Mapp and Bissoon v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Weekes, J.A.,Yorke-Soo Hon J.A.,Mohammed J.A. |
| Judgment Date | 21 July 2016 |
| Neutral Citation | TT 2016 CA 43 |
| Docket Number | Cr. App. Nos. 13 & 14 of 2012 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 21 July 2016 |
Court of Appeal
Weekes, J.A.; Yorke-Soo Hon J.A.; Mohammed J.A.
Cr. App. Nos. 13 & 14 of 2012
Mr. I. Khan SC instructed by Mr. D. Khan for the first appellant
Ms. S. Chote SC instructed by Mr. T. Clarke for the second appellant Mr. T. Ward QC for the respondent
Criminal practice and procedure - Appeal against conviction and sentence — Murder — Sentenced to death — Whether the judge was wrong to admit evidence from the deposition of a witness as there was not sufficient evidence to establish that witness's death beyond a reasonable doubt — Whether the quality of the identification evidence contained in the deposition was unreliable and the deposition ought to have been excluded — Whether the judge's directions on identification were inadequate — Whether the prosecuting counsel's cross examination on the issue of the lateness of the alibi was impermissible — Whether the jury was not properly constituted in law and ought to have been discharged because a juror was the spouse of a member of the police service and was disqualified under section 3 of the Jury Act, Chap 6:53 — Whether the identification evidence against the first named appellant was weak and unreliable and the judge ought to have withdrawn the case from the jury — Whether the conduct of the identification parade was unfair since the first named defendant stood out from the line up and therefore no weight ought to have been attached to the identification evidence — Whether the judge erred in admitting evidence of the first named appellant's previous conviction for manslaughter — Whether the judge's directions on the evidence of the first named appellant were inappropriate — Whether the trial judge failed to direct the jury on possible inferences that could be drawn from the first named appellant's response to police under caution — Whether the trial judge erred in law when she failed to give directions as set out in Jackson v. The State on matters not put — Whether the judge failed to present, structure or pace her five day summation in a manner that would allow for ease of comprehension of the relevant law and facts — Whether the second named appellant suffered a miscarriage of justice as a result of the manner in which the prosecution was conducted — Whether the opening address was improper such as to occasion a miscarriage of justice — Whether the judge had erred in admitting evidence of threats made to a prosecution witness as post offence conduct admissible as proof of guilt — Whether prejudicial statements were admitted into evidence with no directions to dilute the effect — Whether the cross examination of the second named appellant was grossly unfair — Whether the intemperance to the defence was grossly unfair.
On 6th October 2012, the appellants were convicted of the murder of Collin De Landro (the deceased) and sentenced to death.
During the early hours of the morning of the 28th May 2005, the deceased and his sisters, Chrystal De Landro (Chrystal) and Candy — Ann De Landro (Candy - Ann) were seated on the front steps of a house located at Jones Trace, San Juan. They were in the company of their nephew, Jamel, and a friend, Adilio McIntyre (Adilio) who were both standing near a van parked along the roadway. The area was lit by street lights and there was a spotlight attached to the house opposite which illuminated the area where they were sitting.
Whilst there around 2am, the De Landro Sisters and Adilio observed three armed men dressed in black looking like police officers walking down Quarry Road and then on to Jones Trace. Upon seeing the men, Jamel shouted “Police!” and immediately ran under the house. One of the men (the second appellant) approached Adilio wielding a pistol and aimed a shot at his head, however, the gun failed to discharge and Adilio fled on foot. After Adilio ran off, the other two men, who carried long guns, joined the second appellant and they began shooting at the deceased and his two sisters from about four footsteps away.
The deceased and Candy - Ann retreated to the back of the house in order to evade their assailants while Chrystal stood her ground on the steps and was confronted by one of the gunmen (the first appellant) who pointed his gun at her. She paid attention to him because she wanted to see the face of the man who was going to kill her. She heard an explosion, saw sparks and fell to the ground where she remained still, pretending to be dead. While lying on the ground she heard several more gunshots.
