Burris v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Weekes, J.A.,Yorke Soo-Hon, J.A.,Bereaux, J.A. |
| Judgment Date | 22 July 2015 |
| Neutral Citation | TT 2015 CA 21 |
| Docket Number | Cr App. 4 of 2012 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 22 July 2015 |
Court of Appeal
Weekes, J.A.; Yorke Soo-Hon, J.A.; Bereaux, J.A.
Cr App. 4 of 2012
Mr. D. Khan instructed by Ms. S. Hinds for the appellant
Mrs. K. Waterman – Latchoo for the respondent
Criminal practice and procedure - Appeal — Direction to jury — Bad character — Previous inconsistent statements — Lies — Whether trial judge failed to give proper directions to jury — Whether the verdict was unsafe — Appeal dismissed.
YORKE-SOO HON, J.A.: On the 2nd May, 2012 the appellant, Kevin Burris, was convicted of the murder of Anthony Roland (the deceased) and sentenced to death. He has appealed his conviction and sentence.
The matter was heard on the 2nd July, 2013 and judgment was reserved. However, the appellant on his own motion filed additional grounds on the 17th December, 2013. The Court directed these grounds to his Counsel and recalled the matter out of an abundance of caution, in order to afford the appellant an opportunity to be heard on the additional grounds. We have considered all of his grounds.
It was the case for the prosecution that the appellant and Charmaine Sebastien (hereinafter referred to as “Ms. Sebastien”) unlawfully gained access to premises at 34 Pitman Lane, Belmont by breaking and entering. They resided there for several months without the permission of the owners. However, on 11th May, 2005, they were given notice to vacate the premises by Friday, 13th May, 2005. The appellant then set about seeking alternative accommodation and identified premises at No. 3 Suffolk Street owned by the deceased, who was last seen at his home on Friday 13th May, 2005 between 10 and 11 am by his neighbour Natalie Huggins.
On Thursday 12th May, 2005, the appellant went home to Pitman Lane, where he told Ms. Sebastien that he had good news. He had found a place for them to live at Suffolk Street, Belmont. The appellant told her that he had to go back and talk to the gentleman whose name he gave as Anthony, and that Anthony had given him the keys to the house because he had no living relatives and the arrangement was that the appellant would take care of the place and the bills. He also told her that Anthony was planning to emigrate.
After speaking with Ms. Sebastien the appellant left to borrow money in order to pay for the transportation of their furniture. Ms. Sebastien arranged with one Michael Browne to use his truck to remove their household items from Pitman Lane to Suffolk Street. The prosecution contended that the appellant was bent on moving into those premises at Suffolk Street before the deadline to leave the Pitman Lane premises expired.
On Friday 13th May, 2005, the appellant went to the home of the deceased at Suffolk Street and killed him in his bedroom, wrapping his body in a sheet, binding his hands and feet with a skipping rope and placing a bag over his head. He then moved the body outside to the back of the house near the southern wall and proceeded to clean up the blood that was in the area. He took the keys to the premises from the deceased.
The appellant then returned to Pitman Lane and told Ms. Sebastien that “we in deep shit”. When she asked him what he meant by that, he told her that he had found a body wrapped in a white sheet in a corner by the wall at Suffolk Street. He told her that he had seen a lot of blood on the wall in the back room of the house, that it appeared as if there had been a scuffle and that he had used a mop to clean up the blood. Ms. Sebastien noticed a wet stain on his pants and asked him about it and he told her it was blood.
The appellant and Ms. Sebastien stole certain household items from the Pitman Lane property and took them to Suffolk Street placing them in the downstairs apartment. The next day the appellant removed the items to the upstairs apartment along with other household items belonging to the deceased, namely, a dining room set, living room set, television set and a bag of dog food.
On Friday 13th May, 2005 between 4 p.m. and 5 p.m., Natalie Huggins, saw the appellant leaving the Suffolk Street premises. The following morning another neighbour, Vanessa Forde, went to the premises, where she saw the appellant and asked him about the whereabouts of the deceased. The appellant replied that “Mertz” was his uncle and had left the key with him. Later that morning, Natalie Huggins went onto the premises and peered through the deceased's bedroom window and noticed blood on the floor. The police were then summoned.
