republic of trinidad and tobago in the court...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Cr. App. No. 58/1992

Between

ALBERT EDWARDS

Appellant

AND

THE STATE

Respondent

PANEL:

P. Weekes, J.A.

A. Yorke - Soo Hon, J.A.

M. Mohammed

APPEARANCES:

Mr Douglas Mendes SC for the appellant

Mr Gilbert Peterson SC for the respondent.

Date Delivered: 28th April 2016

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JUDGMENT

Delivered by P. Weekes, JA

1. On 20th October 1988, the appellant was arrested and eventually charged with the murder of

Kenneth St. Louis. He has been in custody since that date. The State’s case against him was

posited on the felony/murder construct. It was alleged that the appellant was a willing

participant in a robbery, knowing that another participant was armed with a gun, as was he,

and that the robbery ended in St. Louis being fatally shot by one of the appellant’s

confederates.

2. By the operation of the felony/murder rule, a person who participates with others in a crime

involving violence, robbery is taken to be such a crime, which results in death of the intended

victim, is liable, as is the principal, for murder. No consideration need be given to the

intention of the secondary participant beyond that in respect of the original offence.

3. On 15th May 1992, the appellant was convicted of murder. His appeal to the Court of Appeal

was heard and determined in November 1995 and was dismissed. His further appeal to the

Privy Council on 2nd October 1997 concluded when the Privy Council dismissed his petition

for special leave.

4. In August 2015, the President referred this matter back to the Court of Appeal, pursuant to S

64 of the Supreme Court of Judicature Act, which reads as follows:

(1) Nothing in this Act shall affect the prerogative of mercy.

(2) The President on the advice of the Minister on the consideration of any petition for

the exercise of the President’s power of pardon having reference to the conviction of

a person on indictment or to the sentence, other than sentence of death, passed on a

person so convicted, may at any time –

(a) refer the whole case to the Court of Appeal, and the case shall then be heard

and determined by the Court as in the case of an appeal by a person

convicted; or

(b) if he desires the assistance of the Court of Appeal on any point arising in the

case with a view to the determination of the petition, refer that point to the

Court for their opinion thereon, and the Court shall consider the point so

referred and furnish the President with their opinion thereon accordingly.

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5. By virtue of S 64, it is now for the Court of Appeal to hear and determine this appeal. While

the referral was triggered by a particular set of circumstances, i.e., the Justice of the Peace

who had authenticated a confession statement allegedly made by the appellant was himself

convicted in 1998 of corruption in the course of his duties thereby rendering him (the Justice

of the Peace) “a totally discredited witness”, the hearing is not limited to such matters.

6. An additional matter was raised by counsel for the appellant. After the appellant’s

conviction, the Privy Council in Moses v The State1 determined that for a period of time,

including the time of the appellant’s trial, the felony/murder construct, was not applicable

law in Trinidad and Tobago, therefore, it was not available to the prosecution.

7. Before we could hear the matter, another relevant development took place. On 18th February

2016, the Privy Council made a significant change to the law of secondary participation in

respect of murder when they delivered their decision in respect of Jogee and another v The

Queen2. This was important because, if the felony/murder construct was unavailable to the

prosecution, the only route to the appellant’s conviction for murder would have been for the

prosecution to advance that he, as a secondary participant, was liable for the actions of his

principal.

Felony Murder

8. The decision of the Privy Council in Moses (supra) leaves it beyond dispute that the

felony/murder rule was not part of the law of this jurisdiction during the relevant period.

Therefore, the appellant could not have been subject to its operation and any conviction

based on it cannot be sustained.

1 [1997] AC 53

2 [2016] UKPC 7

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Conviction of the Justice of the Peace

9. The appellant made an application for the admission of fresh evidence in order to introduce

the fact that Farouk Ali, Justice of the Peace, had been convicted of corruption in the course

of his duties, which would, of course, go directly to the issue of his credibility. It was

submitted that the shattered credibility of the Justice of the Peace rendered the appellant’s

conviction unsafe.

10. We did not find it necessary to entertain and rule on this application since the State conceded

both the fact of the conviction and its effect on the credibility of the Justice of the Peace. The

real issue to be determined was whether the Justice of the Peace’s fall from grace would have

had the effect of rendering the appellant’s conviction unsafe.

11. Counsel for the appellant submitted, in brief, that the evidence of the Justice of the Peace as

to the authentication of the statement would have been fatally shaken had his conviction been

factored into the jury’s deliberation on issues regarding the statement and further, that the

statement would therefore, have had little or no value in “corroborating” the identification

evidence of Kathy Ann St Louis, the sole witness to identify the appellant as being on the

scene.

