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Keron Briggs v The State (T-013/2014) Page 1 of 26

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Cr. App. No. T-013 of 2014

BETWEEN

KERON BRIGGS

APPELLANT

AND

THE STATE

RESPONDENT

PANEL:

P. Weekes, J.A.

A. Yorke-Soo-Hon, J.A.

M. Mohammed, J.A.

APPEARANCES:

Ms. Rekha Ramjit for the Appellant

Mr. Roger Gaspard, S.C and Mr Hector for the State

DATE DELIVERED: 23rd

July 2015


JUDGMENT

Delivered by P. Weekes, JA

1. The appellant was charged with the murder of Kerron George (KG). On the 6th

May 2014, at

the Tobago Assizes, he was convicted of murder and sentenced to death by hanging. He has

appealed his conviction.

CASE FOR THE PROSECUTION

2. The case for the prosecution is that on or about Saturday 22nd

September, 2007, the appellant

unlawfully and without provocation killed KG. The fatal events had their genesis in an

altercation that took place on 21st September 2007 between the appellant and Kevon George,

brother of KG. Kevon and the appellant worked at the same place and had a dispute during

which the appellant slapped Kevon in the face. The appellant was dismissed from his job on

account of the incident.

3. The following day, around 7:00pm, KG, Kevon and friends, Jason Nancis and Marcus Miller,

were outside a business place in Calder Hall, Tobago. The appellant went into the business

place. As he came out, KG approached him and asked, “why yuh hit meh brother for?” The

appellant responded, “ I not going through that”, according to Nancis. Miller said that the

appellant responded “well if is ting yuh want”. Immediately, the appellant stabbed KG who

then made a blow at him which did not connect. The appellant continued stabbing KG,

inflicting multiple injuries. During the altercation, KG, who was holding a bottle, attempted

to strike the appellant with it but was unsuccessful. It appeared to on-lookers that the

appellant was cuffing KG, however he was actually holding a knife.

4. Shamarke Alfred, who knew both KG and the appellant, attempted to break-up the

altercation. He held on to the appellant’s hand and at that stage the knife fell. KG then was

able to get away from the appellant and went across the road where the appellant followed

him. Nancis then pelted a bottle which struck the appellant in his head. The appellant then

left the area.


5. KG was taken to the Scarborough Regional Hospital where he was attended to but he

subsequently died, either later that night or early the following morning, from the injuries

inflicted by the appellant.

6. A post mortem conducted by Dr. Des Vignes, a forensic pathologist, revealed that the body

of KG bore multiple stab and incised wounds, including a 1cm stab wound to the front of the

right chest, a 1.5 cm stab wound towards the left back and side area of the chest, which the

pathologist described as being “the most severe injury and most significant injury”, a 6 cm

stab/cut wound on the back of the left elbow, which was a defensive injury and a 2.8 cm stab

wound to the front of the right side of the neck. In addition to these injuries, the pathologist

observed four superficial wounds, three of which he opined were defensive wounds.

7. In the opinion of the pathologist, the four stab wounds would have been caused by someone

using a thrusting motion. They could not have occurred as a result of an attacker swinging a

sharp object from side to side.

8. Speaking as an expert on a hypothetical situation, the pathologist testified that a person being

kicked and cuffed about the body for a period of five to ten minutes by a group of five

persons would receive injuries such as contusions or bruises, abrasions or scrapes and

lacerations.

9. In addition to eye witnesses, the prosecution also relied on four statements (one oral, three

written) allegedly given by the appellant to investigating officers. The statements were

admitted without objection. By consent, the written statement of the 26th

September, 2007,

was edited. The effect of the statements taken together was that the appellant asserted that he

was provoked by the words uttered by KG together with KG striking the first blow and also

that he realised his life was in danger so used his knife to defend himself, swinging it from

side to side.


CASE FOR THE DEFENCE

10. The appellant exercised his option to remain silent and called no witnesses in his defence. He

relied on the statements that he had made to police officers during the course of the

investigation. The issues of self defence and provocation were advanced on his behalf. His

trial counsel suggested to the jury, that believing that his life was in danger and being

outnumbered in an imminent attack, he made a pre-emptive strike in self defence.

11. It was also suggested that the appellant was provoked into inflicting the fatal injuries as KG

was the one who approached him aggressively, eventually coming face to face with him and

speaking to him in a hostile manner.

12. In essence, from the statements that he gave to the police, the appellant indicated that KG

approached him and asked why he slapped his brother. He responded by saying, “Leave me

alone.” Thereafter, KG pelted two bottles at him which hit him in the head. The appellant

then held on to KG in an attempt to restrain him, whereupon a group of men kicked and

cuffed the appellant all over his body. He managed to get away but the group attacked him

again. He then pulled out a knife from his pocket and began swinging it wildly at them. The

blade of the knife struck KG.

Even though not raised by the appellant, the issue of accident was left to the jury.

GROUNDS OF APPEAL

GROUND 1:

The judge erred by admitting into evidence part of a statement of the appellant which was

previously excised during the trial (prior to the summation but after the Prosecution and

Defence had closed their case).

13. At the close of the evidence, the judge, on her own motion, raised an issue with prosecutor

and defence counsel. After discussions, and with the consent of trial counsel for the

appellant, the judge permitted the prosecution to reopen its case. The purpose and effect of so

doing was to admit into evidence part of one of the statements of the appellant, which had


previously been edited out1. The judge stated that her reason for doing so was to show the

history and context of the fatal encounter, so as to assist the jury in their deliberation on the

issue of provocation2.

