TRINIDAD AND TOBAGO
BETWEEN
CORAM
M. de la Bastide C.J.
L. Jones JA
M. Warner JA
APPEARANCES
Ms. D. Seetahal for the Appellant
Ms. Boodoosingh and Mr. Mondesir for the Respondent
DELIVERED 30th January, 2001
J U D G M E N T
Delivered by M.A. de la Bastide C.J.
The appellant was convicted of the murder of an elderly Chinese man Lau Hing Young (‘Young’). He was put on trial with two other men Imtiaz Ishmail and Rishi Samaroo, who were (though not by legal marriage) respectively his step son and his step son-in-law. During the course of the trial his two co-accused changed their plea to guilty of manslaughter. The jury on the Judge’s direction returned a verdict accordingly against them and the trial continued against the appellant alone. We grant the appellant leave to appeal and treat the hearing of his application for leave as the hearing of his appeal.
The case for the prosecution was that Young who lived and operated a beer garden in premises situated at Mucurapo Street, San Fernando, died of injuries suffered in the course of a robbery at his premises on the 6th October, 1998, his death occurring two days later i.e. on the 8th October, 1998. Proof of the appellant’s participation in the robbery came from two sources. One was the testimony of an accomplice, Junior Thwaites, who testified that the robbery had been planned the day before it took place, by himself, the appellant and his two co-accused. According to Thwaites, he and one of the other accused, Ishmail, remained outside while the appellant entered Young’s premises at about 6 p.m. The appellant emerged about two hours later with some $20,000.00 in cash which they proceeded to divide up among themselves.
The other source of evidence against the appellant was his own statements to the police. Inspector Maharaj testified that some hours after being arrested and taken to the Homicide Office in San Fernando, the appellant said after being cautioned: “Me, Imtiaz and Junior went by the Chinee. I lock the Chinee neck and Junior take the money and we leave”. The following morning the appellant gave a written statement to Inspector Maharaj in the presence of a Justice of the Peace. In that statement he gave an account of Junior Thwaites and himself going into Young’s premises and remaining in the toilet. He went on to recount that he held the “Chinee” by his neck and ‘put’ him in a room, after which Thwaites (who had worked previously for Young) showed him where to find the keys for a safe. They proceeded to open the safe and take all the money in it before leaving.
The evidence that whoever committed the robbery at the same time inflicted on Young injuries from which he subsequently died, was circumstantial. Shortly after the robbery Cynthia Lutchmansingh, a witness who described Young as her uncle, went to Young’s premises and found him in some distress. He had no shirt on, his chest, was ‘blue black’, blood was running down his face and there were other marks on his hands and back. She called the police but was unable to persuade Young to go to the hospital that night. The following morning, however, Cynthia Lutchmansingh took Young to Dr. Lee Yui. Dr. Lee Yui, a general practitioner, gave evidence of the injuries which he found on Young’s body. These were to the forehead, nose, elbow, upper arm and upper abdomen. He recommended that Young go to the hospital for X-rays in order to determine whether there were any internal injuries, but Young refused to go. The doctor prescribed antibiotics and pain-killers. Mrs. Lutchmansingh took Young to his home and remained there with him until about 3 or 4 o’clock that afternoon. She returned at about the same time the following day. She attempted to feed Young some soup, but he took only two or three spoonfuls. He died at home at about 6 p.m. that evening.
A post-mortem examination was performed by Dr. Chandulal on the 9th October, and he gave detailed evidence of the injuries which he found. They were no less than 26 in number. The most significant in terms of what caused death, were close to the chest. These consisted of a fracture of the sternum and fractures of four ribs on one side and two on the other. Associated with these fractures there was damage to the lobes of the lungs which caused bleeding into the chest cavity. Dr. Chandulal found injuries to the face, neck, back, shoulder, forearm, and palm of the hand. It will be necessary later in this judgment to compare the evidence of both doctors more closely. The prosecution’s case was that the injuries which Dr. Chandulal found, had been caused by the appellant with or without the assistance of Thwaites, in the course of robbing Young on the evening of the 6th.
The appellant’s defence was an alibi. He denied any knowledge of the robbery and testified that on the night in question he was at home in Cedros helping his father to build a shed. He denied making either the oral statement attributed to him by the police and claimed that he was forced by the police to sign a written statement composed by them. He called no witnesses.
There were ten grounds of appeal filed, the tenth being merely a composite repetition of the preceding nine. We found that there was merit in only one of them and proceed to deal with that ground straightaway.
