(1963) 6 WIR 418

Mills And Gomes v R

COURT OF APPEAL OF TRINIDAD AND TOBAGO
WOODING CJ, MCSHINE AND HYATALI JJ A
22 NOVEMBER 1963

Criminal law Murder Summing-up Credibility of principal witness shown to be negligible

Rehabilitation of witness by judge in summing-up Distinction between persuasion by marshalling of facts
by judge and persuasion by judge Misdirection.

The appellants and LT were indicted for the murder of EV on 20 August

1961. The jury convicted the appellants but were unable to agree a verdict
in respect of LT .The evidence purporting to identify the three accused as
EVs assailants was principally that of the witness EA to the extent that,
although there was some supporting evidence, no case could be established
against the accused without EAs evidence. At the trial EV testified that he
saw and recognised the accused inflicting injuries on EV in a yard on the
night of 20 August 1961. His evidence at the preliminary inquiry, however,
was that he did not recognise any of the assailants. When challenged on this
contradiction he first said that he could not remember saying what he did at
the inquiry, but he would not doubt it as he could have made a mistake.
When pressed further he said that if he had so stated it would be a lie and
agreed that his evidence at the trial was just the opposite of what he had
stated at the inquiry. The trial judge properly directed the jury that it was
their duty to disregard the evidence of a witness who made two diametrically
opposed statements on oath unless a satisfactory explanation therefore was
given, but went on himself to suggest explanations for the contradiction
which were not justified. Further, he so sought to rehabilitate EA that, in
effect, he eroded his initial direction.
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.
K Hudson Phillips for the first appellant
Archbald QC and Y Ibrahim for the second appellant
Rienzi and Crawford for the Crown
Cur adv vult
WOODING CJ delivered the following judgment of the court: The
appellants were convicted of murder at the Port-of-Spain Assizes in July
1963 and were accordingly sentenced to death. Against that conviction they
appealed by leave of this court. At the end of the hearing, this court allowed
their appeals and intimated that the reasons for so doing would thereafter be
put in writing. Our reasons were as follow.
The facts may be briefly stated. On 20 August 1961, Esmond Vincent
was killed at Rose Hill, East Dry River in the City of Port-of-Spain. The
two appellants and a third man, Lennox Trotman, were indicted for his
murder. At the end of the trial, the jury convicted the two appellants but
were unable to agree a verdict in respect of Trotman. The evidence
purporting to identify the three prisoners as the assailants was principally
that of a man named Errol Alexander. There was some supporting evidence
by another man named Leon Johnson, and there was testimony as to various
circumstances which, if accepted, would also assist in proving the prisoners
guilt. But it is right to say that without Alexanders evidence no case could
be established against any of the prisoners.
According to Alexander, he and the deceased Vincent were walking on
their way home near midnight on 17 August 1961. They lived in the East
Dry River/Laventille area of Port-of-Spain. His story was that on getting
near the corner of St Paul and Picadilly Streets he saw a number of men
standing together, among them being the three prisoners. Some of these men
began throwing stones and bottles at Vincent and himself and, accordingly,
they ran away to escape the attack. They ran up Lodge Place which required

them to run up a number of steps, then into Rose Hill, by which time he had
got ahead of Vincent who was by then running slowly and staggering. They
had been drinking together at a club in Picadilly Street earlier that night. On
Rose Hill, Alexander ran down some more steps and then into a yard where
he hid, while Vincent followed some little while later and ran into a yard a
short distance away from his own place of refuge. The men were in hot
pursuit of Vincent and they caught up with him in the gallery of a house into
which he ran after entering the yard. There they inflicted on him such severe
wounds as resulted in his death on 20 August 1961.
The principal challenge to Alexanders evidence went to his recognition
and identification of the prisoners. He maintained that he had recognised
them when the attack began with the throwing of stones and bottles at the
corner of St Paul and Picadilly Streets, that he again recognised them as he
looked back in the course of his flight and their pursuit at Lodge Place, that
he recognised them yet again among those who entered the yard hot on the
heels of Vincent, that he recognised them once more pelting blows at
Vincent in the yard and that he also recognised the voice of the appellant
Mills denouncing Vincent as the wounds were being inflicted. But in crossexamination he was referred to his evidence at the preliminary inquiry and
he is recorded as saying in answer to counsel for the appellant Mills:
I remember giving evidence at the preliminary inquiry. I do not
remember saying that at Lodge Place I did not recognise anybody. I do
not remember if I said that when they ran into the yard I did not
recognise anyone. I would not doubt it as I could have made a mistake.
419
Later, he added in answer to further questions:
It would be important for me to say whether or not I recognised
someone. I realised at the preliminary inquiry that that would be
important. If I had said at the preliminary inquiry I did not recognise
them that would be a lie. I did recognise the three accused. It is true.
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:
I remember yesterday I was questioned about what I had said at the
preliminary inquiry. I did say at the preliminary inquiry I ran into one

