RAMDATH
JOKHAN
THE
STATE
Appearances
Mr.
R. Dolsingh S.C. and Ms. A. Teelucksingh for The State
KELVIN
DUNCAN
THE
STATE
Appearances
Mr.
R. Dolsingh S.C. and Ms. A. Teelucksingh for The State
M. de la Bastide C.J.
L. Jones JA
R.
Nelson JA
Delivered
30th
November, 2001
J U D G M E
N T
Delivered by de la
Bastide C.J.
The
facts of this case are unusual. At
about 11.30 a.m. on the 28th August, 1996, a woman, Chin Maharaj,
came into the Princes Town Police Station and sought assistance in retrieving
the keys for her house from her daughter, Gracelyn, who had taken them after a
quarrel. On duty at the time was
the second applicant, Kelvin Duncan (‘Duncan’), who was a Sergeant of police
with an unblemished record of some 28 years’ service. He dispatched two police constables to return with Mrs.
Maharaj to her house and assist in retrieving her keys. One of these constables was the first applicant, Ramdath
Jokhan (‘Jokhan’), who had at that time an unblemished record of 21 years’
service as a policeman. The other
constable was P.C. Persad. They
returned to Mrs. Maharaj’s house in Princes Town in a car hired by her.
At the house the keys were recovered without difficulty from Gracelyn and
Mrs. Maharaj went into the house with .Jokhan in order to make sure that
everything was in order while PC Persad remained in the front porch.
Up to this point in the narrative the facts are undisputed but the
account which follows is based on the prosecution’s evidence at the
applicants’ trial.
In
the course of checking, Mrs. Maharaj went to a cabinet on top of which there was
a smaller cabinet and from somewhere between the two cabinets she withdrew two
US $100 bills and in Jokhan’s presence put them in a jug.
She then delved into the bigger cabinet and took out from behind some
wares a black pouch in which there was stuffed US $31,000.00 in cash and a
quantity of jewellery which she valued at about TT $17,000.00.
She unzipped the pouch and having satisfied herself that everything was
as she had left it, she zipped it back and replaced it in its cache.
This too was done in Jokhan’s presence and he was made fully aware of
the contents of the pouch.
Her
gaze then fell on the jug in which she had placed the two US $100. bills, and
she noticed that now there was only one US $100 bill in it.
She immediately accused Jokhan of having stolen the other bill, but he
denied it. Mrs. Maharaj after a
while returned to the police station in company with the two policemen.
There she complained to Duncan that Jokhan had stolen her US $100 bill
but she was reprimanded by Duncan for falsely accusing those who had come to her
rescue. Mrs. Maharaj was told by
Duncan to wait at the station as her daughter was expected there.
Accordingly she remained at the station for about two hours until Duncan
told her she could leave as it did not appear that her daughter was coming.
Whilst waiting in the station she saw Jokhan leave the station.
When
Mrs. Maharaj returned home, she found to her dismay that the cabinet in which
the black pouch was kept, was in disarray and the pouch was missing.
She returned to the station in considerable distress and confronted
Duncan. She told him that she was
not stupid and that she knew that he had kept her at the station while he sent
Jokhan to steal her money. A written statement of her complaint was taken from Mrs.
Maharaj by Sgt. Brereton. Mrs.
Maharaj maintained that that statement was taken at the station the same day,
that is, the 28th August, but the statement is dated the 29th
August. She subsequently gave two statements to Inspector McMillan who was
acting on behalf of the Police Complaints Authority, on the 15th and
16th October, 1996, respectively.
No action, however, appears to have been taken against either Jokhan or
Duncan until on the 7th February, 1998.
Marlon Nunes, an old lag with a record of four convictions, who was then
detained by the police in connection with a murder investigation, made certain
disclosures to the police which tied in with the complaints made by Mrs. Maharaj
against the applicants.
In
fact Marlon Nunes( if he was to be believed) provided the missing piece of the
puzzle as to what became of Mrs. Maharaj’s black pouch and its contents.
He testified at the applicants’ trial that at about 12.30 p.m. on the
28th August, 1996, he phoned Duncan at the Princes Town Police
Station. He had known him
previously. Duncan asked him to
come right away to the station as he had something for him to do.
