Hakim Braithwaite A/C “Gargamel” v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | A. Yorke-Soo Hon JA |
| Judgment Date | 13 September 2023 |
| Neutral Citation | TT 2023 CA 61 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Year | 2023 |
| Docket Number | Criminal Appeal P029 of 2016 |
A. Yorke-Soo Hon, J.A.
G. Smith, J.A.
M. Holdip, J.A.
Criminal Appeal P029 of 2016
CR. NO. 0031 of 2012
IN THE COURT OF APPEAL
Mr. P. Carter instructed by Ms. A. Ramjag appeared on behalf of the Appellant.
Mrs. J. Honore-Paul, SC and Mrs. S. Dougdeen-Jaglal appeared on behalf of the Respondent.
On April 25, 2008, the Appellant was charged with the murder of Kevin Miguel Williams, (the deceased). On May 19, 2016, he was found guilty and sentenced to death. He now appeals his conviction.
On November 15, 2022, Counsel for the Appellant filed an application for an extension of time to file the Notice of Appeal against the Appellant's conviction. The Notice of Appeal, which the Appellant signed on May 19, 2016, was only filed on his behalf on August 10, 2016, due to no fault of his. Counsel for the Respondent had no objections to the application. In the circumstances, leave is hereby granted to extend time to August 10, 2016, for the filing of the Appellant's Notice of Appeal against conviction.
Around 6:08am on April 17, 2008, Insp. Kester Billy, who was attached to the St. Barbs Police Post, Port of Spain was on his way to work. Whilst walking along South Quay, Insp. Billy heard a loud explosion which sounded like a gunshot coming from the Planning Buildings in St. Joseph, Port of Spain. When he looked up he saw pigeons flying to the west of him. He walked towards Achong Street and after some 2–3 seconds he heard two more explosions of similar sound. Along Achong Street he came across a 2–3 feet space in the eastern wall which enclosed the area of the Planning Buildings. He entered the space and saw the Appellant, whom he knew as ‘Gargamel’, standing in a grassy area nearby. He was standing over a man and was pointing a gun at his head. He then fired the gun and Insp. Billy looked at him for about 3–4 seconds. The Appellant was approximately 35–45 feet away, the sun was shining brightly and Insp Billy was able to see the Appellant's entire body. The Appellant then turned towards Insp Billy and they stared at each other for about 3–4 seconds before the Appellant ran off in a westerly direction. Insp Billy did not pursue him, instead, he walked into the Planning area on Picadilly Street Extension and called ‘Emergency 99’. He returned to the scene and observed a wound on the deceased. He then preserved the crime scene until PC Trevon Mitchell and other officers arrived.
Around 7:00am, the complainant, PC Lucas, attached to the Homicide Bureau of Investigations, Port of Spain received information and proceeded to the crime scene at Building 7, Old St Joseph Road, Port of Spain where he met several police officers including Insp. Billy and PC Mitchell. He made certain observations and commenced investigations. He spoke briefly with Insp. Billy and made a record in his pocket diary. Later that day PC Lucas had a more detailed conversation with Insp Billy by telephone.
Insp Billy did not have his pocket diary with him on that day and recorded the incident in his diary the following day.
On April 21, 2008, the Appellant was arrested and taken to the Central Police Station, Port of Spain (CPS).
On April 23, 2008, PC Lucas received a statement from Insp. Billy. He also met with the Appellant at CPS and told him of the investigation. PC Lucas cautioned him and he remained silent.
PC Lucas testified that on April 24, 2008, the Appellant was released from custody and he was either re-arrested on April 24, 2008 or April 25, 2008.
On April 25, 2008, Insp. James of Homicide Bureau Investigations, Port of Spain had a conversation with PC Lucas and proceeded to CPS. There he met Insp Billy and they had a conversation. Subsequently, Insp. James spoke to the Appellant and informed him of his intention to conduct a verification exercise and cautioned him. The Appellant replied, “Is no scene, the boss.” Later, the verification exercise was conducted and Insp Billy pointed out the Appellant to Insp. James. On that day Insp Billy also pointed out the Appellant to PC Lucas. Insp Billy had known the Appellant for approximately 10 years prior to the incident from doing patrols in the Besson Street area. During that time, he saw the Appellant some 5–6 times each month. On the occasions that Insp Billy saw the Appellant, he would see him at varying distances. Additionally, he would see him at different times during the day and night. He also had conversations with him during that period for about 5–10 minutes. Insp Billy explained that he had last seen the Appellant during Carnival 2008, at which time Insp Billy conversed with him for some 2–3 minutes.
