Ramdeen (A/C J-Lo) and Abraham v The State

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Yorke-Soo Hon, J.A.,Weekes, J.A.
• Judgment Date: 26 February 2010
• Neutral Citation: TT 2010 CA 12
• Docket Number: Criminal Appeal No. 42 of 2008; Criminal Appeal No. 43 of 2008
• Date: 26 February 2010

Court of Appeal

Mendonca, J.A.; Weekes, J.A.; Yorke-Soo Hon, J.A.

Criminal Appeal No. 42 of 2008; Criminal Appeal No. 43 of 2008

Ramdeen (A/C J-Lo) and Abraham

and

The State

Appearances:

Ms. Dana Seetahal for the State.

Messrs. Keith Scotland and Ms. Asha Watkins for appellant No. 1.

Mr. Jagdeo Singh and Ms. Amerelle Francis for appellant No. 2.

Criminal law - Murder — Deceased dying from stab wounds — Appeal against convection — Error by not leaving provocation to jury — Offences Against the Person Act, s. 4B — Issue of provocation to be left to jury — Whether trial judge failed to give adequate directions with respect to accomplices and immunities — Material irregularity by failure to hold identification parade — Grounds without merit — Appeal dismissed.

Yorke-Soo Hon, J.A.

Julia Esmeralda Sellier Ramdeen and David Abraham were both convicted of the murder of Carlos Phillip and sentenced to death. They appealed their convictions. On behalf of Julia Esmeralda (first appellant), five grounds of appeal have been filed, and on behalf of David Abraham (second appellant), three.

Background of Facts

1 Carlos Phillip was at a Christmas party on the evening of December 23rd 2003. He was seen to receive several calls on his mobile phone and he eventually left the party around 9 pm.

On invitation, he went to the apartment of the first appellant, which she shared with the second appellant. She let Phillip in and he was killed in that apartment. His body was found two days later floating in a pond with his hands and feet bound and his mouth gagged. He had injuries to his face and head and died from multiple stab wounds, principally in the area of his neck.

There are, on the evidence led by the prosecution, two distinct and markedly different versions of how he met his death.

2 The first comes from a statement taken under caution from the first appellant during the course of investigations into this matter. In an interview with the police on 23rd January 2004, the first appellant admitted to being involved in the death of Phillip. Her utterances were reduced into writing by Inspector Phillip, the police complainant, in the presence of a Justice of the Peace. She claimed that she had invited Phillip to her apartment to have a sexual tryst that was to involve both of them as well as another female. Phillip arrived first and began to make sexual advances to her which she did not appreciate since she wanted to await the arrival of the other woman. She said that Phillip was insistent and became physical with her and so she hit him repeatedly on his head with a brick. He fell to the floor and would not be quiet. She restrained him with ties and telephoned a friend, one ‘Zai’, for advice. On Zai's instructions she attempted to kill Phillip by cutting his jugular vein. Being unsuccessful, she contented herself with stabbing him in the neck. She then put a bag over his head and wrapped him in a sheet and later Zai and another man came to the apartment and assisted her in disposing of Phillip's body and burning the vehicle which he had driven to the apartment.

3 After giving her statement, the first appellant took police officers to her apartment where, on the execution of a search warrant, various items allegedly used in the commission of the offence were seized.

4 The second version of what took place on the evening of December 23rd 2003 came from Junior Bruzal. He was the prosecution's main witness and had been granted conditional immunity from prosecution before the appellants’ trial.

5 According to Bruzal, he was present in the apartment shared by the appellants when Phillip was killed. He said that he had first met the appellants on December 19th 2003 and had visited their apartment in company of a mutual friend. On December 23rd, in the pursuance of a plan to commit a robbery, he again visited the appellants’ apartment and there he and the second appellant waited on their mutual friend to bring a vehicle which was to be used in the unlawful enterprise. The first appellant was not at home at that time. Up to the time that the first appellant returned the vehicle had not been delivered and she said that she could get a car. They hatched a plan to lure Phillip to the apartment and relieve him of his motor vehicle. appellant no. 1 made several phone calls from the apartment.

