The State v Akeel Mitchell
| Jurisdiction | Trinidad & Tobago |
| Judge | Lisa Ramsumair-Hinds |
| Judgment Date | 21 June 2021 |
| Neutral Citation | TT 2021 HC 207 |
| Docket Number | CRS 046/2009 |
| Court | High Court (Trinidad and Tobago) |
IN THE HIGH COURT OF JUSTICE
Criminal Division
The Honourable Justice Lisa Ramsumair-Hinds
CRS 046/2009
&
for Murder
Mrs Sabrina Dougdeen-Jaglal, Ms Anju Bhola and Mrs Sophia Sandy-Smith for the State
Mr Mario Merritt and Mr Randall Raphael, instructed by Ms Kirby Joseph for Accused No. 1
Mr Evans Welch and Mr Kelston Pope instructed by Ms Gabriel Hernandez for Accused No. 2
On 16 th June 2021, Mr Merritt made an oral no case submission on behalf of Accused No. 1 (Mr Akeel Mitchell). Mr Merritt contends that there is no case to call upon this Accused to answer as it relates to the Indictment between the State and him. The State filed written submissions in response on 18 th June 2021.
Essentially, Mr Merritt has invited the Court to consider that the case mounted by the State, through an attempt to forge a catena of circumstantial evidence, cannot amount to proof of guilt and at most, amounts to speculation. In any event, he posits that Mr Akeel Mitchell was doli incapax.
On 21 st June 2021, I gave an oral ruling where I overruled the said no case submission, with a promise that I would later put same in writing. I do so now.
There was a point in time when English criminal jurisprudence ordained that a case must be sent to the jury so long as there was some evidence in support of it, tenuity thereof notwithstanding. This position changed as it came to be realised that this was manifestly unfair and that evidence, rather more substantial than a mere scintilla, ought to be required before a case should be sent to the jury for its determination.
The test that applies today was expounded in R v Galbraith 1 and it is now well settled in our jurisdiction in Sangit Chaitlal v The State 2.
As it relates to the formulation of the test at the stage of a no-case submission in
As it relates to the formulation of the test in cases where there is no jury, I am guided by several authorities and, of those, I have selected three of greater note: Chief Constable of Northern Ireland v LO 6, R v Courtney (William) 7 and R v Connor (Christine) 8.
I have crystallised eight relevant principles from those authorities, which have guided my considerations in this ruling on the no-case submission.
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(1) There is no case to answer only if the evidence is not capable of supporting a conviction;
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(2) In a circumstantial case, that implies that even if all the evidence for the Prosecution were accepted and all inferences most favourable to the Prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, a reasonable mind could not exclude all hypotheses consistent with innocence as being unreasonable;
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(3) The correct test is whether a reasonable tribunal of fact properly directed would be entitled to draw an adverse inference;
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(4) If there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation and conjecture;
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(5) Even where the case against the Accused is thin, if there is evidence upon which a tribunal of fact is open to accept as truthful or reliable upon which it could be satisfied of guilt without irrationality, then the Judge is not only entitled but is required to allow the case to proceed;
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(6) The proper approach of a Judge or a Magistrate sitting without a jury does not involve a different test from that in Galbraith, but the exercise the Judge must engage in is suitably adjusted to reflect that she is the tribunal of fact;
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(7) In a Judge Alone Trial on a no-case submission, the question to be asked is not “Do I have reasonable doubt?” Rather, it is whether I am convinced that there are no circumstances in which I can properly convict, and
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(8) Even in Judge Alone Trials, the close of the Prosecution's case does not mark the appropriate point for the weighing up of evidence and inferences to determine which deducement is the more or most reasonable.
Mr Merritt has invited the Court to consider that there is no evidence of a joint enterprise that connects Akeel Mitchell to the death of Sean Luke. He submits that the State must prove not just the murder, but must also identify Mr Mitchell's principal or secondary role in that act of murder. In that regard, he repeatedly asked these three questions: “What is the plan?”, “What is its scope?” and “What was Akeel Mitchell's role?” In support, he relied heavily on the case of R v Banfield and Banfield 9.
