TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE BETWEEN. The State AND. Latchman Deosaran RULING. Friday January 28 th 2011

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1 TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CR NO. 114 OF 2008 BETWEEN The State AND Latchman Deosaran BEFORE THE HONOURABLE MR. JUSTICE M. HOLDIP Appearances: Mr. Jeron Joseph for the State Mr. Bindra Dolsingh for the Accused Mr. Cristo Williams RULING Friday January 28 th 2011 Now the case for the State is that on the night of Friday 15 th June 2007, at around 11:00 p.m. the deceased Jason James, also called Spoon, his girldfriend, Crystal Phillips, his male friends Vishnu Ramkhelawan, also called Kello and Satish Gajadhar, also called Madman were at a table liming in Drinks Bar located at 144 Southern Main Road, Edinburgh, Chaguanas. Whilst there the Accused and his girlfriend Sheena Maynard came to that bar and went to the bar counter and seated themselves on the bar stools. They too were liming. At some point in time Kello got up and went to the washroom. Crystal Phillips testified that she went to the bar to order a round of beers. At the bar counter she got into a verbal dispute with Sheena Maynard whom she hit. Sheena retaliated and the two young women started to fight.

2 Again, at some point in time the deceased, Spoon would leave the table where he was seated and he tried to separate the pugilists. He was assisted by another bar patron. Whilst this encounter was taking place, Madman remained at the table. Vishnu who had gone to the washroom returned and he saw the young women engaged in a fight. Further, at some point in time Crystal was on the ground and whilst combatively engaged, Spoon tried to hold on to her to pull her away. The State alleges that at that time the Accused also called Rose got off of his bar stool and moved a short distance away, whereupon he took a bottle and hit Spoon to the back of his head. Spoon moved towards the Accused, the Accused moved backwards towards the entrance door. The Accused then pulled out a gun; according to the two eye-witnesses Kello and Vishnu, and proceeded to aim it towards Spoon. Spoon is fatally wounded. However, Spoon in his forward momentum, is able to reach the Accused and hold on to him in the vicinity of the door. Spoon who is now mortally wounded, slips downwards; the Accused escapes his embrace and goes through the entrance door of the bar. Satish Gajadhar also called Madman as I said followed him through the door. The Accused who was outside in the vicinity of the Southern Main Road, that is nearer to the end of the car park, pointed a gun towards madman who ducked behind a parked vehicle. The Accused, the State then advances, calls his woman Sheena from inside the bar and she together with the Accused proceed in a southerly direction along the Southern Main Road, Edinburgh, Chaguanas. At the end of the State s case, the Defence made a no-case submission that the Accused should not be called to answer the charge as the State has failed to prove any causal link between the Accused and the shooting discharge of a firearm that eventful Friday evening. This was bolstered by the Defence putting forward the view that the scientific officer having come to testify said that when she examined the swabs which were sent to the Forensic Centre, no firearm residue that is the lead nitrate was found on the swabs which had been taken off the hands of the Accused and also the clothing which the Accused wore that night. In making his submissions, Counsel further stated that the State s case when taken at its highest through the evidence of its main Witness Satish Gajadhar, was so manifestly unreliable and it 2

3 revealed inconsistencies and absurdities so gross that as a rational person, this Court ought not to allow a jury to say that it satisfied them of the Accused s guilt beyond reasonable doubt. The test which was established in R v Galbraith WIR 1039 and also alluded to by Counsel in the 2011 blackstone at paragraph D15.52 under the rubric, Submission of no case to answer and at D15.52 specifically, the test to be applied. Counsel indicated and read out this to the Court, and the Court in fact, will now restate what Counsel had put before the Court for its consideration. The leading authority on the test a trial Judge should apply in determining whether there is a case to answer is Galbraith, 1981, One Weekly Law Reports at page In the course of his judgment in that case, Chief Justice Lord Layne at page 1042B-D had the following statement to make: How then should the Judge approach a submission of no case? One, if there is no evidence that the crime alleged has been committed by the defendant there is no difficulty, the Judge will, of course stop the case. Two, the difficulty arises when there is some evidence but it is a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (A) Where the Judge comes to the conclusion that the Prosecution evidence, taken at its highest, is such that a Jury properly directed could not properly convict upon it, it is his duty, upon a submission being made to stop the case. (B) Where however the Prosecution s evidence is such that its strength or weakness depends on the view to be taken of a witness reliability or other matters which are generally speaking within the province of the Jury and where on one possible view of the facts, there is evidence upon which a Jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried by the Jury. There will of course, always in this branch of the law be borderline cases that can safely be left to the discretion of the Judge. 3