Ground No. 5 complained in substance of the trial Judge’s failure in the course of his summing up, to direct the jury’s attention to the discrepancies between the evidence of Dr. Lee Yui and Dr. Chandulal as to the injuries suffered by Young and to the relevance of those discrepancies to the question whether the injuries from which Young died, were inflicted by the appellant.
The discrepancies in the medical evidence were the basis of a no case submission made by the appellant’s counsel and were highlighted by defence counsel in his closing address to the jury. Nowhere in his summing up did the Judge even allude to these discrepancies, even though he reviewed the evidence of both doctors in some detail. The explanation for this may well be that in the course of his ruling on the no case submission, the Judge indicated that he found no real conflict in the medical evidence. One specific complaint made by this ground of appeal was that when early on in his summing up the learned Judge identified the major issues in the case, he did not include the issue whether the injuries which caused Young’s death, were inflicted by the appellant. In fact on more than one occasion there was implicit in the directions which the Judge gave to the jury the suggestion that the injuries found by Dr. Chandulal were the same as those found by Dr. Lee Yui. Thus at one point the Judge told the jury:
“If, for example, an accused person, and you accept that an accused person inflicts the type of injuries found on the deceased as described by Dr. Chandulal and prior to that by the general practitioner, and prior to that by the lay person, his niece, Mrs. Lutchmansingh, but specifically described by Dr. Chandulal, would it be unreasonable to conclude that the only inference which can be drawn is that there was an intent to kill or cause grievous bodily harm to Lau Hing Young?” (emphasis added).
Again when reviewing Dr. Lee Yui’s evidence of the injuries he found, and in particular one to the left forearm, the learned Judge said:
“You will recall that Dr. Chandulal explained that he saw these on the left forearm and they were defensive, what he called defensive injuries of somebody’s hand being raised to prevent something”. (emphasis added).
These passages would have tended to convey to the jury the impression of consistency, rather than of inconsistency, between the evidence of the two doctors. Was the way in which the learned Judge dealt with the medical evidence in his summing up unfair to the appellant, and if so, could the outcome of the trial have been affected by this unfairness?
We do not agree with the learned trial Judge that there was no conflict in the doctors’ evidence. On the contrary we find that there were significant and surprising discrepancies in their evidence. The major discrepancy has to do with the failure of Dr. Lee Yui to find any indication of injury to the chest. One appreciates that a general practitioner conducting a clinical examination on a patient without the benefit even of X-rays, may well miss internal injuries that are later revealed by a post-mortem examination conducted by an experienced pathologist. But we are dealing here with fractures of the sternum and six ribs. One would have thought that the pain this would have caused, especially on palpation, would make the presence of some injury in that region obvious. Moreover, the area of these fractures was marked by contusions of considerable size. According to Dr. Chandulal there were contusions in the middle of the chest measuring 4 x 3 1/2 centimetres and contusions on the left side of the chest measuring 5 x 3 1/2 centimetres. Dr. Lee Yui on the other hand found a contusion on the left upper abdomen. In cross-examination Dr. Lee Yui said that this was “just below the rib cage” and when asked whether he had cause to check for broken ribs, Dr. Lee Yui said that he would not have thought he had broken ribs. A contusion on the abdomen was not among the 26 injuries found by Dr. Chandulal – nor was the contusion on the left forehead reported by Dr. Lee Yui. There were a number of other injuries which would all appear to be highly visible that were found by Dr.Chandulal but not by Dr. Lee Yui. These include two contusions on the left side of the face, contusions on both sides of the neck, six incised wounds on the left upper back and two clean-cut wounds on the right shoulder. The only injuries reported by both doctors were those in the region of the right nostril and on the left forearm. In the circumstances defence counsel could be forgiven for wondering aloud at the trial whether both doctors had examined the same man!
We have no doubt whatever that the learned trial Judge ought to have (a) called attention in his summing-up to these discrepancies in the doctors’ evidence, and (b) identified the issue to which they were relevant i.e. whether the injuries which Dr. Chandulal found caused Young’s death, were inflicted on Young at the time of the robbery. This failure to do so amounted to a misdirection.
In order to determine what consequences flow from that, however, it is necessary to look at the rest of the prosecution’s case. Was the rest of the prosecution’s case on this issue so strong that even if the jury had had its attention drawn to these discrepancies and been invited to consider whether in the light of them the State had established a causal link between the appellant and Young’s death, they would inevitably have arrived at the same verdict? If so, then notwithstanding the misdirection, we should uphold the conviction. If not, then it would be necessary for us to consider on the other hand whether the circumstantial evidence linking Young’s death to the robbery was so undermined by these discrepancies as to render any conviction of the appellant unsafe. In that case, it would be our duty not only to quash the conviction but to order the discharge of the appellant without any question of a re-trial.