When he arrived at the station, Duncan introduced him to Jokhan (who was
then in uniform) and told him that he wanted Nunes to get some money from a
house which would be pointed out to him by Jokhan. Thereafter, pursuant to an
arrangement which they made, he was picked up in a nearby street in a car driven
by Jokhan (who had by then changed his police shirt for a white jersey) and
taken to and shown a house which Nunes identified at the trial from a photograph
as Mrs. Maharaj’s house. Jokhan
described to him where he would find the money he was to steal.
Jokhan then dropped Nunes off some distance from the house and instructed
him to meet him in 20 minutes time at a designated spot.
Nunes then walked back to the house which he had been shown, entered
through the back door which was closed but not locked, went straight to the
cabinet, took the black pouch from behind the wares and left.
He did not go to the spot where he was supposed to meet Jokhan, however,
but went straight back by taxi to the police station.
There he handed the pouch and its contents over to Duncan.
Duncan met him by appointment shortly after at a bar and took him in his
car back to San Fernando. Duncan
gave him US $5,000.00 in cash and ‘a gold chain with a Leo pendant’ a
description which matched that given by Mrs. Maharaj of a piece of jewellery
which she claimed was in the black pouch.
On
the 9th February, 1998, it was arranged that an identification parade
would be held to see if Nunes could identify Jokhan, but at the last minute
Jokhan refused to go on the parade. As
a result the police arranged a confrontation between Nunes and Jokhan in the
presence of two attorneys who were advising Jokhan.
At that confrontation Nunes identified Jokhan as the person who had shown
him Mrs. Maharaj’s house and told him where the pouch was.
After Nunes had given
evidence in the Magistrates’ Court he was granted two immunities from
prosecution by the Director of Public Prosecutions. One was in relation to the breaking and entering of Mrs.
Maharaj’s house and the larceny of her money and jewellery, and the other was
in relation to an apparently unconnected offence of office-breaking and larceny.
Nunes was kept in protective custody pending the applicants’ trial.
The
applicants were tried together on an indictment containing six counts.
The first count charged that they together with another person broke and
entered the dwelling house of Chin Maharaj and stole $31,000.00 in United States
currency and jewellery to the value of TT $17,000.00.
The second count charged Jokhan with stealing $100.00 United States
currency belonging to Chin Maharaj in her dwelling-house. The third, fourth and
fifth counts all charged misbehaviour in a public office. Two of these counts,
the third and the fourth, were directed at Jokhan alone.
The misbehaviour alleged against him in the third count was the stealing
of the $100.00 US currency belonging to Chin Maharaj and the misbehaviour
alleged against him in the fourth count was procuring Marlon Nunes to commit the
offence of housebreaking and larceny. Finally,
the misbehaviour alleged against Duncan in the fifth count was counselling
Marlon Nunes to commit the offence of housebreaking and larceny.
At
the trial the prosecution’s case depended for the most part on the evidence of
Mrs. Maharaj and Marlon Nunes. They
testified along the lines set out above. A
neighbour of Mrs. Maharaj, Monica Mark, gave evidence of having seen someone
leaving Mrs. Maharaj’s yard at about 1 p.m. on the 28th August,
1996. She called out to the person
but he ran off up the hill. She
gave a description of the clothes which the man was wearing – white cap, white
‘T’ shirt, jeans and sneakers. This
corresponded with Nunes’ description of what he was wearing that day.
Nunes also testified that as he was leaving Mrs. Maharaj’s house
someone did call out to him. It was because he realized that he had been seen that he was
anxious not to stay long at the station after he delivered the pouch to Duncan.
Both
applicants gave evidence. Jokhan
claimed that while he was in Mrs. Maharaj’s house she had produced one and not
two, US $100 bills. He denied that
she had accused him at the house or at the station of stealing a US $100 bill.
He also denied having seen her take a black pouch out from a cabinet, or
having had any contact with Marlon Nunes that day.
He admitted leaving the station that afternoon, but said he did so while
still in uniform to place a bet for Duncan.
Duncan
also denied having had any contact with Marlon Nunes on the day in question.
He admitted he had known Nunes but only as a prisoner.
He said that Nunes had tried unsuccessfully to get him to use him as a
police informant and that on one occasion in 1997, Nunes had asked him for
money, but he had refused to give him any.
He denied that when Mrs. Maharaj returned to the station with Jokhan and
PC Persad, she had made any complaint of Jokhan having stolen a US $100 bill.
He testified that when she returned the second time, she complained that
“they” had stolen all her money but she made no allegation against him.
On this point incidentally, Mrs. Maharaj was supported by S.R.P.
