Page 1 of 18
THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Criminal Appeal No. 19 of 2011
BETWEEN
JAY CHANDLER Appellant
AND
THE STATE Respondent
**************
Panel:
P. WEEKES J.A.
A. SOO HON J.A.
R. NARINE J.A.
Appearances: Mr. R. Rajcoomar and Mr. R. Morgan for the Appellant
Mr. G. Peterson S.C.and Mrs. K. Waterman-Latchoo for the
Respondent.
Date delivered: 12th December, 2013.
Page 2 of 18
JUDGMENT
Delivered by R. Narine J.A.
1. On 17th August, 2011, the appellant was convicted of murder and sentenced to
death by hanging. He has appealed the conviction and sentence.
THE PROSECUTION’S CASE:
2. On 8th October, 2004, the appellant was an inmate at the Golden Grove Remand
Prison, Arouca. At about 11 am, the prisoners were being prepared for visits from
members of the public. Inmates who had visitors were brought to the holding bay. As
the inmates names were called, they were taken out of their cells and lined up in the
centre of the remand yard to be searched and handcuffed.
3. The appellant was the last inmate to be taken out of his cell. Kirn Phillip (the
deceased) had already been searched and was standing at the end of the line close to
Prison Officer Mohammed. The appellant asked Officer Mohammed to handcuff him to
the deceased, but Mohammed did not respond. As the appellant approached Officer
Mohammed, he lunged at the deceased. The deceased ran to the gate of the south
wing pursued by the appellant, who had a metal object in his hand, with which he was
making an upward and downward and sideways movement towards the back of the
deceased. The appellant came within one to two feet of the deceased, who eventually
ran through the gate to the south wing of the prison. The appellant stopped his pursuit
just before the deceased entered the south wing, and ran back towards his cell. The
appellant was then cornered by prison officers. He dropped the metal object after
officer Cadette struck him on his forearm with a baton. The metal object turned out to
be an improvised knife, which for reasons that remain unclear was not produced at the
trial.
4. The deceased had a wound to his chest. He was brought out of the south wing
by prisoners and taken to the infirmary. He was then sent to the Arima Health Facility
Page 3 of 18
where he was pronounced dead on arrival. The post mortem report revealed the cause
of death to be injury to the heart and haemorrhage into the heart sac due to a stab
wound to the chest. The appellant was charged with the murder of the deceased.
THE APPELLANT’S CASE:
5. At the trial, the appellant gave no evidence and called no witnesses. His defence
as put through cross-examination of state witnesses was one of denial. He did not
have a weapon. He did not ask to be handcuffed to the deceased, and he did not stab
him. It was suggested that the deceased was stabbed by some other person in the
south wing.
GROUNDS OF APPEAL:
6. On 21st September 2012, the appellant filed the following grounds of appeal:
Ground 1:
That the judge erred in law when he admitted evidence of bad character of the appellant
in particular, evidence of an incident in which the appellant pleaded guilty to stabbing
another prisoner with an improvised weapon.
Ground 2:
That the judge erred in law when he permitted extensive evidence to be led of the
stabbing incident. The evidence exceeded the permissible limits of collateral issues
and would have adversely affected the jury’s focus;
Ground 3:
Assuming but not admitting the correctness of the “Peter Blake” principle, the judge
erred when he applied the principle in an inconsistent manner during the trial;
Ground 4:
The judge failed adequately or at all to put the defence of the appellant to the jury during
the summation;
Ground 5:
The judge erred in that he failed adequately or at all to direct the jury on the significance
of the missing murder weapon;
Page 4 of 18
THE BAD CHARACTER ISSUES:
7. For the sake of convenience, I will deal with grounds 1 and 2 of this appeal
together. Counsel for the appellant submits that the trial judge erred in admitting the bad
character of the appellant into evidence, in particular, evidence of a prison stabbing
incident. During the trial, counsel for the prosecution made two applications to admit
evidence with respect to the bad character of the appellant. The first such application
was brought under section 15 N(g) of the Evidence Amendment Act No. 16 of 2009, to
adduce evidence of previous convictions for larceny in 1996 and robbery with violence
in 1998, and disciplinary findings of assault on two prison officers in 2003. The
application was based on allegations of dishonesty and fabrication of evidence made to
state witnesses by the defence in cross-examination. The application was relevant to
only to the credibility of the accused, not to propensity. After hearing submissions from
both sides, the trial judge granted the state’s application through this gateway. It has
not been suggested by the appellant that the trial judge misguided himself on the law or
the evidence, or that he considered irrelevant matters, or did not consider relevant ones,
in exercising his discretion under section 15 N(g) to admit the evidence.