12. Counsel for the respondent countered that there was very little in contention between the

Justice of the Peace and the appellant at trial and what little there was, was peripheral at best,

to the issues for the jury’s consideration.

13. We are satisfied that although the credibility of the Justice of the Peace was effectively

destroyed by his conviction, given the nature of his evidence, that did not render the

conviction of the appellant unsafe, since:

(1) The appellant’s complaints in respect of the contents of the written statement attacked

the credibility of the police officers recording and witnessing it. The involvement of

the Justice of the Peace with the appellant occurred subsequent to its recording.

Further, for some unknown reason, at trial the Justice of the Peace was not frontally

attacked on the issue of his reading over the statement to the appellant which one

might have expected, given the fact that the appellant’s position at trial was that

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certain things he had told the officer had been omitted while there were matters

recorded that he had not said.

(2) While other peripheral issues involving credibility were raised with the Justice of the

Peace, none of them went to the issue of the contents of the statement nor the

circumstances leading to its recording.

(3) There was identification evidence which placed the appellant on the scene. While, if

the jury believed that the accused gave the statement, and that the incriminating parts

were true, that could serve to support the identification evidence, which cannot be

described as weak, that evidence stood on its own capable of founding a conviction

even without support (as the trial judge indicated to the jury).

14. The matters in dispute between the appellant and the Justice of the Peace at trial were of little

or no effect to the jurors’ determination of whether the appellant was present at the scene and

what, if any, role he played in the events.

15. Having applied our minds to the learning in the case of R v Pendleton,3while we accept the

fresh evidence in principle, we need to go further to assess its relevance and importance

given the remaining evidence in the case. As is provided in Pendleton, the primary question

for us to decide is whether the fresh evidence raises reasonable doubt as to the guilt of the

appellant. We find that it does not. For the reasons above we are not convinced that the

appellant’s conviction was unsafe as a result of the latter conviction of the Justice of the

Peace.

Substitution of Verdict

16. The remaining issue was whether on the material presented at trial, there was evidence that

could visit the appellant with liability for murder in the first instance, or manslaughter in the

second. The latter question is to be addressed in the context of S 45(2) of the Supreme

Court of Judicature Act which states:

Where an appellant has been convicted of an offence and the jury could on the indictment

have found him guilty of some other offence, and on the finding of the jury it appears to

the Court of Appeal that the jury must haven satisfied of facts which proved him guilty

3 [2001] UKHL pg 66

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of that other offence, the Court of Appeal may, instead of allowing or dismissing the

appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence,

and pass such sentence in substitution for the sentence passed at the trial as may be

warranted in law for that other offence, not being a sentence of greater

severity.[Emphasis ours]

This section empowers us to substitute a conviction for manslaughter if the circumstances are

appropriate.

17. Dealing first with the question of whether the verdict of guilty of murder was available to the

jury (without employing the felony/murder rule), we must look to the current law as

represented by Jogee (supra).

18. The Privy Council in Jogee (supra), held that in order for a secondary participant to be guilty

of murder, apart from the actus reus, he must hold/form the mens rea for murder, i.e., it must

be proven that the secondary participant intended that the victim be killed or caused to suffer

grievous bodily harm. Previously, the test was whether the secondary participant foresaw

that the principal would act with requisite intent.

19. Given the case against the appellant, it is clear that there is nothing on the case of the

prosecution capable of allowing the finding of fact that the appellant himself had intended

that St Louis be killed or caused grievous bodily harm. So that murder absent, we must

move on to examine the evidence to determine whether it disclosed culpability for

manslaughter. We sought the assistance of counsel on this matter and express our gratitude

to them both for their efforts.

20. In brief, the case for the prosecution was that three men, one of whom was the appellant,

agreed to rob a supermarket owned and operated by Kenneth St Louis. The appellant and

one Thomas, were armed with guns and the three entered the supermarket together, the

appellant taking up a position by the doorway. During the course of the robbery, Thomas

fatally shot St Louis. In a written statement given after his arrest, the appellant admitted to

having willingly participated in the robbery but did not mention having a gun. Although

three other persons were present at the time of the robbery, only one of them, Kathy Ann,

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identified the appellant as being the man at the door with the gun. At trial, the appellant

testified that he had not been a participant in the robbery. He maintained that while in the

vicinity of the supermarket, he had heard two men talking about a robbery but he had no

involvement in it and, in fact, left the area when he realised that something was afoot. He

specifically denied ever entering the supermarket or having a gun that evening. He admitted

that he had given a statement to the police but claimed that the statement produced was not

an accurate reflection of what he had said. There were omissions of things said and

inclusions of things that he had not said.