Valentine, the sentry on duty at the station, who testified that she did accuse
Duncan of having kept her at the station while he sent Jokhan to steal her
money.
The
jury found both applicants guilty on the first count and also returned guilty
verdicts against Jokhan on the second, third and fourth counts and against
Duncan on the fifth count. For the
offence of housebreaking and larceny the Judge sentenced both applicants to 10
years imprisonment with hard labour. He imposed a similar sentence on Jokhan for
larceny of the US $100 bill. For
each offence of misbehaviour in public office the Judge imposed the same
sentence of 15 years’ imprisonment with hard labour.
He ordered all the sentences to run concurrently.
Jokhan’s
application for leave to appeal was based initially on nine grounds of appeal,
eight of which were set forth in a document headed “Amended Grounds of
Appeal” filed on the 18th June, 2001, while the ninth (which was
added with leave) was set out in a document headed “Additional Grounds of
Appeal” filed on the 21st November, 2001.
I will deal with these grounds in order.
The
first ground was that the Judge misdirected the jury by failing to give them the
warning and explanation of the dangers of relying on evidence of visual
identification, or what has come to be known as the Turnbull
direction. Counsel for Jokhan
pointed out that the prosecution’s case depended on the identification by
Nunes of Jokhan as the person who had taken him to Mrs. Maharaj’s house and
told him where to find the black pouch with the money and jewellery in it.
Nunes claimed to have seen Jokhan only once before that day, and it was
some 18 months before he identified him. It
was conceded by counsel for Jokhan that the police were entitled in the
circumstances of Jokhan’s refusal to participate in an identification parade,
to arrange a confrontation between himself and Nunes, but nonetheless he argued
that an identification made in those circumstances was inherently less reliable
than one made as a result of an identification parade.
It was acknowledged that the defence relied on an attack on Nunes’
credibility and did not expressly advance any suggestion of mistake but we were
referred to the decision of the Privy Council in Beckford v. The Queen
(1993) 97 Cr. App. R. 409, in which it was held that the trial Judge was obliged
to give a Turnbull direction even in circumstances like
these. Lord Lowry in giving the
opinion of the Board in that case said (at page 415) that “failure to give a
general warning of the danger of relying on identification evidence would nearly
always by itself be enough to invalidate a conviction which is
substantially based on identification evidence”. There is no question but that the Judge did not give any
warning whatever with regard to the danger of relying on evidence of visual
identification. Counsel for Jokhan,
however, quite properly referred us also to Shand v. The Queen
(1996) 1 W.L.R. 67 and frankly admitted that that case was against him.
In that case the Privy Council made it clear that while a Turnbull
direction was necessary in any case in which the prosecution relied wholly or
substantially on evidence of visual identification, even though the defence
relied principally or solely on a challenge to the credibility of the
identifying witnesses, nevertheless there might be exceptional cases in which
that direction might be unnecessary or might be given more briefly.
Reference can also be made to Freemantle v. The Queen
(1994) 1 W.L.R. 1437 in which it was held that there might be cases in which the identification evidence was so strong that
the Court of Appeal could feel satisfied that the failure of the trial Judge to
give the jury the Turnbull warning had not resulted in a
miscarriage of justice. Obviously,
if two friends meet and converse face to face in broad daylight and an issue
arises at the trial of one of the friends as to whether the meeting took place,
it would be unnecessary and indeed absurd for the Judge to warn the jury of the
danger of relying on evidence of visual identification.
These supposed facts, however, are very far removed from those of the
instant case, although there are aspects of the identification evidence in this
case which make it quite strong. One
is the length of time which Nunes spent in company with Jokhan at the station
and in the motor-car. Another is
that from the evidence it seems likely that Jokhan and PC Persad were the only
uniformed constables of East Indian origin in the station that afternoon.
In our view, however, the possibility of mistake is ruled out in this
case not by the strength of the identification evidence per se, but by the force
of circumstantial evidence. In order to test whether there was any possibility
of Nunes being mistaken in his identification of Jokhan, one must assume that
Nunes was a truthful witness. On
that premise Mrs. Maharaj did have a pouch containing money and jewellery hidden
in a cabinet and as a result of directions which he was given by a uniformed
policeman whom he met at the Princes Town Police Station that afternoon, Nunes
was able to find not only the house in which that money was hidden, but also the
secret hiding-place in which it was kept. The
only policeman who was in a position to provide him with that information at the
Princes Town police station that afternoon, was Jokhan.