8. The appellant’s complaint is focused on the state’s second application made
under section 15 N(1)(d) of the Act, to lead evidence of an incident in prison in May
2009, in which it was alleged that the appellant ran from his cell to that of a prisoner
named Hilbert Haynes, stabbed him in the neck with an improvised weapon, and ran
back to his cell. The purpose of leading this evidence was to establish that the
defendant had a propensity to violent, aggressive conduct consistent with intent on his
part to cause grievous bodily harm, and involving the use of an improvised weapon.
Counsel for the prosecution submitted that the evidence could lead to the inference that
the appellant had a propensity to commit offences of the kind charged and made it more
likely that he committed the offence with which he was charged. After hearing
submissions and considering the relevant authorities, the court granted the
prosecution’s application.
9. Section 15 N (1)(d) of the Evidence Amendment Act provides that evidence of
the accused’s bad character is admissible where it is relevant to an important matter in
issue between the accused and the prosecution. Before ruling in favour of the
Page 5 of 18
prosecution, the judge considered the relevant authorities and existing guidelines,
including those in R v. Hanson (2005) 1 WLR 3169 to determine whether to admit the
evidence would be unfair to the appellant.
10. In Hanson the Court of Appeal gave several useful guidelines, inter alia:
Where propensity to commit the offence is relied upon there are
three essential questions to be considered. (i) Does the history
of the conviction (s) establish a propensity to commit offences o
the kind charged? (ii) Does the propensity make it more likely
that the defendant committed the offence charged? (iii) Is it
unjust to rely on the conviction(s) of the same description or
category; and, in any event, will the proceedings be unfair if
they are admitted.
The section is not exhaustive of the types of conviction which
might be relied upon to show evidence of propensity to commit
offences of the kind charged, nor is it necessary that a
conviction should be of the same description or category as the
offence charged.
There is no minimum number of events necessary to
demonstrate such a propensity. The fewer the number of
convictions the weaker is likely to be the evidence of propensity.
A single previous conviction for an offence of the same
description or category will often not shows propensity. But it
may do so where, for example, it shows a tendency to unusual
behaviour or where its circumstances demonstrate probative
force in relation to the offence charged:
Old convictions, with no special feature shared with the offence
charged, are likely seriously to affect the fairness of
proceedings adversely, unless, despite their age, it can properly
be said that they show a continuing propensity.
It will often be necessary, before determining admissibility and
even when considering offences of the same description of
Page 6 of 18
category, to examine each individual conviction rather than
merely to look at the name of the offence or at the defendant’s
record as a whole.
Where past events are disputed the judge must take care not to
permit the trial unreasonably to be diverted into an investigation
of matters not charged on the indictment.
It a judge has directed himself correctly, an appeal court will be very
slow to interfere with a ruling as to admissibility, unless it can be shown
that the judge is plainly wrong, or the discretion has been exercised
unreasonably in the Wednesbury sense: Associated Provincial Picture
Houses v. Wednesbury Corpn. [1948] 1 KB 223.
11. In giving his ruling the trial judge made specific reference to the following
principles:
(i) Circumstances demonstrating probative force are not confined
to those sharing striking similarity. But if the modus operandi
had significant features shared by the offence charged it might
show propensity;
(ii) Striking similarity is not a pre-condition to admissibility but there
must, however, be a degree of similarity, or what is known as a
common thread. The test is one of simple relevance, and not
enhanced relevance or enhanced probative value;
(iii) Propensity evidence may be proved by the prosecution relying
on incidents which have occurred after the alleged incident
which is the subject of the trial.
