1

THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CR S 0042/2011

BETWEEN

THE STATE

AND

KWASI FORDE a/c CURTIS FORDE

FOR

FELONY MURDER

BEFORE THE HONOURABLE JUSTICE GILLIAN LUCKY

APPEARANCES: Mr Trevor Jones & Mrs Rebecca Trim – Wright on behalf of the State

Mr Larry Williams instructed by Ms. Michelle Ali on behalf of the

defence

TRIAL DATES: 6th, 7th, 11th, 13th, 14th, 18th February.

VERDICT JUDGEMENT

***************************

1. The Accused Kwasi Forde a/c Curtis Forde (hereinafter referred to as “the Accused”)

stood before this Court charged with the offence of felony murder, more specifically

that he, together with other persons known and unknown, on the 10th day of

October, 2005, at San Fernando, in the County of Victoria, murdered Gerard Bocas,

also called Gerard Bocus.

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INTRODUCTION

2. The Miscellaneous Provisions (Trial by Judge Alone) Act, No. 10 of 2017 which was

proclaimed on the 1st February, 2019 states the following:

“Section 4(a)

The Criminal Procedure Act, Chapter 12:02 is amended by repealing section

6 and substituting the following section:

s.6 (1) Every person against whom an indictment has been filed

shall, subject to the provisions of this Act, be tried by a Judge and

jury unless he elects to be tried by a Judge alone.

s.6 (2) At the first hearing after an indictment has been filed, a Judge

shall inform the accused person that he may elect to be tried by a

Judge and jury or by a Judge alone, unless the accused person

indicates an intention to enter a plea of guilty.

s.6 (7) Subject to subsection (8),

(c) where the first hearing after the filing of an indictment

against an accused person took place before the coming into

force of the Miscellaneous Provisions (Trial by Judge Alone)

Act, 2017 –

(a) the Registrar of the Supreme Court shall cause

to be served on the accused person, a notice

informing him that he may, at least sixty days before

the date fixed for his trial, apply to the Court for a

trial by a Judge alone; and

(b) the accused person may, subject to subsection

(8), apply to the Court for a trial by a Judge alone.

(8) An application under subsection (7) shall be made at least sixty

days before the date fixed for trial.”

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3. On the 6th February, 2019 The Accused was served with the notice, in compliance

with S.6 (7) (c) (a) as stated above.

4. In this matter, the Accused was represented by Mr. Larry Willams, instructed by Ms

Michelle Ali and after seeking and receiving legal advice from his Counsel in relation

to a trial by Judge alone, filed with the Registrar of the Supreme Court the requisite

Form 31 which indicated his free and informed choice to elect a Judge alone trial.

5. The statute speaks to fixing a date for trial, at least 60 days after the filing of the

Form 31. In order to comply with this mandatory timeline set by the statute, and

after checking for available trial dates to hear the matter, the court was informed

that the earliest date for trial was 8th April, 2019.

6. An application was then made by Mr Williams to have the trial brought forward to

the nearest convenient date as both he and his client were ready to commence the

trial. The prosecution indicated through its Counsel Mr Trevor Jones who appeared

with Ms. Rebecca Trim-Wright, that the State had no objection to the application

by the Accused to have the matter commence immediately.

7. The Court accepted that it must not be perceived as transgressing or disrespecting

in any way the separation of powers by abridging the time to facilitate an earlier

date. The Court also had foremost in its mind the interests of justice that must be

served as it ensured fairness to the Accused. After consideration of the matter and

in light of the fact that the statutory mandate had been met, coupled with the

request by the defence which was not objected to by the State, the Court granted

the application of the Accused and the matter commenced on the said 6th February,

2019.

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8. I thank Counsel for the prosecution and the defence for the full assistance given to

this Court from the commencement to the completion of the trial. The active trial

management conference at the beginning of this matter set the tone for a trial in

which timelines were set and met by Counsel and the objectives of the Criminal

Procedure Rules (CPR) were achieved. Mr Jones and Mr Williams are further

commended for their professionalism which enabled the issues in the case to be

fully ventilated in a spirit of adversarial combat which never went beyond the ropes

of acceptable conduct. I record my appreciation for the commitment and industry

they displayed during the first Judge alone trial heard in this country.

9. Section 42B of the Criminal Procedure Act, Chapter 10.04 states-

“(1) When the case on both sides is closed in a trial by a Judge alone, the

Judge shall, as soon as reasonably practicable and in any event before the

expiration of fourteen days, deliver his verdict and, in the case of a

conviction, he shall give a written judgment stating the reasons for his

verdict at the time of conviction.

(2)…..

(3)…..

(4) Subject to subsection (5), where an accused person is acquitted in a trial

by a Judge alone, the Judge may give reasons for his verdict.”

10. When the case for both sides was closed, I stated to Counsel that, whatever my

verdict in this matter, I intended to deliver a judgement in writing stating the

reasons for my verdict. Therefore, the following is my judgement in this case.

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THE LAW ON JUDGE ALONE TRIALS

11. The Cayman Islands Court of Appeal (CICA) has given some guidance on the duties

of a Judge in a Judge Alone Trial. In K. Richards v R 2001 CILR 496, Rowe JA, stated:

“When a trial judge sitting alone has advised himself to the applicable

principles of law, and given himself any necessary warning, he must

indicate clearly in his judgment his reasons for acting as he did in order to

demonstrate that he has acted with the requisite degree of caution in mind

and has therefore heeded his own warning.

No specific form of words is necessary for this demonstration, what is

necessary is that the Judge’s mind upon the matter should be clearly

revealed.”

12. Later, in R v Dave Kennedy Whittaker Cr. App. R. No. 14 of 2006, the CICA gave

further guidelines regarding the duties of a Judge in Judge Alone trials. In the

Judgment of Mottley J.A, he adopted the Judgement of the former Lord Chief Justice

of Northern Ireland Lord Lowry in R. Thompson [1977] NI 74 in which he stated:

“While on the subject I might say a word on the duty of the judge when

giving judgment in a trial under the 1973 Act. He has no jury to charge and

therefore will not err if he does not state every legal proposition and review

every fact and argument on either side. His duty is not as in a jury trial to

instruct laymen as to every relevant aspect of the law or to give a full and

balanced picture of the facts for decision by others. His task is to reach

conclusions and to give reasons to support his view and, preferably, to

notice any difficult or unusual points of law in order that if there is an

Appeal, it may be seen how his view of the law informed his approach to

the facts.”

