Gabriel Joseph a/c “Ninja” v The State

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: A. Yorke-Soo Hon, J.A.,I. Archie, Chief Justice
• Judgment Date: 24 April 2024
• Neutral Citation: TT 2024 CA 22
• Docket Number: Criminal Appeal No. P033/2017

Between

Gabriel Joseph a/c “Ninja”

Appellant

and

The State

Respondent

Panel:

Chief Justice I. Archie O.R.T.T.

Justice of Appeal A. Yorke-Soo Hon

Justice of Appeal M. Mohammed

Criminal Appeal No. P033/2017

Cr. No: 114/2003

IN THE COURT OF APPEAL

APPEARANCES:

Mr. K. C. Scotland and Ms. A. A. Watkins-Montserin appeared on behalf of the Appellant.

Mr. T. Sinanan appeared on behalf of the Respondent.

Majority Judgment Delivered by: A. Yorke-Soo Hon, J.A. and M. Mohammed, J.A.

Introduction

1 On October 12, 2002, the Appellant was charged with the murder of Keon Stewart also called “Culture” (Culture). At his second trial, on July 20, 2017, he was found guilty and sentenced to death. He now appeals his conviction.

Case for the Prosecution

2 Between 10:30 am -12:00 pm on September 29, 2002, Samantha King (Samantha), her sister Jill King (Jill), Robert Prince (Robert) and Culture were among the persons present at the spring located on Coco Road, Laventille.

3 That morning a group of about 14–15 young males came to the spring and Samantha and Robert recognised one of them as the Appellant whom they both knew by the name “Ninja”. However, Jill did not know him before nor had she seen him prior to that date, but had overheard persons calling him Ninja. The Appellant approached Samantha and Jill who were sitting together on a stone and Samantha and the Appellant spoke for about 10–15 minutes. During their conversation, the Appellant stood an arm's length away in front of Samantha and was facing her. He was shirtless and wore a coloured pair of three-quarter trousers. At that time, Culture was standing by the spring, next to a makeshift pipe and was washing his clothes.

4 Shortly afterwards, one of the men started “acting up” and ran away from the spring. The Appellant and another man followed him. When the Appellant returned, another member of the group and Culture were arguing. The man was throwing things into the water where the pipe was situated and this caused the water to become muddy. The Appellant inquired about what was taking place and then told the group to leave. At that time the Appellant and Culture started arguing and the Appellant went into the water and took a bath for about 15–20 minutes. Culture remained standing next to the pipe, some 3 feet away from where the Appellant was. Culture picked up a stone but he did not do anything. He said to the Appellant that he did not come there for trouble 1. The Appellant said, “ Allyuh don't know who allyuh dealing with’ 2 and that he had “ wife and children 3” and “ peace and bless” 4 before leaving the area.

5 At that time, Samantha and Jill entered the water and Robert sat under a mango tree close by. After bathing, Samantha and Jill made their way out of the water. Jill then went next to Culture to fill a bucket of water and Samantha stood on the sand observing her. Samantha heard the Appellant from behind her saying, “Who want to live, leave now” 5. Jill and Robert also heard the Appellant's words. Samantha explained how she turned around and was face to face with the Appellant. He was pointing a black and silver object resembling a gun directly at her face. She said that she walked behind him and stood up. She could have touched his shoulders from where she was standing and nothing blocked her view of the Appellant who was facing Culture and Jill. Loud explosions started to come from the object in the Appellant's hand and Culture was injured. During the explosions, Robert dived into the bush. The Appellant then pointed the object at Jill and Culture ran in front of her, pushing her away. Culture sustained an injury to his stomach and left the spring. The Appellant went to the pipe and more explosions were heard. The Appellant said, “allyuh doh know who yuh dealing with” 6 and he left. Samantha and Jill also left and on their way home saw Culture in the drain lying down.

6 Culture was taken to the Eric Williams Medical Science Complex hospital for medical attention. He succumbed to his injuries on September 30, 2002. Dr. Burris, Pathologist, in her post-mortem report, concluded that Culture died from internal injuries and haemorrhage due to multiple gunshot wounds to the body.