12. In his ruling on this issue, the trial judge referred to and applied the relevant
principles referred to above:
“I turn now to my analysis of this issue. The question that I
must ask myself is whether the single reported incident,
with respect to Hilbert Haynes in prison, shows a tendency
on the part of the defendant to unusual behaviour, or do
the circumstances demonstrate probative force in relation
Page 7 of 18
to the offence charged; being mindful that circumstances
demonstrating probative force are not confined to those
showing striking similarity, does the modus operandi of the
reported Hilbert Haynes incident have significant features
shared by the offence charged?
In my respectful view, the modus operandi of the Hilbert
Haynes incident has significant features shared by the
offence currently being tried, and they are, that in both
cases the defendant is said to have used an improvised
weapon; in both cases the defendant ran past prison
officers; in both cases therefore the general picture
emerging was not one of surreptitious attack, but one
easily capable of being viewed. In both cases the other
inmate was stabbed in a vulnerable part of the body and in
both cases the defendant returned to the area of his cell.
Striking similarity is not required to be displayed.
Probative force is derived from these significant linking or
common features shared. It is immaterial that death did
not ensue in the Hilbert Haynes incident. The mental
element for murder includes an intent to cause grievous
bodily harm, which is capable of being inferred from the
reported act of the use of an improvised weapon to stab a
person in a sensitive part of the anatomy”.
13. The trial judge found, based on his reasoning above, that the first and second
questions set out in Hanson were to be answered affirmatively. He went on to consider
the third question, that is, whether it was unjust or unfair to admit the evidence. He
considered the following factors:
- whether the conduct was reprehensible;
- the length of time between the Haynes incident and the offence charged;
- the fact that the Haynes evidence occurred after the offence charged;
Page 8 of 18
- the statement given by the accused in the absence of procedural safeguards
he would have had if he were before the court;
- the degree of similarity between the Haynes incident and the offence
charged; and
- the probative force of the evidence.
14. At the end of this exercise the trial judge concluded that it would not be unfair or
unjust to admit the evidence of the Haynes incident. He further went on to consider
whether there was any basis for the exercise of his residual discretion to exclude the
evidence, and concluded there was none. It is well settled that an appellate court will
not interfere with the exercise of a discretion by a judge unless it is shown that he erred
in principle, or that there was no material on which he could have reasonably based his
decision or that he was plainly wrong. The appellant has not put forward any ground on
which this court is entitled to set aside the judge’s discretion to admit the evidence in
respect of this application.
15. Counsel for the appellant further contends that the evidence led about the
previous stabbing incident exceeded the limits of collateral issues which resulted in the
jury’s focus and attention being distracted from the issues to be determined by them.
16. When considering if there was any basis for discretionary exclusion of the
evidence, the judge addressed his mind to the risk of the trial losing its proper focus. He
referred to R v. O’Dowd (2009) EWCA Crim 905 and distinguished O’Dowd from the
instant case on the basis that in O’Dowd there was a proliferation of satellite issues but
in the instant case, there was only one issue:
In this case there is only one issue with respect to the
Hilbert Haynes incident. There are different modes of proof
of it through direct evidence, that is, the evidence of the
alleged admission of the defendant; through circumstantial
evidence and through the guilty plea. Although there may
be quite a few witnesses to prove this, they all go centrally
to one issue in the case. So, in my view, there is no real
Page 9 of 18
risk of distraction or diffusion such as in the case of
O’Dowd where three other incidents were being relied on.
17. During the summing up, the judge reminded the jury that the evidence on the
Hilbert Haynes issue was but a small part of the State’s evidence. He also reminded
them, that the evidence was not evidence that the defendant committed the offence
being tried before them but it was evidence of circumstances concerning the defendant
that they were entitled to take into account when deciding whether he did.
