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Background Details of the Trial and Subsequent Appeals.
THE PROSECUTION CASE
(a) The Prosecution case
.1 The trial was a re-trial, the first trial having taken place in May 1996.
1.2 The killing leading to the conviction took place at about 8pm on 28th September 1993. It was alleged by the prosecution that the deceased, Shazard Ohany, had been thrown out of a white Sentra motor car which was being driven by the Victim and run over by the car as he fell. The car, it was said, then turned round, drove back over the deceased, and drove off, leaving him in the road, injured but still alive. A witness (one Christy Walters) who saw all this did not go to the deceased's rescue. About 5 minutes later another car came along. Its driver, Martin Coltes, saw Christy Walters coming out of a bush at the side of the road, but then ran over the deceased again, and dragged him about 12 feet or so up the road. The deceased was taken to hospital, and died about 3 ½ hours later. There were a number of injuries, but the cause of death was extensive bleeding into the chest cavities, which was evidenced on the outside of the body by a 5 inch wide contusion going across the right chest. There was no evidence as to whether this injury was caused (I) when the deceased was first thrown out of the car said to have been driven by the Petitioner, or (2) when the deceased was run over again by the same car, or (3) when the deceased was run over by the car being driven by Martin Coltes.
(b) The Post mortem evidence
1.3 The deceased's body was examined on 30th September 1993 by the pathologist Neville Jankey. He found:
(1) A number of lacerations and bruises around the head; superficial bleeding on the brain, and superficial bruising of the brain;
(2) A 14 cm wide bruise across the front of the body across the right chest; a fracture of the anterior ribs and of the breast bone; bruising of the lungs, and blood in the chest cavities;
(3) Abrasions on the left shoulder and arm, and a fracture of the left upper arm; a bruise on the upper left back; and abrasions of the right elbow and of both hands.
1.4 At one point, the pathologist expressed the view that death was "due to brain and chest injuries consistent with a motor vehicle accident". However, he later corrected, or refined, this, when he said that the chest injuries caused the death. The fatal injury crossed the chest, which produced the internal hemorrhaging in the chest cavity. The outward sign of this - i.e. the 14cm contusion on the chest - was consistent with injuries produced by a tyre. The head injuries "may" have led to death, had the chest injuries not done so.
(c) Evidence identifying the victim
1.5 The principal evidence for saying that the driver of the white Sentra motor car was the Victim was (a) an oral confession alleged to have been made by him to his sister Angela Seepersad the following morning, and (b) a written statement under caution alleged to have been made by him to the police on 10th October 1993, and authenticated the next day by a J.P (Franklyn Charles). The Victim, in his evidence, denied involvement in the events leading to the killing: his defence was alibi. He denied making an oral confession to his sister, and said that he had been misled into putting his signature on the pieces of paper which contained the written statement. He expressly challenged the J.P.'s evidence of authentication. Causation was also a critical issue, and had formed the basis of a no case submission before the Victim gave evidence.
THE VICTIM'S CASE
1.6 The Victim gave sworn evidence. He said that on the day in question, he was at home with his mother and sisters at their house in San Juan. Amand brought him a car to wash, but he did not drive a white Sentra, or see the deceased that day. On the following morning, he drove in a red Mazda to Diego Martin, and he stopped off on the way at his sister Angela. He denied telling her anything. A few days later, on 2nd October 1993, he again went to see Angela, because through his mother he had heard of threats to kill him by the deceased's father. Angela took him off to her uncle in Sangre Grande. He stayed there, until he was arrested by about 10 officers. Sergeant Cummings told him "You is 'Cokesy', we want you long time". He was handcuffed and taken to San Juan police station.
