Charles v the State

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Bereaux J.A.,Weekes, J.A.
• Judgment Date: 31 March 2010
• Neutral Citation: TT 2010 CA 18
• Docket Number: Criminal Appeal No. 125 of 2007
• Date: 31 March 2010

Court of Appeal

Weekes, J.A.; Soo Hon, J.A.; Bereaux, J.A.

Criminal Appeal No. 125 of 2007

Charles

and

The State

Appearances:

D. Khan for appellant.

D. Seetahal S.C for respondent.

Criminal law - Wounding with intent to do grievous bodily harm — Two counts — Appeal against convections — Identification evidence — Unbalanced summation to jury — Whether wrongful exercise of judicial discretion to allow cross-examination on previous convictions — Grounds of Appeal without merit — Appeal dismissed.

Bereaux J.A.

1 The appellant was convicted on 18th December 2007 of two counts of wounding with intent to do grievous bodily harm to Winston Aqui and his sister, Grace Aqui. He was sentenced to eight years imprisonment with hard labour on each count, sentences to run concurrently. He has appealed his convictions on a number of grounds. The appeal has been fully argued by Mr. Khan orally and in written submissions, which reflected both preparation and thought. Having heard both counsel, we are not persuaded that we should disturb the verdicts.

Facts

2 In the early morning of 11th November, 2004 siblings, Winston and Grace Aqui, were asleep in their home at #1 Fieldscape Drive, Four Roads, Diego Martin, when they were awakened by the sound of glass breaking. Winston looked at his watch, it was 5.15 a.m. He put on his spectacles (being “badly short sighted” as he put it), picked up a stick, which was at his bedside and made his way towards the kitchen area from which the sound emanated. When he got to the kitchen he saw a man coming through the broken glass pane of the front door of the living room. Winston was then thirty feet away from the intruder. The man was of African decent, of slim build and about 5 feet 7 inches tall. There was nothing blocking Winston's view of him. The lighting in the kitchen area was good. There were two lights from the front porch which shone through the front door glass pane into the living room. There was also lighting from several external lights which shone through the plain glass louvres of the kitchen windows, which had no curtains.

3 The man strode towards Winston who advanced to meet him. They engaged where the living room and the kitchen meet. Winston struck the intruder with the stick from about three feet away. At that distance he had a clear view of the intruder. The man caught the blow with an upraised hand and “jump kicked” Winston, who fell to the ground, losing his spectacles in the process. Some eleven to thirteen seconds had then elapsed since Winston first sighted the intruder. The intruder began to beat Winston with a metal stool saying “stay down, stay down”. Winston was on the ground in a crouched position kicking out at the intruder with his feet. At this point Grace intervened, armed with a cutlass and shouting “leave my brother alone”. She attempted to hit the intruder with the cutlass but he took it from her and dealt chops to both Grace and Winston. Winston was chopped on the back of his head and his right arm. Grace was also chopped on her head. The Aquis continued to struggle with the man. Winston hit him with the stool which he had been able to recover. Grace eventually managed to get the cutlass away from the intruder who then backed off, retraced his steps to the kitchen and fled the house.

4 On November 30, 2004 at about 2 a.m. Constable Worrell arrested the appellant in the Four Roads area on Hillcrest Drive. A maxi taxi was intercepted by the police and the appellant was found lying on the floor. At the time the appellant bore a wound to his right buttock, he had been shot earlier by the police. He was cautioned, arrested and taken to hospital. Later that day ASP Glenda Smith saw the appellant at the West End Police Station. After introducing herself to him she cautioned him and told him of his rights and he agreed to be placed on an ID parade. He asked that his girlfriend, Denise Duke, be his representative during the parade.

5 The parade, witnessed by Ms. Duke, began around 12:15 p.m. It comprised the appellant and 8 other persons of similar age, height, race and appearance. Winston identified the appellant on the parade as the man who had broken into his house and wounded him and his sister. Grace did not identify the appellant on the parade.

6 Winston had seen the appellant twice before the incident. The first time was at his home about three months earlier, on a Sunday morning, about 7:30 a.m. He had heard someone calling. He walked to the porch and saw the appellant walking up the path to the porch. Winston walked up the pathway and met the appellant there, standing about a foot away from the appellant who asked about odd jobs. The conversation lasted 1-2 minutes.