As it relates to the joint enterprise point raised by Mr Merritt and the State's response in this regard, I have considered the following authorities, all of which were raised
and discussed by State Counsel-
(1) Banfield and Banfield;
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(2) R v Strudwick and Merry 10;
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(3) R v Lane v Lane 11;
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(4) R v Lewis and Marshall-Gunn 12;
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(5) R v Lawson v Thompson 13;
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(6) Gianetto 14, and
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(7) R v Jogee and R v Ruddock 15.
The State, in its response, clarified certain things, including the basis upon which it is advanced that criminal liability attaches to Mr Akeel Mitchell. Therefore, whereas earlier in the submission Mr Merritt suggested that this might involve joint principals, Mrs Dougdeen-Jaglal made it very clear that, while the State's case is indeed premised on joint enterprise, it is not one of joint principals. It should be noted that I find no fault in the State for only now noting with clarity, in responding to this no-case submission, the particular basis of the criminal liability. There is absolutely no difficulty with that and there are several cases on the point.
State Counsel submitted that the scope of the plan was to sexually assault and kill Sean Luke. As it relates to the deadly assault, the State says that one of the two Accused committed that act whilst being encouraged and/or assisted by the other Accused. I have directed myself by the guidance in Lewis and Marshall-Gunn which pointedly addresses the challenge facing prosecutions in general when the Prosecution is unable to prove which of two Accused was the actual principal and
The State argued further, that following the guidance in Jogee and Ruddock, as well as or perhaps principally, Giannetto, in those circumstances, it is unnecessary to identify whether Akeel Mitchell was a principal or accessory. This does not mean to say that they do not have to prove or provide enough evidence from which to infer the requisite intent ( Jogee and Ruddock). They submit that on the totality of their case, there is enough to infer that one Accused committed the deadly assault with the cane stalk whilst being assisted and/or encouraged by the other, and in these circumstances, it is unnecessary to identify which was the principal and which the accessory.
Alternatively, or perhaps additionally because facts can give rise to more than one theory of liability, the State averred that murder felony may arise as the basis of criminal liability. In this regard, Mrs Dougdeen-Jaglal suggested that the liability for the murder can be inferred from the very same circumstantial evidence as proof of an act/s in furtherance of sexual assault (the act/s which resulted in death) and likewise, it matters little whether Mr Mitchell is the one who committed the act/s in furtherance of the sexual assault or it was his co-Accused. Additionally, they posit that in either case the circumstantial evidence which they have presented is sufficient at this stage to lead to the relevant inferences based on the totality of the evidence and its cumulative effect.
I have listed and outlined aspects of the circumstantial evidence (albeit differently from State Counsel's invitation), in an effort to show incrementally and cumulatively what potential effect it could have on my assessment at this stage. This listing is meant to be inclusive, but not exhaustive, and certainly, what I raise here does not limit the aspects of evidence that can be raised at any later stage, if necessary.
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(1) Last seen evidence provided prima facie by several witnesses. I need not detail it here;
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(2) Evidence placing the Accused, Akeel Mitchell, inside the cane field having entered together with Accused No. 2 and with the deceased, Sean Luke;
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(3) Prima facie evidence of sounds, which could be termed ‘distress’, from within the cane shortly after their entry;
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(4) Prima facie evidence of the Accused, Akeel Mitchell, returning to the group or exiting from the cane together with Accused No. 2 shortly after they had gone in and shortly after the sounds were heard, but without Sean Luke;
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(5) Evidence of underwear purportedly belonging to Sean Luke being discovered 100 feet from the location where the nude corpse was later discovered;
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(6) Expert evidence of Akeel Mitchell's DNA from a sperm cell fraction on that underwear;
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(7) Expert opinion evidence of the cause of death in what can be described as a bizarre and brutal manner which required a degree of force;
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(8) Expert evidence about the discovery of spermatozoa in the anus of the deceased; and
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(9) Prima facie evidence of post-offence conduct, that is two-fold. It includes, if it is accepted, conflicting reports by this Accused to Sean Luke's mother and a false account given by both Accused of some unknown man taking Sean Luke into the...
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