6 Later that evening Phillip arrived at the apartment. Bruzal had not known him before. In keeping with the newly-hatched plan, Bruzal and the second appellant concealed themselves in a bedroom and the first appellant met Phillip when he arrived. She later knocked on the bedroom door, signalling Bruzal and the second appellant, and they emerged from the bedroom with foundation blocks in their hands to find Phillip naked in the living room.

7 The second appellant hit Phillip on the head with a block and then jumped on him. The first appellant also hit Phillip several times at which point he began to plead with her to help him. Bruzal also struck Phillip with a block. The second appellant then dragged Phillip into the bedroom and slit his throat. Burzal witnessed this from the doorway. The first appellant tied Phillip's hands while the second appellant placed a bag over his head. After wrapping Phillip in a sheet, Bruzal and the second appellant put his body into the trunk of his ( Phillip's) car. They picked up their mutual friend and together disposed of Phillip's body by placing it in a pond in the general vicinity.

8 On July 8 2004, on the strength of Bruzal's statements, the second appellant was arrested. He never made any statement to the investigators. The following day Bruzal was brought to a room in which he identified the second appellant. He had known him only as “Dave” and during December 2003, “Dave” had worn his hair in a dread locked style. At the time of the identification the second appellant sported a low cut hairstyle.

9 At trial neither appellant gave evidence and neither called any witnesses. Their positions, as could be gleaned from the cross-examination of prosecution witnesses, were that the first appellant never gave the statement attributed to her and was an innocent bystander in what transpired at her apartment on the night of December 23rd 2003 and that Bruzal was either mistaken or deliberately lying when he purported to identify second appellant as being the male person present in the apartment on the night in question.

Ground No. 1 – Provocation

The learned trial judge erred by not leaving the issue of provocation to the jury.

Submissions

10 Mr. Scotland, counsel for the appellant No. 1, submitted that the learned trial judge was duty bound to leave the issue of provocation to the jury, since there was an abundance of evidence on the prosecution case and thus a more than speculative possibility upon which the jury could have been directed to consider the issue.

11 Ms. Seetahal, counsel for the respondent submitted that the defence of provocation required both specific provoking conduct affecting the appellant and evidence that the provoking conduct caused the appellant to lose self control. She contended that since the appellant did not give evidence during the trial, the only conduct relied by the appellant to raise the issue of provocation is that contained in the written statement, which the appellant denied making. She submitted that in this statement there was no evidence showing a loss of self-control or at least providing a basis from which it could be inferred.

Law

12 Section 4 B of the Offences Against the Person Act, Chapter 11:08 which is similar in wording to section 3 of the English Homocide Act 1957 provides as follows:

“Where on a charge for murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything done and said according to the effect which, in their opinion, it would have on a reasonable man.”

13 In R v. Acott [1997] 2 Cr App R. 94 the appellant was convicted for the murder of his elderly mother. He had given up his job to go and live with her and had become financially dependent upon her. Although that dependence was irksome to him he repeated that he was fond of her. At the trial the appellant denied responsibility for his mother's death, his case being that she died as a result of a fall. The evidence however, established that she sustained multiple injuries as a result of an attack. On appeal his counsel argued that the extent of the injuries was testimony to a frenzied attack which is prima facie indicative of a loss of self control. This inference was reinforced by the cumulative effect of the appellant being unemployed, the humiliating position of asking his mother for money, she sometimes treated him like a little boy, and she was given to black moods, and sometimes drank excessively.

The appeal was dismissed. The Court came to the conclusion that the evidence was insufficient to support the suggested inference that the appellant was provoked.

14 Lord Styn, in delivering the judgment of the House of Lords divided Section 3 of the English Homicide Act into three parts:

• “1. the provoking conduct;

• 2. causatively relevant loss of self control;

• 3. the objective criteria whether the provocation is enough to have a reasonable man do as the defendant.”

15 He noted that provocation can be invoked both by things done or by things said or both together and expressed the view that the meaning of these words is plain. He referred to it as the “provoking conduct”. Next his Lordship considered whether the provoking conduct caused the defendant to lose his self control. “If there is no...