Edwards v The State

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Weekes, J.A.
• Judgment Date: 28 April 2016
• Neutral Citation: TT 2016 CA 11
• Docket Number: Cr. App. No. 58/1992
• Date: 28 April 2016

Court of Appeal

Weekes, J.A.; Yorke-Soo Hon, J.A.; Mohammed, J.A.

Cr. App. No. 58/1992

Edwards

and

The State

APPEARANCES:

Mr. Douglas Mendes SC for the appellant

Mr. Gilbert Peterson SC for the respondent.

Criminal practice and procedure - Reference by the President pursuant to s64 of the Supreme Court of Judicature Act — Appeal against conviction — Murder — Whether the verdict of guilty of murder was available to the jury without employing the felony/murder rule — Whether the claimant intended that the victim be killed or caused to suffer grievous bodily harm — Whether the evidence disclosed that the appellant was culpable for manslaughter — Appeal against sentence — Appellant had served 28 years.

Weekes, J.A.

1 On 20th October 1988, the appellant was arrested and eventually charged with the murder of Kenneth St. Louis. He has been in custody since that date. The State's case against him was posited on the felony/murder construct. It was alleged that the appellant was a willing participant in a robbery, knowing that another participant was armed with a gun, as was he, and that the robbery ended in St. Louis being fatally shot by one of the appellant's confederates.

2 By the operation of the felony/murder rule, a person who participates with others in a crime involving violence, robbery is taken to be such a crime, which results in death of the intended victim, is liable, as is the principal, for murder. No consideration need be given to the intention of the secondary participant beyond that in respect of the original offence.

3 On 15th May 1992, the appellant was convicted of murder. His appeal to the Court of Appeal was heard and determined in November 1995 and was dismissed. His further appeal to the Privy Council on 2nd October 1997 concluded when the Privy Council dismissed his petition for special leave.

4 In August 2015, the President referred this matter back to the Court of Appeal, pursuant to S 64 of the Supreme Court of Judicature Act, which reads as follows:

• (1) Nothing in this Act shall affect the prerogative of mercy.

• (2) The President on the advice of the Minister on the consideration of any petition for the exercise of the President's power of pardon having reference to the conviction of a person on indictment or to the sentence, other than sentence of death, passed on a person so convicted, may at any time –

  • (a) refer the whole case to the Court of Appeal, and the case shall then be heard and determined by the Court as in the case of an appeal by a person convicted; or

  • (b) if he desires the assistance of the Court of Appeal on any point arising in the case with a view to the determination of the petition, refer that point to the Court for their opinion thereon, and the Court shall consider the point so referred and furnish the President with their opinion thereon accordingly.

5 By virtue of S 64, it is now for the Court of Appeal to hear and determine this appeal. While the referral was triggered by a particular set of circumstances, i.e., the Justice of the Peace who had authenticated a confession statement allegedly made by the appellant was himself convicted in 1998 of corruption in the course of his duties thereby rendering him (the Justice of the Peace) “a totally discredited witness”, the hearing is not limited to such matters.

6 An additional matter was raised by counsel for the appellant. After the appellant's conviction, the Privy Council in Moses v. The State [1997] AC 53 determined that for a period of time, including the time of the appellant's trial, the felony/murder construct, was not applicable law in Trinidad and Tobago, therefore, it was not available to the prosecution.

7 Before we could hear the matter, another relevant development took place. On 18th February 2016, the Privy Council made a significant change to the law of secondary participation in respect of murder when they delivered their decision in respect of Jogee and another v. The Queen [2016] UKPC 7. This was important because, if the felony/murder construct was unavailable to the prosecution, the only route to the appellant's conviction for murder would have been for the prosecution to advance that he, as a secondary participant, was liable for the actions of his principal.

FELONY MURDER

8 The decision of the Privy Council in Moses (supra) leaves it beyond dispute that the felony/murder rule was not part of the law of this jurisdiction during the relevant period. Therefore, the appellant could not have been subject to its operation and any conviction based on it cannot be sustained.

