Paul v The State

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Brathwaite, J.A.
• Judgment Date: 20 May 1982
• Neutral Citation: TT 1982 CA 15
• Docket Number: Cr. App. No. 40 of 1980
• Date: 20 May 1982

Court of Appeal

Kelsick, J.A.; Hassanali, J.A.; Braithwaite, J.A.

Cr. App. No. 40 of 1980

Paul

and

The State

B. Dolsingh appeared for the appellant.

V. Nunez appeared for the respondent.

Evidence - Identification parade

Criminal Law - Appeal against conviction — Murder

Brathwaite, J.A.

1 We allowed this appeal on the 21st of April, 1982, and ordered a retrial in the interests of justice, on that date we indicated that we would give our reasons for so doing later and we do so now. The appellant, Francis Paul, was convicted of the murder of John Selwyn Regis also known as D.J. Gabby (hereinafter referred to as the “deceased”) on the 18th of July, 1977, at Laventille. The deceased was shot and killed by a sawn-off shotgun early in the morning of the 18th of July, 1977, by one of a group of four or five armed bandits after they had carried out a robbery inside the residence of the deceased while he was held at gunpoint outside and in the front of his residence.

2 Hubert Samuel, who was in company with the deceased before and at the time of the shooting, and Anesta O'Keefe, the mistress of the deceased, who was inside the residence of the deceased at the time, attended an identification parade six days after the murder. This parade was conducted by A.S.P. Nelson. Samuel identified the appellant as one of the men he had seen shot the deceased on the early morning of the 18th of July, 1977 and O'Keefe identified him as the person who pointed a gun at her on the said morning.

3 The prosecution relied not only on the evidence of these two witnesses but also on (1) an admission attributed to the appellant by O'Keefe, who testified that after she had pointed him out in the parade, the appellant nodded his head and said “I is the one who had the gun on she.”; (2) an admission attributed to the appellant by Corporal Julius, who stated in his evidence that on visiting the appellant's home on the 23rd of September, 1977, to execute a search warrant, he cautioned the appellant after telling him that he was a suspect in the murder of the deceased and thereupon the appellant said: “Man, you got to believe me. I was there with them that night but it ain't I who kill him. You got to believe me;” and (3) a written statement allegedly made to Supt. Alec Heller in which the appellant admitted taking part ire carrying out a plan to rob the deceased but blamed the shooting to death of the deceased on one of his companions.

4 The appellant's written statement, if made by him, substantially supported the case for the State against the appellant since it fortified the evidence of Samuel and O'Keefe that the appellant was one of a band of men who was present at the scene of the crime and took part in the robbery which immediately preceded the murder of the deceased. When the statement allegedly made by the appellant to Heller came to be put in evidence, counsel for the appellant did not object to its admissibility on any ground whatever and the learned trial judge duly admitted the statement into evidence, and had it read to the jury. The statement was put in evidence through Supt. Heller who was his giving his evidence at the time. During the cross-examination of Heller by counsel for the appellant it was put to the witness that if he had presented to the appellant a prepared statement and had told the appellant that if he signed the statement he would be allowed to go free. The learned trial judge took this part of Heller's evidence in question and answer form as follows:”

“Q. When you first saw the accused at C.I.D. on 24th July, 1977, it was your intention to extract a statement from him?

A. No, sir.

Q. And in pursuance of your intention you told him that if he signed a statement you will allow him to go free?

A. No, Sir.

Q. You told him that if any statement was put before him he should co-operate and sign it as you would ensure he went free?

A. I did not tell him any such thing.

Q. It was as a result of such promises he signed the statement?

5 This is what the appellant said in his evidence on oath in connection with the statement:

“On the morning of 24th July, 1977, I saw A.S.P. Heller. There was another officer in the room but I don't know his name. He was with me for about 15 minutes before Heller carne. He was asking me about this murder and robbery, I told him I knew nothing of what he was speaking. ………… He said that anything I was given to sign I must sign it and if I don't I would be sent back where I was. After that Mr. Heller came and spoke to me. He asked me my name and I give him. He identified himself and told me of the report and presented me with some written documents and asked me if I could assist him by signing them.

He gave me and told me to read. I read them. I refused to sign because of their contents. Shown A.H. 3. That was what he presented to me and I refused to sign it.

At this stage Mr. Heller told me if I sign I would be set free. I did not sign. All this while the other police officer was punching me on my shoulder and telling me to sign if wanted to be free. I still did not want to sign. Mr. Heller told me I have two choices either I sign or I will be sent back to the Flying Squad Office. At this stage I could not take more pressure and I sign the statement.”

6 The clear allegation of the appellant was that he was not the author of the written statement attributed to him, but that he had appended his signature thereto in consequence of being beaten by the police and a promise by Supt. Heller to go free from the Police Station if he signed the statement. As we stated above, the learned trial judge admitted the statement in evidence and the trial proceeded in the normal course. In his summing up to the jury on the statement, the learned trial judge directed the jury as follows:

“Now, Members of the jury……………… when the statement was tendered in evidence there was no objection taken to it being admitted in evidence, not even a formal objection. What ultimately was put to the Superintendent was what I have just purported to read for you with the many questions and answers he gave ending with “You told him if any statement was put before him, he should co-operate and sign it, as you would ensure he went free?” Not even then was it put, that it was as a result of those circumstances, as a result of those promises, he signed that statement. It was not even put specifically - “You produced a prepared statement to the accused and induced him to sign it.” You might think that is what is being put. If that is what is being alleged - it would be you and you alone, who must determine whether he gave that statement.

The statement was admitted by the court as a voluntary statement. Your only function in relation to it now, is to determine whether he dictated it or not, and if he dictated it, what weight you attach to it. The court has admitted it as a voluntary statement. I don't want any confusion of thought. You are not to determine if it is voluntary. What is alleged, ultimately is, “I never gave that statement. I was induced because of threats to send me back to St. Joseph Police Station where I had been kicked and brutalized, if I did not co-operate. So when I could not take anymore pressure I signed it about twice.” He admits that there are several other places where he signed it and so on. I don't think, it is a matter for you, too much whether he signed twice, ten times or not. What he is saying is, “Those words are not mine. I never said them.” That is what you have to determine.

If you are satisfied to the extent you are sure he said them, you will determine what weight you attach to it. If, because of what you heard him say or any other reason, you are not satisfied he made it, dictated it, you are not satisfied he made it, dictated it, you don't even have to go so far as to say I am satisfied he did not give it, you only need be in a position, where, on the evidence, you say you are not prepared to find on the evidence, or cannot be satisfied that he gave it, and then you have to reject it. This is one of things where, if you can't make your minds one way or another, you always give the benefit of the doubt to the accused.

I repeat: Your function now, in relation to this statement is to determine if he dictated it, and if he dictated it, what weight you attach to it.”

7 In his first two grounds of appeal the appellant makes the following complaints:

(a) that the learned trial judges erred...