Jhardat v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Mohammed, J.A. |
| Judgment Date | 06 December 2016 |
| Neutral Citation | TT 2016 CA 49 |
| Docket Number | Criminal Appeal No. 1 of 2014 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 06 December 2016 |
Court of Appeal
Yorke-Soo Hon, J.A.; Narine, J.A.; Mohammed, J.A.
Criminal Appeal No. 1 of 2014
Ms. S. Chote S.C., Mr. P. Carter and Mr. R. Rajah for the appellant
Mrs. J. Honore-Paul, Deputy D.P.P. and Mrs. A. Teelucksingh-Ramoutar, Assistant D.P.P. for the respondent
Criminal practice and procedure - Murder — Appeal against conviction — Whether the trial judge erred in failing to give the jury adequate directions on the issue of self-defence — Judge recited the pertinent legal principles but had provided no guidance on the issue of self-defence in reference to the factual matrix and had failed to discuss the standard of proof required of the prosecution to disprove self-defence — Essential features of self-defence in Stephen Robinson a/c Psycho a/c Tony v The State CA Crim No. 12 of 2009 [2015] UKPC 34 considered — Duty to retreat — Whether the trial judge failed in his duty to put the case for the defence properly and fairly and to make proper and structured reference to the material in the appellant's defence — Trial judge failed to remind the jury of the significant pieces of evidence which may have materially supported the defence's case — Good character — Whether the trial judge erred in his direction on the issue of good character — Judge had correctly and adequately directed the jury on its two — fold relevance as to credibility and the likelihood of committing the alleged offence — Whether the trial judge erred in law by leaving the issue of accident to the jury where the evidence could have borne out the issue of accident — Appeal allowed, conviction quashed and sentence of the judge is set aside — As a result of these material omissions in the directions on self-defence, the appellant was deprived of the benefit of an outright acquittal therefore the issue of a retrial could not arise.
(1) The appellant, Chris Jerod Jhardat, was charged with the offence of murder arising from an incident involving a sixty-seven year old pensioner, Joseph Ameerali (the deceased) on the 23rd July, 2007. The appellant was subsequently tried and found guilty of the lesser offence of manslaughter on the basis of provocation. On the 24th January, 2014, he was sentenced to sixteen and a half years imprisonment with hard labour. After taking into account the six and a half years that he spent in pre-trial custody, the appellant was ordered to serve a term of ten years imprisonment with hard labour.
The appellant has appealed his conviction.
(2) On the 23rd July, 2007, around midnight, the appellant went to the deceased's home at Bramble Alex Trace in Cumuto to drop off some money and to see his daughter. At the time, the appellant's daughter, Jade and common-law wife, Joan Ameerali, both lived with the deceased, who was Ameerali's father. The deceased refused the appellant entry into the house and armed himself with a cutlass. The appellant then went to a window located at the southern part of the house and began knocking on it, demanding entry. His knocking caused the window to collapse inside of the house and he jumped through the window and entered the house. There was a confrontation between the appellant and the deceased and they got into an altercation. During the altercation, the deceased was armed with a cutlass and the appellant was armed with a piece of wood, which he found outside of the house. There was an exchange of blows during which the appellant suffered a chop wound to his shoulder and the deceased suffered, inter alia, a substantial wound to his head. The appellant then took the deceased to the Mt. Hope Hospital to be treated for his wounds.
(3) Police Officer Sookram went to the Mt. Hope Hospital where he met the family of the deceased and the appellant, who was receiving treatment for his wounds at the time. The officer arrested the appellant and took him to the Tunapuna Police Station. While there, the appellant experienced a pain in his shoulder and was taken to the Arima Health Facility where he was treated and discharged. He was then taken to the Arouca Police Station where he gave a written cautionary statement to the police.