14. The previously excised part of the relevant statement is set out hereunder.

“This whole thing start from Thursday night, when I left home with meh girlfriend to buy two

bottle ah water. That is by the grocery. I saw Keron George, his brother, and his friends; they

were liming on the corner of Wafe Street. I passed them straight and went to the grocery. On my

way back from the grocery, when I reached back at Wafe Street Junction he started slapping me

up and say I was owing him, and his friends also jumped in. I had was to run all the way around

the road to get home.”3

The effect of this new evidence was to introduce for the first time, evidence of an incident

which occurred three days before 22nd

September 2007, involving the appellant, KG and

Keron George and others.

15. Ms Ramjit, counsel for the appellant, submitted that this course of action was detrimental and

wholly prejudicial to the case for the appellant because it introduced the question of the

appellant’s actions being motivated by revenge, rather than self-defence or provocation.

16. Additionally, she submitted that trial counsel would not have had an opportunity to prepare

the appellant’s defence and to cross examine the relevant witnesses in light of the new

evidence, it being introduced at that late stage in the proceedings. The nub of her submission

is that the judge wrongly exercised her discretion when she allowed the prosecution to reopen

its case.

17. She relied on the authority of R v Francis4 in which the Court of Appeal (UK) stated that a

trial judge has a discretion to allow the prosecution to call further evidence after the close of

its case, the discretion not being confined to cases in which the evidence was in rebuttal of a

matter which had arisen ex improviso or where the evidence omitted was a mere formality

and not central to the case. Rather, a judge has a wider discretion, but although the limits of

1 Notes of evidence dated April 29

th, 2014. Page 6 line 42 to Page 7 line 5

2 Note of evidence dated April 29

th, 2014. Page 7 line 12-28.

3 Notes of Evidence of the 29

th April, 2014. Page 6 Lines 42-50

4 (1990) 91 Cr App Rep 271, [1991] 1 All ER 2245


that discretion should not be precisely defined, only rarely should it be exercised outside the

two established exceptions to the rule. The authority of R v McKain5 was also submitted in

which the Court of Appeal of Jamaica followed a similar line of reasoning.

18. Mr Gaspard, for the respondent contended that the judge had correctly exercised her

discretion and that the lately-admitted evidence was allowed in order to adequately and

contextually present the appellant’s defence of provocation for the jury’s consideration. At

the Ensor hearing the judge said:

“But, I’m wondering, Attorneys, whether or not, deleting that or editing that would not

deprive the accused of having the jury consider the whole context, and would assist in

their deliberation on the issue of provocation, in terms of the history? I wonder if you

could think about that. I know you both agreed for it to be out.”6

19. Mr Gaspard also pointed out that the judge’s exercise of her discretion was further informed

by the express acquiescence and approval of defence counsel. It is noted that defence counsel

had this to say on the matter:

“…So, I take My Lady’s point, and in fact, in all fairness to the accused, if that was his

statement as part of the incident, please, My Lady, I take the Court’s point on that,

please, My Lady. The only unfortunate thing is that, that having been part of the events,

that my friend or myself may have been limited in our evidence-in-chief and cross-

examination with regard to that aspect of the statement. Not that I would want to do any

further cross on it. [Emphasis ours]7

And also:

: “…And, in any event, please, My Lady, my recollection of and in perusing the evidence,

in great detail, in preparation for this morning, there was no point in time when that

incident was referred to, either in a statement or in the Magistrates’ Court, by any of the

State’s witnesses. So it would not have given rise to me doing any cross-examination on it

at all, please my Lady. The only time it would have appeared would have been in the

statement of the accused. So that, from myself…

5 (1994) 47 WIR 290

6 Notes of Evidence dated the 29

th April, 2014. Page 7 lines 22-28




The Court: No, you…

…I would not.

The Court: …but you would have been free to cross-examine on it. Yes.

…..I know. But what I’m saying is that I would not have, on a review of it, because there

was nothing to compare it with in any of the statements of the prosecution witnesses or

even in the Magistrate’s Court PI, notes of evidence, please, my Lady. So for me, it may

not have made any difference, at all, to the cross-examination that I would have subjected

the State’s case to, in this instance, please, My Lady. So, I think …I agree…

The Court: You agree that it goes towards the history of provocation?

…..I do indeed. My Lady, having read it over, I do indeed. And I do indeed agree with

the Court that, if it is not put in then the accused would not have been given an

opportunity for the jury to see his entire statement.”8 [Emphasis ours]

20. Mr Gaspard concluded that the judge’s decision to put the disputed part of the statement in

evidence did not cause prejudice to the appellant but rather, was of benefit to him by

ensuring that the issue of provocation, raised on the prosecution case, and relied on by the

appellant, was not starved of relevant evidence. The jury had before it all of the available

evidence to allow them to fairly consider the issue. He also submitted that the appellant

failed to show that the judge had exercised her discretion erroneously in law or to show how

the appellant had suffered any prejudice as a result of the admission of the evidence.

21. We cannot help but observe that counsel on appeal was trial counsel. It appears that Ms

Ramjit, as she is entitled, had a change of opinion on the effect of the impugned part of the

statement. In answer to us, she expressed the view that there was no benefit whatsoever to

the appellant in admitting the previously omitted part of the statement.

22. It is the responsibility of a trial judge in a criminal matter to ensure that the accused enjoys a

fair trial. This responsibility imposes upon the trial judge a duty to be constantly vigilant as

the trial takes its course to see whether any decision previously made by the court needs to be

revisited. In order to accomplish the desired end, trial judges are given wide discretion, the




discretion to re-open the case for the prosecution or defence included. In the instant matter,

having ruled a part of the appellant’s statement to be inadmissible as being irrelevant, and

possibly unfairly prejudicial, the judge, on reassessing the case from the perspective of all the

evidence, saw the previously omitted evidence in a different light. In her view, provocation

arose as a live issue on the prosecution case and the previously omitted evidence served to

bolster that contention. It was additional or further evidence that the jury could consider in

favour of the accused as they grappled with the issue of whether he was provoked to do as he

did.

