REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
And
THE STATE RESPONDENT
PANEL:
M.A. de la Bastide, C.J.
L.
Jones, J.A.
A.
Lucky J.A.
APPEARANCES:
MR. D. ALLUM, MR. R. PERSAD, MR. N. MOHAMMED appeared on behalf of the APPELLANT
MR. G. HENDERSON appeared on behalf of the RESPONDENT
DATE DELIVERED: 30th January, 2001
JUDGMENT
Delivered by M.A. de la Bastide, C.J.
The applicant was convicted of the murder of three women, Sita Arjoon and her two daughters, Asha and Anna.
The applicant had had a common-law relationship with Asha and they had two children who at the time of the offences were aged 6, and one and a half years respectively. Asha and the applicant had lived together for some 6 years but they had separated. She was living with her mother, together with her children, while the applicant was living with his father not far away.
The three women were killed on the 24th of July 1998. Three days before that there had been a meeting of Asha and her parents with the applicant at the home of another family member for the purpose of resolving the differences that had arisen between the applicant on the one side, and Asha and her family on the other.
Apparently, that meeting had been partially successful; in other words, some of the issues were resolved but others not. On the fateful day, Sita and a friend of hers, Susan Mahabir, were sitting in a shed at the front of Sita’s house when the applicant arrived. He asked Mahabir where Asha was. The reply, however, came from Sita who said that Asha was bathing at the back of the house. The applicant then said that he had not spoken to Asha as she had told him that she did not want him in her yard.
Thereafter, there was an unpleasant scene involving the applicant and Sita which, according to the witnesses, went on for the best part of an hour. There were conflicting versions of what occurred given by Susan Mahabir on the one hand, and the applicant (who gave evidence in his own defence) on the other.
According to Mahabir, the applicant launched into a volley of abuse directed at Sita during which Sita remained silent. The applicant then picked up a stone and threw it at Sita. He missed. She took up the same stone and threw it back at him. She also missed. Thereupon the applicant let fly another obscenity at Sita, picked up a piece of wood 2” x 4” by 4’ long which was lying nearby and attacked Sita with it. He struck her on the head. She tried to run into the house but he pulled her away onto the step where he continued to rain blows on her head.
In the meantime Asha had come out to the front of the house and when she remonstrated with the applicant about what he was doing to her mother, he proceeded to attack her with the same piece of wood and battered her about the head until she, too, fell to the ground senseless. Her sister Anna then also remonstrated with the applicant for what he had done to her mother and sister, and as she went towards the road he followed her and proceeded to batter her on the head until she lay unconscious on the ground. It would appear that Sita was killed more or less instantly and Asha died very shortly after the attack by the applicant. Anna was taken to hospital and survived for about a month after which she died. All three died, according to the reports of the pathologist who performed the post mortem examinations, from fractures of the skull and injuries to the head.
When the applicant was arrested he gave the police a story of having arrived at his mother-in-law’s house and found all three women lying dead. This was a story which he repeated in a written statement given to the police, but in his evidence he admitted killing the three women with the piece of wood. In his evidence however, he gave a significantly different version of what occurred before he attacked Sita with the piece of wood.
His account in summary was that she had been the aggressor during the hour or so which elapsed between his arrival at the house and his attack on Sita. It was she who abused him and his family; and it was she who taunted him with offensive remarks about his sexual practices and about his mother and sisters’ promiscuity, and a number of other insults directed at him and his family.
According to him, it was she who first threw a stone at him. According to him, she threw three stones, one of which hit him and another which would have hit his 18-month-old son whom he had with him, if he had not blocked the stone with his hand. Eventually, after he was hit with the stone, he lost control of himself totally. He seemed to be watching himself pick up the piece of wood and attack Sita and then the other two women successively. He tried, he said, to stop himself from doing it but he could not, even though he realised it was wrong.