21. In Jogee (supra), the Privy Council discussed a number of cases4, in particular R v Reid

(Barry)5, (in which we have found the dicta of Lawton LJ to be particularly helpful) and held

that where the joint enterprise is one involving violence, i.e., some harm, and the principal

went on to kill, the secondary participant (without intent to kill or cause grievous bodily

harm) is guilty of manslaughter once he contemplated some harm, even to the least degree.

The Law Lords cited with approval the decision in Reid (supra), that even an intent that

lethal weapons be used to scare a victim, amounts to an intention to harm.

22. Further assistance was provided in the dicta of Shaw L.J, in the case of R v William

Penfold6. We can express the principle no better than he when he said:

“A more formidable ground was advanced by Mr Rougier, on behalf of William Penfold,

in relation to the conviction for manslaughter….. The simple elementary basis of Mr

Rougier’s submission was that an agreement to rob did not necessarily involve an

agreement to do such violence as might occasion real or substantial harm. If, therefore,

one of the robbers exceeded the bounds of contemplated physical attack, his confederates

would not in law be responsible for any serious, let alone fatal, consequence of his

unscheduled violence. As a matter of theoretical analysis, this proposition is irrefutable.

Looked at in the context of practical affairs it wears a threadbare covering. The

theoretical proposition was used to found the submission that the summing-up was

4 R v Collinson (1831) 4 Car & P 556; R v Smith (Wesley) [1963] 1 WLR 1200; CCA; Davies v Director of Public Prosecutions [1954] AC 378, HL(E); and R v Anderson, R v Morris [1966] 2 QB 110, CA considered; R v Powell; R v English [1999] 1 AC 1, HL(E) departed from; Chan Wing-Sui v The Queen [1985] AC 168, PC disapproved.

5 (1976) 62 CR App R 109 CA approved

6 (1980) 71 Cr. App R. 4

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defective in that it contained no direction in terms that if one of the robbers did violence

to a victim of the robbery his confederates could not, in law, be held responsible for the

consequence of that violence unless it proved that they had agreed in advance to the use

of that degree of violence to further their design.

As I have said, this is an irrefutable proposition. How far it has to be spelled out in the

context of the facts of a particular case is another matter. No one will be so naïve as to

suppose when three men agree to invade a house occupied by an elderly man and his

daughter, that they can and do assume with confidence there will be no resistance by

force or reaction by screaming which will make unnecessary or superfluous whatever

measure of violence might be called for to quell such resistance or to stifle such reaction.

If the trial judge did not put the matter as a precise and explicit proposition, it was made

as clear as was requisite at many points of the summing-up.

Robbers who burst into a house can hardly fail to contemplate the possible necessity of

some degree of force to overcome or silence the occupants. While they may not desire to

inflict any real harm, they do agree, by implication, to put themselves under the dictates

of any arising necessity. It would be absurd and nonsensical to assume that they agreed

to go so far and not a whit further to achieve their objective….”

23. Robbery is an inherently violent crime since there is an intention to put the victim in fear or

to use force in order to accomplish its goal. Robbery, unlike larceny, requires personal

contact with the victim and therefore the perpetrator must necessarily deal with the

unpredictable consequences that may well arise.

24. Mr Mendes, for the appellant, submitted that a proper interpretation of S 45(2) of the

Supreme Court of Judicature Act, would prohibit us from substituting a conviction for

manslaughter, since the statute requires that we be satisfied that the jury must have been

satisfied of facts that were probative of manslaughter.

25. He submitted that it is important to look at the directions given to the jury by the trial judge

in order to determine what facts they understood to be essential to their determination of the

issues. He submitted that the jury’s findings would have been limited to whether the

appellant was participating in a felony during the course which somebody was killed and that

we could not be sure of what other facts the jury found other than that he was present and

participating in a robbery. He commented that it had not been necessary for the jury to make

any finding as to exactly how the appellant was participating or whether he had a gun or not,

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or whether he knew what were the intentions of his confederates as far as the guns were

concerned.

26. His submission, therefore, contended that given all these “unknowns”, we would be unable to

determine whether the jury found as fact matters which would permit the application of Reid

(supra). It is necessary at this stage to reproduce in extenso parts of the trial judge’s

summation in order to understand the context in which the jury’s deliberations proceeded:

Judge’s Summation dated 14th May 1992, page 6, line 15 to page 7 line 8:

“It is obvious by now to all of us in this trial that all the evidence can’t be true

because the Stat is saying these two accused were party to a plan to rob this shop

and during this robbery, the deceased was killed…….the State’s case is that there

was a robbery, that these two accused were two of the men on that robbery, that

Faustin St Louis was killed during the course of the robbery and therefore these

two men are guilty of murder.