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13. And in Randy Martin v R Crim. App. R. 2 of 2010, the CICA delivered its reasons for

dismissing the Appeal on the 7th December 2010. Mottley J.A again adopting R v

Thompson [1977] NI 24, also adopted R v Thain [1985} NI 457 where Lowry LCJ said

at page 478:

“Where the trial is conducted and the factual conclusions are reached by

the same person, one need not expect every step in the reasoning to be

spelled out expressly, nor is the reasoning carried out in sealed

compartments with no inter-communication or overlapping, even if the

need to arrange a judgment in a logical order may give that impression. It

can safely be inferred that, when deliberating on a question of fact with

many aspects, even more certainly than when tackling a series if connected

legal points, a judge who is himself the tribunal of fact will (a) recognise the

issues and (b) view in its entirety a case where one issue is interwoven with

another.”

14. Following Lowry LCJ in R v. Thompson and R v. Thain, Mottley J.A. said in Randy

Martin v. R at paragraph 31:

"From these cases the following guidance may be discerned. A Judge sitting

in a criminal case without a jury, in rendering his decision and giving his

reasons for so concluding, is not required to review every fact and to detail

each argument on which the prosecution and defence rely as if he were

summing up to a jury. The judge must set out the conclusion reached and

make clear the reasons for arriving at that conclusion. He is required to

have regard to any difficult or unusual points of law and to show how those

points of law have in anyway impacted the conclusion that he has

reached."'

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DIRECTIONS IN LAW

15. There is no burden on the Accused to prove that he is innocent. There is no onus

on the Accused to prove anything at all. The Accused has no obligation to prove

that he is not guilty, or to explain the evidence offered by the Prosecution. It is for

the Prosecution alone to prove the guilt of the Accused to the extent that I am sure

that the Accused is guilty of the offence of felony murder as stated on the

indictment.

16. I will not review every single detail of the evidence, but I will address my mind to

the important or prominent aspects of the evidence in deciding the critical issues in

this case. I will not decide every single point that has been raised – only such

matters that will enable me to determine whether the charge on the indictment has

been proven.

17. I am aware that I am not to speculate about things or matters that are not covered

by the evidence. I must also have regard to the whole of the evidence that has been

presented at trial and form my own judgment about that evidence.

The questions of fact at issue in this trial are for me to determine.

18. I must consider all of the evidence in this case and if after having done so, I have

any reasonable doubt as to whether the Accused is guilty or not, I must resolve that

doubt in favour of the Accused and find him not guilty of the offence for which he

is charged.

19. On the other hand, if having considered the evidence, I am satisfied so that there is

no reasonable doubt in mind, and I am sure of the guilt of the Accused, then it will

be equally my duty in law to find him guilty as charged.

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20. The evidence in this case comprises the testimony of all the witnesses called on

behalf of the prosecution and the defence, as well as all the formal admissions of

evidence, depositions read into the record and the exhibits that have been admitted

during the trial.

CASE FOR PROSECUTION

21. The offence is felony murder and the prosecution relies on the principle of joint

enterprise. S 2A (1) of the Criminal Law Act, Chapter 10.04 states:

“Where a person embarks upon the commission of an arrestable offence

involving violence and someone is killed in the course or furtherance of that

offence (or any other arrestable offence involving violence), he and all

other persons engaged in the course or furtherance of the commission of

that arrestable offence (or any other arrestable offence involving violence)

are liable to be convicted of murder even if the killing was done without

the intent to kill or to cause grievous bodily harm.”

22. Archbold Criminal Pleading, Evidence and Practice 2015 paragraph 18–15 defines

joint enterprise as follows-

“Where two or more persons embark on a joint enterprise each is liable for

the acts done in pursuance of that joint enterprise. That includes liability

for unusual consequences if they arise from the execution of the agreed

joint enterprise….”

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23. The evidence relied on by the Prosecution therefore speaks to both the commission

of an arrestable offence involving violence, in this case robbery (felony murder)

and the act of the Accused being armed with a firearm and participating in the

robbery (joint enterprise).

24. On the 10th October, 2005 at around 10pm, four (4) men were seen walking down

Carib Street in San Fernando. Initially two men entered the Cover Girls Bar, while

the Accused and another one of the men each stayed at one of the two entrances

to said bar. Each of the men, including the Accused, had guns.

Eventually, the third man who stood at the lower entrance of the bar entered the

premises while the Accused remained in his position at the higher entrance.

25. There were several patrons in the bar and the lighting conditions were good both

inside and outside the premises. The patrons were ordered to lie on the ground and

some of them were robbed. There were several gun shots but none were fired by

the Accused. The deceased, Gerard Bocas, was one of the patrons and he was shot

by one of the men who had entered the bar. During the incident, other patrons

were injured. The entire incident, from the time the men entered the bar to the

time they left, lasted about one and a half to two minutes.

26. The case for the Prosecution stands or falls on the visual identification by Kerrol

Green, of the Accused being one of the four men involved in the robbery.

CASE FOR THE DEFENCE

27. The case for the defence is alibi and mistaken identity. On the 10th October, 2005,

at around 10 pm when the incident occurred at Cover Girls’ Bar, the Accused was

at home with his mother, Ann Marie Arbuckle and other persons.

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28. That date was Ms Arbuckle’s daughter’s birthday and Ms Arbuckle had done some

cooking earlier that night to celebrate the occasion. Several gunshots were heard

and Ms Arbuckle encouraged the guests at her home, including the girlfriend of the

Accused, to leave and go to their homes.

29. The defence also relies on mistaken identity by challenging the accuracy and

reliability of the visual identification by Kerrol Green of the Accused.