Some of the witnesses for the Prosecution who saw parts of what occurred between the applicant and Sita, gave evidence that in part contradicted Susan Mahabir’s evidence and supported the appellant’s but in part also contradicted some of the appellant’s evidence. It is not necessary to go into details of the evidence of these witnesses, as for the purposes of this appeal not a great deal turns on it. When the evidence is relevant to the grounds that have been argued, then reference will be made to it. But that was substantially the case for the Prosecution and for the defence. As already stated, the applicant himself went into the witness box and gave evidence along the lines I have indicated.
On this evidence the Judge focused the jury’s attention on two issues principally. One was the question whether or not the applicant had the intention of killing or causing serious bodily harm to the three women when he attacked them with the piece of wood and the other more substantial issue was that of provocation.
The defence, if I may call it that, on which the applicant relied was provocation. He did not dispute that he had been responsible for the three deaths or that they had been caused in the manner described by the Prosecution witnesses.
There were three grounds argued in support of the application for leave to appeal. The first ground was that the Judge had erred in not leaving to the jury the issue of self-defence. The Judge told the jury quite expressly that in this case self-defence did not arise.
The Court suggested to Counsel for the applicant that common sense appeared to support the Judge’s ruling that self-defence did not arise as on the applicant’s own version of the facts the only thing that could be described as an attack against which he was defending himself, was the throwing of three stones at him (and in the direction of his child) by Sita. Counsel did not resist this suggestion and did not pursue this ground of appeal.
We are satisfied that the Judge was quite correct to tell the jury that on the evidence in this case self-defence did not arise. In our view, it would be ludicrous to suggest that the throwing of three stones (which incidentally on the evidence were pretty small stones) could have justified the sort of brutal attack on these three women successively that resulted in their deaths. We say no more on this.
The second ground of appeal is that the Judge misdirected the jury by suggesting to them that the issues which they had to decide in relation to provocation should be decided on a balance of probabilities. This, may I say is not how the ground was framed as filed but it represents the substance of what was argued under it. For the record the ground as filed read: “The directions of the learned Trial Judge in relation to provocation must have created a great deal of confusion in the minds of the jury thereby causing the jury to arrive at a verdict that was unsafe and unsatisfactory.”
The confusion alleged was with regard to the burden and standard of proof in relation to provocation. In support of this ground, Counsel referred us to a number of passages in the summing-up. The first of these reads as follows: “So you are to weigh all that evidence, Mr. Foreman, Members of the Jury and ask yourself which is more likely, bearing in mind that there is a conflict on the Prosecution’s case, and bearing in mind that the onus of proof, the onus in this case is always on the Prosecution.”
The evidence to which the jury was being directed in this passage is the conflicting evidence of what occurred prior to the attack by the applicant on Sita. Clearly, this passage contains an express direction on the burden of proof to which no objection can be taken. What is submitted, however, is that the invitation to the jury to consider which version was “more likely,” would induce in them the notion that they could decide this issue on a balance of probabilities.
The second passage referred to is as follows: “So you will need to ask yourself which of those explanations you believe to be likely.” A similar criticism is made of this passage. The ‘explanations’ referred to in it relate, however, not to the issue of provocation but to the issue of whether or not the applicant had the necessary intent, that is, to kill or to do serious bodily harm.
The third passage referred to is as follows: “If you do not accept the accused’s evidence as to the specific taunts thrown at him and/or the fact that the stone or stones were thrown, then we are left with a general quarrel which hardly amounts to much”. The criticism here is that the jury is being given the impression that they must positively accept the accused’s story, failing which, they would have to proceed on the basis of the Prosecution’s story. In other words, it does not make clear that if the jury are left in doubt as to whether or not to accept the accused’s story, he must be given the benefit of that doubt.
Finally, reference was made to a passage in the direction which the Judge gave to the jury after they had returned, having been out for over an hour, and asked for further directions as to the difference between murder and manslaughter. The passage relied on is as follows: “The second question is: “If you find, in fact, that he was provoked so that he lost his self-control, then you must ask yourself, would a reasonable man, in the circumstances in which the accused has found himself, having been provoked and lost his self-control, would he have done as the accused did?”