Corporal Bartholomew visited the premises and met the appellant and told him of his information. The appellant told him that he had moved into the upstairs portion of the house with his girlfriend (Ms. Sebastien) and her three children the night before, pursuant to an arrangement that he had made with the deceased.
Cpl. Bartholomew checked the door on the western side of the downstairs apartment and found that it was locked. He took the bunch of keys from the appellant and used one of those keys to open the door. Inside, he discovered blood in the bedroom and found the body of the deceased wrapped in a sheet near the fence at the back of the premises.
The post mortem examination revealed that the deceased died as a result of hemorrhagic shock and severe blood loss due to chop wounds to the head and face.
Cpl. Bartholomew told the appellant of his observations, informed him that he was a suspect and cautioned him. The appellant replied “I talked to Anthony yesterday and he told me that I could move into the upstairs of the house”. The appellant was subsequently arrested and charged for the offence.
The appellant did not give evidence but called three witnesses, two of whom were character witnesses. From the cross examination of the prosecution witnesses it can be gleaned that his case was that of a denial. By way of cross examination, he denied that he had occupied the Pitman Lane premises illegally and asserted that Ms. Sebastien had an arrangement with a person called “Roy” whereby she paid the utilities and a monthly rent of two hundred dollars. The third witness, Stephen Barker, his father, testified that Ms. Sebastien told him that the Pitman Lane property was owned by her aunt who resided in Canada and that her aunt was going to give it to her. The appellant also denied that he was in illegal occupation of the Suffolk Street property and asserted that he and Ms. Sebastien had an arrangement with the deceased to move into the upstairs portion of the said premises. The appellant denied having a conversation with Ms. Sebastien about finding blood on the premises and saying “We in deep shit.” He also denied moving household items from the deceased's room downstairs to the upstairs apartment.
The crux of the appellant's submission on this ground is that the evidence of his bad character, that is, the evidence that he had previously broken into and resided illegally at Pitman Lane, was not relevant to the matter in issue. Since there had been no direct evidence that the appellant had broken into the deceased's house or committed the murder, the bad character evidence should have been excluded, as it could only be relevant to show that the appellant had a propensity to break in and reside illegally in premises owned by others.
Mr. Khan for the appellant also submitted that where evidence of bad character is relied upon to demonstrate propensity, it must be evidence of conduct that is of the same kind as the offence for which the offender is charged, or at least directly relevant to the facts on the indictment. Counsel argued that the risk of prejudice to the appellant was heightened by the fact that the conduct relied on as bad character had never been proven in Court. He argued further that the unfairness caused by the admission of the evidence was compounded by the fact that the trial judge failed to adequately caution the jury against misusing it to show propensity to murder.
Mrs. Waterman – Latchoo for the State submitted in response that the trial judge properly exercised his discretion in admitting the bad character evidence for the limited purpose of rebutting innocent explanation via section 15(N)(1)(d) of the Evidence Act Ch. 7:02. She argued that it was not a case of propensity. The evidence that the appellant had a few months prior broken into and entered premises at Pitman Lane and lived there for some months without the permission of the owner was relevant to the jury's assessment of the plausibility of the explanation proffered by the appellant as to how he came to be at the Suffolk Street premises.
She submitted further that the appellant suffered no unfairness by the admission of the bad character evidence because of the different thresholds of admissibility set by the amended Evidence Act Ch. 7:02 and the comprehensive directions provided by the trial judge.
Section 15N of the Evidence Act Chap. 7:02 (as amended by the Evidence (Amendment) Act No. 16 of 2009) sets out the gateways governing the admissibility of evidence of an accused's bad character. These gateways mirror the provisions of the UK Criminal Justice Act 2003. The State sought leave to adduce evidence of the appellant's bad character pursuant to section 15N(1)(d) which provides that that evidence must be relevant to an important matter in issue between the accused and the prosecution.
An important matter in issue between the accused and the prosecution is defined in section 15P(1) which states:
“(1) For the purpose of section 15N(1)(d), an important matter in...
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