Carter et Al v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Weekes, J.A. |
| Judgment Date | 28 February 2008 |
| Neutral Citation | TT 2008 CA 12 |
| Docket Number | Criminal Appeal No. 32 of 2005 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 28 February 2008 |
Court of Appeal
John, J.A.; Mendonca, J.A.; Weekes, J.A.
Criminal Appeal No. 32 of 2005
Mr. Rajiv Persad for appellant No. 1.
Mr. S. Cazabon for appellant No. 2.
Ms. D. Seetahal S.C. for the respondent.
Criminal law - Murder — Appeal against conviction — Fresh evidence — Whether trial judge wrongly admitted fresh evidence of prior history and motive.
The appellants Akim Carter and Clinton Otis John, were convicted on 16 December 2005 at the Port of Spain Assizes of the murder of Peter Bernard, which was committed on 10 December 2002. They were both sentenced to death by hanging.
At the hearing of the appeal we allowed appellant John's appeal and ordered a retrial. Appellant Carter's appeal was dismissed. We now provide the reasons for the court's decisions.
At about 11:25 pm on 10 December 2002, Peter Bernard arrived home and parked his car in his garage. Shortly after, appellants Carter and John, and one Buggy all armed with guns approached him as he sat in the company of his wife Ena Bernard on a concrete wall next to the house of a neighbour. He was first confronted by Buggy who pulled him off the wall and a struggle ensued. Appellant Carter then joined in the struggle, and as they moved onto the centre of the roadway, appellant John joined in. A shot was heard and fire was seen coming from appellant John's gun. Peter Bernard let go of Buggy and fell close to the house of a neighbour, Shurland Pemell. He suffered two gunshot wounds that eventually caused his death.
The appellants and Buggy then left the scene, and one Jardine, Shurland Permell's brother, approached Peter Bernard and shot at him. No bullets were discharged and Jardine ran off in the same direction as the other three assailants.
Damien Bernard, son of the deceased, observed the entire incident, which lasted one and one-half to two minutes from a vantage point of about one hundred and thirty-five feet away. He had a clear view of the three men for about thirty seconds as they approached his parents, and was able to recognise the appellants and Buggy, all of whom he had known since childhood.
The lighting conditions in the area were good as there were lights on in several houses as well as in a nearby garage. (the distances among the buildings were shown on a plan exhibited in evidence). Ena Bernard who was about two feet away from her husband when the three men first approached, had a clear view of them all and so was able to describe them. She recognised only appellant Carter whom she had known for about ten years.
At trial, an application was granted to lead fresh evidence of an incident that occurred on 9 December 2002, the day before the murder. The substance of that incident was that at about 9.30 am Damien Bernard was in a taxi driven by one Carlos Francis when he was attacked by Buggy and appellant John. As the incident ended and appellant John and Buggy were walking away, appellant John turned to Damien and threatened that he would kill his whole family. Buggy also issued similar threats.
On 14 December 2002, appellants Carter and John were arrested and later charged for the murder of Peter Bernard.
The defences raised by both appellants were mistaken identity and alibi. They both elected to testify on their own behalf. Appellant John also called as witnesses, Dr. Eastlyn Mc Donald-Burris, a Forensic Pathologist, Carlos Francis, Shurland Permell and one Marlon Benn.
From about 10.00 pm on 10 December 2002, appellant Carter was “hustling” at the city dump and remained there until about 4.00 am as was his usual routine. He had moved out from the Dan Kelly area since he was about twelve years old and had not returned for a long time so that Ena Bernard could not have seen him in many years.
At the time of the murder, appellant John was at home with his girlfriend. He had known both Ena and Damien Bernard practically all his life, and he and the latter had remained friends until 2002, after which their relationship became strained.
Through Shurland Permell the defence asserted that the area of the murder scene was dark at the time of the attack on Peter Bernard. At some stage, Ms. Permell was able to see the faces of the gunmen and claimed that none of them was either appellant or Buggy, all of whom she had known.
Through Carlton Francis, the taxi driver of the incident on 9 December 2002, the defence denied that appellant John was involved in the said incident.
Each appellant appealed against his conviction on four grounds.