30. Further, the defence challenges the fairness and conduct of the identification

parade. The defence relies on its witnesses who all testified that Dominic Checkley,

who stood in position number eight (8) on the identification parade, was first

identified by Kerrol Green as one of the robbers on the night of the incident. The

parade was then stopped and after about five to ten minutes, it was restarted with

the same persons who were on the first identification parade. It was then that the

Accused, who was in position number three (3) (the same position that he had for

the first ID parade) was identified by Green as being one of the men involved in the

robbery.

PROSECUTION TO PROVE ALL ELEMENTS OF THE OFFENCE

31. It is for the prosecution to prove all the elements of the offence of felony murder,

as well prove that the Accused was one of the persons involved in a joint enterprise

to rob the Cover Girls’ Bar on the night of the 10th October, 2005. The standard of

proof for all these matters is - making me satisfied to the extent that I am sure.

32. Mere presence at the scene of the crime is not enough to prove guilt. I must find

as a fact that the Accused was at the scene of the crime and also intended to, and

did, take part in the criminal joint enterprise.

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EVIDENCE FOR THE PROSECUTION

33. The evidence for the Prosecution included the following:

Formal Admissions pursuant to Section (37A) of the Criminal Procedure Act, Chapter

12:02

1. The formal evidence of Dr Arjoonsingh who pronounced Gerard Bocas dead

at the scene of the crime.

2. The formal evidence of Hazra Abrahim who identified the body of the

deceased as her husband – Gerard Bocas.

3. The formal evidence of Police Constable Vostor Yearwood who was the

official police photographer. Three photographs were tendered into

evidence.

4. The formal evidence of Police Constable Gregory Hood who was the official

draughtsman. A sketch prepared by Hood was tendered into evidence.

5. The formal evidence of Police Constable Suresh Ramsamooj who went to the

scene of Cover Girls Bar that night and later collected the medical reports of

two injured patrons.

6. The formal evidence of Police Corporal Don Gajadhar who collected blood

swabs from Cover Girls Bar on the night of the incident and received a

Certificate of Analysis in relation to same.

7. The formal admission of Police Constable Mark Clement who witnessed the

identification of the deceased’s body by Hazra Abrahim and Chris Abrahim.

He was also present for the autopsy and received the autopsy report from

Dr Des Vignes. According to the post mortem report tendered into evidence

the victim died as a result of a gunshot wound to the back/chest.

8. The formal evidence of Police Constable Leith Jones. He was present during

the post mortem examination of Dr Des Vignes and he recorded the

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interview with the Accused Kwasi Forde. The interview notes were tendered

into evidence without objection.

Live Witnesses

1. Mr. Narine Nannansingh -the owner of the Cover Girls Bar and present the

night of the incident.

2. Mr Damian Gopaulsingh -a patron of Cover Girls Bar the night of the incident.

3. Mr Paul Anthony -a patron of Cover Girls Bar on the night of the incident.

4. Mr Samuel Scarborough -another patron of Cover Girls Bar the night of the

incident.

5. Mr Leslie Samuel -an acting Inspector Police who conducted the

identification parade in relation to the Accused.

6. Mr Kerrol Green - a patron of Cover Girls Bar and the sole identification

witness in relation to the Accused.

7. Police Inspector Anthony Charles- the police complainant in the matter who

carried out a search of the home of the Accused.

Depositions Read Into the Record pursuant to Section 39 of the Preliminary Enquiry Act,

Chapter 12:01

1. Police Constable Wazir Ali (deceased) - asked questions of the Accused during

the interview while it was recorded by Constable Leith Jones.

2. Yusuff Mohammed (deceased) -a Justice of the Peace present as a witness at the

identification parade in relation to the Accused.

34. The depositions read into the record are of witnesses who died and could not give

live testimony in this trial. Therefore, I am aware that in considering this evidence,

I have to approach it with caution, in that I did not have the opportunity to see or

hear the witnesses. Unlike other witnesses in this case, the deponents were not

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cross examined in this trial. I cannot therefore speculate about any matters in each

of the depositions that call for amplification, explanation or clarification.

I must determine how much, if any, weight will be given to the evidence of the

matters raised in each deposition.

ASSESSMENT OF EVIDENCE

35. The approach taken with respect to each witness is to highlight certain aspects of

that witness’s testimony. It does not mean that I have not examined all the

testimony. It means that there are certain parts of the testimony upon which I

choose to comment because those aspects are important in my fact finding process.

36. I remind myself that I can accept all of a witness’ testimony or reject all of a witness’

testimony. I can accept part of a witness’s testimony and reject part of that same

witness’ testimony

37. I will decide the credibility of each witness (for the Prosecution and the defence),

and how much weight to give each witness’ testimony.

38. Some factors I may consider include are :

• the witness’ intelligence;

• the ability and opportunity the witness had to see, hear, or know the

things that the witness testified about;

• the witness’ memory;

• the witness’ demeanour;

• whether the witness had any bias, prejudice, or other reason to lie or

slant the testimony;

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• the truthfulness and accuracy of the witness’ testimony in light of

other evidence presented; and

• inconsistent statements or conduct by the witness.

SYNOPSES OF EVIDENCE FOR PROSECUTION WITNESSES

39. As I stated before, I will not review every single detail of the evidence, however, I

have chosen to highlight certain aspects of the Prosecution witnesses’ evidence in

relation to three significant points that arose during the trial. These points are in

relation to the description of the assailants, the identification parade and

statements made by the Accused.

EVIDENCE IN RELATION TO THE DESCRIPTION OF THE ASSAILANTS

40. I will now review some of the evidence of the eye witnesses of the robbery and

murder of Gerard Bocas on the 10th October, 2005. These witnesses are namely

Narine Nanansingh, Damian Gopaulsingh, Paul Anthony, Samuel Scarborough and

Kerrol Green.