7 The second occasion was approximately one month later. Winston had again heard someone calling at his home and on looking through the window, saw the appellant who was forty to fifty feet away, for two or three seconds.. Winston went out to speak with him but when he got there the appellant had already left.

8 The appellant, having been identified by Winston, was charged for the offences. At the trial the appellant gave evidence but called no witnesses. His defence was one of mistaken identity and alibi. He testified that on the date of the incident he was at the home of his parents along with his siblings and his nephews. He said that on the day of his arrest, he was standing on the side of the road when he saw men in plain clothes coming towards him with guns in their hands. They did not identify themselves. He ran and was then shot by these men who turned out to be police officers. The appellant's evidence was to the effect that the identification parade was unfair. According to him, everyone else on the ID parade wore dark coloured jerseys and jeans. He, on the other hand, was dressed all in white; a white jersey and white pants.

9 Assistant Superintendent of Police, Glenda Smith, had conduct of the identification parade. She testified of telling the appellant of her intention to put him on an identification parade and that she advised of his rights and privileges. She explained the process by which the parade would be conducted, and told him of his entitlement to change clothing and to change to any position in the parade that he wished. She said that there had been two witnesses called at the ID parade, Winston, followed by Grace. The appellant took up position three and exchanged his jersey with the person who was originally in that position. Later, prior to Grace's viewing of the parade, he changed to position 7 again exchanging jerseys, this time with the person originally in position 7. All nine persons were similarly dressed in dark coloured jerseys, jeans and sneakers, of similar height and complexion and were of African descent.

10 It was never put to Winston during cross-examination, that the accused was dressed all in white at the ID parade. Moreover, in the cross-examination of ASP Smith, counsel then appearing for the appellant, suggested to her that the appellant was wearing a white Tshirt but he never put to her that the appellant was dressed all in white.

11 As a result of the appellant's evidence, the prosecutor sought and obtained leave of the trial judge to cross-examine the appellant on his previous convictions pursuant to section 13(3) of the Evidence Act, Chap. 7:02 contending that the appellant's defence (not only on the ID parade) involved imputations on the character of the witnesses for the prosecution. The trial judge granted leave on the ground that there were imputations against ASP Smith who conducted the ID parade.

Grounds of Appeal

12 The appellant filed the following six grounds of appeal:

• (i) the conviction is unreasonable and cannot be supported having regard to the poor identification evidence; and,

  the trial judge erred in law when he refused to uphold a no case submission on behalf of the appellant in light of the poor identification evidence.

• (ii) the trial judge erred in law by failing to give the jury a full, adequate and effective Turnbull direction.

• (iii) the trial judge erred in law by failing to adequately direct the jury as to the consequences that would follow should they conclude that the identification parade was unfair; in particular no warning was given on the effect such a parade might have on the identification in Court, and on the dangers in relying on a dock identification generally.

• (iv) The trial judge erred in law in failing to direct the jury on how to treat the failure of defence counsel to put a material allegation to two prosecutions witnesses. This resulted in the danger that the jury may have doubted the veracity of the appellant's evidence in this regard.

• (v) the trial judge deprived the appellant of a fair trial by giving an unbalanced summation to the jury; in which he bolstered the case for the prosecution by misrepresenting a vital piece of evidence; failed to remind the jury of a key piece of evidence the appellant was relying on and made an unfair comment which may have had the effect of prejudicing the minds of the jurors, particularly with reference to the credibility of the appellant.

• (vi) the trial judge erred in law in ruling that the appellant, through his counsel and in his own evidence, had made imputations on the character of the prosecution witness resulting in the trial judge wrongly exercising his discretion to allow the prosecution to cross-examine the appellant on his previous convictions after state counsel made an application under section 13(3) of the Evidence Act.

We propose to examine each ground separately

Ground 1 - Conviction Unreasonable/Wrongful Rejection of no Case Submission.

13 Mr. Khan argued that the conviction was unreasonable and could not be supported on the evidence because Winston's evidence, he being the sole identifying witness, contained such inherent weaknesses that the judge...