Pamponette v the State
| Jurisdiction | Trinidad & Tobago |
| Judge | Weekes, J.A.,Yorke-Soo Hon, J.A.,Narine, J.A. |
| Judgment Date | 20 February 2013 |
| Neutral Citation | TT 2013 CA 5 |
| Docket Number | Criminal Appeal 12 of 2010 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 20 February 2013 |
Court of Appeal
Weekes, J.A.; Yorke-Soo Hon, J.A.; Narine, J.A.
Criminal Appeal 12 of 2010
Mrs. S. Chote, S.C. and Mr. Trevor Clarke for the appellant
Ms. J. Honoré-Paul for the respondent
Criminal Law - Kidnapping — Robbery with aggravation — Shooting with intent — Possession of firearm — Possession of ammunition — Appeal against conviction — Misdirections to the jury — Retrial.
On 28th May 2009, Gerard Pamponette (the appellant) was found guilty of the following offences: kidnapping, two counts of robbery with aggravation, two counts of shooting with intent, possession of firearm and the possession of ammunition. He was sentenced as follows:
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(i) Twenty (20) years hard labour for kidnapping;
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(ii) Fifteen (15) years hard labour for each count of robbery;
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(iii) Fifteen (15) years hard labour for each count of shooting with intent;
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(iv) Five (5) years hard labour for possession of firearm;
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(v) Five (5) years hard labour for possession of ammunition.
The sentences for kidnapping, robbery with aggravation and shooting with intent were ordered to run concurrently, while the sentences for the possession counts were ordered to run consecutive to the other sentences.
The appellant has appealed his convictions and sentences and has filed four grounds of appeal.
David Baker was a taxi driver who plied the Arima to Port-of Spain route. On 29th June 2004, four persons entered his taxi. In the front seat sat Joel Bailey while in the back, sat Gabriel Alexis, the appellant and an unnamed passenger.
The unnamed passenger exited the taxi at Maloney. While the taxi was heading along O'Meara Road, Alexis told Baker to stop the car. Alexis, armed with a gun, proceeded to rob Bailey and put him out of the taxi. He then robbed Baker of his wedding band and cash and instructed him to go into the front passenger seat and the appellant began to drive the car.
Bailey entered another taxi and caused it follow Baker's vehicle. He also called the Arima Police Station. Two officers, WPC Sookdeo and PC Thomas, received a wireless transmission and they proceeded along Tunapuna Road and saw the taxi, which had come to a stop at the intersection of Tunapuna Road and the Churchill Roosevelt Highway.
The officers drove alongside the taxi and stopped at an angle in order to prevent it from proceeding. They observed Alexis in the backseat, pointing a gun to the head of Baker and threatening to kill him.
The appellant manoeuvred the car out of its blocked position and drove off, striking the police vehicle. He then shot at the police, who returned fire. Both the appellant and Alexis were shot.
The taxi then crossed the highway and crashed intoa wall. The appellant and Alexis run away from the taxi. PC Thomas pursued and caught the appellant. He saw him throw an object resembling a gun into the bushes. The appellant was searched and an ice pick found on his person. He was bleeding and was taken to the hospital by police officers.
WPC Sookdeo, who had remained there to assist Baker, had searched the vehicle and discovered a homemade shotgun on the floor of the back seat. PC Thomas returned to the scene of the crash. Upon receipt of another transmission, the officers proceeded to Penta Paints where they found Gabriel Alexis, bleeding.
One WPC Robinson went to the Arima Hospital whereshe met Baker and Bailey. While they were speaking, the appellant was brought in by officers. Both Bailey and Baker pointed out the appellant. Baker indicated that the appellant was one of the men who robbed him and also pointed out that the appellant was wearing his wedding band. WPC Robinson retrieved the gold ring and Baker formallyindentified it.
. Upon being interviewed at the hospital, the appellant remained silent.
Baker was not available to attend the trial and his deposition was read into evidence.
The appellant testified on his own behalf and called several witnesses. His defence was that he was a victim of the robbery and that when he drove the car he was acting under duress.