Evidence of Narine Nanansingh

41. Mr Nanansingh was the owner of the Cover Girls’ Bar and he only spotted three

robbers that night. His evidence is that he was at the cash register with his back

turned to the customers when a waitress shouted out “Hold up, Hold up”. He turned

around and spotted two men with guns. He then ran into his office and stayed there

for the duration of the robbery. He gave no description of the first two persons that

he saw.

42. When his memory was refreshed he recalled that he saw the third man through a

peep hole of his office. Under cross examination, he described the third man as

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being approximately five (5) feet, 8 inches with something white on his head – a

cloth. This cloth was something ‘white-ish’ covering the third man’s face.

43. Based on the evidence of Nanansingh, he could not recognise anyone involved in

the robbery.

Evidence of Damian Gopaulsingh

44. Damian Gopaulsingh spoke of seeing two persons. One person spun him around

and another put a blunt object to his face. The person that spun him was a little

taller than him, slim built and brown skinned. In cross examination he stated that

the person that spun him, wore a white jersey and he saw nothing on his head. This

person was not the Accused. He did not see the face of the person that put the

blunt object to his face.

45. He said that the lighting condition “wasn't bright, bright, bright” but it was not

poorly lit and he was able to make out faces of persons in the bar.

46. With respect to Damien Gopaulsingh, there is no assistance with the identification

of the Accused as being one of the men present that night.

Evidence of Paul Anthony

47. Paul Anthony saw all four assailants that night. He knew the first dark skinned

person that walked in and held onto Damian Gopaulsingh from seeing him around

and stated that he would be able to point him out if he saw him. He knew another

- the ‘Indian/Spanish’ assailant from ‘since he was a baby’.

48. He was also able to describe the two other assailants that stood at the entrances of

the Bar and stated that all of the robbers wore white T shirts with the exception of

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the ‘Indian/Spanish’ one, who wore a cream shirt over his white jersey, with the

front unbuttoned.

49. This witness was very confident about what he saw that night. According to him,

the Accused has a recognisable face and he was not one of the men involved in the

robbery.

Evidence of Samuel Scarborough

50. This witness saw two robbers on the night of the incident. He described the first

person as a slim brown skinned, ‘dougla’ gentleman who he knew from seeing

several times on Coffee Street. Under cross examination he agreed that the person

wore a white T shirt with an open shirt.

51. The second person who he saw wore a yellow jersey and he described him as a dark

guy with a slim face. He did not know this man and never saw him before. Under

cross examination he agreed that this man was a dark-skinned negro man, about

five (5) feet nine (9) inches, yellow T shirt, dark jeans, and a bandanna on his head.

In these proceedings he could not recall the colour of the bandanna but when his

deposition was shown to him he agreed that he said previously that it was white.

52. This witness knew the Accused for about nine years from knowing his sister and

stated that the Accused was not there.

Evidence of Kerrol Green

53. Green is the only identification witness in this matter. He is the only eye witness

that placed the Accused at Cover Girls’ Bar on the night of the incident. In

examination in chief he stated:

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“Around 9:00 p.m. I was at home. I left home and I went to a bar at Carib

Street, San Fernando. The name of the bar is Cover Girls. While there, I went

and met some friends. While liming there, after a period of time, say 10 about

10 o'clock, 10:00 p.m., I observed four male persons walking down the street,

coming towards the bar……

On reaching the bar, three of the men came -– came through the first

entrance of the bar. Two walked into the bar, one person stand-up at the

corner ah the entrance ah the bar, and another person came round to the

back -- to the back where we were sitting down”

54. He stated that there were fluorescent lights inside the bar, a street light right at the

corner and also some dusk to dawn lights at the bar.

55. According to Green, the Accused was the person at the higher entrance of the Bar.

He described him as wearing ‘ah yellow jersey, ah hat, ah three-quarter pants and

ah white shoes’. He had a ‘ah thin-longish face, he was about five feet eight inches

tall, slim build’. He was able to observe the Accused’s face for about 2-3 minutes

before he eventually went down to the floor. When he went down to the floor, he

was unable to see.

56. Under cross examination the witness accepted that in his statement dated 12th

October 2005, he said that ‘I was seated with my back to the road and facing south’.

In re-examination he clarified that there were more than four persons at the table,

so his chair was at an angle and he was able to see persons coming down the street.

57. Under cross examination Kerrol Green also agreed that the Accused did wear a black

cap on the night of the incident and his face was partially covered (Emphasis mine).

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58. I must carefully consider the identification evidence of Kerrol Green. In order to do

this, I must consider the guidelines stated in R v Turnbull [1976] 3 WLR 445, and

address my mind to the following:

1. For how long could Kerrol Green see the person he says was the Accused,

and in particular, for how long could he see the Accused’s face?

• Kerrol Green stated that he could see the Accused for two (2)

to three (3) minutes before he (Green) went down to the

floor.

2. How clear was Green’s view of the Accused, considering the distance

between them, the light, any people getting in the way and any

distractions

• The distance between Green and the Accused was not clear,

however, due to the knowledge of the size of the room – the

distance could not be more than forty (40) feet.

• Green stated that there were fluorescent lights inside the bar,

a street light right at the corner and also some dusk – to dawn

lights at the bar.

• The incident did take place quickly and there were other

things going on at the time.

3. Had Green ever seen the Accused before the incident?

• Kerrol Green had never seen the Accused before the incident.

4. How long was it between the time of the incident and the time when

Green identified the Accused to the police?

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• The incident took place on the 10th October, 2005 and Green

identified the witness in the parade on the 22nd October, 2005

– some twelve (12) days after the incident.

That is a relatively short time from the date of the incident to

the date of the identification parade.

5. Is there any significant difference between the description Green gave of

the person and the Accused’s appearance?

• It is now a little over thirteen (13) years since the incident. It

would be difficult to address this matter with a great deal of

accuracy.

6. If I choose to accept the following evidence, it could support the

identification of the Accused. This evidence is as follows:

There was good lighting inside of the bar;

• The lighting outside of the building was also good since Green

was able to see four men walking towards Cover Girls’ Bar;

and

• Green had the Accused in his sight for two (2) to three (3)

minutes which is more than a fleeting glance.