7 Following investigations, on October 11, 2002, Officer John Kennedy was on enquiries in Upper Seventh Avenue, Barataria. Whilst there, he saw the Appellant sitting in the back seat of a vehicle. He stopped the vehicle and identified himself to the Appellant with the use of the Trinidad and Tobago Police Identification Card. He told him of the report against him and cautioned him, but he remained silent. The Appellant was then taken to the Morvant Police Station and later to the San Juan Police Station and handed over to Sgt Abraham who told him that he was a suspect in the matter to which the Appellant replied, “ Boss I don't know nothing about that”. 7

8 On October 12, 2002, Inspector of Police Christopher Lewis (Insp Lewis) told the Appellant about the report against him and cautioned him. The Appellant denied any knowledge of the incident. Insp Lewis told the Appellant that he would be placed on an identification parade and asked whether he objected and the Appellant said “no”. Insp Lewis then asked if he wanted a representative to be present at the parade and the Appellant requested his brother, Gordon Joseph. At the identification parade, he was positively identified by Samantha, Jill and Roberts as the person who they saw firing the object at Culture. The Appellant was later charged with the offence.

Case for the Appellant

9 The Appellant was a construction worker. He testified in his defence but called no witnesses. His case was one of denial, alibi and mistaken identification.

10 Around 8:00 am on September 29, 2002, the Appellant left home at 130 Seventh Avenue, Malick, Barataria and went to Vegas where he had a conversation with Arnold Victor and then took a taxi to Seventh Avenue and another to Macoya. At Macoya there was a UNC party gathering and he was part of the campaigning team comprising of a group of persons who were walking around and gathering voters' support for the UNC candidate. He started walking around 10:00 am and they walked around the area and then up to Caura. The Appellant said that one, Ram Kenderson was part of this

campaigning group. He said that he finished campaigning around 6:00 pm. After that, he told Arnold that he was going to see his girlfriend and proceeded to her place

11 On October 11, 2002, he was arrested and taken to the San Juan Police Station. The following day he participated in an identification parade and his brother Gordon Joseph was present. He was never told that after each witness he could have objected to the persons forming the parade.

12 The Appellant denied that he knew any of the witnesses for the prosecution who testified to knowing him. He denied that he went by the name “Ninja” or that he killed Culture.

GROUNDS OF APPEAL

Ground 1

The Trial Judge erred in law by failing to place the Appellant's defence fairly, adequately and cohesively before the Jury. (sic)

Submissions by the Appellant

13 Counsel for the Appellant, Mr. Scotland submitted that the trial judge erred when she raised the issue of fabrication and failed to direct the jury on it. Counsel contended that the judge's direction in relation to fabrication was important as evidence of an identification parade was being placed before the jury in circumstances of recognition. In the absence of proper directions from the trial judge on the defence of fabrication, the jury would have been solely left to consider whether the identification was mistaken or not. He also contended that the trial judge was under a duty to fairly and adequately put this defence fully before the jury even though it was raised inferentially.

Submissions by the Respondent

14 Counsel for the Respondent, Mr. Sinanan, submitted that there was no evidence properly adduced by the Appellant on which the judge could have directed the jury in respect of fabrication. He argued that the witnesses were not given the opportunity to reply to the assertion that they had lied and it would have been improper for the judge to give a direction that would have diminished their credibility in those circumstances.

Law, Reasoning and Conclusion

15 It is well established that a trial judge must be fair and well-balanced in his summation. Case law is replete with the application of this principle. 8 It is the trial judge's duty to place all the possible conclusions which may be open to the jury on the evidence, whether raised by counsel or not. It is the judge's call and not that of counsel to determine whether or not he will make a particular defence available to them. He may or may not, depending on the circumstances of the case. If it would result in prejudice to the accused, then clearly the trial judge ought not. In Bailey v R 9, Brown JA (AG) stated as follows:

“[59] A trial judge's duty to leave for the jury's consideration any defence not specifically raised by a person on trial is of some vintage. The law is, whatever may be the line of defence adopted by counsel for the defendant, the judge is bound to put to the jury all such questions that are properly raised on the evidence. The defence may be accident, which would result in an acquittal, but provocation may also arise, although not raised. In that event, the judge ought to leave for the jury's consideration the question whether he was provoked …

[60] The duty of the trial judge to leave for the jury's consideration even defences not relied on by the person on trial, but which have evidentiary

support, is encapsulated in Mancini v DPP [1941] 3 All ER 272, [1942] AC 1. The judge's duty in this regard is neither discharged nor diluted by whatever strategic decisions defence counsel adopts as demonstrative of promoting the best interests of his client…

[61] It...