Roodal v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Nelson, J.A.,Bastide, C.J. |
| Judgment Date | 07 April 2000 |
| Neutral Citation | TT 2000 CA 18 |
| Docket Number | Criminal Appeal No. 64 of 1999 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 07 April 2000 |
Court of Appeal
de la Bastide, C.J.
Hamel-Smith, J.A.
Nelson, J.A.
Criminal Appeal No. 64 of 1999
Ms. S. Chote appeared on behalf of the appellant.
Mr. A. Carmona and Ms. Gillian Lucky appeared on behalf of the respondent.
Criminal law - Application for leave to appeal — Applicant sought leave to appeal against conviction for murder on the ground of miscarriage of justice owing to failure of proper representation on the part of his counsel and error on the part of the trial judge — Principles governing decision to admit fresh evidence — Court found that proposed evidence was always available to applicant but was not produced at trial without a proper explanation, hence, there was no miscarriage of justice in the sense of denial of a fair trial — Application for leave dismissed — Conviction affirmed and sentence passed.
At the conclusion of the hearing of this appeal on January 13, 2000 we announced our decision to dismiss this appeal for reasons to be given later. This we how do.
Balkissoon Roodal, the applicant, seeks leave to appeal against his conviction for the murder of Philbert Charles (also called (‘Yankee’) during the period August 19 to August 20, 1995. The applicant was tried before Mr. Justice Lucky and a jury, and sentence was pronounced on July 15, 1999.
The applicant relies on four grounds of appeal, three of which were argued on the date of the first hearing. The applicant complains of the trial judge's summing-up in that:
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(a) he wrongly permitted prosecution counsel to comment on the failure of the accused to testify
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(b) he failed to give adequate directions to the jury as to how they should have approached the weaknesses in the identification evidence upon which the prosecution's case was founded.
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(c) he failed to put the case for the appellant fairly and adequately to the jury.
The applicant also challenges his conviction on the ground of a miscarriage of justice owing to the failure of counsel representing him to call material witnesses. The court adjourned the hearing of this ground of the application on November 30, 1999 to enable counsel for the applicant to take instructions. On the resumed hearing the court heard argument on this ground alone.
At the trial the prosecution's case turned largely on the evidence of two eyewitnesses to the shooting -Selwyn Simmonds (‘Sello’) and Andrew Kanhai (‘Dougla’). The prosecution further relied on the evidence of Constables Mark and Richardson and Sergeant (now Inspector)Maharaj who apprehended the accused and seized from him a shotgun with a live cartridge and found a spent cartridge case in the vicinity of the crime scene. The accused did not testify on his own behalf but called a witness, Beena Sagram, a statistical assistant at the Port-of-Spain General Hospital, merely to say that he had been admitted to the hospital on August 24, 1995 and discharged the same day.
In order properly to examine the second and third grounds of appeal it will be necessary to examine the evidence that emerged at the trial.
Sello, Dougla, Chickett, Rastaman (also called ‘Small Ras’), David Bedassie and the murder victim, Philbert Charles (also called ‘Yankee’) agreed to go to the Charuma Forest to steal marijuana cultivated illegally in that forest. They were armed with knives and cutlasses for that purpose.
The six companions trudged through the forest until they came to a marijuana field. They first encountered a small ‘camp’ or shelter covered with carat leaves; inside was a bunk with a mosquito net. About 200 feet uphill was another ‘camp’ covered with galvanized iron sheets.
They saw someone sitting on a log in the camp with a shotgun in his lap. Simmonds (‘Sello’) recognized him as Frog, the applicant. He had known him for about 26 years. He would come across Frog as often as three to four times a week. Simmonds was about 40 feet from the camp. It was about 3 p.m.
Kanhai (Dougla) had seen Frog, the applicant before - about four or five times and knew him by the sobriquet, Frog. Kanhai was some 20- 30 feet from where Frog was. Kanhai had Frog under observation for 3 to 4 minutes. Nothing blocked his view of Frog. Frog had on occasion frequented the home of Sello. Kanhai knew him there.
Simmonds, Kanhai and two others on seeing Frog retreated towards the field and hid. The man they had seen gathered his tall rubber boots, shook them out and came walking down the track towards the area where they were hiding.
Simmonds gave evidence that the man stopped about 10 to 15 feet away from him and urinated. He said he was able to see his front upper body. In cross-examination he said he saw his whole body. Kanhai said that he was some 10 to 15 feet from the point where the man stopped to relieve himself. At this point he had observed him for 2 minutes.
