Clarke, Gillery (A/C) Boops) and Martin v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Weekes, J.A. |
| Judgment Date | 28 July 2011 |
| Neutral Citation | TT 2011 CA 27 |
| Docket Number | Criminal Appeal No. 28 of 2009; Criminal Appeal No. 29 of 2009; Criminal Appeal No. 30 of 2009 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 28 July 2011 |
Court of Appeal
Weekes, J.A.; Soo-Hon, J.A.; Bereaux, J.A.
Criminal Appeal No. 28 of 2009; Criminal Appeal No. 29 of 2009; Criminal Appeal No. 30 of 2009
Mr. J. Singh for appellants nos. 1, 2 and 3
Ms. D. Seetahal, S.C. for the respondent
Criminal practice and procedure - Directions to jury — Appellants allegedly part of a joint enterprise were convicted of manslaughter — Appeal against conviction — Whether verdict was inconsistent — Whether jury misdirected on legal concept of joint enterprise and forseeability — Whether jury misdirected on finding of guilty of manslaughter.
Evidence - Identification — Whether failure to conduct an identification parade a material irregularity.
The appellants, Vivian Clarke (appellant no.1), Steve Mc Gillvery A/C “Boops” (appellant no. 2) and Pernell Martin (appellant no. 3) were charged with the murder of Samdaye Rampersad, which was committed between the period November 27th 2005 and January 6th 2006. They were convicted of the lesser offence of manslaughter on 31st July 2009 at the Port of Spain Assizes and each was subsequently sentenced to thirty years imprisonment with hard labour.
The appellants were charged and tried along with six other men, among them Phillip Boodram A/C “The Boss” (hereinafter referred to as the principal). The prosecution case against the appellants was based on the evidence of one Nigel Roderique A/C “Supercat”, and statements which the appellants allegedly made to the police. It was alleged that the three appellants engaged in a joint enterprise, masterminded by the principal and involving others, to kidnap Samdaye Rampersad for ransom. The three appellants played a specific role in the kidnapping, which was to seize the victim and deliver her to their confederates. She was duly handed over and while in the custody of other participants in the enterprise, she was killed.
Roderique's evidence was that on Friday 25th November 2005, appellant no. 1, an acquaintance of several years, and another man visited him at home. Sometime later they all left Roderique's home and went to Claxton Bay where they were supposed to meet the principal but instead met yet another man. The principal eventually arrived and told the men gathered about one Rampersad to whom he had given cocaine valued $900,000 to take to England. He told the men that Rampersad was avoiding him and he wanted to kidnap Rampersad's mother, Samdaye, in order to recover his money.
After discussing further details, the principal gave two handguns to appellant no. 1 and two to another participant after which appellant no. 1, Roderique and the other man left. Appellant no. 1 told Roderique that when the woman was held he would call him saying “the bread is in the oven”.
The following day around 9:00am appellants nos. 1 and 3 went to Roderique's home to get a vehicle with which to carry out their part in the enterprise. Appellant no. 3 collected keys and drove off in a white Nissan B15.
At 8:00 that night, Samdaye was snatched from the convenience store which she operated and bundled into the vehicle. Appellant no. 3 was the driver and appellant no. 2 was in the front passenger seat. Appellant no. 1 was not present. Two other men accompanied appellants nos. 2 and 3. The “snatch” was communicated to appellant no. 1.
Shortly after, appellant no. 1 called Roderique and said “the bread is in the oven.” Roderique, together with another confederate, drove to Bobby Hill in an open-tray van and waited. Appellants nos. 2 and 3 drove up with Samdaye in the backseat between the other men. (This was the first occasion on which Roderique was seeing appellant no. 2, whom he described as the only “clear” person that night. He also described appellant no. 2 as a “red skinned African man” and “dougla-ish”. Roderique saw him on three subsequent occasions and estimated that appellant no. 2 was under his observation cumulatively for approximately nine hours. Appellant no. 2 was identified by Roderique in a dock identification).
At the time that the deceased was handed over, her hands were tied behind her back and there was something covering her eyes. The men transferred her to the tray of the van and secured her. Appellants Nos. 2 and 3 then drove off. This brought to an end the involvement of the three appellants in the enterprise.