On the other hand, each of the accused says that they are not responsible at all.

The first in the sense that while he was in the area standing on the street outside

the shop at the time the killing took place, he was no part and parcel of what was

going on….so obviously all the evidence in the trial cannot be true. The facts

would be what you determine to be true. The facts would be what you determine

happened in relation to all the things you heard during the course of the trial”.

Judge’s Summation dated 14th May 1992, page 14, lines 4 & 5 and 19 to 25:

“Moving on to the particular law in this case. Both accused are charged with

murder…..

In this case the state is relying on the doctrine of common design. The State is

saying that three men, the two of them and another man had a plan, agreed to rob

the shop of Faustin St Louis, and during the course of this robbery, Faustin St

Louis was killed by one of the men. The State is, therefore, saying that in those

circumstances, all those three men are guilty of murder…..”.

Judge’s Summation dated 14th May 1992, page 15, line 4 to page 18, line 23:

Now what is the doctrine of common design in a case like this?.....A person who

uses violent measures in this commission of a serious crime involving personal

violence does so at his own risk and is guilty of murder if these measures result

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even inadvertently in the death of his victim, and for this purpose, the use of a

revolver, as we had in this case, to commit a robbery is a violent measure.

……when a person decided to commit or is committing a crime of violence using

something like a revolver, if he kills someone during the course of that robbery,

even if that killing is inadvertent, he is guilty of murder…...

If you determine to commit a crime of violence using an offensive weapon like a

revolver, you do so at your own risk. And if someone dies during the commission

of that violent crime, you are guilty of murder…...

Further, where two or more persons agree or plan to commit a serious crime

involving violence, then if someone is killed, whether intentionally or not, during

the commission of the crime by one of those persons, all the others who

participated in the crime are guilty of murder…...

If two or more people agree or plan to commit a serious crime involving violence

and during the course of that crime a person is killed by one of those men, then all

who participated in that crime of involving violence are guilty of murder. What it

means in this case is simply this: if you accept that there was an agreement or a

plan by three men to rob the shop of Faustin St Louis on this night and that two

of those men or even one of the men was armed with a revolver and during the

course of this robbery Faustin St Louis was killed by one of those men, then all

three who were participating in that robbery are guilty of murder…...

So that if you accept the evidence or the case for the State that these two accused

were two of three men who planned to rob the shop of Faustin St Louis, and the

robbery is a crime involving violence, robbery is a serious crime involving

violence.…. They were armed with revolvers according to the State. If you accept

the case for the State that these two accused were among three men who planned

to rob the shop of Faustin St Louis that night and that Faustin St Louis was killed

by the second accused, then the three of them are guilty of murder if the three

were participating in the crime..…. You must find that there was a plan to commit

robbery and you must find that each of those who were a part of the plan

participated in the plan, was doing something in furtherance of the plan.

And in this case we have the second accused. The State’s case is he was

standing by the door with a revolver in his hand that he came in with the two

others. He was standing by the door with a revolver in his hand. If you accept

that, you should have no difficulty in finding as a fact that he was participating

in the crime.

The second accused—first accused, I beg your pardon – the first accused,

however, says while he was on the scene he had nothing to do with this robbery.

He told you that he first knew about this robbery when they had got out of the

motor car about a hundred feet away, when he was walking along in the direction

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of Faustin St Louis’ shop and when the other two were talking about robbing the

shop and he told you that he tried to dissuade them about that, he didn’t agree

with it. WWhen they reached Faustin St Louis’ shop, he merely stood there for

about 20 seconds outside of the shop on the road, and then he saw something

going on and he continued walking down the road.

If you accept that, of course, then he was not participating in the crime.....

…... And when it comes to the first accused, again it depends upon your finding of

fact in my view. If you find he went in with the two other people, he had a

revolver, he was standing by the big door, then in my view that is clearly

participating in the crime of robbery. It will be a matter for you.

On the other hand, if you believe what he says as I’ve just gone through, then in

my view he would not have been participating in the crime, but that is a matter for

you”. [Emphasis ours]

27. As in every criminal trial, the jury exercise of fact finding was not one in abstraction. The

facts are to be found within the specific context of the evidence and it is the judge’s duty to

outline the relevant evidence and advise the jury of the legal elements that must be unearthed

therein. The address to the jury is therefore, an appeal not to any esoteric notions but to their

common sense conclusions based on the evidence.