Ground 1 (appellants Carter and John)
Counsel on behalf of appellant Carter submitted that the learned trial judge erred in law when she allowed into evidence before the jury material that was both irrelevant and which prejudicial value significantly outweighed its probative value.
Counsel on behalf of appellant John submitted that the learned trial judge erred in law when she allowed the Prosecution to adduce fresh evidence of prior history and motive. The probative value of this evidence in the circumstances of this case was outweighed by its prejudicial effect.
This ground was common to both appellants, it is the identical evidence to which they object. The fresh evidence referred to is that which was adduced from Damien Bernard. This evidence referred to the incidents of 17 April 2001 and 9 December 2002. In the former, Damien Bernard was shot at by Buggy who, along with appellant John, Darrie Jardine and five other men robbed him while he was in the company of Marlon Benn and one Perry Mason.
Counsel on behalf of both appellants made it clear at the very outset that the primary focus of their objections was the incident of 17 April 2001. They agreed that the incident of the day before the murder was relevant to intention on the part of appellant John.
Mr. Cazabon's complaint on behalf of appellant John was twofold. Firstly, counsel contended that this evidence cannot properly be considered fresh evidence as it was available to the prosecution from the very beginning of the matter. Secondly, he submitted that the evidence adduced, was not only irrelevant, but also highly prejudicial to the appellant, and thereby deprived him of a fair trial.
This latter limb essentially represents the submissions of Mr. Persad for appellant Carter. He submitted that although the purpose of the evidence was to establish intention and possible motive, there was nothing about the incident of April 2001 that was linked to the events giving rise to the offence in question. His further submission was that although the incident did not involve appellant Carter, the evidence infected the case against him. The evidence was irrelevant to the issues and should have been excluded from evidence, considering that its prejudicial effect vastly outweighed any probative value.
We shall examine both limbs together. In R v. Gomes (1962) 5 W.I.R. 7 the Supreme court of British Guiana considered an objection to the admissibility of fresh evidence of a material nature which had been available to the prosecution at the time of the preliminary enquiry. The court after consideration of the English authorities held that where evidence is available to the prosecution at the time of the preliminary enquiry and is not led, such evidence is inadmissible at trial. Bollers, J. (as he then was) stated at para. 10:
“… it would be contrary to British principles of justice and fair play that such evidence, if available should be deliberately withheld and produced at the trial which would only result in embarrassment to the accused person.”
In Cadogan v. R (1963) 6 W.I.R. 292, this court held that committal proceedings in which the appellant was committed to stand trial was invalid, since evidence that was available initially ought not to have been called “additional” or fresh evidence in later proceedings. The court in Cadogan at 296 adopted the definition of fresh evidence in Timmins v. Timmins [1919] P 75 as the “proper test” to apply to the circumstances of that case. In Timmins, Hill, J. at page 80 defined fresh evidence as:
“evidence of something which has happened since the former hearing or has come to the knowledge of the party applying since the hearing and could not by reasonable means have come to his knowledge before that time.”
Reconciling this definition with the present case, the statement of Damien Bernard cannot be regarded as fresh evidence as it was available to the prosecution at the preliminary enquiry, and they could have taken advantage of its availability at that juncture. Ms. Seetahal, on behalf of the respondent, submitted that notice of the prosecution's intention to adduce fresh evidence was filed months before the trial. This does not, however, derogate from the fact that Damien Bernard's statement was available to the prosecution, at the very initial stage of proceedings. According to Gomes, such evidence is inadmissible at a later stage notwithstanding that notice in writing of it is filed, and served on the defence before the application for leave to lead the evidence is made.
We do not think that the court in Gomes intended to convey that once evidence was available at the time of the preliminary enquiry and was not led, it ipso facto and as a matter of law becomes inadmissible. Bishop, J.A. in another Guyanese case, Abdool Salim Yaseen and Thomas v. The State (1990) 44 W.I.R. 219, 244 clarified the position in Gomes thus:
“I pause here to emphasise that Boilers, J. found that the proposed similar- fact evidence was stale, i.e. it was not proximate in time. That being so, it lacked the necessary connective tissue, was not positively probative, if probative at all, and as such was inadmissible. One may reasonably say that he anticipated the fourth of...
To continue reading
Request your trial