7. I must also look to see if there are any weaknesses in any of the

identification evidence, or if there is any evidence which, if I accept,

might undermine the identification evidence. In particular I considered:

• Green stated that the Accused wore a cap which partially

blocked his face;

• Green did not know the Accused before the night of the

incident;

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• The distance between Green and the Accused is unclear. I

only know that it is not more than forty feet;

• No other Prosecution witness at Cover Girls’ Bar that night

spoke of any of the assailants wearing a cap;

• No other witness identified the Accused as one of the

assailants that night (no corroboration on the matter of

identifying the Accused);

• Other witnesses for the Prosecution, one especially who

testified that he saw all four men that night (Paul Anthony),

said that the Accused has a recognisable face and the Accused

was NOT one of the men that night;

• Samuel Scarborough testified that he knew the Accused for

about nine (9) years before the night of the incident and if the

Accused was one of the four men that night, he would have

pointed him out;

It was a highly traumatic situation;

• I do accept the Justice of the Peace – Yuseff Mohammed’s

evidence that Green asked the Inspector if the Accused could

be given a cap (this suggests that Green wanted to ensure that

he had identified the right person); and

• Green did not initially state in his examination in chief that the

Accused wore a cap.

CONTRADICTIONS WITH DESCRIPTION OF ASSAILANTS

59. In this trial, there were contradictions with some of the testimony of the

Prosecution witnesses. A contradiction occurs when two or more witnesses on the

same side have a different version of the same point.

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60. When it comes to contradictions I will ask myself – is it on a major or minor issue? I

remind myself that it is for me to determine how the contradictions will affect the

case for the Prosecution in terms of the credibility of the Prosecution witnesses and

the case for the Prosecution as a whole.

61. The contradictions as they relate to the description of the assailants include but are

not limited to the following:

• Paul Anthony stated that all of the men wore white jerseys with the

exception of ‘Spanish’ who wore a cream coloured top over his white jersey;

• Only Scarborough and Green mention any of the robbers wearing yellow;

• Only Kerrol Green mentions that the person at the entrance (wearing a

yellow T shirt) wore a black cap;

• Scarborough mentions someone wearing a yellow jersey but he did not place

him at the entrance of the bar;

• Only Scarborough mentions anyone wearing a bandanna; and

• Only Nanansingh mentioned anyone having a whiteish cloth covering his

face.

EVIDENCE IN RELATION TO THE IDENTIFICATION PARADE

62. I will now review some of the evidence of the prosecution witnesses that were

present at the identification parade in relation to the Accused. These witnesses are

namely Kerrol Green, Leslie Samuel and the deposition evidence of Yuseff

Mohammed.

Identification Parade Evidence of Kerrol Green

63. According to Green, he received a telephone call on the 22nd October to go to the

Marabella Police Station for an identification parade. He stated that he was called

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into a room and the Inspector read out something to him about the incident and

asked him if he saw any of the persons there. He stated that he saw the Accused at

number three (3) of the line-up which he indicated to the Inspector and he was

asked to leave the room.

64. Under cross examination, he agreed that none of the men on the parade wore caps.

He could not recall Inspector Samuel saying to him ‘if you see the man, you see the

man and if you eh see the man, you eh see the man’.

65. Green also stated that he made no request for the men to wear caps and

additionally that he made no request for anyone to turn left, right or to the back.

Identification Parade Evidence of Leslie Samuel

66. Mr Samuel conducted the identification parade in relation to the Accused. He stated

that Kerrol Green requested that the person standing at position number three (3)

turn to the right. Samuel then caused everyone on the parade to turn to the right

with their left side facing the mirror. After another request by Green, he then

caused everyone to turn to the left with their right side facing the mirror and then

to turn around with the back of their heads facing the mirror.

67. Under cross examination he agreed that all of the parade participants were bare

headed. He denied that number eight on the parade line was pointed out at first

and that the parade was ever stopped and restarted.

Identification Parade Evidence of Yuseff Mohammed (from deposition)

68. I am reminded that I have not had the benefit of seeing and hearing this witness

being cross-examined and I will bear that in mind when determining how much

weight I will attach to his testimony.

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69. In his deposition, Mohammed stated that ‘Green began to look at the persons on

the Parade again and said it looking like number three and ‘wavering’ without

pointing at number three’.

70. According to Mohammed, Inspector Samuel told Green “If you see the man you see

the man and if you eh see the man you eh see the man.” Mohammed also stated

that Kerrol Green requested that a hat be put on the head of the Accused. He could

not recall if the Inspector’s response was ‘we eh have no hats’. The Inspector then

repeated “If you see the man you see the man and if you eh see the man you eh see

the man’. He stated that Green hesitated and pointed to the Accused and went

outside.

71. Under cross examination in his deposition, Mohammed stated that he did not recall

the parade being stopped. He also could not recall that Kerrol Green pointed out

number eight (8) on the identification parade line at first. However, later in his cross

examination, he stated:

“….as far as I am concerned the parade never stopped. The parade was not

re- started, it never stopped…”

CONTRADICTIONS WITH CONDUCT OF THE IDENTIFICATION PARADE

72. Similarly, there were contradictions between the witnesses for the prosecution in

relation to the identification parade. The contradictions include:

• Only Inspector Leslie Samuel spoke of asking the men on the parade to

turn right, left, front and back. Even the witness pointing out the Accused

– Kerrol Green, refuted that this took place; and

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• Yuseff Mohmmed mentioned that Kerrol Green did ask the Inspector if

the Accused could be given a cap. Both Officer Samuel and Green

disagreed that this happened.

EVIDENCE IN RELATION TO STATEMENTS MADE BY THE ACCUSED

Evidence of Anthony Charles

73. Police Inspector Anthony Charles was the police complainant in the matter who

carried out a search of the home of the Accused but nothing relevant to this matter

was found. Inspector Charles said the Accused, upon being told that he may be

charged for the murder of Gerard Bocas said-“Bruiser is not me who kill the man,

is Kaiser who kill the man.”