4 This pronouncement of Lord Layne has been accepted with approval in our jurisdiction, it has been accepted with an appropriate proviso in the watershed case of Sanjit Chaitlal v the State (1991) 39 WIR at page 295. Our Court of Appeal also approved that the true test, when it comes to no-case submissions, was as stated by Justice of Appeal Lucky in the Guyanese case of the DPP s reference No. 2 of 1980, WIR at page 154. Where at page 167 Justice of Appeal Lucky would make this statement which our then Chief Justice when he was giving his decision in the Sanjit Chaitlal case, he said that was the true test and approved it. I repeat, this is what Justice of Appeal Lucky said at page 167: A Judge would have to decide what were the constituent or essential elements of an offence. If the facts adduced by the Prosecution in proof of the offence fell short of proof of any of the constituents of that offence, it would be the function of the Judge as a matter of law to direct the Jury to acquit. If on the other hand, the Prosecution adduced evidence in proof of each and every essential element of the offence thereby making out a prima facie case against an Accused, it would be the function of a Judge to leave those issues of fact for the Jury s consideration and the function of that Jury to resolve the issues of fact. So, put in those general terms, whether there was any evidence on which a Jury might convict, would be a question of law for the Judge to decide, should he so decide, he must leave the matter with them as judges of the facts. A question posed during the hearing of the Reference was: What would be the position if evidence was adduced by the Prosecution on each of the constituents of the offence, but that evidence was very weak or was either so manifestly unreliable or discredited as a result of cross-examination that no reasonable tribunal could safely convict on it? It was not deemed that in such cases a Judge could properly direct a Jury to return a verdict of not guilty. In doing so, I should think that he would be acting from an inherent sense of justice in the conduct of a trial so as to avoid a perverse verdict being given against an Accused. Counsel for the Accused said that the trial Judge will be acting ex debito justitia. I would describe such a direction not as one resulting from a decision on a point of law arising at the trial, but as one given by virtue of an overriding discretion vested in the Judge in the fair administration of jury trial to ensure that justice did not miscarry. 4

5 And the point here in the case is where the Court says: We are of the view that the opinion above reflects accurately the two particulars set down by Chief Justice Lord Parker, in his Practice Note, in 1962, 1 All ER page 448, and in this Court s opinion is the true test. The Court will go on later, and in giving due consideration to the case of Galbraith, Chief Justice Bernard said, at page 312, coming to the end of the case, we feel that in the ultimate the matter should be left to the good sense of the trial judge who must be depended upon to see that there is no miscarriage of justice. Now the Court was asked to examine the evidence of the witness, Satish Gajadhar, which was submitted taken at its highest, was manifestly unreliable because of its gross and absurd inconsistencies. And further that when one considers the evidence of Kello, the contradictions between those two witnesses, that is Kello and Madman are such that the Jury would be invited to speculate if it had to choose between the evidence of these two witnesses. Now let me say immediately, that it is this Court s opinion that where inconsistencies and contradictions are concerned, the Court of Appeal has repeatedly stated that it is for the Jury to determine what evidence they accept or what evidence they reject. Our Court of Appeal in the case of The State v Gomes and Gomez 59 W.I.R. at page 479, we have Justice of Appeal Ibrahim, at page 486, making a statement in relation to the case which was before him but which case when juxtaposed in terms of the concept and our matter here, one clearly gets what the Court of Appeal is saying, and I will repeat it, he said: We meaning the Court of Appeal accept that there were contradictions in the evidence of one Sergeant Fournillier, but we are of the opinion that such contradictions as there were, ought to have been left by the trial Judge to the Jury for them to determine whether they accepted his evidence in whole or in part notwithstanding the contradictions, or rejected it because of them. 5

