch, and he heard an explosion. In his oral statement the appellant said that he did not go to kill the deceased but when he started to fight up he shot him. In his written statement, the appellant said, When I entered ah took out my gun and announced a hold up. I then made way to hold the victim and said doh move. Fish dive at him and an altercation began between me and the victim and he was shot. 14. In the instant case, the judge at pages 3 & 4 of her summing up directed the jury as follows: If you were to accept what was said in the statements...of the accused, and you accept the evidence of Phillip Greaves and Ramsumair, and if you were to think that accused No 1 [the appellant] was or may have been acting in lawful self defence, he is entitled to be found not guilty. Because the Prosecution must prove the accused s guilt, it is for the prosecution to prove that accused No. 1 was not acting in lawful self defence. It is not for accused No. 1 to establish that he was... Page 5 of 15

6 But what if you were to think that accused No. 1 did honestly believe or may honestly have believed that it was necessary to use force to defend himself? You must then go on to decide whether the type and amount of force accused No. 1 used was reasonable...so you must take into account both the nature of the attack on the accused and what he then did. Was the force used reasonable? Now, if someone raises his hand to pelt a cuff, would you whip out a gun and shoot him in the chest? Would it be reasonable to pull out a gun and shoot your attacker when there were three of you against him alone? When all he does is to raise his arm and pelt a cuff?... At page 33 of the summation, the judge further directed the jury as follows: The mere fact that accused No. 1 was the initial aggressor does not of itself make self-defence unavailable to him...whether self defence is available must depend on all the circumstances and allow for the possibility that the initial aggression may have resulted in a response by the victim which was so out of proportion, so as to give rise to an honest belief...on the part of accused No 1 [the Appellant] that it was necessary for him to defend himself without the amount of force used for that purpose being unreasonable. 15. After carefully reviewing the summation, we find that the trial judge s directions were adequate except for the absence of a direction making it clear to the jury that a plea of self-defence is not inconsistent with an intention to kill or do grievous bodily harm. We consider that having regard to the circumstances of this case, the direction ought to have been given. Page 6 of 15

7 16. However, in view of the jury s verdict in this matter, the failure to give the direction caused no prejudice to the appellant. Implicit in the verdict of manslaughter is the finding of the jury that the appellant did not have the intention to kill or do grievous bodily harm. It follows that the failure of the trial judge to give the direction would have made no difference to the jury s rejection of the plea of self defence. 17. For the respondent Mr. Peterson further submits that there was no basis on the evidence in this case on which a jury properly directed, could have found that the appellant shot the deceased in lawful self defence. 18. At its highest, the evidence in support of the plea of self defence was that upon the appellant placing the gun to the waist of the deceased, he turned around and attempted to throw a punch at the appellant. There is no evidence on which the appellant could have reasonably formed the belief that he was in immediate danger for his life, or at risk of serious injury. In addition, on the evidence no reasonable jury properly directed could have found that the force used by the appellant was reasonable or proportionate in the circumstances. Having regard to the evidence the jury, even if they were given the direction that self defence is not inconsistent with an intention to kill or to do grievous bodily harm, would have inevitably rejected the plea of self defence. Accordingly there was no miscarriage of justice by reason of the failure to give the direction. 19. Finally, in his oral submissions, Mr. Singh quite candidly conceded that having regard to the evidence in the case, he was of the view that self defence was not available to the appellant. 20. For these reasons, we find no merit in ground 1 of this appeal. GROUND 2: 21. In the second ground of appeal the appellant argues that the judge erred in law by directing the jury that the verdict of manslaughter was available to them where there was no sufficient basis on the evidence to raise same. Counsel for the appellant argues that the evidence was insufficient to support a manslaughter direction as the evidence is that the deceased was fatally shot at extremely close range. Page 7 of 15