The State’s case contains three main counters to these discrepancies. Two are to be found in the evidence of Lutchmansingh and the other in the evidence of Dr. Chandulal. Firstly, there is Lutchmansingh’s evidence of the injuries which she saw shortly after the robbery. The most significant of these was the ‘blue black’ discoloration of Young’s chest. This is consistent with the chest injuries found by Dr.Chandulal. Counsel for the appellant suggested to us that the black and blue discoloration which is indicative of bruising, would not have occurred so soon after the injuries were inflicted. There was no direct evidence about this although Dr. Lee Yui in explaining how a blow to the body produces a contusion, did say: “So you would eventually get a bruise, which is a dark blue patch”. (Emphasis added).
Another significant observation made by Mrs. Lutchmansingh, came out in cross-examination by counsel for one of the appellant’s co-accused in the course of the following exchange:
“Q. You said that you saw some red marks on his skin.
A. Not red marks, blue marks on his chest.
Q. You did not see any red marks?
A. Yes, a lot of thing, like something ‘chook’ him like”.
She did not say where the ‘chook’ marks were. ‘Chook’ marks correspond more closely with incised or clean cut wounds, mention of which was made by Dr. Chandulal but not by Dr. Lee Yui’, than with abrasions or lacerations which, apart from contusions, were the only injuries mentioned by Dr. Lee Yui.
The only conclusion which can be drawn from Lutchmansingh’s evidence therefore is that either she was lying (which was never suggested) or Dr. Lee Yui missed a number of injuries (particularly those to the chest) which were then present. One notes in passing that the contusions on the neck seen by Dr. Chandulal (but not Dr. Lee Yui) would seem to be consistent with the appellant’s account of having ‘locked’ Young’s neck.
The other aspect of Lutchmansingh’s evidence which tends to blunt the impact of the discrepancies in the medical evidence relates to the time which she spent with Young after his visit to Dr. Lee Yui. She went home with him and remained with him until three or four o’clock that afternoon, and returned about the same time the following day. This, therefore, reduces the time within which fresh injuries could have been inflicted on Young by a person or persons unknown. She also testified under cross-examination that when she left Young’s premises on the night of the 6th October, she put two or three padlocks on the gate to Young’s premises. There is no evidence whether she repeated this procedure when she left him on the afternoon of the 7th but it would not be surprising if she did.
The period within which fresh injuries might have been caused, is further reduced by the evidence of Dr. Chandulal that the injuries which he observed, must have been inflicted at least 36 to 48 hours before his examination. He performed the post-mortem between 10.15 and 11.50 a.m. on the 9th October, so the effect of his evidence was that the injuries must have been inflicted before approximately 11 p.m. on the 7th October. The window of opportunity therefore, for anyone else to have injured Young is reduced to about 7 or 8 hours between Mrs. Lutchmandsingh leaving him at 3 or 4 p.m. on the 7th and about 11 p.m. that night. The odds against another traumatic event having befallen Young during that period must be extremely long to say the least. Moreover, if one were to take the outside limit of the time which Dr. Chandulal says must have elapsed between the infliction of the injuries and his examination i.e. 48 hours, then this would make it impossible for the injuries to have been caused after Young was examined by Dr. Lee Yui.
It is in the light of all this evidence that counsel for the State submits that the question whether the fatal injuries were inflicted in the course of the robbery, was a non-issue. In the context of our finding that there has been a misdirection, the State’s contention is that no reasonable jury properly directed (as this jury was not) on the discrepancies in the doctors’ evidence, could have come to any other conclusion, but that the injuries from which Young died, were inflicted on him in the course of the robbery at his premises on the evening of the 6th October, 1998. It would not be sufficient for us to find that it is improbable, or even highly improbable, that such a jury so directed would have failed to reach that conclusion. We must be satisfied that it is inevitable that they would have.