6 And I stop at that moment just to indicate that the many inconsistencies and contradictions which were stated to the Court by Counsel have been noted. I would repeat it later on again but to make it clear that the Court of Appeal is saying that where the issues of contradictions and inconsistencies arise, it is up to the Jury who have to determine what they accept what a witness says. Further, the Court said But Sergeant Fournillier s evidence was not the only evidence in the case for the Prosecution, there were other police officers who accompanied Sergeant Fournillier in the execution of the warrant and their evidence was largely unshaken in cross-examination. It was open to the Jury even if they rejected Sergeant Fournillier s evidence, to accept the evidence of other witnesses and return a verdict of guilty. Let me say that again the question assessing the reliability and the credibility of a witness is something that ought to be left to a Jury. As far back in 1994 in the case of Brooks v the Director of Public Prosecutions (1994) 44 W.I.R. at page 323, we find at page 342, Lord Woolf sitting in the English Court of Appeal made this statement, he said that: Questions of credibility, except in the clearest of cases do not normally result in a finding that there is no prima facie case, they are usually left to be determined at the trial. In a case cited before this Court, that is the Queen v Stokes, 2010 NICC at page 31 found at a footnote and also presented to this Court by State Prosecutor Mr. Joseph that s the case Patrick Brian Barker, 1975 Criminal Appeal R 287. It also provides a measure of guidance when the Court is discussing the duty of a Judge in considering a no-case submission. In that case Lord Chief Justice had this remark to make coming to the very end of the Court s decision at page 288, he said: 6

7 But even if he is right and even if the Judge has taken the view that the evidence could not support a conviction because of the inconsistencies, he should nevertheless have left the matter to the Jury as it cannot be too clearly stated that the Judge s obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime have not been proved. It is not the Judge s job to weigh the evidence. And I am saying this because Counsel for the Defence was asking the Judge to weigh the evidence of Satish in terms of how Satish said the incident occurred, compare it with how Satish said the incident occurred, compare with what Vishnu said, further compare it with what the Forensic Pathologist has said and that the Judge in weighing that evidence, should find that it was not reliable. But the ruling in terms of the guidance is as I am stating it is not the Judge s job to weigh the evidence, decide who is telling the truth and to stop the case merely because he thinks that the witness is lying. To do that is to usurp the function of the Jury and would have been quite wrong in the present case. So that again, I take the guidance of the Court of Appeal that had been stated there, an even in the case submitted by Counsel, Mr. Joseph. Now in this ruling I do not propose, as I said, to repeat the plethora of inconsistencies and contradictions which were highlighted by Counsel for the Defence, the majority of which have been conceded by the Prosecution. This Court is of the opinion that there remains the evidence, that is the inferential evidence of Crystal Phillips and the eye-witness evidence of Vishnu Ramkhelawan to be considered besides simply the evidence of Satish Gahadhar. And when one looks at the evidence of these persons, the Court is of the opinion that it is sufficient to found, at this point in time a prima facie case. Let is be noted that the purpose and genus of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in determination of factual matters. It is fundamental to that purpose that the Jury be allowed to determine by inference from its 7

8 collective experience of ordinary affairs whether and in the case of conflict what evidence is truthful. The Defence has alluded to the scientific evidence of Dr. Des Vignes and has engaged in comparing that evidence with that of the witnesses Satish Gajadhar and Vishnu Ramkhelawan. In doing so the Defence has concluded that no Jury could be properly directed as to how the evidence of Dr. Des Vignes and that of the eye witness could be reconciled. As I have said previously, that in this Court s opinion is a matter entirely for the Jury what it makes of the evidence. This Court cannot make a distinction and come to a conclusion such a function is entirely the province of the Jury and should not be usurped. The Scientific Officer, again, her evidence offered explanations of why no gunshot residue was found on the hands or clothes of the Accused. Again, it is a matter for the Jury whether they accept the findings of the Scientific Officer and what inferences they can draw from it. The Court, therefore, in these circumstances, reject the no-case submission that has been made by Counsel for the Accused and now calls upon the Accused to answer the charge. Malcolm Holdip Judge 8