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Mills and Gomes V R
Mills and Gomes V R
Held: the extent to which EA was accepted by the jury as a credible witness
was in a large measure, if not wholly, due to the persuasion by the judge and
in the circumstances he went far beyond his proper function. R v Blackley
((1963), CCA, 18th March, reported as an Appendix to this case, p 423,
post), applied.
Appeal allowed.
Cases referred to
R v Harris (1927), 20 Cr App Rep 144, CCA, 14 Digest (Repl) 337, 3281
R v Blackley (1963), CCA, 18th March, reported as an Appendix to this case,
p 423, post
Appeals
Appeals by Kelvin Mills and Lloyd Gomes against their conviction by a jury
at the Port-of-Spain Assizes in July 1963 of the murder of Esmond Vincent
at
418
Rose Hill, Port-of-Spain on 20 August 1961. The facts are stated in the
judgment of the court.
419
Later, he added in answer to further questions:
The next day, he was cross-examined by counsel for the appellant Gomes
and was made aware that he would be confronted with his deposition. He
then said:
On such evidence it was right and proper for the learned judge who
presided at the trial to direct the jury as he did that:
It is manifest that the learned judge was putting to the jury that it is
common experience for answers to be given at a preliminary inquiry and to
be recorded quite differently, and that in any event it may be a perfectly true
and
420
honest explanation that he had made a mistake. The inconsistency here
was vital. There was no room for possible error in recording what
Alexander had actually said about recognising or not recognising any of the
person who had attacked Vincent and himself. And it was very misleading
for the jury to be told, with all the authority of a judge having a long
experience in such matters, that an error of the kind was a possible
explanation to account for what was a very serious contradiction on perhaps
the most essential issue in the case. Moreover, the witness had never put
forward as his explanation that any such error may have been made in
recording his evidence. Nor did he say that he had made a mistake. What
he did say was that he could have made a mistake, but at that time he was
obviously hedging. When he was brought face to face with reality, he
unreservedly admitted that he was swearing at the trial the very opposite of
what he had sworn at the preliminary inquiry and, in effect, stated that his
evidence at the inquiry was a lie. In our judgment, it is impossible to escape
the conclusion that such a direction would in all probability result in a
miscarriage of justice.
But the learned judge did not stop at putting forward explanations which
were totally unjustified. He went much further and indulged in a plain
attempt to rehabilitate Alexander. We adopt the language of Lord Parker CJ
in R v Blackley ((1963), CCA, 18th March, reported as an Appendix to this
case, p 423, post)* when he said:
As in that case, the summing-up in this goes far beyond what is permissible,
and we will quote two or three extracts to illustrate what we have in mind.
In dealing with Alexander’s evidence and the criticisms by defence counsel
that it was not the sort of evidence upon which the jury could in conscience
rely, the learned judge said:
Thereafter Johnson was not again mentioned, so vigorously did the learned
judge go on to advocate the acceptance of Alexander as a witness of truth.
In the course of that advocacy, as he referred to incident after incident, he
made use of language such as follows:
‘It is in that setting that Alexander and Vincent came along Picadilly
Street and, as Alexander said, he saw the group of men under the café
and in that group he recognised the three accused. Is there any reason to
say that Alexander is lying when he said so? Each of the accused has
denied in his statement that he was in the group, and the result of that
would be that each of the accused is saying that Alexander is lying. But
does that necessarily mean Alexander is lying? Because each of the
accused in his statement
421
has placed himself in the approximate vicinity of that area on that
afternoon. So is it that Alexander is lying when he said these three
accused were there?’
Later, still referring to Alexander’s evidence, he learned judge said:
Then he continued:
‘The defence is asking you to say that Sample has said that he saw a
man standing by the gate groaning and the man then went up the steps
and into the gallery. Well now, that would mean that there was a
difference between Sample and Alexander, because Sample is saying
that when he saw the man he was standing by the gate groaning.
Presumably he was already injured, whereas Alexander said he saw
injuries being inflicted on Vincent in the gallery. That would be a
difference, but would that be a difference which in the circumstances of
the incident would cause you to say that Alexander is lying? You will
hardly need me to remind you of what Alexander said or that these
events were happening quickly. And you would hardly expect
Alexander and Sample would give exactly the same description of what
happened, because Sample arrived on the scene quite detached from the
incident. So is that a difference of substance which would cause you to
disbelieve Alexander’s evidence? Further, the fact is that Vincent was
injured and was in that gallery, and that is what Alexander said.’
‘Well, after that Alexander said he crawled away and went down
Laventille Road in the direction of his house. That would not seem to be
anything unusual. It seems that if a man was chased in a manner like
that he would consider his house was the best place to go, and that is
why he crawled out and went home. But the significant thing of all
these points is that they present a picture which makes the evidence of
Alexander more believable and more acceptable than it would appear at
the first blush, and it is for you to say how these questions impress you
and what effect they have upon you, and it is for you to say whether you
accept the evidence of Alexander and Johnson. All these criticisms and
challenges to which I referred earlier, and of course all these versions,
you must take into account when you are considering how much weight
to attach to all these possibilities.’
‘went far beyond his proper function. No one who heard this (the
summing up), if it sounded at all like it reads on the transcript, could
really believe that (the appellants) had had a fair trial. Incidentally, it is
to be observed that it was not as plain as might be because the jury were
out’
for three hours and were unable to agree on any verdict as regards the
prisoner Trotman notwithstanding that Alexander was as positive at the trial
that he was one of the assailants as he was about the appellants. It appears
that what finally titled the scales against them was the finding of human
blood (for which, however, an account was given) on one shoe and one boot
belonging to the respective appellants and on a shirt which belonged to the
appellant Gomes. But none of this could have any significance unless
Alexander had been so rehabilitated that he came to be regarded as a
credible witness. To the extent to which he was accepted to be, we are
satisfied that it was in large measure, if not wholly, due to the advocacy of
the learned judge.
For these reasons this court concluded that the appeals should be allowed
and that the convictions and sentences should be quashed. We were invited
to order a new trial as we undoubtedly have authority to do under s 44 (2) of
the Supreme Court of Judicature Act [T], No 12 of 1962. But we are
satisfied that the interests of justice do not so require. In our opinion, no
jury properly directed could reasonably have accepted the evidence of
Alexander insofar as it incriminated the appellants, and his is the only
evidence directly implicating them as the perpetrators of the crime. We
accordingly ordered that the appellants should be discharged.