The State v Kerlan George

• Jurisdiction: Trinidad & Tobago
• Judge: Mohammed JA
• Judgment Date: 17 February 2023
• Neutral Citation: TT 2023 CA 10
• Docket Number: Crim. App. No. P 002 of 2011
• Court: Court of Appeal (Trinidad and Tobago)

Between

The State

Appellant

and

Kerlan George

Respondent

Panel:

Prakash Moosai, JA

Mark Mohammed, JA

Malcolm Holdip, JA

Crim. App. No. P 002 of 2011

IN THE COURT OF APPEAL

PORT OF SPAIN

APPEARANCES:

Mr. George Busby appeared on behalf of the Appellant.

Mr. Jagdeo Singh, Ms. Renuka Rambhajan, Ms. Vere Marie Khan and Ms. Lana Lakhan appeared amicus curiae.

I have read the judgment of Mohammed JA and I agree.

____________________

Prakash Moosai

Justice of Appeal

I have read the judgment of Mohammed JA and I too agree.

____________________

Malcolm Holdip

Justice of Appeal

Judgment delivered by Mohammed JA 1

INTRODUCTION

1 The respondent, Kerlan George, was charged with the murder of Andrew John (the deceased). He was tried before a jury and was acquitted by a directed verdict on January 31, 2011, following the decision of the trial judge to uphold a submission of no case to answer.

BACKGROUND

2 The prosecution's case was that on November 2, 2006, at around 8:15am, the deceased and his common law wife, Nirmala Solomon, left their home situated at Maracas, St. Joseph and proceeded through a “track” to get to the deceased's car which was parked along Wharf Trace. The deceased walked several feet ahead of Nirmala and got to the car before she did. Nirmala had almost reached the roadway when she observed a white Nissan B15 motor vehicle stop in the vicinity of the deceased's car, where the deceased was standing. She saw the respondent, whom she knew as “Miceman”, disembark from the front passenger side of the B15 motor vehicle and point something that looked like a gun at the deceased. She then heard gunshot sounds and saw fire and smoke coming out of the object in the respondent's hand. The respondent looked in her direction and she ran into the “track” where she waited for a couple of minutes until she heard the car drive off. She then went over to the deceased, who was lying on the ground, and observed that he had a cut on his face and blood on his shirt.

3 The deceased was conveyed to the Mt. Hope Medical Sciences Complex where he underwent surgery. After spending several days in the Intensive Care Unit, he died on November 29, 2006.

4 On December 2, 2006, Nirmala gave a statement about the incident involving the deceased to PC Huggins of the Homicide Bureau of Investigations. In that statement, she described the respondent as, “douglarish, about six feet tall, brown skin, clean shaven and around 26 or 27 years old.” She had known the respondent for approximately five years. She knew him to be the son of a man named Peter George, who lived in the area where she resided. She saw the respondent in the area on several occasions. The respondent was one of the men who constructed the roof of their house. As well, the respondent and the deceased used to play football together. Nirmala stated that the respondent's real name could be Kerlan George.

5 Nirmala was the prosecution's main witness at the trial. She gave evidence which was adverse to the prosecution in respect of, (i) her ability to identity the shooter; (ii) her ability to recognise the shooter as the respondent on the day in question; (iii) her ability to point out the respondent in court; (iv) the ability and opportunity she had to see the shooter and the period of time of the observation; and (v) her ability to recognise the respondent if she saw him again.

6 The prosecution successfully applied to have the witness treated as hostile, pursuant to section 5 of the Evidence Act Chapter 7:02. Upon obtaining leave of the court, the prosecution proved four previous statements given by the witness which were inconsistent with her testimony at the trial, namely, (i) her statement dated December 2, 2006, which was recorded by PC Huggins and signed by her; (ii) her typewritten statement, sworn to before a Justice of the Peace in Tunapuna on April 18, 2008 and signed by her; (iii) her sworn deposition recorded at the Tunapuna Magistrates' Court on September 11, 2008; and (iv) her sworn deposition recorded at the Tunapuna Magistrates' Court on September 22, 2008.