Again, it was objected that at this stage the Judge was creating the impression in the jury’s mind that they would have to find positively that the accused had been provoked, before going on to consider the question of whether a reasonable man would have been similarly provoked, and was again failing to point out that if they were left in doubt as to whether he was or was not provoked, he should be given the benefit of that doubt.
There is no doubt that if one looks at these passages in isolation from the rest of the summing-up, they are open to criticism on the grounds which have been advanced. This, however, would not be a proper approach. It is necessary to read the summing-up as a whole. Indeed, Counsel for the applicant has frankly conceded that there are other passages in the summing-up in which impeccable directions are given both as to the burden and the standard of proof in relation to the issues of provocation and ‘mens rea’. What one has to assess, therefore, is whether the effect of these proper directions has in any way been blunted by the passages on which reliance is placed and which I have quoted above.
It is necessary, therefore, to refer to some of the passages in which proper directions were given. It is not necessary to refer to the general directions given at the beginning of the summing-up with regard to the burden and standard of proof, although they are not to be ignored. Very early on in the summing-up the learned trial Judge said this: “In this case, also, you will have heard talk about the defence of provocation, please do not fall into the error of thinking that because it’s the accused’s defence he must prove provocation. Quite the contrary. It is the Prosecution who must disprove it and I will be coming back to this when I deal with provocation in some detail.” This is the first of many explicit directions given and repeated, that the burden of disproving provocation lay on the Prosecution.
Then with regard to the standard of proof in relation to provocation, the learned trial Judge shortly after said this: “If, on the other hand, you are sure all the ingredients of the offence of murder which I have previously outlined, have been established, then in the context of this case, before you can convict the accused of murder, the Prosecution must make you sure that he was not provoked to do so, as he did. Remember what I said about the burden of proof. In relation to this issue as in relation to all the issues in this case, the burden is on the Prosecution. “If the Prosecution satisfies you, of course, so that you are sure that he was not provoked to do as he did, then it is open to you to return a verdict, Guilty of Murder, if you are sure that all the elements of that offence have been established. If, having found the ingredients of murder established to the requisite standard, that is, so that you are sure, you come to a conclusion that he was provoked or that he may have been provoked, but you are not sure, then your verdict will be guilty of the less serious offence of Manslaughter.
“Now, in determining whether the accused was, or may have been provoked, you will have to consider two questions: First of all, “may something that was said or done or a combination of both have provoked the accused, that is to say, caused him suddenly, and temporarily, to lose his self-control?” Secondly, “may what was said and done, or both, have been such as to cause a reasonable and sober person of the accused’s age and sex to do as he did.”
In this passage the jury is properly and appropriately directed, in fairly emphatic terms, on both the standard and the burden of proof.
I refer next to a passage which comes shortly after the first of the four passages relied on by the applicant. It reads as follows: “So again, Mr. Foreman, Members of the Jury, it is really a matter for you whether you accept that these words were, in fact, said, or not. But, like every other issue in this case, where you are in doubt then the benefit of that doubt should go to the accused.”
The “words” to which reference is made in this passage are the offensive remarks which the accused alleged were made by Sita about his mother and sister. This passage is of some importance because it relates to the factual issue of what occurred prior to the attack on Sita. Before the jury considered whether or not the applicant was provoked to the extent that he lost his self-control, they would have had to come to some conclusion as to what had happened which might have led him to lose his self-control. In relation to that issue, it was of course important for the jury to bear in mind, both that the burden of proof was on the Prosecution and that the prosecution had to satisfy the jury of its version to the extent that the jury felt sure. That was a separate issue from the issue of whether or not the accused, in fact, lost his self-control, although the two issues are not unrelated.
In this passage just quoted, it is made clear that in respect of one aspect at least of the evidence of what preceded the attack, the jury must give the benefit of any doubt they entertain, to the accused.
