REPUBLIC
OF TRINIDAD AND TOBAGO
IN
THE COURT OF APPEAL
CrA. No. 57
& 58 OF 1996
MR. D.
ALLUM S.C. and MR. R. PERSAD appeared on behalf of
ROBERT MOHAMMED
MR. R. DOLSINGH S.C. and MS. N. SINGH appeared on behalf of the RESPONDENT
DATE DELIVERED:
20th
September, 2001
JUDGMENT
Delivered
by M.A. de la Bastide, C.J.
This matter was remitted to us by the Privy Council by an order made on the 10th of April this year for us to determine whether there should be a retrial for murder of these two appellants.
The appellants were convicted of the murder of an employee of Imjin Security on the 22nd of June, 1994. Their trial took place in March of 1996, that is within two years of the offence, and they were convicted and sentenced to death on the 20th of March, 1996.
They appealed to this court and the Court of Appeal rejected their applications for leave to appeal on the 20th of March, 1997, that is one year to the day after their conviction. So that the whole of the criminal process in the local courts, between arrest and the decision of the Court of Appeal, was completed in less than three years.
Thereafter, however, the appellants appealed to the Privy Council and they obtained special leave to appeal on the 16th of December, 1999, and subsequently their appeals were heard and allowed by the Privy Council by their judgment given on the 10th of April, 2001. So that the appeal to the Privy Council has taken over four years. The reason for this is not clear. My information is that the record of appeal was certified by the Registrar of this court and sent to the Solicitor General for transmission to the Privy Council on the 14th of October, 1997.
In any event, the Privy Council’s decision was that the convictions could not stand because as a result of the trial Judge having wrongly treated the felony murder rule as being still good law, he did not identify to the jury certain crucial issues relating to the participation of the appellants in a joint enterprise. The jury, therefore, never had the opportunity of determining these issues and, in those circumstances the Privy Council held that it was not possible to apply the proviso, as the Court of Appeal had done, in order to sustain the convictions. As I said, however, they did not make any determination whether there should be a retrial but remitted that issue to us for decision. The principles on which a decision is made as to whether or not a retrial should be ordered, are authoritatively set out in the case of Reid v. R (1978) 27 WIR 254. It is not necessary to repeat them here, but I will relate the relevant principles to the facts and circumstances of this case.
The strongest argument which has been advanced on behalf of the appellants why a retrial should not be ordered is the lapse of some seven years and three months since the commission of the alleged offence. I have identified how this period is split as between the different stages in the process, but from the appellants’ point of view it is immaterial where the delay occurred or why it occurred. The fact is it has occurred, and that delay is relevant in two ways.
First of all, there is something which goes against the grain for a person to be required to face trial so many years after the commission of the alleged offence and, therefore, it is argued that on that ground the appellants ought not to be required now to face again the ordeal of a trial and the possibility of being re-sentenced to death.
Secondly, there is the point that having spent the whole of that period in prison and a large portion of it on death row, they have already been substantially punished and it would be unfair in those circumstances to put them on trial once more. With regard to the period on death row, this began, of course, on their conviction in March 1996, and unfortunately, continued longer than it should have, i.e. even after the judgment of the Privy Council in April of this year and until quite recently.
The reason for the delay in removing the appellants from death row has not been explained, but it is clear that some agency of the State is at fault. I would mention that the situation continued even after junior attorney for the appellant Mohammed wrote to the Commissioner of Prisons on the 17th of May this year, pointing out that the appellant Mohammed ought to have been removed from death row in the light of the Privy Council’s decision.
There are other arguments that have been raised. One in particular relied on by the appellant Mohammed has to do with the fact that his father, whom he claims he would have wished to call as a witness to support his alibi, has died. He died in January 2000.
In order to explain the relevance of his evidence, it is necessary to go briefly into the facts of the case. The prosecution’s case was that both appellants were stopped and held by a policeman who was off duty and a security guard while the appellants were walking down a street fairly near the scene of the crime. They had in their possession a quantity of guns which had been stolen from the office in which the dead man was then lying, having been stabbed to death by someone.