23. Having come to this view, the judge solicited the opinion of counsel on both sides on the

issue. Trial counsel for the appellant agreed that the appellant would be assisted by the

admission of this evidence and at first, expressed a concern that prosecution witnesses had

not been cross-examined along these lines. However, she made no application to have any

witnesses recalled to pursue any line of cross-examination that might have been opened by

the new evidence, rather, having made mention of the fact, she went on to say that she did

not want to do any further cross-examination based on the newly admitted evidence.

24. We are satisfied that Ms Ramjit’s first judgment call was the right one. The issue of

provocation was squarely before the jury and the newly admitted evidence had the potential

to support the case for the appellant. While it did indeed introduce the question of the

appellant having acted in revenge on Saturday 22nd

September 2007, it also introduced the

concept of a course of action to be considered on the issue of provocation, i.e., that the acts of

provocation were continual, having begun on the Thursday evening and culminating on the

Saturday. Trial counsel for the appellant, having exercised her professional judgment,

balanced the advantage to be gained from the admission of the evidence against the possible

disadvantage and elected to have the evidence admitted. The appellant could not enjoy the

benefit without courting the detriment.

25. We are unable to fault either trial counsel or judge on the issue of admitting the evidence in

question. The fact that the jury rejected the defence of provocation cannot, with hindsight, be


laid at the feet of this evidence. The jury would have considered the issue in the round

before rejecting it. We find no reason to disturb the judge’s exercise of her discretion.

26. We find this ground to be unmeritorious.

GROUND 2:

The judge erred in allowing the prosecutor to use emotional language in her address to the

jury and making comments targeted at the cultural beliefs of the jury by allowing the

prosecutor to refer to defence counsel as a La Diablesse.

27. Ms Ramjit complained that the prosecutor likened the course of the proceedings to “a long,

winding and unfamiliar road” and admonished the jury on at least three occasions during her

address to the jury not to be distracted by the local folklore creature the La Diablesse. She

submitted that since in our culture, the La Diablesse is a feared and evil female creature that

is not to be trusted, such references intentionally transferred those qualities to trial counsel

and by extension to the appellant. She submitted that the only reasonable inference that

could have been drawn was that the La Diablesse referred to was in fact defence counsel. She

argued that such references fall outside the scope in which a prosecutor ought to operate as a

Minister of Justice.

28. Ms Ramjit relied on the case of Cunningham v The State9 , in which the local Court of

Appeal addressed the use of local parlance. Weekes JA delivering the judgment noted:

“Counsel may comment forcefully and even colourfully where appropriate but

must be careful never to cross the line and act in a manner calculated to or

capable of appealing to the emotions of the jury. The vernacular and

colloquialism have their place in addressing a jury but their use must never result

in unfair prejudice against an accused”.

29. She also relied on the authority of Uraz Mohammed v The State10

, in which the case of

Mantoor Ramdhanie v The State11

was cited. In Ramdhanie it had been argued that the

9 Cr. App. No. 18/2005, page 8

10 Cr. App. No. 23 of 2011

11 [2005] UKPC 47


closing speech of the prosecutor was “improper” and “engendered prejudice” in breach of

the established duty of a prosecutor to be impartial. The Privy Council held that:

“When considering the language used, its style and robustness, allowance must be made

for context and environment; nevertheless there were fundamental limits which

prosecuting counsel as a minister of justice should observe whatever the context and

environment (in particular, when prosecuting counsel’s final speech follows that of

defence counsel) the standards expected of prosecuting counsel are not dependent upon

the compliance of defence counsel with the rules governing conduct of the defence.

Accordingly, in a case where prosecuting counsel’s final speech included passages in

which counsel (in effect) told the jury (or strongly implied) that there was incriminating

evidence which had not been put before them, and also contained emotive and unjustified

comments on the defence case and evidence (or on defence counsel) and a number of

passages in which counsel improperly vouched for the soundness of the prosecution case,

the tenor and content of the speech were capable of having a significant impact on the

jury (despite the fairness of the trial judge’s summing-up) and this constituted a material

irregularity and unfairness in the trial process and the jury’s verdicts could not be

regarded as safe.”12

30. Mr Gaspard responded that the prosecutor did not refer to defence counsel as a La Diablesse

and in any event, the prosecutor’s comments did not fall outside acceptable standards of

prosecutorial conduct. The reference to “La Diablesse” was merely to implore the jurors not

to be distracted by any issues which might be immaterial to the decisions that they had to

make. He further submitted that given the general theme of the prosecutor’s closing address,

her use of the term “La Diablesse” could in no way have caused prejudice to the appellant so

as to make his trial unfair or his conviction unsafe.

31. What follows is an extract from the relevant part of the prosecutor’s address:

“Now another thing, Ladies and Gentlemen, I will ask you to bear in mind, is that in a

criminal trial, again as I told you before you are the sole decider, judge of the facts in

this case, but you do not have to decide every single point that has been raised. You all

were not there. There are going to be questions that you’re never going to have an

answer to. We could stay here for the entire year and still there would be questions in

your mind. But it is very important to understand you do not have to decide every single

point, every single answer, but only those points or issues which will enable you to decide

whether the elements of this offence have been made out. That is what you have to do.

12

Para 26


So, again, I have stated to you, in my view, what is the issue in this trial. Again, was this

killing unlawful?”