18. It is clear that the evidence of the Hilbert Haynes incident that was led at the trial
was restricted to that single incident and the details thereof. The trial judge’s directions
on the issues were clear and during the summing up, he put the evidence of the Hilbert
Haynes incident in the appropriate context for the jury. In the circumstances, we find
that the evidence of the Hilbert Haynes incident was not extensive enough to distract
the jury from the matter at hand and that the judge correctly exercised his discretion to
allow the evidence to be led. Additionally, the judge’s directions to the jury in his
summing up were sufficient to focus the jury’s attention on the issues before them.
19. Counsel for the appellant also argues that admitting the evidence of the later
stabbing incident was prejudicial to the appellant since the State did not lead evidence
from Hilbert Haynes, the victim of the prison stabbing incident. Counsel contends that
because Haynes did not give evidence, hearsay evidence was wrongly adduced at the
trial through other witnesses.
20. R v. K [2000] Crim L.R. 517 CA, was a case of sexual assault in which a
previous conviction was admitted as evidence of propensity through the complainant did
not give evidence. The accused was convicted. On appeal he contended that the
judge had erred in admitting the previous conviction into evidence, because the Crown
did not have the evidence to support its explanation of the facts forming the background
to the conviction which, given that the appellant’s version was different, brought the
case within the principle set out in Humphris [2005] EWCA Crim 230. The court in
Humphris stated that the Crown must ensure that they have available the necessary
evidence to support what they require and that that will normally require the availability
of either a statement by the complainant relating to the previous convictions or
Page 10 of 18
availability of the complainant to give first hand evidence. The court in R v. K held that
given the extent of the common ground between the Crown and the defence as to the
background to the conviction, notwithstanding the absence of the complainant the
material had been rightly admitted as evidence of propensity.
21. In the instant case, the prosecution produced other witnesses to the previous
stabbing incident who provided ample evidence to support the prosecution’s assertions,
in the absence of evidence from the virtual complainant Hilbert Haynes. It was the
evidence of prison officer Mungal that he saw the appellant run into Haynes’ cell where
he observed them in a “tangled position”, and he saw that the appellant was making
thrusting motions with his hand clenched. He shouted at both men, whereupon the
appellant ran back to his cell. He heard the sound of a pail flushing, and observed
blood flowing from Haynes’ neck. Prison Officer Tesheira, corroborated the evidence of
Mungal that the appellant ran from his cell to Haynes’ cell and when confronted by
Mungal, ran back to his own cell. Prison Officer Kerol Joseph gave evidence that he
recorded a statement from the appellant on the same day of the incident. In the
statement, which was admitted into evidence the appellant admitted stabbing Haynes in
his neck and stomach and flushing the improvised weapon that he had used. Clearly
the evidence of these witnesses was not hearsay, since they spoke of events that they
witnessed firsthand. In addition there was common ground between the defence and
the prosecution, as the defence admitted that the appellant pleaded guilty to the offence
albeit for the sole purpose of obtaining leniency in punishment. In the circumstances,
the prosecution had sufficient admissible evidence to support its case and the absence
of Haynes caused no prejudice to the appellant.
22. For the forgoing reasons, we find that there is no merit in grounds 1 and 2 of the
appeal.
THE “PETER BLAKE” ISSUE:
23. In the third ground of appeal, the appellant argues that assuming but not
admitting the correctness of the “Peter Blake” principle, the judge erred when he
applied the principle in an inconsistent manner during the trial.
Page 11 of 18
24. The “Peter Blake” principle refers to a practice in which a document is placed in
the hands of a witness by cross-examining counsel, who asks the witness whether he
sees what the document purports to record, without the cross examiner going into the
contents of the document. If the witness responds that he sees it and accepts the
contents as being true, the witness may then be cross examined on the contents of the
document. If the witness does not accept the document as being true, or is not in a
position to say whether it is, then it constitutes hearsay evidence for all intents and
purposes, and the cross examiner can go no further with the document. The cross
examiner cannot ask the witness, if having seen the document whether he still abides
by his original evidence because that may bring out inadmissible hearsay evidence by
the back door.