I refer next to two passages which straddle the third of the four passages relied on by the applicant. Immediately before that passage, the learned trial Judge said this to the jury: “Even if you reject what he said, has the Prosecution persuaded you that, based on his actions and what he said he must have had an intent to cause death or really serious harm, because as I said, and I have reminded you repeatedly, the onus is on the Prosecution.”
Immediately after the third passage relied on by the applicant, there is the following passage: “However, if you accept his evidence in respect of any or all of those matters, then you must consider the effect which they may have had on this accused, either singly or cumulatively, and in the context of our society. Mr. Foreman, Members of the Jury, you may well consider that saying to somebody that they are somebody who is only capable of oral sex may be regarded as humiliating and demeaning to his manhood and holding him up to ridicule, and therefore, provocative. … Did they cause him to lose his self-control? Now, remember that it is the Prosecution who must prove that he did not lose his self-control as a result of those words and actions. The defendant has no burden”. Then, there is this passage, “Now, if the Prosecution persuades you so that you are sure that the accused did not lose his self-control, then that is the end of the provocation issue, as I have indicated earlier because the Prosecution would have disproved provocation. But if you find that he did or may have lost his self-control, then you may go on to consider whether the provocation which he suffered may have caused a reasonable person of his age and sex to do as he did.”
I would refer finally in this connection to a passage which came after the last of the four passages relied on by the applicant, that is to say, during the further direction which the Judge gave to the jury after they had returned with a query. This passage runs as follows. “If you find that he may have been provoked or he was provoked so as to lose his self-control then you will go on to ask yourself the second question. Would a reasonable man subject to that provocation and losing his control have acted as the accused did? Again, if the answer to that is, no, then the Prosecution has disproved provocation. If the answer to that is, yes, a reasonable man would or might have done that then the Prosecution has not disproved provocation and your verdict will be not guilty of murder, but guilty of manslaughter.”
Returning to the use of the word ‘likely’ by the Judge in the context of some of the passages relied on by the applicant, I would venture to point out that there is nothing objectionable in a Judge who is seeking to assist a jury in resolving a conflict in the evidence, inviting them to consider which version is more likely than the other, provided that in the course of his summing-up, he makes it clear to the jury that before accepting or acting on the version of the facts put forward by the Prosecution, they must be satisfied not merely that that version is more likely than any other, but that the degree of likelihood which they attribute to it is such as to make them sure of it.
I must not be understood as recommending the use of this terminology as indeed it is capable of leading to confusion. One, however, must appreciate that the mere use of the word “likely” does not inexorably lead to a wrong conclusion as to the standard of proof required of the prosecution. It must be read in the overall context of the entire summing-up.
In any event, we have no doubt that the jury would not have been left by this summing-up in any state of confusion about what was the proper onus or standard of proof in relation to any issue which they had to resolve, either with regard to provocation or intention. Accordingly, we reject this ground of appeal.
The third ground of appeal was: “The learned Trial Judge erred in law when he failed in two respects to properly direct the jury on the applicant’s good character in particular when he:-
(a) failed to direct the jury on the second limb of such a direction;
and,
(b) he formulated the direction in a manner that had the effect of diluting any favourable effect that might have been served by a proper direction.”
With regard to the first limb of that ground, the point was made that the Judge had not given the jury a direction that they were entitled to take the accused’s good character into consideration when deciding whether he was guilty of murder on the basis that a person with his clean record would be unlikely to commit that offence. It appears from Counsel’s address that the respondent’s skeleton argument, which we did not have an opportunity to see because it was filed so late, sought to counter that argument by suggesting that because the applicant had admitted the act of killing, there was no scope for the application of the rule that a direction should be given of the effect of good character on propensity. That counter misses the point.