(4) In his statement, he said that he went to the deceased's house to drop off some money for his daughter. The appellant knocked on the door and the deceased answered. The appellant told him that he had something for his daughter, Jade and the deceased started cursing. The appellant called out to both Joan Ameerali and Jade and told them to tell the deceased to open the door. During this time, the deceased continued to curse. When he was refused entry, he went to a window at the side of the house and pushed on it. The deceased started to threaten him, saying, “Ah go chap yuh, yuh know, ah go chap yuh” (sic). The appellant said that he ignored those threats as the deceased always behaved that way. He continued to push on the window and when it eventually opened inside, he saw the deceased standing by the window with a cutlass in his right hand. While standing outside, the appellant froze and the deceased, who was inside of the house, fired a chop at him, hitting him on his shoulder. The appellant picked up a piece of wood from outside of the house and when it appeared that the deceased was going to fire another chop at him, he hit him with the piece of wood.
(5) The deceased died the following day and the post-mortem examination report revealed that he had sustained blunt force head injuries, including two “clean” edged lacerations (“buss head”) (sic) of the right upper lateral (side) head and extensive skull fractures. The Pathologist opined that the deceased died due to blunt craniocerebral trauma. With respect to the appellant, a medical report showed that he suffered a superficial laceration over his left shoulder which was inflicted with mild force with the use of a cutlass.
(6) At the trial, the main witness for the prosecution was Joan Ameerali. She witnessed the offence and had given a statement to the police in relation to the incident. At the trial, she declined to give further evidence and was treated as a hostile witness. Ameerali gave conflicting accounts in her examination-in-chief and cross-examination and indicated that there were certain things in her statement that she could not recall saying.
(7) In her examination-in-chief, she said that she remembered seeing the deceased with a cutlass and he appeared to be chopping the appellant. She also said that the appellant picked up a piece of wood from outside of the house and hit the deceased, causing him to fall on the bed. She was unable to say how many times the appellant struck the deceased. All of this was happening while the appellant was still outside and the deceased was inside of the house. Upon refreshing her memory, Ameerali said that she could not recall saying in her statement to the police that the appellant told the deceased, “save your home and save your life”. She also said that she could not recall saying in her statement, “Now Chris inside the house and Chris hit my father with the piece of wood and my father fell down and Chris just started hitting my father over and over again with the piece of wood” (sic). In cross-examination, Ameerali said that she could not remember saying, “My father was waiting by the side with the cutlass” or that “My father fired chops at the accused, standing on the bed firing chops at the accused” (sic).
(8) The appellant declined to give evidence or to call witnesses and put his case through cross-examination. Through his statement and cross-examination, the issues of self-defence and provocation were raised.
We find it more convenient to deal with Ground 2 first.
(9) Ms. Chote argued that the judge was required to explain to the jury the legal ingredients of self defence and guide them on the essential evidence in the case and the inferences and conclusions which could be drawn from that evidence. She argued that the judge failed to identity the elements of self-defence to the jury and that the relevant legal concepts were referred to in a sporadic and incoherent manner.
(10) She further submitted that where the issue of self-defence arose, the judge was required to go beyond the general direction on the burden and standard of proof. According to Ms. Chote, the judge must give a specific direction in relation to the disproof of self-defence and indicate what standard was required. She contended that the judge ought to have properly directed the jury on the issues of the burden of proof, the subjective element of self-defence, proportionality, and the making of allowances for the “heat of the moment”. She also submitted that the possibility of retreat was only one factor to be considered when the jury assessed the reasonableness of self-defence.
The case of R v. Abraham [1973] 3 All ER 694 was relied on in support of these arguments. In that case, Edmund Davies, LJ said that the judge should:
“Give a clear, positive and unmistakable general direction as to onus and standard of proof; then immediately follow it with a direction that in the circumstances of the particular case there is a special reason for having in mind how the onus and standard of proof applies, and going on to deal in, for example, the present case with the issue of self-defence and to tell the jury something on these lines: ‘Members of the jury, the general direction which I have just given to you in relation to onus and standard of proof has a particularly important operation in the circumstances of the present case....
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