There is on the one side the startling differences between the evidence of the two doctors and in particular the fact that Dr. Lee Yui apparently did not find any indication of the serious chest injuries that played the major role in bringing about Young’s death. Ordinarily this would be at least capable of giving rise to a reasonable doubt as to whether those injuries had been suffered before Dr. Lee Yui’s examination. There is on the other hand, Dr. Chandulal’s estimate of the minimum period of time which had elapsed between the infliction of these injuries and his examination, the effect of which was to limit to some 12 hours after Dr. Lee Yui’s examination the period during which these injuries could have been caused. That period is further reduced to about 7 to 8 hours, given the amount of time after Dr. Lee Yui’s examination that Mrs. Lutchmansingh spent with Young. Having regard to the strict standard of proof required of the prosecution, however, we do not exclude the possibility that a reasonable jury properly directed might on this evidence have been left with a reasonable doubt as to whether Young’s chest injuries were inflicted in the course of the robbery. But if we add to this the evidence of Cynthia Lutchmansingh that when she saw Young at 9 to 10 0’clock on the night of the 6th October, his chest was in her words “blue black”, any basis for the retention of a reasonable doubt is in our view, eliminated. As has already been pointed out, there is absolutely no reason to suppose that Mrs. Lutchmansingh’s evidence was fabricated, and no suggestion that it was, was ever advanced by defence counsel either in cross examination or in his closing speech. Having regard to the totality of the evidence therefore, it would be perverse for a jury properly directed to come to any other conclusion but that the chest injuries which were the major contributing factor to Young’s death, were suffered by Young at the hands of those who carried out the robbery. It follows, therefore, that the only impact which the failure of the Judge to give proper directions on the discrepancies in the doctors’ evidence could have had on the outcome of the trial, was to deny the appellant a better chance of benefiting from a perverse verdict in his favour. We do not recognise that an accused has any right to a perverse verdict or to complain of being deprived of a better chance of obtaining one. In the circumstances, therefore, we hold that the failure of the Judge to direct the jury’s attention to the discrepancies in the doctors’ evidence and to the issue of whether or not the prosecution had, in the light of those discrepancies, established a causal link between the appellant’s acts and Young’s death, was not in the circumstances a material misdirection. Alternatively, if it were, we hold that this is a proper case for the application of the proviso, since there was no miscarriage of justice.
Before passing on from this ground we would like to make two observations. One is that we are conscious of the need to distinguish between those irregularities occurring in the course of a trial that are so fundamental that regardless of their impact on the outcome of the case, any conviction which the trial produces must be quashed, and others which are not so fundamental. When the latter occur, the course which the Court of Appeal must take, is determined by its assessment of the impact which the irregularity had, or may have had, on the outcome of the trial. This Court has repeatedly acknowledged the existence of this distinction. See for example Seepersad v. The State Crim. App. No. 82 of 1996 (unreported). The misdirection in this case falls into the second of these two categories i.e. the non-fundamental one. Secondly, we are very conscious of the gravity of the offence of which the appellant was convicted and of the penalty prescribed by law for it. Accordingly, we have not reached our conclusion either lightly or tentatively. Finally, we wish to say that if we had reached a different conclusion and found it necessary to quash this conviction, we would certainly have ordered a re-trial.
As already stated we have found no merit in any of the other grounds of appeal. There are only two that we think merit individual treatment, that is, Grounds 1 and 9.
Ground 1: Effect of Guilty Pleas
By Ground 1 it was claimed that the Judge ought to have discharged the jury and ordered a new trial when Ishmail and Samaroo pleaded guilty to manslaughter after the trial had already gone for two days. The relevant authorities on this topic were reviewed by this Court in Sirju & Bissoon v. The State Crim. Apps. Nos. 86 and 87 of 1999. We referred in that judgment to Reg. v. Fedrick (1990) Crim. L.R. 403. What that case demonstrated was that if a jury becomes aware in the course of a trial that one of two co-accused has pleaded guilty and his guilty plea renders it logically impossible for the other accused to be innocent of the offence with which he is charged, then the Judge should abort the trial and order the remaining accused to be tried before a different jury. If, however, the guilty plea merely tends to strengthen the case against the remaining accused without rendering illogical any but a guilty verdict against him, then it is up to the trial Judge to decide whether to abort the trial, or to allow it to continue with a warning to the jury that they must put the guilty plea out of their minds. If the trial continues, that warning is essential. R. v. Betterley (1994) Crim. L.R. 164. In this case the learned trial Judge warned the jury in very powerful terms on two separate occasions that they must ‘obliterate’ the guilty pleas of the appellant’s two co-accused from their minds for the purposes of the trial. There is no doubt that if they failed to heed this warning, the fact that the two other accused had pleaded guilty would have strengthened the case against the appellant. The case against the appellant was that he was involved in a joint enterprise to rob Young with his co-accused and the witness Thwaites. Thwaites’ evidence and the appellant’s own statements (both oral and written) tended to establish this. Admissions therefore by both co-accused of their participation in such an enterprise would lend credibility to both Thwaites’ evidence and the contents of the appellant’s statements (if the jury accepted that he made them). There was the further point that both Ishmail and Samaroo were connected with the appellant as relatives of his common-law wife.