Now Ladies and Gentlemen, just to use an example of what I mean about an issue and

what you need to focus on in deciding upon an issue. This morning, the goodly JSO, Ms

Ramlal took the roll from you all, each and every one of you all. Now let’s just say, a few

days afterwards someone were to ask you, “Look, on 30th

April, 2014, did Ms. Ramlal

take the roll in the morning?” That is the issue you all have to decide, whether she did or

she did not. Now, is part of that issue whether Ms Ramlal had breakfast this morning?

Whether I had breakfast this morning? Is that part of the issue? Is that part of the issue

whether Ms Ramlal – what Ms. Ramlal is wearing? You may decide it is. You may decide

it is not. So, again, this is what I mean about distractions and not allowing yourself to be

led down a sidetrack and to be distracted. Ladies and Gentlemen, and in the end getting

lost.

You know, in Trinidad and I suppose in Tobago, as well, there is a folklore creature, the

La Diablesse. I don’t know if you all would have heard about her. And really, in

essence, is this lady who comes in the middle of the night, usually approaches a

gentleman, a good-looking gentleman, perhaps, and you know, she’s said to usually be

dragging her foot along the grass. A foot that you would eventually discover to be maybe

a cow foot or some animal’s foot, but her whole purpose though is to do that. Is to

seduce the unsuspecting traveler, lead him along a particular path and then eventually

throw him off a precipice, right. Do not allow the La Diablesse to do you that in this

case, Ladies and Gentlemen, right. Focus on the issues. Go along that path. So let us go

along this particular path and let us look at the signpost”13

.

32. In order to understand the context of the comment, it is useful to note that the folkloric role

of the La Diablesse is to lure unsuspecting males off their course as they make their way

home, usually, along a lonely and winding path in the dark hours of night, having imbibed

copious amounts of alcoholic beverages. The La Diablesse is a seductive creature with the

face and form of a beautiful woman who has one human foot and one bovine. Having

enticed the man away from the pathway, using her feminine wiles, she will lead him into

insanity or to his death. This characterization is familiar to members of our society.

33. The law on the issue of the prosecutor’s duty in the context of closing addresses was

addressed by our Court of Appeal in Shazad Khan and Timothy Hunt v The State14

. In

rehearsing the authorities, the Court noted that in the exercise of their duties, prosecutors may

13

Proceedings 14th

April 2014, pages 5 22-49 and page 6 lines 1-20 14

Cr. App 18 & 19 of 2008


deliver a robust closing address to the jury in language appropriate to their understanding, but

that such language as is used should not be emotive, inflammatory or xenophobic. This

principle finds expression as well in the case of Benedetto v R15

. Soo Hon, JA, stated that

this rule seeks to guarantee a defendant’s absolute right to a fair trial and is in keeping with

the prosecutor’s duty as a minister of justice. In Randall v R16

, their Lordships of the Privy

Council held that there may be times when a prosecutor departs from “good practice” and

where such departure is so gross, persistent, prejudicial or irremediable, an appellate court

will have no choice but to condemn the trial as being unfair and quash a conviction as being

unsafe.

34. Reading the impugned part of the prosecutor’s address, it is clear to us, as it would have been

to the jurors, that the prosecutor was advising them to stick to the straight and narrow of the

evidence and the issues and not to allow themselves to be distracted from that pathway by

irrelevant considerations or other red herrings. Nothing contained in the address suggests, or

even hints, that defence counsel was the embodiment of this mythical creature.

35. In any event, in order to determine whether the prosecutor’s address violated the rules

guiding a minister of justice, it is necessary to read the address as a whole. We have done so.

We do not find that at any point, or in the round, the prosecutor went beyond the bounds of

permissible comment. There was no breach so gross, persistent, prejudicial or irremediable,

that would cause us to consider the conviction unsafe. While the address was perhaps

somewhat dramatic, it did not have the effect of inflaming the passions or unconscious

prejudices of the jury. Overall, it was fair and balanced and consonant with the role of a

prosecutor as a minister of justice.

36. This ground is wholly without merit.

15

[2003] 1 WLR 1545 16

(2002) 60WIR pg 103


GROUND 3

The judge erred in giving an inadequate direction to the jury in relation to the appellant’s

defence of self defence and in particular in failing to direct the jury that a person may have an

intention to kill in self defence.

37. Ms Ramjit submitted that the judge failed to direct the jury properly on the issue of self

defence, in that she neglected to tell them that a person may have an intention to kill, yet still

act in lawful self-defence.

38. She submitted that the directions on the element of intention to kill were addressed in a

fleeting and cursory manner and that the jury was given too general a direction on the law of

self defence. The direction was ineffective in explicitly conveying to the jury the link

between the appellant’s possible intention to injure KG and self-defence, and as a result, the

jury was not made aware of the gravity of this element of the direction. These failures

operated to the detriment of the appellant.

39. In support of this submission, Ms Ramjit relied on the cases of: R v Bunting17

, Baptiste v

The State18

, Sinanan & Others v The State19

and Ako Morris v The State20

. These

authorities reiterate the principle that where self-defence is an issue, the judge should direct

the jury, where appropriate, that such a defence is not inconsistent with an intention to kill or

cause grievous bodily harm.

40. In Baptiste v The State, the court gave comprehensive guidelines on the proper directions

which should be given to the jury when the special defences or issues of self defence,

provocation or accident are raised. It was held that on the question of mens rea, the judge

was bound to direct the jury that while an intention to kill negatives the plea of accident, this

did not apply in respect of self-defence and provocation. Those pleas may succeed even

though a defendant had formed the intention to kill.