1.7 At the station, the Victim was taken to a partitioned cell, in one half of which was his nephew Zahir Ah. He was put in the other half. About 2 or 3 hours later, he was taken to a room by Sergeant Cummings, who asked him his name and age, wrote on some yellow pieces of paper, and asked him to sign them. Cummings told him "your nephew gone home already, sign your name and we will send you home"; he did not, however, read out what was on the paper. The Victim signed. Superintendent Ghatt came in, and asked if Cummings had read out his rights. Cummings said no. Ghatt then took out a little white book and gave it to the Victim, who told him he could not read, and so Ghatt took it back. Ghatt then read out the statement, and asked if this was what he had told Cummings. The Victim said "No". Ghatt then said. "Who it is you trying to fool? You done sign the paper already"
1.8 The following day, the Victim was taken to C.I.D. at the Port of Spain, where he was put in a large room, where there were a number of police officers, including Cummings, and where he was introduced to JrP Charles. Charles read the statement and asked him if this was what he had told Sergeant Cummings. The Victim (who had not heard what Charles was reading) said "No". Cummings then said "Don't lie for the JP, you start to give trouble again". The Victim was frightened, and so he said "Yes" to the JP.
1.9 The Victim denied that he had ever been cautioned, or told of his right to see a legal adviser. The first time he heard this was when he was taken to the Magistrates Court.
1.10 In support of his defence,
the Victim relied on the cross-examination evidence of Zahir All, who was
one of the prosecution's witnesses. Zahir Ah had also been a suspect, and
before
the Victim's arrest, he too had been taken into custody for a weekend.
Three hours after his arrival at the police station, he was asked to give
a statement, but he refused. He was then put back into a cell, and he was
deprived of food for a day. The next evening, he was again asked to give
a statement. Jacobs threatened him by picking up a stool to hit him over
the head with, and promised him that if he gave the statement, he would
be able to go home. In re-examination, it emerged that the promise that
he could go home was made after he had given an initial oral statement,
in order to induce him to sign a written statement. This evidence
was, in effect, unchallenged
by the prosecution.
1.11 The principal grounds on which it is alleged that the Victim's trial was unfair are:
(I) The Judge misdirected the jury on the related issues of intention and causation. On intention, he wrongly directed the jury in law that it was made out if the Victim "knew that it was probable that death or really serious bodily injury was likely to result". On causation, he failed to give a direction which adequately met the facts of the case. In particular, he failed to direct (as he should have done) that for murder, death had to be the natural consequence of the Victim's acts, and he failed to direct on the evidence which contradicted such a conclusion.
(2) The Justice of the Peace, who said he authenticated the Victim's alleged written statement, has, since the hearing in the Court of Appeal, been charged with 7 counts of perverting the course of justice, and 7 counts of misbehaving in public office, said to have occurred between June 1997 and April 1998 (i.e. before the trial in May 1998). These were not disclosed at any material time by the State to the defence, and cast doubt on the fairness of the trial at which his evidence, as a J.P, was critical.
(3) The Judge directed the jury to disregard in its entirety the evidence of the Victim's nephew, one Zahir Ah, who had been called by the prosecution, but who gave uncontradicted evidence of wholly improper police tactics in the course of the investigation into the killing while he (Zahir Ali) was being held as a suspect
THE SUMMING UP
1.12 On intention, the Judge directed the Jury' as follows:
"How do you establish the
intent of the accused? The intention of an accused person is not always
clear. You do not enjoy that gift to look into the minds of others. The
intent will, therefore, be established if you are satisfied to the extent
that you feel sure that in doing what he did, Krishendath Seepersad knew
that it was probable that death or really serious bodily injury was likely
to result. If you are satisfied to the extent that you feel sure that his
accused person in doing what he did to Shazard Ohany must have realised
that it was probable that death would result or really serious bodily injury
was likely to
result then the intent is
established."
1.13 On causation, the Judge
in particular directed:-
"In law, and you treat this
as a direction in law from me, the act or acts of the accused person need
not be the sole cause or even the main cause of the victim's death.
However, the acts of the accused must have contributed significantly to
the death of the victim. I repeat that. In law the acts of the accused
need not be the sole cause or even the principal cause of the victim's
death. It is important, however, that the acts of the accused must
have contributed significantly to the death of the victim."
The Judge, however, did not
expand on this by reference to the particular facts of the case, nor did
he explain that the relevant intention had to exist at the time of the
relevant act of the Victim (if any) which caused the deceased's death.
