Gonzales v the State
| Jurisdiction | Trinidad & Tobago |
| Judge | Hamel-Smith, J.A. |
| Judgment Date | 16 March 1994 |
| Neutral Citation | TT 1994 CA 10 |
| Docket Number | Crim. Appeal No. 43 of 1989 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 16 March 1994 |
Court of Appeal
Sharma, J.A. Hamel-Smith, J.A. Gopeesingh, J.A.
Crim. Appeal No. 43 of 1989
D. Allum S.C. & A. Demas Esq. For the appellant
A. Carmona for the State
Defences - Provocation and self defence — Reasonable man test — Essential that test be defined in clear letters and the provocation must be directed to the disorder or characteristic — Offences Against the Person (Amendment) Act, 1985, s. 4(b).
On 17th April 1989 the appellant was convicted of murder and was sentenced to death by hanging. He now appeals against that conviction. There was no doubt, in fact it was conceded, that the appellant killed the deceased but it was the appellant's contention that the killing was in self defence and/or under provocation.
The deceased, Indra Gajadhar, was a labourer and lived at Belmontes Road, Gran Couva, Her occupation was cutlassing cocoa. The appellant was her neighbour. They were not on good terms. On May 17, 1985, the appellant was at home in his garden when the deceased alighted from a jeep in front of her yard. On that day she had in her hand a swiper (a bent type of cutlass used in brushing grass) her handbag and her water bottle. As she walked into her yard the appellant appeared from her house armed with a cutlass. According to eyewitnesses, he walked up to the deceased, held on her hand and began top chop her about the body. The deceased, in an attempt to avoid the blows began to “breaks” with her swiper and to retreat at the same time. Overcome by this violent assault she slumped to the ground. The appellant inflicted further chops to her body. Finally, he took the tip of the cutlass and gave her a symbolic “touch” as she lay motionless on the ground. The appellant then returned to his house, picked up a tin of ‘pitch oil’, went into the home of the deceased and set fire to the curtains therein.
Sometime later the police arrived. Coporal Ramdath testified that he saw the body of the deceased lying in her yard and saw the appellant emerge from one of the homes of the residents nearby, one Chunksie Seebaran. The appellant told Ramdath “I did it. I chop she up”. He also told the officer that the weapon which he had used was at Seebaran's home, a short distance away. The officer retrieved the weapon and took the appellant into custody and later charged him with the offence of murder.
Later that day, the appellant gave a statement to Cpl. Ramdath in which he explained in detail how the incident had occurred.
Dr. Kristophe Marimuthu arrived at the scene at about 4.45 p.m. that day. He viewed the body and directed that I be taken to the Government Forensic pathologist, Dr. Ramnath Chandulal. Dr. Marimuthu later examined the appellant at the Crown Police Station and found that he had two wounds on his arm.
A post mortem was performed an the body of the deceased on May 20, 1985 and the cause of death was certified to be as a result of “shock and haemorrhage due to multiple (6) chop wounds caused by a sharp heavy cutting weapon with moderate to severe degree of force”. A “Medical reconstruction” of the incident based on the post mortem findings was also done by Dr Chandulal.
There were two eye witnesses to the killing of the deceased. David Ballack and Cecelia de Leon were standing in front of de Leon's house which was next, to the deceased's house. They both saw the deceased alight from the jeep and the appellant. come from behind her house and attack the decease with a cutlass. They testified how the deceased had attempted to “breaks” the attack with her swiper “backing back” in the process. They saw her slump to the ground where the appellant inflicted further chops to her body. And as she lay motionless they saw him touch her with the tip of the cutlass. They were adamant that the deceased had never attacked or abused the appellant. They fled the scene when they saw the appellant coming in their direction.
The appellant's version of events was completely different from that of the prosecution. While there were some, critical inconsistencies between his statement to the police and his statement from the dock he sought explain them away, at least by his counsel's cross-examination of Cpl. Ramdath, by suggesting that the officer had deliberately misrepresented and/or inaccurately recorded what the appellant had told him on that day when dictating his statement.