Kanhai said: “I hail out to the man. Whilst hailing out the man looked in my direction and said, ‘whoi, whoi,’ he hold his firearm like this and fire right where I was hiding”. After firing a shot the man ran off towards the marijuana field. Simmonds said: “Frog went running and I keep stooping where I was.”
About 10 minutes later the deceased, Yankee (Philbert Charles) joined Simmonds, Kanhai and two other companions. They decided to enter the ‘camp’ from which the man with the shotgun had come. They searched around the camp.
As they probed the ground around the ‘camp’ in search of money, the deceased, Yankee, said something to Simmonds, who looked around towards the back of Yankee and saw Frog aiming a shotgun at the deceased, Yankee. Simmonds said: “Before I could say anything I heard an explosion. Frog was aiming at Philbert Charles. The explosion came from the back of us.”
Kanhai was stooping. Some 60 feet away was the man he had seen urinate, wearing the same clothes as he wore earlier. Kanhai recognized him as Frog. He had seen “his face and the side and body as he turn and shoot”. He had long hair and a beard. Between Kanhai and Frog were bushes about 4 feet high. Kanhai estimated that at that stage he had had him under observation “for about a minute”. Kanhai saw Frog running away. Simmonds also said that after the explosion Frog went running.
Yankee ran past Simmonds and Kanhai. With Chickett and Small Ras they all ran out of the ‘camp’ towards the main road. Yankee collapsed bleeding. Four of the companions headed for the main road, but some 60 feet before they got there they heard a third explosion.
Simmonds made a report to the police on the same date. He consulted his brothers, one of whom was a police officer, before doing so. He bathed and then went to the Rio Claro Police Station. Kanhai explained that he did not go to the police station that night because he was frightened.
As a result of the report by Simmonds in the early dawn of August 20, 1995 a party of policemen including the head investigator, Sergeant Maharaj, went to the home of the applicant's mother, where the applicant lived. The applicant was not at home. The police party, which included Simmonds, then went into the forest, where some 70 feet from the road they came upon a ‘camp’.
Sergeant Maharaj spotted the applicant who was holding a shotgun in his hand. There were two other men at the camp. Maharaj heard the applicant say loudly: “Sello and Yankee only tiefing.” The applicant apparently alerted to the presence of the police party came down the track and challenged the officers. Constable Mark confronted the applicant and his companions ordering them to drop their weapons. The applicant took aim at the officers. Mark fired five shots from his service revolver. The applicant jumped into a pond with his shotgun. Mark pursued him, and pulled him out of the pond. Mark cautioned the applicant, who said: “Officer, I get that gun in a ganja field.” Mark seized the shotgun and a live 12-gauge cartridge he removed from it.
Sergeant Maharaj testified that at the time of his arrest the applicant had longish hair, slight beard and a bruise to the area of his head and hand; he was also wearing a cover-all and boots which Maharaj seized. He too cautioned the applicant and informed him he was investigating a report. The applicant said: “Sgt. Maharaj me eh kill nobody.”
Simmonds on seeing the applicant walked up to him and said in the presence of the officers: “Sgt. Maharaj that is the man that shot Yankee”. Observing the firearm seized by the police he added: “… that shotgun resemble the gun Frog used to shoot Yankee.” The applicant was cautioned and remained silent.
Sergeant Maharaj later on August 20, 1995 led a party of police officers and civilians in the search for the body of Philbert Charles, also called Yankee. They found the body not far from one of the two camps earlier described. Maharaj found an empty 12-gauge cartridge case near the ‘camp’.
The unchallenged certificate of analysis of Neil Clapperton established that the gun seized was a “single barrel breech loading 12-gauge shotgun.” He concluded that the cartridge case recovered by Maharaj was discharged from the shotgun seized by the police.
From this survey of the evidence it is apparent that the eye-witness evidence and the circumstantial evidence against the applicant were very strong.
We deal first with the second ground of appeal: failure to give adequate directions on the approach to weaknesses in the identification evidence.
The learned judge in his summing-up, correctly warned the jury about the dangers of relying on identification evidence in accordance with R v. Turnbull [1977] Q.B. 224. The judge was required by the guidelines laid down in that case to bring to the jury's attention any weaknesses in the identification evidence, although it has now been held that he need not list those...
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