25. This practice is of some antiquity as it first appears in Birchall and Ors. v.
Bullough [1896] 1 QB 325. The cases dealing with this practice, including Birchall, R
v. Mullarkey [1919] 14 Cr App R 61; Gillespie v. Simpson [1967] 51 Cr App R 172
and R v. Duncombe [1972] ER 535) were reviewed and applied by the Jamaican Court
of Appeal in the decision of R v. Blake [1977] 16 JLR 60. Following the decision in
Blake the practice has since been commonly referred to as the Peter Blake principle.
26. In the instant case, the trial judge allowed the prosecution to place a report by a
prison medical doctor, Dr. Roopchand, (who examined Hilbert Haynes) into the hands of
infirmary officer Marcus Phillip, a defence witness, for the purpose of testing his
reliability on the precise location of the injury to Haynes. In our view the trial judge was
correct in doing so. Dr. Roopchand was the infirmary doctor who examined Haynes
after the incident. It is routine to place the report of one expert into the hands of
another expert witness, in order to test the credibility of the witness or to establish some
fact or finding contained in the report itself. In this case, although the infirmary officer
was not an expert witness he was giving evidence of the injuries sustained by Haynes
and can be likened for the purposes of this discussion to an expert witness. In effect,
he was giving medical evidence. It was not improper for the medical report of Dr.
Roopchand to be shown to him in order to test an aspect of his evidence. It has not
been demonstrated that the trial judge was wrong in exercising his discretion to allow
the cross-examination.
Page 12 of 18
27. However, Counsel for the appellant further contends that the trial judge applied
the Peter Blake principle inconsistently during the trial and as a result, infringed upon
the appellant’s ability to properly challenge the bad character evidence which was
placed before the jury. Counsel referred specifically to the judge’s ruling that disallowed
the use of the Peter Blake principle to cross examine Officer Steve Mungal by inviting
him to look at the witness statement of Hilbert Haynes. In our view this was not an
issue of inconsistency. Each application must be decided on its merits. It has not been
shown that the trial judge erred in principle in making his decision on this application.
28. A review of the relevant case law shows that where cross examination is allowed
on a document to test the credit of a witness, the witness either has some knowledge of
or is familiar, or has some connection with the document as in Birchall and Ors. v.
Bullough (a promissory note signed by the defendant), R v. Mullarkey (a medical
report that a doctor had seen but not made), Gillespie v. Simpson (sales receipts
where the defendants were store workers handling sales), R v. Duncombe (a paper on
which the witness had written something), and R v. Cooper (letters written by the
defendant’s wife and signed in both their names). In other cases, the document itself
bears an objective element as in Wiltshire v. Flaviney (a photograph of premises) and
R v. Blake (a newspaper clipping).
29. In his ruling disallowing the application by defence counsel to cross examine
Officer Mungal on the witness statement of Hilbert Haynes the trial judge clearly
articulated the reasons for his decision as follows:
1. Cross examination of Officer Mungal, bringing out parts of
the Hilbert Haynes’ witness statement, cannot be relied on
as evidence, for that will plainly infringe and/or circumvent
the hearsay rule;
2. The relevant parts of Hilbert Haynes’ witness statement, if
the fact of a contradiction is brought out, is not relevant in
any identifiable manner as original evidence; because the
state of mind or the subsequent conduct of Prison Officer
Mungal would not be relevant to any issue in the case in
this regard
Page 13 of 18
3. A witness’ credibility in terms of the issue of account
inconsistency can only be impeached by his own prior
inconsistent statements under the relevant provisions of
the Evidence Act. Reliance, of course, may be made on
external contradictions that emerge between the evidence
of various witnesses, either in a submission of no case to
answer, or before the jury; once they have emerged in the
proper manner.
