Cohen v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Narine, J.A. |
| Judgment Date | 15 March 2016 |
| Neutral Citation | TT 2016 CA 19 |
| Docket Number | Cr. App. No. 22 of 2013 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 15 March 2016 |
Court of Appeal
Weekes, J.A.; Narine, J.A.; Mohammed, J.A.
Cr. App. No. 22 of 2013
Mr. Cohen in person.
Mr. Busby for the respondent.
Criminal Practice and Procedure - Appeal against conviction and sentence — Murder — Sentenced to death by hanging — Whether the statements made by prosecuting counsel in the closing address were so gross, persistent or prejudicial to condemn the trial as being unfair — Whether there was a real possibility that the trial judge was biased against the appellant — Whether the failure by the prosecution to disclose the material on which the Homicide Office concluded that the appellant was wanted for the murder of the deceased resulted in the appellant being unfairly prejudiced in the preparation or conduct of his defence — Whether the judge's direction to the jury on how to treat with inferences was insufficient — Whether the judge failed to order a psychiatric/medical examination to determine whether he voluntarily dictated the oral admission — Whether the Mushtaq direction given by the judge was irrelevant — Whether the trial judge erred in failing to conduct a voir dire to determine the admissibility of the dock identification — Whether the trial judge wrongly exercised his discretion to admit the evidence of dock identification — Whether the judge failed to direct the jury on the dangers of dock identification and the weight to be attached to it — Whether the judge erred by confusing the admissibility of an oral admission with proof of oppression and in so doing improperly exercised his discretion to admit the oral admission into evidence — Whether the judge applied the wrong test in determining the admissibility of the alleged oral admission — Whether the judge failed to direct the jury on the effect of the police officers' noncompliance with established guidelines and the Judge's Rules — Whether the jury was wrongly directed as to the manner in which they were to treat with the oral admissions — Whether the caution said to have been issued by the police officers did not include the right to retain and instruct without delay an attorney — at — law of his choice and to hold communication with him — Whether the judge erred in failing to exercise the inherent discretion of the court to discharge the jury and order a retrial — Whether the verdict of the jury was unsafe in all circumstances — Whether the sentence that the appellant was to suffer death by hanging was illegal as the death penalty was no longer mandatory in Trinidad & Tobago.
On 31st July 2013 the appellant was convicted of the murder of Yuwiyl Mohammed and sentenced to death by hanging. He has appealed the conviction and sentence.
The case for the prosecution was that the appellant shot Yuwiyl on the night of 30th May 2008. Yuwiyl succumbed to his injuries while at the ICU at the Port of Spain General Hospital on the 10th July 2008. The cause of his death was cerebral infarction (brain death) and neck spine injury due to gunshot wounds to his body. The prosecution called seven witnesses but relied principally on the evidence of Mario Seechan and utterances allegedly made by the appellant to the police at the time of his arrest on 13th March 2009.
According to the evidence of Mario Seechan, he had known the appellant for several years. On 30th May 2008, close to midnight, Seechan and a female companion were standing under a streetlight waiting for a taxi at the corner of Smith Hill and Western Main Road, Carenage, when the appellant met him. He spoke to the appellant under the street light for about one minute before he crossed the road with his female companion, who entered the taxi that had arrived, while he stood outside to finish smoking his cigarette.
While finishing his cigarette, he heard an explosion which sounded like a gunshot. This occurred approximately eight to ten seconds after he had spoken to the appellant. He looked across the road towards an open yard known as Coltes' Yard. He saw the appellant approximately forty feet away from him with his right arm outstretched holding a gun. He was able to see the appellant by the lights coming from the house in Coltes' Yard and nearby streetlights. He maintained his focus on the appellant. Approximately eight to ten seconds later, a second explosion followed. He observed the appellant lower his right arm and walk away, gun in his hand. The appellant turned right onto the Western Main Road and right again along the riverbank in the direction of the appellant's home. Seechan was familiar with the route as he used it on previous occasions when visiting the appellant's home. He focused on the appellant until he disappeared from his sight.