For that reason the possibility of a mistaken identification can be ruled
out in this case. Defence counsel
and the learned trial Judge perceived, quite correctly in our view, that if the
applicants were to escape conviction in this case, it could only be as a result
of a successful attack on the credit of Marlon Nunes and/or Chin Maharaj.
For
these reasons we hold that it was not necessary for the trial Judge to give the Turnbull
warning and explanation. If we are
wrong and for some ritualistic reason such a direction was necessary in this
case, then we would hold that failure to give it did not produce any miscarriage
of justice.
The
second ground of appeal is a non-starter since it is premised on there having
been a ‘dock identification’ in this case.
In our view a dock identification properly so-called occurs when a
witness identifies the accused for the first time when the accused is in the
dock. That did not occur in this
case and therefore there was no ‘dock identification’. Accordingly, there is no merit in the complaint that the
learned trial Judge failed to direct the jury suitably in relation to a dock
identification.
The
third and fourth grounds can be taken together. When the written statements which Mrs. Maharaj gave to
Inspector McMillan on the 15th and 16th October, 1996,
were put to her, she denied that she had given them.
She also claimed, as I have said, that she gave her first statement on
the 28th, and not the 29th , August, 1996.
Defence counsel at the trial requested that the prosecution call to the
witness-stand both Inspector McMillan and Sgt. Brereton so that all three
statements might be proved and put into evidence.
This the prosecution refused to do.
When Duncan was called on to make his defence, his counsel called
Inspector McMillan to the stand and the two October statements were put in
through her. There are numerous inconsistencies and contradictions between what
Mrs. Maharaj said in her evidence both before the Magistrate and at the trial
and what she said in her three statements, although these inconsistencies and
contradictions relate to peripheral matters and do not touch the essential
elements of her evidence against the applicants.
The
third ground of appeal is that the refusal of the prosecution to call Insp.
McMillan and Sgt. Brereton was an abuse of process and that the Judge ought as a
result to have stopped the trial and stayed the proceedings.
The fourth ground is that the Judge in ruling on the application which
was made by the defence at the trial to stay the proceedings as an abuse of
process, refused to consider the contents of the statements which Chin Maharaj
denied having given to the police.
These
grounds are founded on the premise that the applicants were prejudiced as a
result of their counsel being denied the opportunity of cross-examining Mrs.
Maharaj on her statements after their authenticity had been established by the
police officers who took them, and being unable to rely on their contents for
the purposes of a no-case submission. We
do not accept that any prejudice was in fact suffered.
Mrs. Maharaj denied giving the October statements.
If it was established, as it subsequently was when Inspector McMillan was
called by the defence, that she had in fact given them, then it would have been
obvious to the jury that either she was lying or she had forgotten that she had
given them. So far as the
inconsistencies and contradictions which they contained are concerned, the
statements speak for themselves. Whether
or not Mrs. Maharaj persisted in her denial of them, it is unlikely that
cross-examining her further on the statements after they had been put into
evidence, would have produced any additional advantage for the applicants.
We do not agree that if these statements had been in evidence as part of
the prosecution’s case, the Judge would have been either bound or entitled to
uphold a no-case submission on the basis that Mrs. Maharaj’s evidence had been
so thoroughly discredited that the case was not fit to go to the jury.
It must be remembered that Mrs. Maharaj’s evidence was supported not
only by the evidence of Nunes, but also by the evidence of Monica Mark who saw a
strange man leaving Mrs. Maharaj’s yard at about the time when the theft
(assuming there was one) would have occurred.
Moreover, the evidence of SRP Valentine that Mrs. Maharaj did return to
the station a second time in obvious distress and accused Duncan in very
explicit and forthright terms of having engineered the theft of her money, also
lends verisimilitude to her account of having discovered on returning home the
loss of a substantial amount of money and jewellery.
There was also Valentine’s evidence of having ‘missed’ Jokhan at
one stage that afternoon and having next seen him in plainclothes.
In
these circumstances we do not consider that the refusal of the prosecution to
call Sgt. Brereton and Inspector McMillan was an abuse of process, nor do we
consider that the necessity for the defence to call (if they wished) the police
officers who took statements from Mrs. Maharaj, in order to put them into
evidence, could have had any effect on the outcome of the trial.
The
fifth ground of appeal was that the learned Judge erred in law by rejecting a
submission at the close of the State’s case that the case should not be left
to the jury. In dealing with the
previous ground we have already given the reasons for rejecting this ground as
well.