The prosecution’s case was that both the appellants were taken to the police station and that on arrival there, the appellant Mohammed pulled a gun which was in his waist, shot one of the police officers and then made his escape. The other officers followed in hot pursuit and apparently cornered him in a building. Eventually he jumped off the roof of the building and was caught by the police.
Both the appellants gave statements and both statements were challenged on the ground that the appellants had been beaten in order to force them to give them but both statements were admitted into evidence. The statement made by Richardson admitted that he had gone to the office of the security company with which he and Mohammed worked, around midnight. While they were there, the man who was on duty at the premises had been stabbed and left lying on the ground. He also admitted that thereafter his companion had stolen guns from a safe in the office and he himself, that is Richardson, had taken one of those guns and put it in his pocket. It turned out that the gun which was found on him was that which had been carried by the guard who was killed. On the statement Mohammed also admitted that two of them had gone to the office of their employers, Imjin Security, for the purpose of stealing the guns that were kept there. He blamed the actual killing of the guard on his companion, Richardson, but he admitted at least to some participation in the theft of the guns.
At the trial Richardson accepted that his statement was substantially true except that he claimed that the man who accompanied him to the office and took away the guns, was not Mohammed but some other man who was also employed with the same company. He therefore sought to limit his role in the events which took place that night at the office and to excuse himself for such participation as he admitted to, on the basis that he was afraid of his companion.
Mohammed, on the other hand, put forward by way of defence an alibi. He gave evidence that he was in fact not the man who had shot the policeman at the station and who had been subsequently chased and caught, but that he had been at home asleep and was picked up by the police at his home at about 3:30 that morning. It was in support of this alibi that he swore in an affidavit which we allowed his counsel to use, that he would have wished to call his father who is now dead. He claims accordingly that he would be prejudiced by a retrial.
An obvious question is why did he not call his father at the trial? In order to explain that, he swore in his affidavit that he had asked his counsel to call both his father and his mother but his request had not been heeded. With regard to this allegation, however, we were told by counsel that it had been made to the Privy Council and, therefore, it must have been at least in part to that complaint that the Privy Council was referring when it said at the end of its judgment: “The Board need not address other grounds advanced in argument save to observe that it does not regard as justified the substantive criticisms made of trial counsel representing Mohammed.” But as counsel for Mohammed points out, whether or not he asked for him to be called at the trial, he would like to call his father at the retrial, and that is no longer possible.
At the trial there was a witness called to support Mohammed’s alibi. That was a neighbour of his who gave evidence that at about the time when Mohammed said he was picked up by the police, he saw Mohammed entering a car outside his house with two other men. Obviously his evidence was not believed by the jury.
There was also evidence of a brother who was selling in the market at the material time and therefore could give no direct evidence supporting the alibi. There were, however, two other persons apart from his father present in the house at the time when Mohammed claims he was arrested by the police, that is, his mother and his girlfriend, both of whom we are told are still available.
I am reminded that the girlfriend did give evidence, and she too was not believed. In these circumstances, the unavailability of the father is not such a potent factor as it would have been if there was no other witness available to testify to facts within his knowledge. Nevertheless, it is something to be considered.
I turn now to consider some of the factors that weigh on the other side, that is, in favour of a retrial. The first is that murder is probably the most serious crime that can be committed, as is reflected by the extreme penalty which it carries. It is also regrettably, a crime that is very prevalent in this country at this time.
Another very significant factor is the strength of the prosecution’s case, which was recognised by the Privy Council when in the course of its judgment it said: “In a cogent and well-judged response on behalf of the State to these submissions, Mr. Dinglemans relied on the obvious strength of the prosecution’s case against both appellants and on the findings which even on the directions given, the jury must be taken to have made,” and at a later point: “The Board recognises the strength of the case against these appellants, as the Court of Appeal did, and accepts, as counsel for the appellants did, that several of the conclusions expressed by the Court of Appeal could scarcely be controverted.”