74. In Frankie Boodram v The State Cr A. No. 17 of 2003, the Court of Appeal stated

as follows:

“We would suggest that where the State’s case depends substantially or

exclusively on oral admissions, that it would be advisable for the police

officers investigating to make contemporaneous notes of them which

should be read to the accused and then ask him to sign them. It would be

a matter of record and evidence whether he does so or not. If the note is

disputed, copies could be made available to the jury.

On some occasions it may not be practical to take the notes

contemporaneously because of the way in which the interrogation is

conducted. In such case, the police officer should write up his pocket diary

as early as possible and again ask the accused to sign it after either allowing

him to read it if he can and if he cannot, it be read to him. If there are

senior officials about, they should initial the notes taken.”

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75. Frankie Boodram is a case decided in February 2004 and this alleged utterance was

made in October 2005, giving sufficient time for police officers to adhere to the

warning and advice given by the Court of Appeal in this decision as it relates to

making an official record of oral utterances.

76. In light of the allegation made by the Accused, that Officer Anthony Charles

harassed him on several occasions before this incident and based on the admission

that this officer knew the Accused before the date of the incident, I found that it

was even more imperative for the officer to make a note of the utterance.

77. The utterance is an admission, not necessarily a confession, unless the inference

accepted, is that for the Accused to know that “is Kaiser who kill de man”, meant

that the Accused was present the night of the robbery. Another inference is that

the Accused heard about the killing at the bar and was telling the officer what he

had heard.

78. The law is that when there are inferences of equal weight, the one most favourable

to the Accused must be accepted.

79. The utterance in itself is not a confession unless the greater inference is that the

Accused knew the killer because he was one of the four robbers at the bar on the

night of the shooting. That inference can only become the inference of greater

weight, if the identification by Green of the Accused is accepted by me as credible,

true and reliable.

80. I am not sure that the utterance stated above was made by the Accused because

the officer himself admitted that it was only “his good word we have to go on,”

meaning that there is no written record of the utterance having been made. This

utterance, if it was made, should have been viewed by the officer as very important

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to the case and there should have been some written record of it, in a pocket diary

or in the station diary.

Evidence of Letih Jones and Wazir Ali

81. The formal evidence of Officer Leith Jones included an exhibit tendered into

evidence namely, the interview notes of the Accused. These notes were recorded

by Jones and the questions were asked by deceased Officer Wazir Ali. These notes

were not challenged by the defence. In the notes the Accused raised a defence of

alibi and denied being involved in the robbery.

Excerpt from interview notes

Q What time did you go to bed on the 10th?

A Ah lock off about 10 and went inside and play some game and next thing

yuh know de tv watching me.

Q Did you have anything to do with the shooting at Covergirls?

A No. Me eh know nothing about that.

No 12537 Ag. Cpl Ali tod KWASI FORDE that we have information that

he and other persons went to Covergirls that said night, 10/10/05

where they robbed patrons and Gerard Bocus was shot and killed.

Q What do you have to say about that?

A I is not no robber, I wouldn’t go and rob nobody.

EVIDENCE FOR THE DEFENCE

82. I am aware that the Accused has nothing to prove and he has an absolute right to

silence. He chose not to give evidence in this trial and I am aware that his silence

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cannot be used against him. I am not using the silence of the Accused against in him

any way nor am I making any adverse inferences against the Accused because of his

silence in this trial.

83. With that being said, the Accused did decide to call four witnesses namely:

1. Dominic Checkley – a participant of the identification parade in relation to

the Accused;

2. Colin Davis- a participant of the identification parade in relation to the

Accused;

3. Marcus Braithwaithe – a participant of the identification parade in relation

to the Accused; and

4. Annmarie Arbuckle – the mother of the Accused who was present at the

identification parade and gave evidence about the Accused being at her

house on the night of the incident.

SYNOPSES OF EVIDENCE FOR WITNESSES FOR DEFENCE

84. All of the evidence given by the defence witnesses in relation to the identification

parade was similar. They all stated that Dominic Checkly who stood at position

number eight (8) on the identification parade, was pointed out first by the only

identification witness – Kerrol Green. They all also agreed that after Checkly was

pointed out, the parade was stopped and restarted five (5) – ten (10) minutes later.

85. When the parade was re- convened, - the Accused was pointed out as one of the

assailants in relation to the incident at Cover Girls’ Bar.

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86. Annmarie Arbuckle stated that she was in the viewing room while the identification

parade was taking place. Her account is in sync with that of the other defence

witnesses – that the parade stopped and restarted.

87. She also mentions that when Dominic Checkly was pointed out and the parade was

stopped, the witness Kerrol Green and the other officers who were inside the

viewing room, stepped outside. She stated that she peeped outside the viewing

room and saw Green speaking with some other officers before he returned to point

out the Accused as an assailant. Ms Arbuckle also mentions that Green asked

Inspector Leslie if hats could be put on the men on the parade but this was not

done.

88. Ms Arbuckle provided an alibi for the Accused. According to Ms Arbuckle, the 10th

October, 2005 was her daughter’s (Kizzy’s) birthday. To celebrate, she decided that

she would cook some food. She finished cooking the meal about 8pm and the

Accused went to the kitchen, took out his food and they all ate together.

89. While she was cleaning up the kitchen, the Accused was playing music and her

daughter was playing cards with her boyfriend. Later that evening, she knocked on

the bedroom door of the Accused and he was not alone. She told him to ‘let the

people daughter go up the road, please’.

90. When her daughter was leaving her home, they were all at the gate when she heard

a loud explosion. She heard some loud noises that night around 10 pm and gave

the following account:

“It sound like firecrackers, so ah ask and say, firecrackers this hour ah de

night; what occasion is this? Kwasi say, “That eh sounding like firecrackers,”

so I turn round and ah say, “Kizzy, time to go up the road,” so she leave now,

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everybody getting ready to go out the gate, you know, Kizzy, Olivia and she

husband, they decide to go out the gate.