8 22. Counsel for the respondent submits that in both the oral admission and written statements, the appellant says that he did not intend to kill the deceased and that these utterances provided a sufficient basis to raise the issue of manslaughter. In the oral admission the appellant said, I did not go to kill him. Is when he start to fight up I shoot him and the next day I hear he dead. 23. In the written statement when describing the sequence of events the appellant said, On the said day I was liming and I was approached by two men, Fish and Male. Ah was asked to go on a robbery with them on Piccadilly Street. On arriving there, Fish entered first followed by Male then I. When I entered, ah took out my gun and announced a hold up. I then made way to hold the victim and said doh move. Fish dive at him and an altercation began between me and the victim and he was shot. 24. The respondent submits that on the evidence, it was open to the jury to find that the appellant had a gun for the purposes of the robbery but did not intend to use it to kill or cause grievous bodily harm, thereby raising the issue of manslaughter. 25. According to Archbold Criminal Pleading, Evidence and Practice 2013 at para , manslaughter arises out of the unlawful act of the accused where the killing is the result of the accused s unlawful act and the unlawful act is one, which all sober and reasonable people would inevitably realise must subject the victim to, at least the risk of some physical harm resulting therefrom, albeit not serious harm. It is immaterial whether the accused knew that the act was unlawful and dangerous, and whether or not he intended harm. The mens rea required is that appropriate to the unlawful act in question. 26. In her summing up the trial judge directed the jury as follows: Page 8 of 15

9 If, however, members of the jury, you were to reject self defence, before you can convict accused No. 1 of Murder, you must be sure, 1, that he committed the fatal injury, that is, that he caused the fatal injury that he shot and killed the deceased; and that when he did so, he had the specific intention to kill or to cause really serious bodily harm to the deceased. If that is the case then, members of the jury, you must return a verdict of guilty of Murder against him. If, however, members of the jury, you are not sure that accused No. 1 had the specific intention to kill or to cause really serious bodily harm to the deceased, then go on to consider whether Accused No. 1 intended to use the gun in the course to the robbery, he intended to cause some harm, some injury, but falling short of killing or causing really serious bodily harm to the deceased, perhaps merely using the weapon to scare and/or to intimidate the deceased into submission in order to accomplish the robbery, then he would be not guilty of Murder, but guilty of Manslaughter. 27. From the appellant s statements it can be gleaned that the appellant agreed to go on a robbery with two accomplices whilst having a firearm in his possession and that he intended to carry out a robbery. On the face of the statements, he did not intend to kill or to cause grievous bodily harm to any person. The act of robbery and the possession of a firearm are unlawful acts. As a result of the appellant s unlawful actions, the deceased was harmed physically, resulting in his death. It was open to the jury to find on the evidence that the appellant did not intend to kill or do grievous bodily harm, but may have intended to do some harm, falling short of grievous bodily harm. 28. As such, there was a sufficient evidential basis for the trial judge to direct the jury to consider manslaughter as an alternative verdict. This ground of appeal therefore fails. 29. Before leaving this ground, we find it appropriate to comment that the trial judge s direction on manslaughter in fact resulted in a benefit to the appellant. By their verdict the jury clearly rejected his alibi, found that he caused the death of the deceased, and Page 9 of 15

