Lewis-lashley v The State

• Jurisdiction: Trinidad & Tobago
• Judge: Bernard, C.J.
• Judgment Date: 02 December 1987
• Neutral Citation: TT 1987 CA 20
• Docket Number: Criminal Appeal No. 5 of 1987
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 02 December 1987

Court of Appeal

Bernard, C.J.; McMillan, J.A.; Edoo, J.A.

Criminal Appeal No. 5 of 1987

Lewis-lashley

and

The State

Appearances

J. Braithwaite and S. Ross for the appellant.

M. Mohammed for the respondent.

Criminal law - Grievous bodily harm with intent — Appeal vs. conviction and sentence — No arguments invited on behalf of appellant — Case for prosecution based on evidence of victim exclusively — Evidence of victim exclusively — Evidence challenged in cross examination — Issue of self defence — At end of prosecution case appellant elected to make statement from dock — No where in summation did judge refer to that statement — Judge did not bring jury's mind to bear on what the appellant said in her defence — An accused is entitled to have his/her case put to the jury — Failure to do so especially in the light of her contention must lead to conviction being quashed — Conviction and sentence quashed — Case not a proper one for applying proviso — In interest of justice no retrial.

Bernard, C.J.

1 The appellant was charged on two counts of causing grievous bodily harm with intent. The first count charged her with causing grievous bodily harm to a woman by the name of Val Dyer on 27th July, 1981, with intent to do her grievous bodily harm. The second count charged her with the same offence on the same day but this time to a man by the name of Felix Bobb. The jury found her not guilty on the first count but guilty on the second count. Following a plea in mitigation the trial Judge imposed a custodial sentence of three years hard labour upon the appellant. The charges against the appellant were serious ones for which on conviction of either one she could have been imprisoned for up to fifteen years with hard labour.

2 The appellant has sought leave to appeal against her conviction. Having studied the summation of the learned trial judge we have accordingly granted her leave to appeal. For reasons to which we shall come in a moments we have not invited any arguments from attorney for the appellant. We sought assistance of attorney for the State but he advanced little, more particularly since, we understand he was not fully seined of the matter. The case for the prosecution was based exclusively on the evidence of the two victims, to wit, Val Dyer and Felix Bobb. The sum total of the evidence of these two witnesses was to the effect that in the late night of the 27 ^th July, while they were resting together in bed at Bobb's home the appellant entered the premises (the evidence of Bobb was that she had had a key thereto in her possession but without his authority and notwithstanding his express demands for it) and accused Bobb there and then of cheating on her for the reason that she had claimed, erroneously according to both himself and Dyer, that she had found them both engaged in intimate relations. Both witnesses had testified that although they were together in bed on the premises that night they were not engaged in an amorous relation. It should be observed that while she had originally denied the allegation Miss Dyer eventually admitted in cross-examination that both she and Bobb were stark naked in bed that night. The appellant, they claimed, proceeded to throw a hot liquid on them after which she made good her escape from the premises.

3 It appears from the evidence of Bobb that prior to that night he had had a very close relationship with the appellant. According to him that relationship was one in which they both lived in open concubinage on the premises for some time but that sometime before this incident they had started to sever their “faithful concubinage.” It seems clear from the evidence, on the other hand, that so far as the victim Val Dyer was concerned she was not at any time Bobb's concubine.

4 As a matter of fact according to the evidence at most before that night she had visited Bobb only on about two or three occasions.

5 The evidence of these two witnesses as to how the incident occurred was challenged in cross-examination and in the course of that cross-examination the issue of self-defence was raised.

6 At the end of the case for the Prosecution the appellant when called upon for her defence elected to give a statement from the dock. What the details of that statement from the dock are, we do not know for nowhere in his summation did the learned judge refer at all to what the appellant had alleged. Although the learned judge had given the jury what we consider to be proper directions as to how they should approach a statement from the lack on the question of proof of guilt, he never reminded the jury of the details of the appellant's story or for that matter did he allude to any part of it. By contrast we note from his summation that the learned judge was at pains to remind the jury of the evidence for the prosecution down to its minutest details In our view, it was important that the learned judge should have brought to the jury's attention the appellant's account even though he did not have to go into every detail of it and, particularly moreso in the light of the fact that he had to give them such assistance as he could as to the law against the background of the rival contention of the parties. In this connection we gather from the cross-examination of Bobb that the appellant was contending that contrary to what he had assorted they were still lovers and that on the night in question she had come upon himself and Miss Dyer engaging in intimate relations; that she had remonstrated with him; that she was attacked by him with a long piece of wood; and that she had retaliated in order to ward off his attack.

7 Reference may here be made to the assertion of Bobb that before that night he and the appellant had started to sever their relationship and the fact that the appellant up to that night still had a key to the premises. Whether, as Bobb claimed, he had demanded its return but without success was a question of fact to be resolved by the jury. One of the things the jury would have had to ask themselves is why then did Bobb not change the lock? It was the easiest thing to do.

8 As we said, nowhere in his summation is there any record of shat the appellant had actually alleged. It is clear that the trial judge treated her evidence with short shrift. He did not even take the trouble to bring the jury's mind to bear upon what the appellant had said in her defence at all. That, to our minds was not good enough having regard to the contrasting stories of both Bobb and herself. It is true that this was a short case and that the jury would be expected to remember all the evidence butt in our opinion, just as the learned judge was at pains to go into the minutest details of the prosecution's case, the appellant, in out view, was...