You understand so as we approaching the door -- the gate, Kwasi and I stand

up by the gate here, and them looking to cross the road to go up the hill; to

go up the hill. As they going to cross to go up the hill, we hear the explosion

again.

I heard the sound again; two, three, you know, so ah say, nah, that sounding

like gunshots. Kwasi say dah is real gunshots, so I turn round and tell Kizzy,

“All yuh walk the road fast and go.” I stop and watch them reach half ah the

hill, and then I say, “Kwasi, you will lock the gate, fuh me, please,” and he

lock the gate, he went in his room, and I now gone in my room now and sit

down and watch the TV until I ready to rest and that was it”.

POINTS CONSIDERED

91. It is accepted by both Prosecution and Defence that the deceased was killed as a result

of a robbery by four persons acting in joint enterprise.

92. It is further accepted by both the Prosecution and the Defence that the case for the

State stands or falls on the truthfulness, accuracy and reliability of the visual

identification by Kerrol Green, when he testified that the Accused was one of the four

men involved in the robbery and shooting at the Cover Girls Bar on Carib Street in San

Fernando.

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93. It is further accepted that the Accused relies on the defences of alibi and mistaken

identity and asks the court to consider the adverse impact of the unfairness, in the

conduct of the identification parade.

94. The Prosecution submits that its sole witness for the visual identification of the

Accused, Kerrol Green is honest, truthful, credible and reliable. The Prosecution

further submits that the identification parade was fair and conducted in accordance

with the prescribed guidelines.

95. I remind myself that the Accused has raised the defence of alibi. That is to say that the

Accused was not at the scene but elsewhere when the crime was allegedly committed.

96. It is for the Prosecution to prove the Accused’s guilt. Therefore, the Accused does not

have to prove that he was at his mother’s house on the night of 10th October, 2005. It

is also for the Prosecution to prove to the extent that I am sure that the Accused’s

alibi is false.

97. Even if the Prosecution is able to prove that the alibi is false – that does not mean that

the Accused is guilty. If the alibi is proven to be false, I must remind myself that

sometimes an innocent person, who fears the truth will not be believed, may instead

create an alibi. In order to convict the Accused. I must be sure that the Accused was

at Cover Girls’ Bar and I must also be sure that he was one of the four men involved

in the shooting and robbery at the Bar.

98. According to the law, I must use the effective good character of the Accused in his

favour in two ways; firstly to support his credibility with respect to any in or out of

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court utterances made by him that support his defence and secondly to support the

premise that it is less likely that he would have committed the offence.

99. On the point of the credibility of the Accused, I remind myself that although he did

not give evidence in the case, there are two cases R v Aziz [1996] AC 41 and Hunter &

Ors v The State [2015] EWCA Crim 631, which state that the good character of an

Accused as it relates to credibility, must still be used in his favour for any out-of-court

utterances (the alibi and denial of the offence given in the interview with the police),

and that is what I have done.

100. Additionally, Varidan Lakraj v Kelton Neptune Mag App No. P 063 of 2016 at

paragraph 22 states the following:

“Propensity is therefore an issue which cuts across the broad arc of the

case. This is because it relates to the likelihood of the defendant having

committed the offence. A magistrate may take the evidence of a

defendant’s good character into account in his favour on the question of

whether the prosecution has proven his guilt beyond reasonable doubt.

The propensity limb of good character cannot be rejected in its entirety if

the defence case is found to be unreliable and unlikely. If that were the

correct position, then propensity in good character would never count for

anything once the defence case is rejected as being unreliable. It was a

material error by the magistrate to dispose of the propensity limb and of

good character in its entirety after considering only the defence case. The

magistrate should have gone on to consider propensity when evaluating

the prosecution’s case and in determining whether the prosecution had

proven the case beyond reasonable doubt. This is because propensity is

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good character is relevant to the likelihood of the commission of the

offence.”

101. I have ensured, as stated in the dicta above, that in determining whether the

Prosecution has satisfied me to the extent that I am sure of the guilt of the Accused,

that I keep in mind the fact that the Accused is of good character and not likely to

commit the offence.

ROUTE TO VERDICT

102. I next go to the route-to-verdict. When a Judge is giving final directions to the jury there

is usually a suggestion made as to the approach that they should take. I have found in

this case, that the route-to-verdict approach would be most appropriate.

QUESTIONS FOR VERDICT

QUESTION 1

Do I believe the Alibi?

• If yes- then the verdict is not guilty.

• If I do not know whether or not to believe the alibi, the verdict is not guilty.

• If I reject the alibi as being untrue, then I move to the defence of mistaken

identity.

QUESTION 2

Do I believe the defence witnesses when they say that Dominic Checkley who was in

position number 8 was pointed out by Kerrol Green, that the ID parade was stopped and

then when re-started, Kerrol Green pointed to the Accused who was in position number

3?

• If yes- then the verdict is not guilty.

• If I do not know whether to believe this version of events, then the verdict is

not guilty.

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• If I reject this version of events as being untrue, then I do not automatically

convict the Accused. I must move on to the prosecution’s case.

QUESTION 3

Am I sure about the truthfulness, credibility, accuracy and reliability of the visual

identification by Kerrol Green of the Accused?

• If I am not sure, then not guilty.

• If I am sure that the Accused was accurately, honestly and reliably identified by

Kerrol Green, then I must still satisfy myself to the extent that I am also sure that

the Accused was part of a joint enterprise to rob the Cover Girls Bar, in order to

satisfy the felony/murder construct. Only, if, in addition to being sure of the

visual identification, I am also sure that the prosecution has proven all the

elements of the offence and has made me sure of the existence of the joint

enterprise and felony / murder, can I find the Accused guilty.

ALIBI

103. In answer to the first question - Do I believe the alibi? No. In fact I reject the alibi as

being untrue.

104. In this regard, I referred to the interview notes of the Accused, the admissibility of

which was not challenged by the defence. In the interview notes (the relevant part

highlighted in paragraph 81) the Accused stated that he was at home sleeping at the

time of the incident. However, there is no mention by him about there being any

‘gunshot noise’ that night or standing by the gate of his home after hearing those

noises. The Accused made no mention of that day being his sister’s birthday or any

activities related to the celebration of that event that night.