1.14 Dealing with the evidence
of Zahir Ah, the Judge concluded that, in the light of the threats and
promises said to have been made to him;
"So Madam Foreperson, my own view is that maybe you should disregard the
evidence of Zahir Ah completely. Disregard it."
THE COURT OF APPEAL
1.15 A number of grounds
of appeal were taken before the Court of Appeal including complaints on
the Judge's directions on causation and intention. The court upheld the
Judge's directions on causation. On intention, it accepted that there had
been a misdirection, but applied the proviso. It Is submitted that on both
counts, the Court of Appeal fell into serious error.
THE FIRST GROUND:
MISDIRECTION ON INTENTION
AND CAUSATION
(1) Intention
1.16 The basis upon which
the Court of Appeal applied the proviso in relation to the misdirection
on intention was that the Victim must have intended to kill the victim,
or to cause him serious injury.
1.17 The fallacy in the Court of Appeal's reasoning is that it overlooks the fact that there were 3 possible acts which caused the fatal injury, that is, the chest wounds:
(1) The Victim's driving the car and hitting the deceased with its back wheel as he jumped out (i.e. as in the alleged oral confession to Angela Seepersad), or was thrown out by Amand (i.e. as in the written statement).
(2) The Victim, having turned round, driving the car over the deceased on the way back to Port of Spain.
(3) Martin Coltes, 5 minutes later, driving the car over the deceased and dragging him 12 feet before coming to a halt.
1.18 On the evidence, it was not really possible to tell which of the 3 acts caused the fatal injury. But one real possibility, which the jury could reasonably have found (or been left in doubt on), was the first possibility. On this possibility, the jury, to return a verdict of murder, would have to be satisfied that the Victim, when the deceased initially jumped out, or was thrown out by Amand, at that point intended by driving the car to cause him at least grievous bodily harm. Any such intention at the time of the later acts wotild be irrelevant, as these acts (on the hypothesis that the first act caused the fatal injury) did not cause the death.
1.19 On the evidence, however, it is far from clear that (whatever the position later) the Victim had any such specific intention at this point. He may have been reckless, and he may have realised the probable consequences of driving on; however, this would not be sufficient for a verdict of murder, as opposed to manslaughter. The Judge's misdirection on intention, however, by confusing foresight with intention, would have led the jury to precisely the opposite conclusion. In short, there is a real risk that the misdirection caused the jury to return a verdict of murder rather than manslaughter.
1.20 In applying the proviso,
it is respectfully submitted that the Court of Appeal overlooked the first
possibility, and assumed what had to be proved, i.e. that the particular
act which caused the fatal injuries was done with the relevant intention.
Had they considered this possibility, it is respectfully submitted that
they could not properly have applied the proviso.
(2) Causation
1.21 The Judge's direction that the Victim's acts need only have "contributed significantly" adopts the general direction on causation approved in cases where medical omissions fail to save a victim, and also in the case of R. v. Pagen 76 Cr. App. Rep. 279. However, it is respectfully submitted that this direction did not adequately meet the rather different facts of this case.
1.22 It is submitted that in every murder case, where the accused is charged as principal, the fundamental question is: "Did the accused intentionally kill the deceased"? in certain cases, difficult questions of causation may arise, and so it may be helpful to put before the jury a formula, but the formula cannot supersede the fundamental question. In cases of medical (or alleged medical) omissions, one need go no further than the "contributed significantly" formula, because the fatal injury was inflicted by the accused, and one is simply concerned with the effect of subsequent omissions. Likewise, in Pagett the formula was appropriate (at least on manslaughter, of which the accused was convicted). In that case, the accused used the victim's body as a "human shield", and shot at police officers, who instinctively returned fire and hit the victim. The fatal wound resulted from an instantaneous chain of events started by the accused without any intervening voluntary act on the part of a third party.
1.23 In this case the fatal wound may have been inflicted by Martin Coltes driving over the deceased. This was quite different from the medical omission cases, or from Pagett.