The evidence did not, however, lead inexorably to the conclusion that if Ishmail and Samaroo were involved in the robbery, then so must have been the appellant. If the trial had run its course as against all three accused and the jury had found the other two accused guilty but acquitted the appellant, these would not necessarily have been inconsistent verdicts. This was a case in which the trial Judge might very well have exercised his discretion in favour of ordering a new trial for the appellant, but the fact that he decided not to do so, does not provide a sufficient ground for quashing the appellant’s conviction, given the very strong warning which he gave the jury to disregard what had happened in relation to the other two accused. In relation to the decision whether to abort or continue the trial after a guilty plea by one of multiple accused, the trial Judge who has the ‘feel’ of the trial is in the best position to decide and great respect should be paid to his decision.
We accordingly reject this ground of appeal.
Ground 9: Re-introduction of Felony Murder Rule
The 9th ground of appeal was a complaint that the re-introduction by statute of the ‘felony murder rule’ constituted a denial of the appellant’s right to a fair hearing and due process. The decision of the Privy Council in R. v. Moses [1992] A.C 53 established that the effect of the abolition by statute of the distinction between felonies and misdemeanours and the substitution in its place of a classification of crimes into arrestable and non-arrestable offences, was to abolish the rule that a killing committed in the course of a crime of violence amounted to murder regardless of whether or not the person responsible for the killing intended to kill or do grievous bodily harm. ‘Constructive malice’ as it was called, was re-introduced, however, prior to the commission of the offence with which the appellant was charged, by the Criminal Law (Amendment) Act, 1997. This provided as follows:
“Where a person embarks on 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 intent to kill or to cause grievous bodily harm.”
The learned trial Judge in his charge to the jury drew that provision to their attention and directed them quite correctly that it applied in this case and that they should be guided by it in arriving at their verdict.
Counsel for the appellant argued strenuously that the disadvantage which this provision put the appellant at, in defending a charge of murder, involved a diminution of the protection of the law to which the appellant was entitled, and a denial of due process. Counsel sought to rely in support of this contention on dicta in the judgment of Mr. Justice Clement Phillips in Lasalle v the Queen (1971) 18 W.I.R. 379. With all due respect to counsel, there is nothing in the judgments in that case to support the proposition that a change made by Parliament to the substantive criminal law, which has the effect of widening the scope of a particular criminal offence, is automatically a breach of any of the constitutionally protected rights of the individual, provided of course that the change is only made applicable to acts which are committed after the statute effecting the change has come into force. It is conceivable that a law which altered the substantive criminal law in this way might be so unreasonable and oppressive as to be subject to challenge on grounds of unconstitutionality, but the 1997 amendment of the Criminal Law Act which in effect re-introduced a rule of common law which had formed part of our jurisprudence (and that of England) for very many years, could not be considered as even remotely approaching the type of enactment that might reasonably attract such a challenge. We have dealt with this ground separately not because it has any more merit than others not so dealt with, but because of its novelty and constitutional flavour.
Before parting with this case we take the opportunity of making some observations about the summing up in this case with a view to providing guidance for trial judges in the future. This summing-up could with advantage have been greatly shortened by the omission of certain unnecessary directions which it contains. In particular, the learned trial Judge dealt at length with the principles that govern the liability of those engaged in a common enterprise. Such a direction was totally unnecessary in this case. On the evidence the jury could only have convicted the appellant on the footing that he was a principal in the first degree, that is, that he was the person (or one of the persons) who inflicted on Young the injuries from which he died. We also note that following what appears to be a common practice, the Judge instructed the jury on every single element in the definition of murder regardless of whether any issue arose with regard to it. Whenever it is unnecessary (as it usually is) for the jury to address such issues as whether the person killed was a ‘life in being’ or ‘under the State’s peace’ or even whether the killing was ‘unlawful’, the trial Judge does not need to explain and illustrate these elements in the definition of murder. In our view summations in this country are almost invariably too long. It must not be thought that giving a jury unnecessary directions does no harm. It does harm in that it tends to confuse a jury by overloading them with legal concepts. Another result of giving unnecessary directions is that it increases the potential for error by the Judge and may later provide counsel with grounds of appeal which even though not ultimately successful, add to the labours of this Court and those who appear before it. A Judge should, therefore, eschew unnecessary directions and if he has any doubt as to whether a direction is necessary on a particular topic, he ought to invite the assistance of counsel in the absence of the jury before beginning his sum mation.
For the reasons given above, we dismiss this appeal and affirm the conviction and sentence.
M.A. de la Bastide
Chief Justice
L. Jones
Justice of Appeal
M. Warner
Justice of Appeal
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