4. Insofar as cross examination may bring out external
contradictions between the account of prisons Officer
Mungal and Hilbert Haynes, such contradictions cannot be
properly evaluated by the Tribunal, and cannot be properly
assessed, because the witness, under cross examination,
can only proffer explanations for any prior inconsistencies
that appear in his own account under the impeachment
provisions of the Evidence Act, but the witness cannot
account for any incompatibility with the account of another
witness.
5. A witness cannot be asked to comment on another
witness’ evidence. Such comment may be explicit, or it
may be of an implicit nature by a rejection of the relevant
part of that other witness’ account.
30. The trial judge’s reasons for refusing to allow the cross-examination of the
witness are unassailable.
31. Counsel for the appellant further contends that the trial judge erred in law in
permitting cross-examination on the medical report without considering whether the
document was admissible.
32. A review of the case law reveals that there is no requirement that the cross-
examiner must first establish that the document which he seeks to put in the hands of
the witness is admissible.
Page 14 of 18
33. In Birchall and Ors. v. Bullough (supra) the defendant was shown a promissory
note which was inadmissible to prove the debt because it was insufficiently stamped. In
dismissing the defendant’s appeal Bruce J, noted that although a document may be
inadmissible into evidence, a witness may be asked to look at it, and having looked at it,
say whether he did not in fact borrow a certain sum of money.
34. In R. v. Peter Blake, (supra) the Court of Appeal of Jamaica, held that the trial
judge was wrong in not permitting defence counsel to cross-examine a police officer on
a newspaper clipping which he had placed in the hands of the witness. The clipping
was clearly inadmissible in the absence of the reporter who had produced it.
35. In Michael Wiltshire & Ors. v. P.C. Windell Flaviney, (supra) this court held
that a Magistrate was wrong to prevent defence counsel from showing the witness a
photograph of certain premises and asking questions on it. The photograph was clearly
inadmissible in the absence of the photographer being called to give evidence.
36. In State v. Andy Brown & Ors. H.C. No. 112 of 2003, Mohammed J (as he then
was) reviewed the authorities and concluded that the document shown to the witness
need not be admissible. This conclusion accords with an understanding of the purpose
of the procedure, which is usually to challenge the credibility or reliability of the witness,
or to elicit a fact in issue. The purpose is not to get the document or its contents into
evidence without calling the maker. That would be permitting hearsay evidence in by
indirect means. What becomes evidence in the case is the response of the witness
having seen the document, provided that he accepts the contents of the document to be
true. If he does not accept the contents to be true the cross-examiner can go no further,
and the document itself is valueless as evidence. It would drastically and unnecessarily
diminish the availability of the procedure if a requirement of admissibility of the
document is imposed.
37. We have studied the judgment of our Court of Appeal in Chadee v. The State
Cr. App. No. 72 of 2000. It is clear to us that the remarks of the court were obiter when
it dealt with the issue of admissibility of the document proposed to be shown to the
witness. The ground of appeal related to this issue had been withdrawn at the hearing
after the court had given its ruling on the admissibility of fresh evidence in the form of
an affidavit of trial counsel. The court’s comments came as it explained its reasons for
Page 15 of 18
disallowing the evidence. Having had the opportunity to do a full and focused
examination of the relevant authorities, we conclude that the relevant document need
not be prima facie admissible.
38. Before leaving this issue, we have been invited by counsel to provide general
guidance with respect to the procedure to be followed in applying the Peter Blake
principle. This will be done by way of an addendum to this judgment.
FAILURE TO ADEQUATELY PUT THE DEFENCE CASE:
39. Grounds 4 and 5 of this appeal concern the adequacy of the judge’s directions on
the defence case, and a particular defence issue. Counsel for the appellant contends
that the trial judge failed adequately or at all to put the defence of the appellant to the
jury during the summation and he also failed adequately or at all to direct the jury on the
significance of the missing knife/murder weapon.