After the gunmen left, Candy - Ann emerged from her hiding place and discovered her brother, the deceased, lying in a track at the back of the house with a shotgun wound to his head. He was taken to hospital and succumbed to his injuries on 6th June 2005.
In respect of the first appellant (Mapp), on 5th June 2005, he was arrested in the vicinity of Grand Bazaar. On the 9th June 2005, Candy — Ann and Chrystal attended separate identification parades at which they both identified him as one of the gunmen from the attack. Chrystal specifically identified him as the man who had pointed the long gun at her face. Adilio did not attend an identification parade in respect of Mapp but he had known him from his childhood by the alias “Weisle” and saw him over the years about two days per fortnight.
A warrant was issued in respect of the second appellant, (Bissoon) and he was arrested on the 14th of June 2005. No identification parade was held for him but Candy — Ann had recognized him as someone she knew as “Pipey” for about one year. She would see him in the San Juan area about twice per week and had last seen him a week or two before the shooting. Chrystal had not known him before and did not attend an identification parade. On the night in question Candy — Ann was able to see the whole bodies of both appellants including their faces and observed them for about five seconds during which time she focused on their faces. Adilio knew Bissoon for about two months and would see him almost every day in the Croisee. He had a clear view of his face and recognized him during the attack. Both appellants along with another man were charged for the murder.
The prosecution advanced its case on the basis of joint enterprise. Reliance was placed on the recognition evidence of Adilio, whose deposition was read at the trial, and on the identification evidence of the De Landro sisters to establish the identity of the gunmen.
Mapp testified on his own behalf. He advanced a defence of alibi, mistaken identity, and police fabrication. His girlfriend, Gillian Nicholas, gave evidence in support of his alibi. He claimed that at the time of the shooting he was at Waterwheel Road, Diego Martin watching a movie with his girlfriend. Through cross examination he sought to establish that Candy — Ann was only able to identify him because a police officer to whom she was related had shown her a photo of him prior to the identification parade. He claimed that the identification parade was unfair because he was easily distinguishable from the other men in the lineup since he was the only one who was of afro - indian descent, was the shortest and wearing “three-quarter” jeans. He further alleged that the complainant had orchestrated the murder charge as part of a campaign of harassment against him in order to procure a statement from him in relation to another murder investigation.
Bissoon also testified on his own behalf. He put forward a defence of mistaken identity and alibi. He claimed that at the time of the shooting he was at a house in Trincity with Shaheed Ali and two girls. They had spent the previous evening at a Chutney festival. He had arrived at Trincity around midnight and stayed there until the following morning. He also denied that he was known by the alias “Pipey”. He alleged that the arresting officer had mistaken him for the real “Pipey” whom the police had arrested in connection with an unrelated matter but had escaped custody. Since that incident, he said, the arresting officer, PC Parieaho would always arrest and harass him whenever he saw him.
We shall deal firstly with the grounds common to both appellants and then deal with their individual grounds.
Counsel for Bissoon, Ms. Chote SC, made three complaints concerning Adilio's depositions. Firstly, that the judge was wrong to admit Adilio's deposition since there was insufficient evidence to establish his death beyond reasonable doubt. She also submitted that the quality of the recognition evidence contained in the deposition was unreliable and therefore the deposition ought to have been excluded. Thirdly, she submitted that the judge's directions on identification were inadequate. Counsel for Mapp, Mr. Khan, joined her in these submissions and submitted further that the unreliability was compounded by the inability to cross - examine Adilio as well as the fact that he had not attended an identification parade.
Mr. Ward QC, for the respondent, submitted that the trial judge took into account all the relevant factors in exercising her discretion to admit the deposition. The quality of Adilio's recognition evidence was not so poor that it would have been unsafe to allow the jury to rely on it. Further, his identification evidence was supported by the De Landro sisters. In relation to Adilio's failure to attend an identification parade, counsel submitted that an identification parade in this case would have served no useful purpose. He further submitted that the trial judge adequately directed the jury on the deposition evidence. The jury were warned that Adilio had not been cross examined before them and the judge pointed out the sort of issues that might usefully have been pursued in cross...
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