Later that day, PC Lucas cautioned the Appellant and charged him for the murder of the deceased. The Appellant indicated that he had nothing to say.
Dr. Burris, the Pathologist who examined the body of the deceased found that there were multiple internal injuries caused by multiple gunshot wounds (4 wounds) to his head and upper body which caused his death.
The Appellant elected to give evidence and called one witness, his common-law wife, Onika Moses (Onika). His case comprised three defences namely: fabrication, alibi and mistaken identity.
He testified that around 6:00am on April 17, 2008, he was at home at Building 2, Apartment 4–1, Foster Quevedo Circular, Hillview, East Dry River, Port of Spain with his 5 year old stepdaughter, 2 year old daughter and Onika when he heard what sounded like gunshots. He denied ever going to the St Joseph Plannings that day. He also denied killing the deceased whom he knew as “Pongo” and said that Insp. Billy was mistaken.
He testified that on April 18, 2008, he was arrested and taken to CPS. He was released between April 20 — 23, 2008 after his attorney attended the police station and spoke to PC Lucas and other officers. He was re-arrested the day after he was released and was charged.
In his evidence, the Appellant described the area in which the deceased was killed. He said that at the time of the incident, there were no spaces in the wall as described by Insp Billy. In 2007, a part of the wall was broken and he received a petty contract from one, Mr. Keith Andrews from the Beetham Branch of the Housing Development Corporation to repair it. He also said that in 2008, the area did not contain a pathway/track as Insp Billy indicated.
The Appellant also denied that Insp Billy could have known him 10 years prior to 2008. He said that he had spent his early years at the St. Michael's Home for Boys, from the age of 8–16, whereupon he was committed to the Youth Training Centre in 1998 where he stayed until 2001. When he came out of the Youth Training Centre, he was approximately 19 years old and he stayed with his mother at Picton Road, Laventille for about 6 weeks and then moved out and stayed in an old house in Laventille. In 2001, he spent some 4 months in prison and was later incarcerated between 2002–2004. Around December 2004, he moved into his apartment at Foster Quevedo Circular.
He only came to know Insp. Billy in 2005 as “ Billy the Bear” after he was charged for using obscene language and resisting arrest which arose out of an incident in which he refused to extinguish a fire that he did not ignite. He said that since then he avoided Insp Billy. He testified that whenever Insp. Billy saw him, he always provoked him saying words such as, “Gargamel, like you ent gone in jail yet, just now you going dey”. He did not know Insp Billy was the eye witness in this matter until he was charged and attended Court.
Onika's evidence was that on April 17, 2008, she was at home with the Appellant when they heard what sounded like gunshots around 6:00am-6:20am. She left home at 6:20am and left the Appellant with the children. Whilst outside she heard persons speaking about the killing. She returned home some 45 minutes later and saw the Appellant and the children on the road. They all went back to the apartment and she prepared the eldest child for school.
Onika testified that she was familiar with the area and said that the Appellant was contracted to close the space in the walls before 2008.
Ground 1A:
A material irregularity occurred in the learned trial judge's directions to the jury in relation to the Appellant's defences. The error was compounded by the failure of the learned trial judge to correct the error in accordance with the principles enunciated in “ Moon”. (sic)
Counsel for the Appellant, Mr. Peter Carter submitted that the judge in her general directions to the jury with respect to the Appellant's defences erred when she omitted to direct them that if they were “not sure” about the Appellant's defences then they must acquit him 1.
He further submitted that the judge proceeded to direct the jury on each of the defences and in those initial directions repeated her omission 2.
Counsel contended that after having omitted the relevant directions on several occasions, the judge belatedly gave the correct directions relative to the defences of alibi and mistaken identity but failed to explicitly correct her error in line with the principles in R v Moon 3.
He also submitted that the judge's failure to direct the jury on the middle ground position in relation to the defence of fabrication may have led the jury to conclude it did not apply to the defence of fabrication.
Counsel for the Respondent, Mrs. Joan Honore-Paul, SC submitted that the judge did not fall into error which necessitated the procedure as set out under R v Moon.
She contended that the judge gave the jury clear directions on...
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