10 rejected his plea of self defence. It follows that if the trial judge had not left manslaughter as an alternative verdict, the jury would have found him guilty of murder. GROUND 3: 30. Counsel for the appellant contends that the judge erred when she admitted the oral and/or written admissions of the appellant into evidence and left the issue of fairness to the jury. Counsel argues that it was a matter of law for the trial judge to determine the fairness of the proceedings overall. He submits that the judge, having determined that there was a breach of the Judges Rules, and having determined that this breach would not have an adverse effect on the proceedings, exercised her discretion to allow the statements into evidence. He says therefore that having made these determinations and admitted the statements, it was wrong for the judge to leave the issue of fairness to the jury. 31. Counsel for the respondent relies on the Privy Council decision in Benjamin and Ganga v. The State [2012] UKPC 8 and submits that, the judge was correct in leaving the issue of fairness in the taking of the statements to the jury. 32. In R v. Mushtaq [2005] 2 Cr. App. R. 32, the House of Lords held that in cases in which it is alleged that a confession was obtained by oppression, and the trial judge admits the confession into evidence, the judge should direct the jury that if they find that the confession may have been obtained by oppression, or in consequence of anything said or done, which was likely to render it unreliable, they should disregard it. 33. Benjamin is a decision of the Privy Council sitting as the final court of appeal of Trinidad and Tobago. In Benjamin, the accused denied that they had made the oral and written confessions attributed to them and claimed that they had been forced into signing the statements by beatings suffered at the hands of the police. The police denied beating the appellants and the statements were admitted into evidence. One of the issues raised on appeal was whether a Mushtaq direction should have been given. The Board held that a Mushtaq direction was required. The Board considered the Privy Council s decision in the Jamaican case of Barry Wizzard v. The Queen [2007] UKPC 21, and in particular at para. 35, where the Board concluded that a Mushtaq direction is required where there is a possibility that the jury may conclude: Page 10 of 15

11 (i) (ii) (iii) that a statement was made by the defendant; the statement was true, but the statement was or may have been induced by oppression. 34. In Benjamin at para. 15 the Board applied the reasoning in Wizzard, and stated: It was clearly open to the jury to conclude that the appellants had made the statements attributed to them. After all it was emphatically the prosecution s case that that they had done so indeed had, made the statements in the presence of justices of the peace. Likewise it was open to the jury to find that the statements were true; this was again the prosecution s categorical case. Finally there was evidence on which the jury could have concluded that the appellants signatures were appended to the statements as a result of oppression. All three conditions necessary to activate a Mushtaq direction were therefore present. 35. Similarly, in this case, the appellant denied that he made the oral utterance that the police claimed he had made. He gave evidence that he did not agree to give any statement in writing and did not dictate any statement to Inspector McIntyre in the presence of Sergeant Veronique and Justice of the Peace Young. He also gave evidence that he did not sign any statement and that the signatures appearing on the statement that had been tendered into evidence were not his signatures. Additionally, Inspector McIntyre s evidence disclosed that he had breached the Judges Rules in not administering a Rule 3 caution before obtaining the written statement from the appellant. 36. The cases of Benjamin, Wizzard and Mushtaq may be distinguished from the instant appeal, in that these cases all dealt with confessions which may have been obtained as a result of oppression. In this appeal, the trial judge gave the Mushtaq direction in relation to a breach of the Judge s Rules. Page 11 of 15

12 37. In Shahabadine Peart v. The Queen Privy Council Appeal No. 5 of 2005, the Board outlined four basic propositions in relation to the legal significance of the judges rules and the exercise of the court s discretion to admit statements where the Judges Rules have not been followed: (i) The Judges Rules are administrative directions, not rules of law, but possess considerable importance as embodying the standard of fairness which ought to be observed. (ii) The judicial power is not limited or circumscribed by the Judges Rules. A court may allow a prisoner s statement to be admitted notwithstanding a breach of the Judges Rules; conversely, the court may refuse to admit it even if the terms of the Judges Rules have been followed. (iii) If a prisoner has been charged, the Judges Rules require that he should not be questioned in the absence of exceptional circumstances. The court may nevertheless admit a statement made in response to such questioning, even if there are no exceptional circumstances, if it regards it as right to do so, but would need to be satisfied that it was fair to admit it. The increased vulnerability of the prisoner s position after being charged and the pressure to speak, with the risk of selfincrimination or causing prejudice to his case, militate against admitting such a statement. (iv) The criterion for admission of a statement is fairness. The voluntary nature of the statement is the major factor in determining fairness. If it is not voluntary, it will not be admitted. If it is voluntary, that constitutes a strong reason in favour of admitting it, notwithstanding a breach of the Judges Rules; but the court may rule that it would be unfair to do so even if the statement was voluntary. 38. It is clear that it was well within the discretion of the trial judge to admit the written statement of the appellant taken in the absence of the Rule 3 caution as required by the Page 12 of 15