17

(1965) 8 WIR 276 18

(1983) 34 WIR 253 19

(1992) 44 WIR 20

Cr. App. No. 45 of 2008


41. In the instant matter, the judge directed the jury as follows:

“A killing which is done in self defence is done with justification or excuse, and it is

not unlawful although it is done with intent to kill or intent to do grievous bodily harm. That simply means that self defence is not inconsistent with an intention to kill or cause

grievous bodily harm. Members of the Jury, the general directions that I gave you in

relation to the onus and standard of proof have a particular important operation in the

circumstances of this case. Since it is for the State to satisfy you so that you feel sure that

the accused is guilty, it is for the State to satisfy you so that you feel sure that the accused

was not acting in self defence. It is not for the accused to prove that he was acting in

lawful self defence.”21

[Emphasis ours]

42. Mr Gaspard submitted that the judge’s directions on the issue of self defence were adequate

since the judge gave the jury the special directions on intention to kill as it pertains to self

defence. The nature of the direction that a judge is required to give was considered in the

decision of Fabien La Roche v The State22

. The Court of Appeal expressed the law as

follows:

“…various courts have thought it necessary to address specifically the issue of an

intention to kill when self-defence is an issue. However, this court has held that a judge

need not specifically say that an intention to kill is not inconsistent with self-defence as

long as that idea is conveyed to the jury.”

“In accordance with the law quoted above, we acknowledge that it is within a trial

judge’s discretion how he approaches his summation. There are no precise words that

need be used, and a formulaic expression of principle will unduly restrict trial judges

in giving directions on self-defence. What is essential however, is that whatever the

form of words, it must be clearly conveyed to the jury that even if an intention to kill

was formed by an attacker, that did not deprive him of the defence and we are satisfied

that this was clearly and unequivocally conveyed to the jurors in this case.” [Emphases

ours]23

43. Mr Gaspard submitted that the judge’s direction to the jury on this issue were

unexceptionable. The judge not only addressed the issue of intention to kill not being

inconsistent with self defence but went further and directed the jury on the way it should be

considered when considering their route to a verdict. The judge stated:

21

Summing up dated May 6th

2014, Pages 12 Line 8-22 22

Cr. App. No. 32 of 2009 23

Paragraph 34


“If, however, on the other hand, you are satisfied so that you feel sure that the accused

killed and, at the time of the killing, he had an intention to kill or cause grievous bodily

harm, then you should go on to consider the issue of self defence.”24

44. In leaving the issue of accident to the jury, the judge directed them that only if they found

that the appellant had an intention to kill, thereby rejecting that issue, should they then

consider whether he acted in self defence. She also explained the verdict that the jury was

bound to return if they were unsure whether the appellant had acted in self defence.25

45. From the record, the judge told the jury explicitly that self-defence is not inconsistent with an

intention to kill or cause grievous bodily harm. She used plain language that would have

conveyed to them that the fact that the appellant did or may have formed the intention to kill

KG, did not deprive him of having the issue of self-defence considered in his favour. We are

somewhat at a loss to understand the complaint that the judge failed to give this direction.

We are also satisfied that the whole of the direction in respect of self-defence was thorough

and clear and that all of the legal matters which the jury had to consider in properly grappling

with this issue were placed squarely before them by the judge. The standard directions on

self-defence26

were given to the jury in a form that may be considered a classic.

46. This ground must fail.

GROUND 4

The judge erred in not discharging the entire jury when there was a reasonable probability

that the entire jury had become tarnished.

47. At the close of the day’s proceedings on 26th

March 2007, the jurors were permitted to

separate and go at large. On the resumption of proceedings the following day, the judge

disclosed to counsel that it had been drawn to her attention by a Marshal that alternate jurors

No. 3 and No. 6 had been seen that morning speaking with a relative of the appellant.

24


2014, Page 39 lines 33-37 25


2014, Page 39 lines 38-45 26

Judge’s summation dated May 6th

2007, page 39, lines 14 to page 40, line 40.


48. The judge then embarked on an inquiry. In the absence of the whole panel, she first

questioned an individual who was identified as the uncle of the appellant, the person seen

speaking with the jurors. He claimed that he knew both of the jurors and had made a brief

and casual comment about a jacket that one of them was carrying. From his account, the

jurors were unenthusiastic and did not respond to his comment other than to laugh. The

judge then proceeded to examine the individual jurors. Neither of the them confirmed the

account given by the uncle of the appellant. They gave differing accounts of what had

transpired, differing in location and the content of the conversation with the uncle of the

appellant. Alternate No 3 indicated that he met the uncle of the appellant standing outside the

court. The uncle initiated a conversation with him about a man inside but he did not hear all

of what he saying and hurriedly made his way inside. He indicated to the court that he did not

know to whom the uncle was referring. He was then sent to the jury room. Alternate No 6

said that earlier that morning the uncle of the appellant met him on the roadway in front of

the court and asked him if he knew the appellant, and that the appellant was his nephew.

Alternate No 6 further indicated that he told another juror (Juror No. 11) what the relative of

the appellant told him. The court then separated alternate No 6 from the rest of the panel.

49. The judge then questioned juror No. 11 and he was allowed to return to the panel. She

commented that juror No. 11 had been reluctant to speak the truth27

, alternate juror No. 6 had

been candid in giving the information28

and that they all seemed to have very short

memories29

. The judge discharged all three jurors. The panel was then called in and

informed of the change without being given the reason. The prosecutor, with the agreement

of defence counsel, expressed the view that the judge should conduct a further inquiry to

ensure that the remainder of the jury had not been contaminated. Each of the remaining jurors

was questioned about whether he or she had received any information from anyone about the

appellant; they all said no. Defence counsel expressed the view that the entire panel should

have been discharged because there was a possibility that juror No. 11, who had been sent

back to the panel, could have contaminated the entire panel. After reviewing the evidence,

27

Notes of Evidence dated the 27th

March, 2014. Page 47 Lines 47-49 28


March, 2014. Page 47 Lines 9-12 29


March, 2014. Page 41 Lines 20-21


the judge ruled that it could not be said that the remaining jury panel had been

contaminated30

.