7 After being deemed hostile and upon her examination-in-chief, which had been conducted in the manner of a cross-examination, the witness accepted that she had given the four statements that had been proven and that the accounts therein were true.

THE TRIAL JUDGE'S RULING

8 On January 31, 2011, the trial judge, in his ruling on the submission of no case to answer, found that Nirmala's evidence, taken at its highest, was tenuous. He stated that her evidence was riddled with inconsistencies. As well, he found that her evidence, taken as a whole, was so manifestly unreliable and that she was so discredited as a result of her cross-examination by both sides that no reasonable tribunal could properly convict on it.

9 The trial judge stated that the prosecution's case was based solely on a fleeting glance of no more than two to three seconds and that the purported identification was made by the witness in somewhat difficult conditions, from some sixty to sixty-six feet away. He found that the identification evidence, taken at its highest, was inherently and extremely weak.

THE APPEAL

10 The Director of Public Prosecutions has appealed the decision of the trial judge, pursuant to section 65E(1)(a) of the Supreme Court of Judicature Act Chapter 4:01, on the basis that the decision was erroneous on a point of law.

11 At the time of the hearing of the appeal, the Court was informed that the respondent was deceased.

THE GROUND OF APPEAL

12 The overarching ground of appeal is that the trial judge erred in law in upholding the submission of no case to answer. Counsel for the appellant, Mr. Busby, contended that this error manifested in several ways, namely,

• (a) The trial judge erred in law and misdirected himself when he considered that the proper test to be applied by a judge sitting with a jury was to be found in the decision of Sangit Chaitlal v The State 2, rather than R v Galbraith 3. In applying the decision of Sangit Chaitlal, he found that there was an “additional principle” to consider in order to determine whether there was no case to answer, namely that the prosecution's evidence was “manifestly unreliable” or “so discredited as a result of cross-examination”.

• (b) The trial judge erred when assessing the “quality” of the identification evidence under the relevant principles in R v Turnbull and Ors. 4 and Galbraith in that:

  • (i) He did not “take the prosecution evidence at its highest” in his assessment that the quality of the identification evidence was poor and that there was no other evidence which supported the correctness of the identification, and

  • (ii) He did not apply the correct test which is, “whether the evidence, even if taken to be honest, has a base which is so slender that it is unreliable and therefore not sufficient to found a conviction”.

• (c) In determining whether Nirmala's evidence was “manifestly unreliable” and “discredited as a result of cross-examination”, the trial judge failed to address the fact that she was deemed a hostile witness and had “changed sides”. In so doing, the trial judge would have demonstrated a failure to understand the importance and effect of section 15H(1) of the Evidence Act 5. That section provides that an inconsistent statement made by a hostile witness and proved by section 5 of the Act became admissible as evidence of any matter stated in it.

• (d) The trial judge erred in law when he ruled that the evidence that Nirmala did not want to give information to the police about who had shot her common law husband because she was “frighten for her life”, was more prejudicial than it was probative. The effect of this error was far-reaching as he would later rely on the fact that there were “numerous inconsistencies in her evidence that remain unexplained” as a basis to uphold the submission of no case to answer.

13 The Court proceeds to consider each of these issues in turn.

[A] Whether the trial judge failed to apply the proper test in determining the submission of no case to answer

The Submissions

14 Mr. Busby submitted that the court in Sangit Chaitlal 6 wrongly stated that, in respect of a submission of no case to answer in a jury trial, a trial judge is empowered to stop the case and direct an acquittal where, in his view, the evidence was so discredited by cross-examination or was so manifestly unreliable. He submitted that the proper test to be applied by a trial judge on a submission of no case to answer is to be found in the decision of Galbraith 7, which provides,

• (a) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.

• (b) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence.

• (c) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.

• (d) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness' reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.

15 Mr. Busby directed the Court to the reasoning in the Australian decisions of R v Prasad 8 and Doney v R 9 in support of the proposition that where there is evidence which, if accepted, is capable in law of proving the charge, a direction by the judge to bring in a...