On the 27th November 2005, Roderique went to a cashew field in a nearby village to meet the other six participants. The principal questioned Samdaye, asking about her son and she denied having a son. He slapped and told her not to make jokes with his drugs. He held her by her neck and shook her; another man kicked her in the waist; one of the participants stomped on her side. The principal then sat on her back, pulled her head back and again enquired about her son and she repeated that she did not have a son. The principal then beat her and pulled her head back again until there was a “crack crack” sound.
He then spoke to one of the participants saying, “Pak, handle that” Pak pulled a piece of string from his hair and tied it around Samsdaye's neck until she stopped moving. She was then buried in the field. The following day, Roderique was at work in Claxton Bay when appellants Nos. 1 and 3 visited him and showed him a newspaper report about which they spoke.
On December 31st 2005, Roderique made a report to one Inspector Corbett, who later commenced the investigation into Samdaye Rampersad's death. On January 5th 2006, he, together with other officers, a forensic pathologist and two grave diggers went to the cashew field where the body of Samdaye Rampersad was unearthed. A postmortem determined that her back had been broken. The cause of death, however, was asphyxiation from choking associated with live burial.
Appellants nos. 1 and 2 were arrested on January 5th and appellant no. 3 on January 8th 2006. appellant no. 1 was interviewed and told of the investigation into the kidnapping and death of Samdaye Rampersad. On being cautioned he replied, “I was involved in the kidnapping but not the murder.” In this interview he stated that he was invited by one “Soldier” in San Juan to participate in a “profit scene.” Appellant no. 1's part was to patrol the main road by Dollar Rescue and look out for police. He said that while doing so he got a call saying “the bread in the oven”.
Appellant no. 2 was interviewed on January 8th 2006. When told of the investigation and cautioned, he replied, “Ah sure I ent know nothing about no murder, but I was around when they was making the kidnapping move at the lady.” He gave a statement saying that he had met someone who wanted to know if he would participate in the kidnapping and he had told him that he was not going to snatch anyone but nonetheless accompanied him to Dollar Rescue where they waited for twenty minutes. The man received a phone call after which they drove slowly for about three minutes and then a white car sped past them. Shortly thereafter he was dropped home.
Appellant no. 3 was also interviewed on January 8th 2006. When told of the investigation and cautioned, he replied “Boss, I don't know nothing about that.” He was later interviewed by the officers and admitted to being the driver of the car in which Samdaye was placed when she was taken. In his interview he referred to appellant no. 2 as “Spanish”.
The appellants were tried along with the principal and other co-conspirators.
APPELLANT NO. 1
Appellant no. 1 did not testify. Through cross-examination of prosecution witnesses it was suggested that he had not given any statement and that his interview notes were fabricated by the police. He called two witnesses whose evidence was to the effect that Roderique was not at work on November 28th 2005, thereby suggesting that appellants nos. 1 and 3 could not have visited him as he had testified. It was also suggested that appellant no. 1 had attended the Port of Spain Magistrates Court on November 28th 2005 and therefore could not have been in Claxton Bay.
APPELLANT NO. 2
Appellant no. 2 did not give evidence. It was suggested on his behalf that he was invited to join the kidnapping enterprise but refused. It was also suggested that there was a case of mistaken identity. Sergeant Khan of the Criminal Records Department was called as a witness and testified that there were over 20 persons nicknamed “Spanish” in their records.
APPELLANT NO. 3
Appellant no. 3 neither testified nor called witnesses. Through cross-examination it was suggested that he was tricked by police officers into signing the interview notes.
The jury found the three appellants guilty of manslaughter, one co-accused not guilty and failed to arrive at a verdict in respect of five of the co-accused, including the principal.
INCONSISTENT VERDICT
A miscarriage of justice has occurred with respect to the convictions of all the appellants in that the said verdict of the jury with respect of the appellants is logically inconsistent with the jury failing to agree with respect to the other six accused in particular the alleged principal accused no. 1.
Mr. Singh submitted that given the manner in which the State put forward its case and its inextricable linkage with Roderique's credibility, the verdict of the jury in finding the appellants guilty of manslaughter is logically inconsistent with their failure to agree in respect of the other five accused, in particular, the principal.
He argued that the verdict of manslaughter against the appellants was artificial and without plausible explanation, particularly when the principal was not found guilty of murder despite having been identified as the mastermind and the one who dealt the fatal blow to the deceased. He...
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