Ground
6 reads as follows:
“The
learned Judge erred in law when he refused to permit cross-examination of Nunes
on the question of a State stipend on a bare assertion by State Attorney that
public interest immunity applied without holding a form of further enquiry or
considering the relevant material”.
While
the ground complains of the Judge refusing to permit cross-examination of Nunes
on the question of a State stipend, the argument was directed at a ruling given
by the Judge in the course of the cross-examination of Supt. Philbert, upholding
an objection by the prosecution to questions about the stipend paid to Nunes.
It is to be noted that Philbert disclaimed any personal knowledge of the
matter and one ground of objection, which seems to us to be valid, was that his
evidence would have been at best hearsay. Criticism
of this ruling, in any case, is rendered otiose by the fact that Nunes in
cross-examination did disclose that apart from being provided with free
accommodation by the State (in what was clearly a safe house) and personal
requisites such as toiletries, he was given an allowance of $200.00 per
fortnight. We do not accept the
suggestion belatedly advanced by Mr. Brook, junior counsel for Jokhan, that
there is a distinction to be made between the ‘stipend’ to which reference
was made in Supt. Philbert’s cross-examination, and the ‘allowance’ spoken
to by Nunes. Such a distinction was
clearly not present to the mind of anyone at the trial. It does not appear that there was any relevant aspect of the
treatment which the State afforded the witness Nunes pending the trial which the
defence was not permitted ultimately to explore and bring out in
cross-examination. The stipend is
the only matter mentioned in this ground of appeal. The only question asked about the stipend was what was the
amount of it and that question was answered.
We accordingly find no substance in this ground of appeal.
Ground
7 complains of a failure by the Judge adequately or at all to explain to the
jury the effect of Nunes’ bad character on his credibility.
In his summing-up the Judge did refer to Nunes’ record of convictions
and imprisonment. Two criticisms
were made. One was that the Judge
did not specifically tell the jury that they should take into account his record
in assessing his credibility. But the link surely would have been obvious.
Furthermore, it would have been implicit in the direction which the Judge
gave them that they should not approach the matter on the basis that because
Nunes had previous convictions and had been to jail, they must reject his
evidence.
The
second criticism was that the Judge ought to have juxtaposed his comments on
Nunes’ bad record to the very ample good character direction which he gave in
respect of both applicants. We do
not accept that he was under any obligation to do so. The suggestion that he was is a novel one unsupported by
either authority or principle.
The
eighth ground of appeal was abandoned by counsel for Jokhan.
This ground was based on a statutory declaration sworn by Marlon Nunes on
the 6th June, 2001, in which he claimed that the evidence he had
given against Jokhan was false. This
declaration was extremely lame and unconvincing and it was not surprising that
counsel for Jokhan did not pursue his application to admit it as further
evidence.
The
ninth and final ground argued for Jokhan challenged the propriety of convictions
being recorded against Jokhan on the counts which charged the statutory offences
of housebreaking and larceny and larceny in a dwelling-house, that is, counts 1
and 2 as well as on the counts which charged misbehaviour in public office, that
is, counts 3 and 4. It was pointed
out in relation to counts 1 and 4 that it was exactly the same conduct by Jokhan
which was relied upon as constituting both offences.
The same thing was true with respect to counts 2 and 3.
Counsel relied on the common law principle that no one ought to be
punished twice for the same offence and its statutory embodiment in section 62
(1) (a) of the Interpretation Act, Chap. 3:01.
That section reads as follows:-
“Where
an act constitutes an offence under two or more laws the offender is liable to
be prosecuted and punished under either or any of those laws but a conviction or
an acquittal upon a prosecution is a bar to prosecution for the same offence or
for an offence which is substantially the same offence under any other of those
laws”.
Counsel
referred us to R. v. Lewis 9 W.I.R. 333, a decision of the
Jamaican Court of Appeal. In that
case a man was charged and convicted both of rape and of unlawful intercourse
with a girl under the age of 14. The
Court held that once the jury had returned a verdict of guilty on the first
count (which was for rape), they should have been discharged by the Judge from
giving a verdict on the second count, and so quashed the conviction for unlawful
carnal knowldge. The Court
recognised that there were some differences between the two offences - lack of
consent is an essential ingredient of rape but not of unlawful carnal knowledge
whereas the age of the victim is crucial in unlawful carnal knowledge but
immaterial in rape. Nevertheless,
the Court found that two convictions had been recorded against the appellant:
“for what was for all practical purposes, substantially one offence only,
arising out of one incident” (Duffus P. at 335).