Admittedly the issue was not whether or not he killed the three women. The major issue in this case was whether when he did so, he was out of control as a result of the provocation to which he had been subjected. The relevance of the character evidence, therefore, was that it would suggest that he was unlikely to have committed such barbaric acts upon these women unless he had lost his self-control. The relevance of good character evidence to propensity in the context of provocation is borne out by the judgment of the Privy Council, to which Mr. Allum referred us, in Langton v The State, Privy Council Appeal No. 35 of 1999. In the course of the judgment delivered by Sir Patrick Russell in that case he said, “Nowhere, however, in the summing-up, did the Judge refer to the relevance of the appellant’s good character. In their Lordships’ view it was highly relevant. It went both to the appellant’s credibility and to his propensity to commit the offence charged. As to his credibility, good character was particularly important to this applicant who was relying solely upon his own testimony in support of his plea. As to propensity, the jury should have been reminded that they could take account of the fact that a man of good character might be unlikely to indulge in very serious violence without first being provoked. Upon that basis also the jury were entitled to an appropriate direction. They received none.”
It is clear, therefore, that a propensity direction was called for in this case and if none was given this would amount to a misdirection. The Judge when dealing specifically with the evidence of good character did not give such a direction, but gave a direction relating only to credibility. In dealing with the evidence of good character the Judge referred not only to the accused’s own evidence that he had no previous convictions but also to the evidence, firstly, of Susan Mahabir and also of Marlon Peters, a neighbour, that the accused was a “cool fellow.” By that we understand that they regarded the accused as a person of equable temperament, which perhaps in the context of this case may well have counted for more than his previous clean record. The Judge then proceeded to give a direction with regard to the relevance of this evidence to his credibility.
Later on in his summing-up, however, the learned Judge said this: “And then, of course, the Prosecution says that stopping to warn Rajkumar Persad that he should say nothing is also indicative of the fact that he was not out of control and knew exactly what he was doing. On the other hand, you will want to consider what you know, what you have heard from the witnesses about the defendant and his cool disposition. This appears to be so out of character that the defence is saying, “well, this man must have flipped. This defendant said, “In effect I knew what was happening but I couldn’t stop.”
It is true that in this passage there is no mention made of the clean record of the applicant in terms of the absence of any prior conviction. We have already made the observation, however, that the more telling point to be made in the context of this case was not so much that at the age of 24 he had never been convicted before, but that he was regarded by those who knew him and who had no bias in his favour, as what they described as a ‘cool fellow’. Also, this aspect of his disposition had been referred to by the Judge in conjunction with his previous clean record so that the two may well have been linked together in the jury’s mind.
In these circumstances, we do not consider that any prejudice was suffered by the applicant as a result of the Judge’s failure to direct the jury specifically that his previous clean record would suggest, or might be taken into account as suggesting, that he was unlikely to have acted as he did without provocation.
Turning to the second limb of this ground the complaint is not that the Judge did not give the appropriate direction with regard to credibility, but that he blunted it by referring to the lies which the applicant told the police in his statements, both oral and written. We consider that there is no merit whatever in this criticism. In the first place the Judge was perfectly entitled to draw to the jury’s attention the lies admittedly told by the accused to the police and there was no reason why reference to them should not have been juxtaposed to the credibility direction.
We would point out that the Judge gave a very careful and absolutely impeccable direction with regard to how the jury should treat any lies that they may have found the accused to have told. In any event, as Counsel admitted, having referred to the untrue statements which he gave to the police, the Judge went on immediately to remind them of the explanation which he had given for telling them, that is that he was scared. There is, in our view, nothing unfair in the way in which the Judge dealt with this aspect of the matter. Accordingly, we reject the ground as well.
In closing, we would like to commend the Judge for the very careful and fair directions which he gave to the jury. The Judge, in our view, went out of his way to give the applicant everything to which he was entitled and we commend him for it. Also, the summing-up was clear and coherent throughout.
For these reasons, we refuse the applicant leave to appeal and affirm the conviction and sentence.
M.A. de la Bastide
Chief Justice
L. Jones
Justice of Appeal
A. Lucky
Justice of Appeal
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