28. In finding the facts, the jury was faced with two broad versions of the events in question. On

the prosecution’s version, three men had entered the grocery, the principal and the man who

stood at the door carried guns and during a hold-up, the victim was fatally wounded. While

Kathy Ann was the only one to identify the man with the gun at the door as being the

appellant, another witness spoke of two of the men that entered having guns. On the written

statement of the appellant, he admitted being the man standing by the door, but made no

mention of having a gun.

29. In his evidence at trial, the appellant denied ever entering the grocery during the event and

placed himself some forty feet outside of the building.

30. Clearly the jury had to determine which version, if any, they accepted. Once they accepted

or were in doubt about the version given by the appellant in evidence, he would have been

found not guilty. It is clear therefore, that their finding of fact was that he was not outside

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the grocery as he had claimed but rather inside and participating. The only distinction

between the State’s version of that participation and the version contained in the appellant’s

statement, is the issue of whether he had a gun. In his statement he neither confirmed nor

denied this. It would be entirely artificial to surmise that the jury did not need to, and

therefore, did not arrive at a finding of fact in respect of whether the appellant carried a gun

or not. It is beyond question in our view that their verdict reflected a clear finding that not

only did he participate in the robbery but participated in the manner detailed and outlined by

the prosecution.

31. Even if we had entertained that doubt, it would make no difference to the end result since

once he willingly participated, and clearly knew that the principal carried a gun, the only

reasonable inference is that the appellant’s minimal intent was that the gun be used to

intimidate or scare the intended victims of the planned robbery. There really can be no other

reasonable inference on this issue.

32. In the circumstances, we are satisfied that the appellant, had the jury been directed in

accordance with the law as it stands today, (which is our yardstick), would have been

properly convicted of manslaughter given their obvious findings of fact.

33. Before passing on, we must mention that Reid (supra) examined two categories of culpable

conduct in respect of manslaughter and these were recognised at paragraph 96 in Jogee

(supra) which reads as follows:

“If a person is a party to a violent attack on another, without an intent to assist in

the causing of death or really serious harm, but the violence escalates and results

in death, he will be not guilty of murder but guilty of manslaughter. So also if he

participates by encouragement or assistance in any other unlawful act which all

sober and reasonable people would realize carried the risk of some harm (not

necessarily serious) to another…”[Emphasis ours]

34. In the latter circumstances, one may embark upon an unlawful enterprise, which is not

inherently dangerous but can be made so by the when, where and who of its circumstances.

Burglary is a good example of such an unlawful act. If one enters a house at night, a house

which one knows to be occupied in order to steal therein, that might be a dangerous act, since

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objectively, the possibility of the occupants being disturbed, confronted and retaliating would

occur to the reasonable man. Whereas, if the burglary was done in premises which were

honestly and reasonably thought to be unoccupied, when the occupants could be expected to

be away, or, they are known to be on vacation, then, the offence would not be considered to

be a dangerous act by the objective standard.

35. Counsel for the appellant submitted the case of R v Bristow & Others7 for our consideration.

In that case the offence contemplated was one of burglary, which does not inherently import

violence. The court discussed unlawful act/manslaughter comprising of (a) an unlawful act

intentionally performed (b) in circumstances rendering it a dangerous act (c) causing death.

The particular circumstances in Bristow (supra) led to the conclusion that the burglary was

not only unlawful but also dangerous. This authority is easily distinguished from our present

matter in which the offence was inherently dangerous since it contemplates violence and

from that point of view Bristow (supra) was not helpful to us.

Disposition

36. In the circumstances, we quash the conviction for murder and substitute a conviction for

manslaughter.

37. The question of appropriate sentence now arises.

38. The range of sentences applied recently to similar manslaughter convictions ranges from 15 –

25 years with appropriate allowances for time spent in custody8. Without going into further

particulars of this offence, the period that the appellant has been in custody in respect of it,

28 calendar years, is far in excess of any sentence that would have been properly imposed by

the court.

7 [2013] EWCA Crim 1540

8 Ako Morris v The State CR App 45 of 2008; Nadia Pooran v The State Cr App 32 of 2015; Jaggernath and Kanhai

v The State Cr 16 & 18 of 2007; Jairam and Persaud v The State Cr App 86 & 87 of 1995; Deonarine v The State Cr

App 50 of 1994

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39. In the circumstances, we order that the 28 calendar years that the appellant has spent in

custody be deemed to be time served in relation to his conviction for manslaughter. We

therefore order his release from custody.

P. Weekes

Justice of Appeal

A. Yorke-Soo Hon

Justice of Appeal

M. Mohammed

Justice of Appeal

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