The same thing is more starkly true of the convictions recorded against
Jokhan in relation to the US $100 bill. It
is the stealing of that bill which constitutes both the statutory offence
alleged in the second count and also the misbehaviour in public office that is
alleged in the third count.
The
misbehaviour alleged in the fourth count was procuring Marlon Nunes to commit
the offence of breaking and entering the house of Chin Maharaj and stealing in
it the US currency and jewellery belonging to her. But it was precisely because the jury found that Jokhan had
procured Nunes to perform these acts, and for no other reason, that the jury
convicted Jokhan of the substantive offence of housebreaking and larceny alleged
in count 1.
Clearly
in both instances Jokhan was convicted twice for ‘what was substantially one
offence arising out of one incident’. We
are satisfied, therefore, that it was wrong for the trial Judge to have allowed
guilty verdicts to be taken on both counts 1 and 4, and on both counts 2 and 3.
Counsel for the State suggested that the common law principle and the
Interpretation Act forbid the imposition of double punishment and that,
therefore, the convictions ought to be allowed to stand provided they did not
result in any increase in the punishment imposed.
That we note was not the approach adopted in Lewis
by the Jamaican Court of Appeal. Moreover,
it seems to us contrary to principle that a man should be liable to conviction
but not to punishment. We do not
accept that allowing the convictions to stand is an option.
Counsel
for Jokhan on the other hand submitted that since the verdicts were taken first
on counts 1 and 2, the convictions on counts 3 and 4 should be the ones to be
quashed. Those of course are the
counts on which the longer sentences of imprisonment (15 years as compared with
10 years on counts 1 and 2) were imposed. There
is no limit on the length of the sentence of imprisonment which may be imposed
for the common law offence of misbehaviour in public office whereas 10 years is
the maximum both for housebreaking and larceny and for larceny in a
dwelling-house.
We
do not think that Jokhan is entitled to benefit from the order in which the
offences happened to be charged in the indictment and in which the verdicts were
taken. Notwithstanding the order in
which the counts appeared and were numbered in the indictment, the Judge ought
to have first taken the verdict of the jury on the more serious charges of
misbehaviour in public office (i.e. counts 2 and 3) and the jury having returned
guilty verdicts on those charges, they should have been discharged from giving a
verdict against Jokhan on the other charges (i.e. counts 1 and 2).
We,
therefore, grant Jokhan leave to appeal and quash the convictions and sentences
for housebreaking and larceny in a dwelling-house (counts 1 and 2), but affirm
the convictions and sentences recorded and imposed on him for the two offences
of misbehaviour in public office (counts 3 and 4). The net result is that the two sentences, each of fifteen
years imprisonment with hard labour, to run concurrently, are affirmed.
I
turn now to Duncan’s application for leave to appeal. For the purposes of his first ground of appeal counsel for
this applicant sought to rely on the statutory declaration sworn by Marlon Nunes
on the 6th June, 2001, to which I have referred earlier in this
judgment. Apart from the many flaws
and gaps in that statutory declaration (it does not even reflect accurately the
thrust of the evidence given by Nunes at the trial) it does not contain any
recantation of Nunes’ evidence against Duncan.
In fact in it Nunes expressly confirms that part of his evidence.
It
was apparent that counsel for Duncan was seeking to rely on the affidavit simply
for the damage which it did to Nunes’ credibility and not because it
exculpated Duncan. It is well
established that the mere fact that a prosecution witness subsequently
contradicts the evidence he has given at the trial, does not constitute of
itself a sufficient reason for quashing a conviction based on his evidence.
As has been pointed out, if the appellate courts were to treat a
recantation as automatically having that effect, it would create enormous
potential for abuse. We therefore refused the application to introduce this
statutory declaration as further evidence and reject Duncan’s first ground of
appeal which is based on it.
Duncan’s
second ground of appeal was that the trial Judge failed to present the case for
the defence to the jury adequately and as a result the summing-up was unbalanced
in favour of the prosecution. By
way of particulars of this ground it was alleged that the learned Judge failed
to:
A.
Identify the evidence that showed lack of corroboration.
B.
Adequately direct on the character and credibility of Marlon Nunes and
potential motives for testifying against the appellants.
C.
Adequately identify the relevant facts to the jury.
D.