The appellant's story began long before the morning of the incident. The appellant had moved to Gran Couva some years before and while living there the deceased and her brother, Roodal, had built their house next to his. Another brother of the deceased, Pandoo, and his wife also lived nearby. The appellant gave a history of his family's subjection to harassment and provocation by the entire Gajadhar family. Sometime in June 1984, for example, Pandoo and his wife were fighting in the appellant's yard and when he told them to get out they cursed him and from that day whenever Pandoo consumed alcohol they would curse and harass the appellant and his family. The deceased, too, joined in this cursing and harassing. She accused the appellant's wife of being a ‘whore’ and together with her family taunted him by saying they “will run his nigger so and so off the land”. These incidents often took place in the hearing and presence of ‘the appellant's wife and children.
There was another occasion in March 1985, when some dogs ‘threw down’ the appellant's dustbin and as a result some of the garbage fell into the deceased's yard. The deceased, on discovering the garbage in her yard, began to curse and accuse the appellant and his family of littering her yard. On another occasion the deceased threatened to chop the appellant's water hose which passed through her yard. The appellant's water supply was dependent on a hose which ran from his neighbour's tap through the deceased's yard. As a result of the threat he was forced to run the hose around her yard. However, when he ran the hose on the grass verge outside the deceased's yard she set the grass afire. The appellant had to move the hose and put it on the road.
The deceased continued from time to time to curse and abuse the appellant and his family. She even accused the appellant's wife of having an affair with one of the neighbours and she even threatened to poison the water in his barrel. Some days before the incident on May 17, 1985, the appellant's wife woke up and told him that the deceased had chopped the hose. The appellant reported the matter ti the police but nothing was done.
On the day in question the appellant returned hoarse about 9.00 am. after working a night shift at his job as a security guard. On arrival at home his wife told him that the deceased and her family had thrown stones at their home during the night. She had left the house after the stone throwing had stopped to go to her neighbours house. On her way there the deceased saw her and shouted out “look she there let we stone she dawn, let we burn down the house and run them off the land”. She reported the matter to the police who promised to come but they never did.
Later that day the appellant saw the deceased in her yard at the back of her home and she told him “what the mother so and so you looking at”. He asked her why she and her family had thrown stones at his house the night before. She replied, “what the f…. you going to do about it” and rushed up to him holding a swiper to his face. He raised his hand to block the attack and sustained a cut on his wrist.
We pause here to state that this critical part of the incident was not contained in his written statement to the police but was related to the court in his unsworn statement from the dock. In his written statement he stated that when the deceased saw him looking at her she asked him why he was looking at her like that and he rushed inside his house and picked up his cutlass and attacked her. In cross-examination his counsel accused Cpl. Ramdath of failing to write down everything the appellant told him but this was denied by Ramdath.
Nevertheless, from the dock he continued the story. When she put the swiper to his face and be sustained a cut to his wrist he immediately ran into his house, picked up his cutlass, rushed back out and he and the deceased began “pelting chops” at each other. According to the appellant the deceased was chopped because he was “firing wildly” at her. She fell to the ground and he went to the home of Chungsie, his neighbour and told her to call the police. He made no mention of setting fire to the deceased’ curtains as he had done in his written statement. When the police arrived he surrendered himself. The appellant said that he never intended to kill the deceased. She had attacked him that day and as a result of the cumulative effect of her cursing and harassing him over a period of time he had lost his self control. At the police station he was worried and confused. He was scared about what had happened and was concerned about has family. He said that when had statement had been recorded he was not concentrating as he was too upset and frightened at the time.
At his trial Dr lqbal Ghany, a psychiatrist, testified on behalf of the appellant's mental disposition. He diagnosed the appellant as having an obsessive, compulsive personality disorder and found him to be suffering from a post traumatic stress syndrome and from reactive depression. The personality disorder was a stable, persistent d lifelong one. He explained that, “after repeated acts of provocation and harassment a person suffering with such a disorder, was likely to sudden breakdown, lose control and act in a violent and aggressive manner”. The appellant had apparently sustained a head injury as a result of a vehicular accident in 1979 and in...
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