50. On appeal, Ms Ramjit submitted that it was significant that the “contaminated” jurors did not

report the incident to the court on their own accord and that they had mingled with the rest of

the panel for at least half hour before the Court’s inquiry. She further submitted that the

decision to return alternate juror No. 3 and juror 11 to the jury room with the remaining

members of the jury was indeed to risk contagion which resulted in a real danger of prejudice

to the appellant, as there was an opportunity to contaminate the entire jury. She contended

that, a fair minded observer would not conclude that the jury was unbiased and there was

indeed a fair trial and this court should not be hard pressed to find the verdict unsafe and

unsatisfactory.

51. She cited the case of R v Blackwell31

, in which it was held that when a juror has been

approached, tampered with or intimidated, the judge is bound to investigate the matter and

the line of questioning ought to be directed towards ascertaining whether the jury’s integrity

and independence has been compromised.

52. Ms Ramjit also cited the case of Arnold Ramlogan v The State32

, in which a juror was

approached by relatives of the accused. The Court’s decision to continue the trial with the

original jury panel was the basis of a ground of appeal. The juror discouraged the relatives

and immediately reported the matter. The judge questioned the juror, then the relatives and

then referred to the incident in open court as the other jurors were aware of the incident. The

judge individually questioned each juror as to whether he or she could deliver a fair verdict.

This ground of appeal was found to lack merit. In delivering judgment, de La Bastide CJ,

opined at p 388:

“It is evident from the above account that the judge embarked on a meticulous

investigation of the nature and quality of the encounters with the juror, in order to

ascertain whether those encounters contaminated the juror, whether the

30


March, 2014. Page 11 Lines 9-48. Also Notes of Evidence dated the 27th

March, 2014, Page 76 Lines 39-45. Also, Notes of evidence of March 28t, 2014 at Page 7, Lines 32-34. 31

[1995] 2 Cr. App. R 625 32 (2000) 58 WIR 374


remaining jurors were contaminated, and whether in all the circumstances there

was a real danger of bias. In the exercise of his discretion he decided to continue

the trial with the same jury.”

Ms Ramjit stressed that unlike Ramlogan (supra), the contaminated jurors did not report the

incident to the court on their own accord, instead, the court had been apprised by a Marshal.

53. Mr Gaspard submitted that the judge’s decision not to discharge the entire panel was justified

on the evidential basis provided during the judge’s enquiry, since that enquiry unearthed no

reasonable probability that the entire jury had become tarnished. He further contended that

the two enquiries conducted by the judge, first of the three individual jurors and then of the

entire panel, were meticulous and unassailable. He opined that the judge properly addressed

her mind to the relevant issue to be determined and the relevant law to be applied33

.

54. He submitted that the test to be applied in determining whether the entire jury ought to be

discharged is whether there was a real danger of prejudice against the appellant and not

whether there was a reasonable probability that the entire jury had become tarnished, as

contended by counsel for the appellant. For this proposition, he relied on the authority of R v

Richard Leslie Thorpe34

.

55. The test to be applied in a jury inquiry is an objective one – would a fair-minded and

informed observer conclude that there was a real possibility, or real danger (the two being the

same) that the juror or entire jury panel was biased : Porter v Magill,35

in which the House of

Lords approved the test established in Re Medicaments v Relate Classes of Goods (No. 2).36

In our jurisdiction, we have applied the same test, though in relation to bias generally Panday

v Wellington37

.

33

See Notes of Evidence, 27th

March, 2014. Pages 4-78 and 28th

March 2014, pages 3-12. 34

[1996] 1 Cr App R 269 35

[2002] AC 357, HL 36

[2001] 1WLR pg 700 37

Mag. App. No. 75 of 2006


56. Fortunately, the entirety of this trial was recorded, which afforded us the opportunity to study

the actual inquiry conducted by the judge in respect of the possible contamination of

individual jurors and/or the jury panel as a whole. The inquiry met the standard adverted to

in Arnold Ramlogan (supra). We are of the view that the inquiry was thorough, proper and

covered all bases to which the judge had to address her mind in determining whether any or

all jurors should be discharged.

57. The proper test would have been uppermost in the mind of the judge, the relevant authority

being cited to her by trial attorney for the State. Although in her brief ruling, the judge did

not advert to the test, we are nevertheless satisfied that given the nature of her inquiry and the

answers thereto, her discretion was exercised properly.

58. The discharge of jurors is not a matter to be taken lightly. A jury or juror into whose charge

an accused has been put may be discharged by a trial judge before delivering a verdict. The

power to do so is implicit in s19 sub 3 of the Jury Act. A judge may exercise his power in

this regard on his own motion. However, a juror or jury should only be discharged where

done where it is necessary, that is, in circumstances in which the court cannot be satisfied

that a juror will come to a decision based solely on the evidence at trial, in effect, affording

the accused a fair trial. Where some factor having the potential to distract from that sole

consideration is brought to the attention of the judge, there arises a duty on the judge to

investigate the matter, which investigation includes questioning individual jurors or entire

panels. At the end of the inquiry, the judge has a discretion whether to discharge individual

jurors or an entire panel. The Court of Appeal will not interfere with the judge’s exercise of

such discretion unless it is demonstrated that the judge has fallen into error and is plainly

wrong38

. Having discharged the three jurors after appropriate inquiry and having made

pertinent observations of them, the judge then addressed her mind to the possibility that the

other members of the panel and alternates may have been contaminated. She questioned

each juror individually ascertaining whether they had been told anything about the accused

that morning, whether they had seen anyone approach any other juror and whether they had

38

Beacon Insurance Company Limited v. Maharaj Bookstore Ltd. [2014] UKPC 21


heard any conversation between alternate juror no. 6 and juror 11. These questions were all

answered in the negative.