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105. I examined the evidence of Ms Arbuckle who accepted that in the magistrate’s court

she did not give any details about her son’s activities while he was at home that night,

to the extent of detail as she did in this trial.

106. I agree with Mr Jones for the Prosecution when he submitted that the alibi is fabricated

because nothing prevented the Accused and/or his mother from giving the details to

the police in 2005 as his mother gave in this trial.

107. Further, the Accused’s version of what he did on the night of the 10th October, 2005

and the vivid version of events as detailed by his mother during her testimony are in

stark contradiction. By this I mean that the Accused said that he was asleep at home

while his mother testified that he was wide awake to the extent that when loud noises

were heard he told her ‘that is not firecrackers, that is gunshots’.

108. Further, I find that if the alibi were true, Ms Arbuckle would have done more in terms

of making a report and insisting on seeing the police to give them the details she so

vividly remembered (13 years after the incident) during her testimony in this trial.

109. Even having considered the good character of the Accused, this does not cause me to

believe his explanation about his whereabouts on the night of the 10th October, 2005.

IDENTIFICATION PARADE

110. In answer to the second question about the identification parade, Officer Leslie Samuel

who conducted the parade seemed to be confused about what happened. He spoke of

the men on the parade being made to turn left and right when that was not supported

by any witness for the defence or even by Kerrol Green himself.

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111. I accept the evidence on deposition of the Justice of the Peace (JP) Yuseff Mohammed

who witnessed the parade and who spoke of Green requesting that a hat be put on the

head of the Accused. How else would the Justice of the Peace be aware of the ‘Hat’

issue- if I may call it that - unless it actually occurred? One must remember that Green

spoke about the Accused wearing a black cap the night of the incident. And although I

did not accept the evidence of Ms Arbuckle as it related to the alibi, I do believe her

version of events as it related to the request by Green for the Accused to be given a hat.

112. An identification parade ought to be held with scrupulous fairness. At the very least, the

men on the parade ought to have been wearing black caps since Green said that the

Accused was wearing a black cap. Had this been done, the identification of the Accused

by Green would have been more reliable especially since the cap worn by the person at

the entrance did block some of the face of that person. There is no evidence as to how

much or which part of the face of that person was visible.

113. The defence witnesses who spoke about the identification parade stopping and

restarting did not contradict each other on that issue. The difference in their evidence

related to where they were during the 5 to 10 minute break before the identification

parade resumed. The JP who witnessed the parade was at first unsure whether the

parade was stopped and restarted but then, as indicated in his deposition evidence, he

eventually categorically stated that the identification parade was not stopped in the

circumstances as described by the defence witnesses. Green was sure that the

identification parade was not done twice but only once when he pointed out the

Accused in position number three (3). As it relates to whether the parade was stopped

when Checkley in position number eight (8) was identified by Green and then the

identification parade restarted five (5) to ten (10) minutes after, I find myself not

knowing whether to believe this evidence or not and so according to the route to

verdict, I must find the accused NOT GUILTY at this point.

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VISUAL IDENTIFICATION THE TURNBULL GUIDELINES

114. I indicate for the record, that should I have had to go further and address the issue of

the visual identification by Green of the Accused, I would state that I was not sure and

so the verdict would still be –NOT GUILTY.

115. One must be cautious when considering identification evidence because a person can

be mistaken, even when the witness is honest and sure that he is right. Such a witness

may seem convincing but may be wrong.

116. Even in a case of recognition – where a witness states that he knows someone well,

and he is sure that he is right, he could still be mistaken.

117. Considering everything listed above including the Turnbull guidelines listed at

paragraph 58, the evidence of Kerrol Green falls short of making me sure that he is a

reliable witness when it comes to the identification of the Accused.

118. I deem Kerrol Green as an honest but mistaken witness as it relates to his identification

of the Accused. I cannot rely on his visual identification of the Accused as being one of

the men involved in the robbery.

119. It is not clear what features of the Accused Green saw bearing in mind that the Accused

was wearing a cap.

120. Even if I accepted the evidence of Green that he had the Accused in his sight for two

(2) - three (3) minutes, it does not cure my doubts with respect to his identification of

the Accused.

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121. There are also significant contradictions amongst the prosecution witnesses as it

relates to the description of the men involved in the robbery which I have stated in

paragraph 61 herein.

122. The contradictions among the Prosecution witnesses as they relate to the person who

was standing at that first entrance, which the Prosecution says was the Accused, makes

me unsure. The identification by Green in itself falls short of the Turnbull Standard.

CONCLUSION

123. My finding in the matter is that the Accused is NOT GUILTY of felony/ murder.

124. Mr Forde is free to go. Mr Forde has spent a little over 13 years in custody. He therefore

needs support and expert assistance to adjust to a society which may well be foreign

to him.

125. The Honourable Chief Justice has implemented several measures geared at dealing

with the criminal law backlog and already there are signs of progress, not limited to

this case. I make it clear that Judge alone trials are not meant to be a panacea for the

criminal law case backlog.

126. There are several initiatives including status hearings, the active and robust

implementation of the criminal procedure rules, the use of the ‘For The Record’ (FTR)

technology and the individual calendaring of judges - which in this case enabled this

matter to be dealt with in a timely fashion.

127. There are those who ask the question, - is it that there is swift justice but the

expediency brings with it some compromise of justice? And I respond with a

resounding and emphatic, No. Justice will never be compromised, but all must be done

to ensure that justice is done and manifestly be seen to be done.

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128. It is in this regard I commend Mr. Jones and Mr. Williams because upon the realization

that this trial would have gone to 8th April, in compliance with the statute, they both

asked for this court to abridge time.

129. In addition, I thank my Judicial Research Counsel Ms Shacare′ Gordon for her research

assistance in this matter.

130. I therefore find Mr Forde not guilty of the offence of felony murder.

Dated February 18, 2019

Justice Gillian Lucky