He testified that on 29th June 2004, he got into a taxi on Henry Street to get to his home at Arima and that there were four other persons in the taxi: Baker the driver, Bailey the front seat passenger, Gabriel Alexis and one other gentleman. He said that he did not know Alexis at that time.
. He denied that he was involved in a joint enterprise together with Alexis. He testified that he saw when Alexis robbed both Bailey and Baker and put Bailey out of the car. Alexis then pointed the gun at him and told him to pass all that he had. The appellant handed over his money. Alexis then told him “You moving with me. You driving the car.” The appellant indicated that he was afraid and so he complied.
The appellant also said that when the police later pulled alongside the vehicle at an angle. He put up his hand in surrender. Alexis then threatened to shoot Baker and told the police to “back off”. He heard an explosion and was ordered by Alexis to drive off, which he did. His side became numb and he crashed the taxi into a wall.
The appellant stated that civilians who were nearby assisted him out of the taxi and he was taken to the hospital. He denied running off, and further denied shooting at the police. He also denied being in the possession of a ring belonging to Baker.
. He claimed that at the hospital he was unable to tell the police what had occurred because he was in no condition to speak at that time. After he was charged, he met Alexis who threatened him and eventually stabbed him at the prison. He stated that because of this incident he did not say anything to the police.
PC Lalla who testified for the defence indicated that he had recorded a statement from Baker, whose deposition was read into evidence. He pointed out the inconsistencies between Baker's statement and his deposition.
Glenda Allicock, the records manager at the Arima Health Facility, also testified and the appellant's medical record was admitted into evidence. It disclosed that the appellant had visited the Health Facility on 28th October 2004 and had complained of pains to his head and of being attacked by a prisoner. He had a small wound over the left side of his scalp and tenderness to his scalp and neck.
Acting Prison Officer Mr. Deonarine Sewah testified that a Reception Statement on behalf of the appellant indicated that the appellant reported that on 28th October, 2004 at 4:30 pm he had been attacked by another prisoner and received injuries to his head.
Ms. Chote, Counsel for the appellant submitted that there were various misdirections on the burden and standard of proof particularly in relation to the defence of duress and in relation to the accused's right to silence. She pointed out the various instances where this occurred and submitted that it may have left the jury thinking that it was incumbent on the accused to speak out before trial about the duress. She contended that such directions were irreconcilable with the directions on the accused's right to silence. In effect, the jury may have held it against the appellant that he exercised his right to silence. Counsel submitted that these errors went to the root of the case and may have resulted in a possible miscarriage of justice.
She contended that the error was further compounded by the comments made by the judge on the failure of the appellant to raise his defence earlier. The judge wasunder a duty to make it clear to the jury that the appellant was under no obligation to raise duress prior to trial and any suggestion by her that the appellant should have said something about any alleged duress at an earlier stage had the practical effect of shifting the burdenof proof over to the appellant to prove his defence.
She complained that such a direction plainly conflicted with the direction that the appellant had a rightto silence. The judge's approach to the appellant's failure to raise his defence before the trial when juxtaposed with a direction that the appellant was entitled to remain silent had the effect of confusing the jury. Counsel submitted that the effect of the directions as a wholewas to neutralise the appellant's defence. Ms. Chote further argued that the judge, having been alerted to thesemisdirections by prosecuting counsel, ought to have corrected them in accordance with the learning in R v. Moon [1969] 1 WLR 1705.
Ms. Honoré-Paul for the State responded that the judge's directions on the burden and standard of proof were clear and adequate and did not lend themselves to uncertainty. Throughout the summing up the judge was careful to indicate that the onus of disproving duress was on the prosecution. The use of the phrase “reasonable doubt or to your satisfaction” when considered in the context of the entire summing-up could not have confused the jury into thinking anything other than they must be satisfied beyond a reasonable doubt or to the extent that they are sure.
The judge correctly pointed out that the appellant was under no obligation to say anything upon being cautioned and that no negative inference should be drawn from his failure to respond. When the judge indicated that the facts of any alleged duress would have been known solely to the appellant, and further explored the reasons given by him not proffering the details of the duress earlier, she was simply dealing with the case as presented by the defence. She was duty bound to deal with these issues since they were central to the...
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