40. The Court of Appeal gave guidance on the duty of a judge during a summing up
in Ramsingh Jairam and Krishna Persad v. The State Cr. App. Nos. 35 & 36 of 1988
as follows:
“Without attempting to lay down any rigid formula or format
we consider that a summing up should contain inter alia the
directions in law both general and special in the first part and
a summary of the facts of the case for the prosecution and
the case for the defence...then, there should be an
identification of the issues or questions in the case that arise
for the jury’s determination. The judge should then proceed
to evaluate and analyze the evidence on each issue or
question identified by him (both for and against) to enable the
jury to better appreciate the significance of the evidence led
and to assist them in properly discharging their function in
accordance with the oath they have taken” (per Ibrahim JA at
page 5).
Page 16 of 18
41. In R v. Nelson [1997] Crim. LR 234 Simon Brown LJ gave the following
guidelines:
“Every defendant, we repeat, has the right to have his
defence, whatever it may be, faithfully and accurately placed
before the jury. But that is not to say that he is entitled to
have it rehearsed blandly and uncritically in the summing up.
No defendant has the right to demand that the judge shall
conceal from the jury such difficulties and deficiencies as are
apparent in his case. Of course the judge must remain
impartial...........Impartiality means no more or no less than
that the judge shall fairly state and analyse the case for both
sides. Justice moreover requires that he assists the jury to
reach a logical and reasoned conclusion on the evidence.”
42. A review of the summation reveals that the trial judge reminded the jury that the
appellant’s defence was one of denial. The judge went through the different aspects of
the appellant’s defence including the appellant’s contention that he did not ask to be
handcuffed to the deceased, that he did not have a weapon, that he did not stab the
deceased and that the prisons officers were being untruthful and falsely blaming him for
the stabbing. A perusal of the summing up in this case reveals that the trial judge did in
fact painstakingly set out the case for the defence as put to state witnesses, and as put
forward by defence attorney in address.
43. Accordingly we find no merit in this ground.
THE MISSING WEAPON:
44. At pages 6 and 12 of the transcript dated 17th August 2011, the trial judge dealt in
great detail with the arguments advanced by defence counsel. He reminded the jury of
the defence’s submission that the failure of the state to produce the knife was a major
flaw in the prosecution’s case. During the course of the trial, the pathologist testified
about the dimensions of the wound to the chest of the deceased. The wound was 9 cm
long, 2 cm wide and 14.5 cm deep. Trial counsel submitted in his address that the knife
Page 17 of 18
was estimated by prison officer Cadette to be about 3 inches in length and this was
inconsistent with the depth of the wound. However, there was evidence before the jury,
given by the crime scene technician that the blade of the knife was about 6 inches long
and the blade and the handle together was about 8 to 9 inches long. Counsel for the
appellant argues that the judge should have told the jury that the knife which would
have caused the injury was much smaller than the knife found on the appellant. The
submission is misconceived. It is not for the trial judge to make findings of fact.
45. The function of the judge is to provide directions of law and to summarise the
evidence. The function of the jury is to analyze the evidence carefully and come to their
findings of fact. In this case, the trial judge reviewed the evidence on this issue, and
reminded them of trial counsel’s submission when he addressed them on the issue. It
was then for the jury to consider the evidence in the light of counsel’s submission.
46. The appellant further submits that the trial judge should have directed the jury
that the appellant was at no time within range of the victim, and so he could not have
inflicted the fatal wound to him. In fact the evidence was that the appellant was about
one to two feet away from the victim when he was pursuing him and he had a metal
object in his hand and was making movements towards the back of the victim with it.
Further, defence counsel put to witnesses that the appellant in fact cuffed the victim,
thereby conceding that the appellant was in such close range of the victim as to be able
to make contact with him.
47. After carefully reviewing the summation, we find that the trial judge’s summation
was balanced, fair and detailed and dealt adequately with the issues raised by the
defence. As such, we find there is no merit in this combined ground of appeal.
DISPOSITION:
48. Accordingly, we dismiss this appeal and affirm the conviction and sentence.
49. This is an advance copy of this judgment which is dispositive of all issues in this
appeal. The final copy will contain the addendum referred to in para. 38 which in no
way affects the outcome of this appeal.