CONVICTION OF THE JUSTICE OF THE PEACE

9 The appellant made an application for the admission of fresh evidence in order to introduce the fact that Farouk Ali, Justice of the Peace, had been convicted of corruption in the course of his duties, which would, of course, go directly to the issue of his credibility. It was submitted that the shattered credibility of the Justice of the Peace rendered the appellant's conviction unsafe.

10 We did not find it necessary to entertain and rule on this application since the State conceded both the fact of the conviction and its effect on the credibility of the Justice of the Peace. The real issue to be determined was whether the Justice of the Peace's fall from grace would have had the effect of rendering the appellant's conviction unsafe.

11 Counsel for the appellant submitted, in brief, that the evidence of the Justice of the Peace as to the authentication of the statement would have been fatally shaken had his conviction been factored into the jury's deliberation on issues regarding the statement and further, that the statement would therefore, have had little or no value in “corroborating” the identification evidence of Kathy Ann St Louis, the sole witness to identify the appellant as being on the scene.

12 Counsel for the respondent countered that there was very little in contention between the Justice of the Peace and the appellant at trial and what little there was, was peripheral at best, to the issues for the jury's consideration.

13 We are satisfied that although the credibility of the Justice of the Peace was effectively destroyed by his conviction, given the nature of his evidence, that did not render the conviction of the appellant unsafe, since:

• (1) The appellant's complaints in respect of the contents of the written statement attacked the credibility of the police officers recording and witnessing it. The involvement of the Justice of the Peace with the appellant occurred subsequent to its recording. Further, for some unknown reason, at trial the Justice of the Peace was not frontally attacked on the issue of his reading over the statement to the appellant which one might have expected, given the fact that the appellant's position at trial was that certain things he had told the officer had been omitted while there were matters recorded that he had not said.

• (2) While other peripheral issues involving credibility were raised with the Justice of the Peace, none of them went to the issue of the contents of the statement nor the circumstances leading to its recording.

• (3) There was identification evidence which placed the appellant on the scene. While, if the jury believed that the accused gave the statement, and that the incriminating parts were true, that could serve to support the identification evidence, which cannot be described as weak, that evidence stood on its own capable of founding a conviction even without support (as the trial judge indicated to the jury).

14 The matters in dispute between the appellant and the Justice of the Peace at trial were of little or no effect to the jurors' determination of whether the appellant was present at the scene and what, if any, role he played in the events.

15 Having applied our minds to the learning in the case of R v. Pendleton, [2001] UKHL pg 66 while we accept the fresh evidence in principle, we need to go further to assess its relevance and importance given the remaining evidence in the case. As is provided in Pendleton, the primary question for us to decide is whether the fresh evidence raises reasonable doubt as to the guilt of the appellant. We find that it does not. For the reasons above we are not convinced that the appellant's conviction was unsafe as a result of the latter conviction of the Justice of the Peace.

SUBSTITUTION OF VERDICT

16 The remaining issue was whether on the material presented at trial, there was evidence that could visit the appellant with liability for murder in the first instance, or manslaughter in the second. The latter question is to be addressed in the context of S 45(2) of the Supreme Court of Judicature Act which states:

Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and ON THE FINDING OF THE JURY IT APPEARS TO THE COURT OF APPEAL THAT THE JURY MUST HAVEN SATISFIED OF FACTS WHICH PROVED HIM GUILTY OF THAT OTHER OFFENCE, the Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.[Emphasis ours]

This section empowers us to substitute a conviction for manslaughter if the circumstances are appropriate.

17 Dealing first with the question of whether the verdict of guilty of murder was available to the jury (without employing the felony/murder rule), we must look to the current law as represented by Jogee (supra).

18 The Privy Council in Jogee (supra), held that in order for a secondary participant to be guilty of murder, apart from the actus reus, he must hold/form the mens rea for murder, i.e., it must be proven that the...