(1) This was not an instantaneous
or instinctive reaction by Coltes to what the deceased had done to him,
(2) It was not inevitable,
or necessarily even probable (in the sense of more likely than not) that
Coltes would fail to see the deceased on the road and run him over. In
the ordinary way, one might expect that if Coltes had had his headlights
on, he would have seen the deceased before he hit him, and stopped. However,
according to his deposition, he did not see him at all perhaps because
he was distracted by Walters coming out of the side of the road.
(3) It was not inevitable
that the deceased would stay on the road. There were about 5 minutes in
which Walters could have removed him before he was hit by Coltes.
1.24 In these circumstances, the Judge's direction on causation was inadequate, and it was apt to distract the jury's attention from the fundamental question (i.e. did the Victim kill the deceased). The appropriate direction would have been:
(1) To direct that if the fatal injury was caused by Coltes, then the jury could only convict if this was the inevitable, or at least the natural and probable consequence, of the Victim's previous acts (i.e. more likely than not); and
(2) To direct the jury on the evidence either way on this question. Had the Judge done this, the jury could reasonably have been left in doubt on the question.
There does not appear to
be any direct English (or recent English) authority on the point, but it
is respectfully submitted that A cannot be said to have murdered B, when
the fatal injury was caused by C by an act which was not the inevitable,
or even the natural and probable, consequence, of A's prior act, but simply
a possible consequence. Attention is respectfully drawn to the discussion
in Smith & Hogan. Criminal Law, 8"' edition, 1996, at pages 344 to
349. See too Hart & Honore. Causation in the Law, 2nd edition,
1985, at page 326. ) )
1.25 In such a case, it may well be that A is guilty of involuntary manslaughter, on the basis that he has recklessly created a risk of death which subsequently occurs. It is respectfully submitted that there is no reason why manslaughter, with its wider test for mens rea, should not correspondingly have a wider test for causation; and why murder, with its mandatory sentence, should not have a narrower test.
THE SECOND GROUND:
NON-DISCLOSURE OF INFORMATION
CONCERNING JP CHARLES
1.26 As set out earlier on, the Justice of the Peace, who said he authenticated the Victim's alleged written statement, has, since the hearing in the Court of Appeal, been charged with 7 counts of perverting the course of justice, and 7counts of misbehaving in public office, said to have occurred between June 1997 and April 1998 (i.e. before the trial in May 1998). Further investigations are being made into this point, but it is respectfully submitted that this fresh material casts doubt on the fairness of the trial.
1.27 Had this material been
known to the defence, it could have been used in cross-examination to suggest
that the J.P. was in fact of bad character, and thus to rebut the usual
presumption that such a person is an independent person whose evidence
might dispel any doubts the jury might otherwise have about the propriety
of the police evidence on the confession. This would have been particularly
helpful to the defence in this case, as:
(1) Both the police
evidence, and the JP's evidence was disputed by the defence.
(2) The evidence of
the JP, and of Sergeant Cummings, about the circumstances of the JP's authentication
on 11 October 1993 was rather curious.
(a) According to both of them, the Victim was seen by the JP alone at about 2 pm on Monday 11 October 1993 in a large office area at CID headquarters, without anyone else present in the room at all, although by now (according to the police) the Victim had given a confession statement.
(b) When asked to explain how Sergeant Cummings re-entered the room, the JP said he just re-entered at a certain point, without being able to explain why or how he should have re-entered at that point. He was then taken to his answers at the previous trial, in which he said that, after authenticating the statement, he had called out to Sergeant Cummings to re-enter, which he proceeded to adopt in this trial.
1.28 Accordingly, it is submitted that there is a real risk that injustice has been done to the Victim by the non-disclosure of the inforrnation about the JP.
THE THIRD GROUND:
THE DIRECTION ABOUT ZAHIR
ALl
It is submitted that the
effect of the Judge's direction to ignore the evidence of Zahir Ah was
highly prejudicial to the Victim. Although in some respects Zahir
Ah's evidence was unhelpful to the Victim (i.e. his seeing him in a white
Sentra), in a more important respect, it was helpful, as it gave rise to
the inference that the police, in their investigations, were prepared to
adopt highly questionable tactics. Accordingly, the Judge should have left
this aspect of his evidence to the jury, for them to consider in relation
to the Victim's defence.
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