13 Judges Rules, once she was satisfied that it was voluntary, and it would not have resulted in the appellant being unable to receive a fair trial. 39. In this case, having admitted the statement into evidence, the trial judge directed the jury that if they were satisfied that the breach of the rules caused unfairness to the appellant, then they were entitled to disregard the statement completely. The direction was clearly based on the question of fairness, which according to Peart is the criterion for admissibility by the judge. By giving the appellant the benefit of a Mushtaq direction, the trial judge in fact extended to him a benefit to which he was not entitled. In the circumstances, the direction caused no prejudice to the appellant, and in fact would have redounded to his benefit. 40. Accordingly we find no merit in this ground. GROUND 4: 41. Counsel for the appellant argues that the court failed to take into account the time the appellant spent on remand when assessing the sentence to be imposed on him. The appellant was arrested and charged on 8 th January 2003 for possession of a firearm and ammunition. He was charged with murder in the instant case on 12 th January 2003, a mere four days after being charged with the possession offence. Both offences arose out of the same incident on 24 th December The appellant was tried and convicted for the possession offence on 21 st September He was sentenced to four and a half years, and his sentence was confirmed on appeal in September In sentencing the appellant for the firearm offence, the court expressly took into account the time that he spent on remand when calculating the length of the sentence to be served by him. At page 24 of the court transcript dated 21 st September 2006 Brook J said, The maximum sentence being ten years, I have calculated a sentence of eight, but I am going to deduct from it the time you spent in custody. I am going to knock off three and a half years and, therefore, I sentence you to four and a half years Page 13 of 15

14 hard labour on each count of the indictment to be served concurrently. 43. There is no dispute that the appellant received the benefit of time spent on remand when his sentence for the firearm offence was calculated by Brook J. However, when the appellant was sentenced in this matter on 22 nd September 2008, he was a convict serving a term of imprisonment which had not yet expired. 44. In sentencing the appellant to a term of twenty years imprisonment the trial judge considered his five years of incarceration as a mitigating factor. However, she did not expressly take the period into account in arriving at the sentence. 45. It must be borne in mind that the firearm offences and the murder charge arose out of the same incident. If both offences were tried together in 2006 the appellant would have been entitled to a full deduction from his sentence of the time he had spent in pre-trial custody. If both offences were tried in 2008, he would have been entitled to a deduction of the full five years and nine months spent in pre-trial custody. It follows that the trial judge should have given the appellant full credit for the entire period, from the time of his arrest on 8 th January 2003, to the date of sentencing on 22 nd September It is immaterial that from 21 st September 2006, the appellant was serving a term of imprisonment, since his imprisonment resulted from offences which arose from the same incident. 46. In Walter Borneo v. The State Cr. App. No. 7 of 2011 this court followed the Privy Council s decision in Callachand & anor. v. The State of Mauritius [2008] UKPC 49 and the decision of the Caribbean Court of Justice in R v. da Costa Hall [2011] 77 WIR 66, and held that any time spent in pre-trial custody should be fully taken into account by means of an arithmetical deduction. The sentencer should state the term to be imposed, having taking into account all mitigating and aggravating factors, and then deduct the time spent in pre-trial custody, thus arriving at the final sentence to be imposed. 47. The trial judge cannot be faulted for not following this procedure, since the cases of Callachand, da Costa Hall, and Borneo had not yet been decided at the time of sentencing. In any event, the period of pre-trial custody was from January 2003 to Page 14 of 15

15 September 2008, a period of five years and nine months. Deducting this period from the sentence of twenty years leaves a term of fourteen years and three months. DISPOSITION 48. It follows that the appeal against conviction is dismissed, and the appeal against sentence is allowed. The conviction is affirmed and the sentence is varied to a term of fourteen years and three months to begin from 22 nd September Dated the 18th day of December, P. Weekes Justice of Appeal. N. Bereaux Justice of Appeal. R. Narine Justice of Appeal. Page 15 of 15