Now, the conclusions of the Court of Appeal to which reference was made, had to do with the inferences that could be drawn from the facts as the Jury obviously found them. These inferences which were to some extent supported by the statements of the appellants, were that they had gone to the office for the purpose of stealing guns that were kept there; that they knew that there was an armed guard on duty there and, therefore, to accomplish their purpose, they would have to subdue him by force.
In the statements of both men, there were indications, either express or implied, that both before and after the guard was killed they both participated fully in the operation the purpose of which was the acquisition of these guns.
These are facts and inferences which would be relevant to the questions and issues which the Privy Council identified as those which should have been left to the jury and which would have to be left to another jury to decide, if a retrial is ordered.
Counsel for the appellant Richardson did submit that the case against her client was a weak one but we disagree and respectfully agree with the Privy Council that on the contrary it was an obviously strong one.
Counsel for the appellants have emphasised the length of the appellants’ stay on death row. We accept, of course, that there is an element of mental suffering necessarily involved in being under a sentence of death and, no doubt, that suffering is rendered more acute by the segregation of those who are sentenced to death in a special area of the prison which is called death row. One must also note however that there must be a distinction in degree of suffering between someone who has exhausted all his appeals and someone who still has the hope of succeeding before a court which has not yet adjudicated on his case.
This is not to make light of the mental suffering of a person on whom a sentence of death has been passed, but it is a question of degree. With regard to the physical conditions under which prisoners on death row are kept, one thing that may be said on the credit side is that each person on death row does have a cell to himself. This is of greater relevance in a country like ours in which the conditions under which prisoners on remand particularly, are kept, are often grossly overcrowded. I do not suggest that
anyone would prefer to be on death row rather than in the remand yard, but all I say is that there is at least that element of privacy, if you like, which those on death row enjoy that is not available generally to other inmates, at least not those who are on remand. That, however, must not be seen as an excuse for the unfortunate failure of the authorities to ensure the speedy removal of these men from death row as soon as the Privy Council had given its decision.
The cases to which we have been referred tend to suggest that a period of seven years between the offence and a possible retrial, is very close to the limit of what is permissible, if it is not over it. There are cases, however, like Nevada Johnson and Glenroy Bishop in which a retrial has been ordered after a similar period. There are also cases like Crosdale in which a retrial has not been ordered even though the period elapsed since the offence was somewhat less than in this case. In Crosdale the decision not to order a retrial was made by the Privy Council itself. In the instant case the Privy Council did not think it right to make that decision itself but has referred it to us. Implicit in that must be a recognition by the Privy Council that the case is not so clearly on one side of the line or the other. So that we must accept the responsibility of deciding on which side of the line it falls.
Not only is this a case of murder, but it is a particularly callous murder which, on the prosecution’s case was committed for a purely venal purpose, that is, to get hold of guns to sell. The person who was killed was a colleague and co-worker of both appellants and the evidence suggests that he was stabbed several times in the chest both with a knife and with some other instrument, possibly an ice-pick.
There is no question here of the State being given another opportunity to lead evidence which it ought to have led but did not lead at the trial. In other words, there is no question of the prosecution being allowed to correct some mistake or omission. It is true that there will be the expense of a new trial and all that that involves. The trial on the last occasion lasted nine days. But this is an expense which apparently the State is quite prepared to bear. The accused will be provided with legal aid if they wish it.
We have taken all these factors into account and have given full weight to the lapse of time that has occurred. Nevertheless we consider that the justice of the case and the public interest require that there should be a retrial, having regard particularly to the nature of the offence and the strength of the prosecution’s case. Accordingly we order that both appellants be retried and that this case be put on the list for October, that is, next month. There will in the usual way be a cause list hearing at which the Judge will investigate the appropriate date to fix for the trial. But if the parties are ready it can take place next month.
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