Seechan then crossed the road where he saw Yuwiyl lying on the ground in Coltes' Yard with gunshot wounds. He knew Yuwiyl. They were first cousins. He observed blood coming out of his chest and neck while another man, Curt Holder attempted to stop the blood flowing from his chest.
The appellant was arrested at the Mountain View Guest House, Diego Martin on 13th March 2009 and charged with the murder of Yuwiyl. When cautioned and told of the report and his legal rights and privileges he replied, “Boss, that is not murder, that is a manslaughter charge because Yuwiyl dead more than 91 days after I shoot him”. PC Arneaud made a note of the utterance in his personal diary but when he later attempted to read and show the note to the appellant, the appellant began chanting and singing in a loud manner.
On 16th March 2009 some ten months after witnessing the event, Seechan gave a statement to the police. He stated that he had feared for his life and it was only when informed that the appellant had been incarcerated did he feel free to go to the police. He also testified that the appellant called him while the appellant was in custody awaiting the trial of the matter and asked him not to give evidence against him and requested him to give a statement to assist him in getting out of jail. Seechan stated that he went to Joseph Adolphus Granumn, a Justice of the Peace and had a statement prepared because the appellant had made the arrangements and because his life was at risk.
The appellant elected not to give evidence. The gist of the cross-examination of the prosecution witness by his attorney, was that he denied being involved in the shooting and killing of Yunwiyl. He denied making any admission to the arresting officers. It was suggested that Seechan was a dishonest witness who had not witnessed the shooting. The appellant called one witness, Joseph Adolphus Granumn, the Justice of the Peace who prepared a statement for Seechan. In this statement Seechan indicated that he had learnt after Yuwiyl's death that the shooter was Anthony Cohen, the appellant. This was inconsistent with the earlier statement he had given to the police and his evidence in chief, that he had actually witnessed the shooting.
Much of the cross-examination was directed to the failure of the arresting police officer Arneaud to follow established guidelines on how to approach the utterances allegedly made by the appellant at the time of his arrest. It was suggested that arresting officers Arneaud and Grant invented the appellant's chanting and singing in order to get around the fact that the appellant did not sign the note of his alleged utterance. It was further suggested that the appellant had been beaten by the officers at the time of his arrest. It was also suggested that the appellant remained silent since he was unable to speak due to the injuries he sustained as a result of the beating. All these allegations were denied by the police officers.
Written submissions were filed by the appellant in respect of eleven grounds of appeal. The opportunity was given to the appellant and State counsel to amplify their written submissions if they desired but they declined to do so.
The appellant challenged the content of the closing address of prosecuting counsel, submitting that the comments extended beyond the permissible boundaries of a minister of justice. The appellant complained that the prosecutor beseeched the jury to regard the prosecution witnesses as witnesses of truth who proved the “who”, “what”, “when” and “how” of the deceased death but could not prove the “why” because only the accused could say why he killed the deceased [Prosecutor's closing address, Notes of Evidence dated the 26th July 2013 at Page 7, Lines 1-19]. The appellant contended that the prosecutor's comments were tantamount to invocations to convict the accused as in the case of Allie Mohammed v. The State [1999] 2 A.C. 111. In Allie Mohammed, the court found that the prosecutor's speech contained many inflammatory passages. In that case, the prosecutor made emotional appeals for sympathy for the deceased and his family and demanded that the jury should not let the defendant “get away with it”; he repeatedly “urged” the jury to convict.
The appellant also complained that the prosecutor made sarcastic comments and attacked the character of the defence witness, Mr. Granumn, by stating “Members of the jury, whether you 90 or 19, if you lying and if you wrong, you wrong.” [Prosecutor's closing address, Notes of Evidence dated the 26th July 2013 at Page 36, Lines 40-42] The closing address was also criticised for its classification of the defence case as “drama”, “Shakespeare” and lacking “reality”. The appellant submitted that the prosecutor's comments were improper and fell within the ambit of the speech of prosecuting counsel in the case of Mantoor Ramdhanie v. The State [2005] U.K.P.C. 47. In Ramdhanie, the closing speech made by the prosecutor had given rise to a material irregularity and unfairness in the trial process and...
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