Adequately deal with the evidence of Chin Maharaj.
E.
Adequately clarify the issue of common purpose.
There
was no attempt made to argue E. With
regard to A. we are satisfied that when the learned Judge used the term
“corroborate” in his summing-up he was using it in the popular or lay sense
of “provide support for” and not in the technical legal sense of
“implicate the accused”. Accordingly,
when he suggested that the evidence of Monica Mark that she saw a man leaving
Chin Maharaj’s yard
dressed
in exactly the same fashion as Nunes testified he was dressed, this
‘corroborated’ Nunes’ evidence, there was no risk of the jury
understanding the Judge to mean anything more than that Mark supported Nunes’
evidence that he stole the pouch.
With
regard to B. it was submitted that the Judge had in his summing-up “watered
down” the impact on Nunes’ credibility of his criminal record and the
immunities and treatment afforded him by the State. It is true that the Judge did suggest that the jury might
take a rather benign view of these matters, but he did remind the jury of all
the pertinent evidence that might have affected Nunes’ credibility.
In our view he was entitled to suggest to the jury that notwithstanding
Nunes’ dismal record they might choose to accept his evidence as truthful in
this case. Throughout his
summing-up the Judge emphasised that it was the sole responsibility of the jury
to find the facts and he was at some pains to ensure that they were not unduly
influenced by any opinion which he expressed.
We do not agree that in relation to his treatment of Nunes’ evidence,
the Judge adopted an unbalanced or unfair approach.
With
regard to C. we do not accept that there were any relevant facts which the Judge
failed to identify to the jury. In
particular we do not accept the suggestion that Jokhan and Nunes might have
stolen Mrs. Maharaj’s money and jewellery without the participation of Duncan
or that that should have been put to the jury as a possible scenario.
It is obvious that the only way in which Nunes could have been introduced
into the whole affair, was via Duncan.
With
regard to D. and the alleged failure of the Judge to deal adequately with Chin
Maharaj’s evidence, the comments that have been made with regard to the
Judge’s treatment of Nunes’ evidence above are equally apposite here.
It is obvious that Mrs. Maharaj was a most unsatisfactory witness, but it
was essential for the jury who had seen her give her evidence, to determine for
themselves to what extent her shortcomings as a witness were attributable to her
age or disposition or mental condition, and how far they were due to downright
untruthfulness. In our view there was nothing contained in the summing-up or
omitted from it, which would have conduced to the jury performing this exercise
in a way that was inefficient or unfair to
the
applicants. Accordingly we do not
consider that there is any merit in this ground.
Grounds
4, 5 and 6 advanced on behalf of Duncan correspond with grounds 6, 4 and 5
respectively argued on behalf of Jokhan, and for the same reasons which have
already been given when dealing with Jokhan, we find that these grounds are all
without merit.
Duncan
was also granted leave to add the same ground which became Jokhan’s ninth
ground, that is the ground which challenged the recording of convictions for
both the statutory and the common law offences. The misbehaviour in public office which was alleged against
Duncan in the fifth count, was counselling Marlon Nunes to commit the offence of
housebreaking and larceny. That was
precisely the same conduct on which his conviction on the first count for
housebreaking and larceny was based. Accordingly,
for the reasons already given in the case of Jokhan, we grant Duncan leave to
appeal and quash the conviction on count 1 for housebreaking and larceny, but
affirm his conviction for misbehaviour in public office as alleged in count 5,
and the sentence of 15 years imprisonment with hard labour imposed for that
offence.
To
summarise, therefore, the order of this Court is as follows:
1.
Both applicants are granted leave to appeal and the hearing of their
applications for leave are treated as the hearing of their appeals.
2.
The convictions of Jokhan for housebreaking and larceny and for larceny
in a dwelling-house are quashed as are the sentences of imprisonment imposed in
respect of them, but his convictions for two offences of misbehaviour in public
office as charged in counts 3 and 4 of the indictment, are affirmed and so are
the two sentences of imprisonment of fifteen years each, which were imposed in
respect of them, and which are to run concurrently.
3.
The conviction of Duncan for housebreaking and larceny is quashed, but
his conviction for misbehaviour in public office as charged in count 5 of the
indictment is affirmed and so is the sentence of fifteen years imprisonment with
hard labour imposed on him in respect of that offence.
M.A.
de la Bastide
Chief
Justice
L. Jones
Justice
of Appeal
R.
Nelson
Justice
of Appeal
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