59. The inquiry raised no concern therefore, that the remaining jurors could have been

contaminated by any observations of, or by anything said or done by the discharged jurors.

There was nothing to suggest that the jurors would not afford the accused a fair trial so to

justify discharging any further members of the panel.

60. This ground is also without merit.

GROUND 5

The judge erred in allowing a forensic pathologist to give opinion evidence on a medical

certificate obtained on behalf of the appellant bearing in mind the limited information placed

on the face of the medical, the fact that the forensic pathologist did not examine the appellant,

did not have the benefit of the notes of the examination nor did he have any instructions from

the doctor who examined the appellant and prepared the medical.

61. In the instant case, the pathologist was a prosecution witness, whose main function was to

describe the injuries seen on the body of KG and give the cause of death. There can be no

doubt that he was what is known in law as an expert witness and thus agreed by both sides

and court. The prosecutor went on to put a hypothetical situation to the pathologist and ask

his opinion on the matters therein. The clear intent of the questioning was to give lie to the

appellant’s account of what had transpired in the incident between himself and KG on the

date in question in particular, how the fatal injuries came to be inflicted. There was a

medical certificate in respect of the appellant for the pertinent period.

62. The pathologist was asked by the prosecutor his professional opinion on the following

hypothetical scenario:

“In your professional opinion where a person is being kicked and cuffed about the body

for a period of time, let’s say about five to ten minutes by a group of, let’s say for the


most five persons, would you expect to see any sort of injury upon the body of that

person…”39

63. Ms Ramjit submitted that it is a well-established rule that a witness in a criminal trial ought

to testify only as to facts perceived or experienced by him and must not seek to influence the

court or jury by expressing opinions concerning those facts or by drawing inferences as to the

causes or significance of those facts: R v Turner40

, since such opinions, even where they may

be founded upon legally admissible evidence, may effectively usurp the function of the jury,

whose task it is to draw inferences from the evidence and apportion blame or responsibility

as necessary. An exception to this general rule is expert opinion evidence41

.

64. She complained that the pathologist’s opinion evidence in respect of the hypothetical

situation was a mere generalisation that offered no clarity to the jury and it was misleading

and further that it caused prejudice to the appellant and that in all the circumstances the

examination ought not to have been allowed. Ms Ramjit also submitted that where a court or

jury can be expected to understand the evidence in question without expert opinion evidence,

expert testimony concerning that evidence ought not to be admitted.

65. Mr Gaspard submitted that the judge was correct to allow the pathologist to express his

further opinion since the matter fell within the class of subjects on which expert testimony is

permissible and it was clear that the pathologist was qualified to render his opinion on the

particular matter. He argued that the pathologist’s role was to assist the court and

furthermore, the hypothetical scenario was not a matter that ought to have been left to a jury

without expert assistance, as a reasonable man would not have such specific medical

knowledge.

39

Proceedings on Thursday 3rd

April, 2014 at page 52. 40

[1975] QB 834, 60 Cr. App. Rep. 80 41

Folkes v Chadd (1782) 3 Doug KB 157


66. Mr Gaspard submitted that, in no way could the function of the jury have been usurped

especially since the judge gave explicit directions to the jury on how it should treat with the

evidence given by an expert witness42

.

67. An expert may give his opinion upon facts which are either admitted, or proved by himself,

or other witnesses in his hearing, at the trial, or are matters of common knowledge; as well as

upon an hypothesis based thereon. It is necessary to distinguish between the matter on which

his opinion is sought and the theories or generalisations by reference to which he forms his

opinion: these may be based on data provided by others43

. Where an expert lacks personal

knowledge of matters in issue, and is required to give an opinion on matters which are

disputed, the opinion should be elicited by use of hypothetical questions. The expert is asked

to assume that the hypothetical exists and to offer an opinion based on the facts asserted. The

question should be clear, uncontradictory and subject to proof at trial. All relevant facts need

not be included in the hypothetical, there should be however, sufficient facts stated as a

premise to support the opinion rendered44

. In R v Swietlnski45

the Ontario Court of Appeal

held that in regard to expert evidence on hypothetical questions, the trial judge may require a

hypothetical form of questioning to elicit expert opinion evidence where foundation facts are

in dispute, and further, the foundation for the opinion may include information obtained out

of court. The nature of the foundation for opinion goes to the question of weight, not the

question of admissibility. The assessment of such evidence is solely for the jury.

68. Once an expert witness remains within the four corners of his area of expertise, he is

permitted to express his opinion, not only on matters of his personal perception and

experience, but he may properly give evidence in respect of hypothetical matters, the

substance of which would be well within his experience. As a medical doctor, and one with

considerable experience in the matter of injuries sustained on the human body, in the same

way that the pathologist was permitted to give his opinion on whether or not the injuries

found on KG could have been inflicted by an attacker swinging a sharp object from side-to-

42

Summing up dated 5th

May, 2014. Page 12 lines 45-50 to Page 12 lines 1-5 43

Phipson on Evidence Eighteenth Edition, para 33-18 44

Watt’s Manual of Criminal Evidence 2009 pg 401 45

3 W.C.B. 31


side (a hypothetical situation for the expert, but an important consideration in the context of

the case for the prosecution and defence); it was equally permissible for him to express an

opinion on the other hypothetical since it had direct bearing on the case for the appellant. It

was the duty of the prosecution to “take in front” and seek, by virtue of admissible evidence,

to disprove possible defences raised by the appellant. It was of course, open to trial counsel

for the appellant to cross-examine the pathologist on the matter in order to seek to establish

the appellant’s version thereon.

69. We are of the view that the impugned evidence was not only permissible but directly

pertinent to facts in issue between the prosecution and the appellant.

70. This ground too, is without merit.

GROUND 6:

The judge erred in overriding(sic) the no case submission made on behalf of the appellant.

71. A submission of no case to answer may properly be made and upheld where –

a. there is no evidence to prove an essential element of the offence or,

b. where the evidence adduced by the prosecution has been so discredited as a result of

cross-examination or rendered so manifestly unreliable that no reasonable tribunal

could safely convict on it. (Sangit Chaitlal v. State46

)

72. The appellant relied on the authorites of George Charles Galbraith v R47

(UK Court of

Appeal) and Riley v Barran48

which cases have been distilled in Sangit Chaitlal.

73. Ms Ramjit submitted that there were numerous inconsistencies in the evidence of the

prosecution’s witnesses which were material to the facts in issue. She highlighted the

46

(1985) 39 WIR 295 47

(1981) 73 Cr. App. R. 124 at 127 48

(1965) 8 WIR 164


evidence surrounding KG’s approach to the appellant; whether KG started the chain of

events leading to his death; the degree of participation of the witnesses Miller and Nancis;

the actual location where the incident took place; and that the account given by the

prosecution’s witnesses were inconsistent with the injuries sustained by the appellant. Ms

Ramjit submitted that these inconsistencies were fatal to a prima facie case.

74. She cited the case of R v. Shippey & Ors49

, in which Turner J considered the principles set

out in Galbraith and upheld a no case submission on the basis that the evidence in support of

the prosecution’s assertions bore ‘really significant inherent inconsistencies’. He found the

case for the prosecution to be ‘inherently weak and tenuous’. Ms Rajmit submits that the

same assessment should have been made in the instant case.

75. In response, Mr Gaspard submitted that the judge correctly overruled the no case submission

and that the jury was adequately directed on the issue of inconsistencies50

. He argued that the

inconsistencies did not detract from the fact that the constituent elements of the offence had

been established and that the inconsistencies on the prosecution’s case did not render the case

manifestly unreliable, neither were they such that the judge could reasonably form the view

that they amounted to a fatal discrediting of the prosecution’s witnesses. He also submitted

that on the prosecution’s case, the “cocktail of defences” raised was negatived.

76. Mr Gaspard submitted that the judge’s decision to overrule the appellant’s submission of no

case to consider was in accordance with the principles articulated in the authorities of Taibo

Ellis v R51

and Anand Mohan Kissoon and Rohan Singh v The State52

. The Court of

Appeal of Guyana in the latter case held:

“The fact that inconsistencies in a witness’ evidence may have weakened the

prosecution’s case against an accused is no ground for the trial judge withdrawing the

case from the jury, a case should only be so withdrawn in the extreme circumstances that

the prosecution’s witnesses are totally discredited”.

49

(1988) Crim. L. R 767 50

Summing Up of May 5th

, 2014 from page 13 line 6 to Page 15 line 16. See Also Notes of Evidence of the 14

th April, 2015 from Page 5 line 33 to Page 12 line 33

51 (1996) 48 WIR 77

52 (1994) 50 WIR 266


77. The judge’s ruling on the no case submission is to be found in the transcript of the

proceedings53

. The judge first set out the law by which she was guided in the exercise of her

discretion. No complaint was made thereon and we confirm that the law was correctly set

out. She then set out the inconsistencies or contradictions in the prosecution evidence

referred to by trial counsel for the appellant. The judge then concluded as follows

“The Court finds that it cannot be said, based on these issues that the evidence of the

State is so manifestly unreliable that the jury, properly directed, would be unable to

convict. The issues raised under the head I’ve just dealt with, are all issues of facts for

the determination of the jury. It is open to the jury to accept all or part of a witness’

testimony. Having considered all the issues raised in the defence’s no-case submission,

the Court rejects the submission of no-case to answer.”

78. The essential question is whether the inconsistencies arising on the prosecution’s case were

of such gravity so as to either discredit the witness or witnesses or to render manifestly

unreliable the evidence, thereby resulting in a position that no reasonable tribunal properly

directed could safely convict based on it. This is a matter for the discretion of the judge and

the Court of Appeal will not dislodge the exercise of that discretion unless it is shown to be

plainly wrong.

79. It is clear that in the opinion of the judge, such inconsistencies as arose were capable of

resolution by the jury depending on the views they formed of the various witnesses’s

credibility and reliability; in other words, the prosecution case “taken at its highest”, was

capable of negativing all defences available to the appellant and proving his guilt beyond

reasonable doubt.

53

Proceedings dated Monday 14th

April, 2014, beginning at page 5.


80. In submissions before us, Ms Ramjit has added nothing more than what was before the judge

at trial. We can find no reason to disturb the exercise of her discretion.

81. This final ground is also unmeritorious.

DISPOSITION

82. In the above premises, the appeal is dismissed and the conviction and sentence affirmed.

P. Weekes

Justice of Appeal

A. Yorke-Soo Hon

Justice of Appeal

M. Mohammed

Justice of Appeal

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