yard and Vincent into another. I said that the man and them ran into the
yard. I said that as they ran into the yard I did not recognise any of the
men. I said here yesterday that I recognised the three accused when they
ran into the yard. That is the opposite of what I said at the preliminary
inquiry. At the preliminary inquiry I said I saw the men pelting blows. I
did not say I saw the three accused pelting blows.
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:
Where a witness makes two conflicting statements on oatheach
statement on oath-one diametrically opposed to the other, unless you get
a satisfactory explanation of the contradiction, it is your duty to
completely discard the evidence of the witness and certainly to disregard
it.
In so saying, he adopted the direction which was given and approved in R v
Harris ((1927), 20 Cr App Rep 144, CCA, 14 Digest (Repl) 337, 3281). But
in view of certain arguments addressed to us, we ought perhaps to add that
Harris case prescribed no rule of law. It simply provides guidance to a
judge as to the nature of the direction which he ought justly to give to a jury
in the circumstances mentioned. However, the learned judge having given
what everyone agrees was a right and proper direction as regards
Alexanders evidence in the present case, he went on to crode it so
completely and in such a manner as, in effect, we think, to cause a
miscarriage of justice. Thus, having referred to the divergence between
Alexanders evidence at the trial and what he swore at the preliminary
inquiry, he said to the jury:
His explanation for that is that he made a mistake... and it would be
for you to say whether in the particular circumstances of this incident,
and whether having regard to the type of individual Alexander is, you
are satisfied that it is a possible and reasonable explanation for why he
was saying at the preliminary inquiry that he did not recognise them and
why he was saying here he was able to do so. He gave evidence at the
preliminary inquiry some months after the incident, and I think it is only
reasonable to assume that you know how preliminary inquiries are
conducted. The witness is sworn, questions are directed to him by the
prosecutor to bring out his version of how the incident took place, and it
is possible for a witness in those circumstances to give an answer which

he did not intend exactly as it appears. And it may just be possible that,
when Alexander tells you here that when he said at the preliminary
inquiry that he did not recognise anyone he made a mistake, that may be
a true and honest explanation.... But, as I say, it is a matter for you to
decide whether it is a matter of substance and whether there is no
reasonable explanation for that difference, because if-and I must repeat
this-if a witness gives two diametrically opposed statements on oath and
there is no explanation, then you should completely discard the evidence
of that witness.
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:
there is no harm in a judge expressing in fairly forceful language, if
you like, what is in his mind so long as he leaves it absolutely to the jury

to make up their mind about it. That view has been expressed more than
once, but it was never intended to be a licence to judges ... to deliver a
complete prosecution speech, telling the jury what they suggest the jury
ought to do, what evidence they ought to find reliable, and then seek to
cover themselves by saying: Of course, it is for you members of the
jury.
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 Alexanders 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:
ask yourselves, is the story of Alexander and Johnson, and more so of
Alexander, so fantastic and unreliable? I venture to suggest that it is not,
but it is of course a matter for your consideration and in the final
analysis it is for you to say how it appeals to you. I suggest that if you
approach it in this manner you will see that it is not so fantastic... Let
us examine all the details of that afternoon and let us see if we do not
find that there is support for a great deal of what Alexander has said.
Leave alone for the time being what you think of Johnson.
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 caf
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 Alexanders evidence, he learned judge said:

Let us continue to see how much of it is supported by independent
testimony. Lezama, attracted by the commotion, came out and stood on
his wall, and Lezama tells you that while he was standing on his wall
(presumably the commotion having finished), he saw Alexander going
up Laventille Road from the direction of Rose Hill and he spoke to him.
So would that not connect with that Alexander had said? He said he
walked up Laventille Road. Alexander told him, Lezama, something,
Gentlemen, the rules of evidence do not permit him to say what it was,
but we are entitled as logical and intelligent men to draw our own
inferences; and whatever it was that Alexander told Lezama sufficiently
aroused Lezama so that he went back to his house, changed quickly and
set out in the direction of Rose Hill steps. On his way down there he
spoke to a little boy who gave him some information as a result of which
he went up the steps. He found Sample there and the two of them made
certain observations. Alexander told you that he saw men inflicting
injuries on Vincent in the gallery of that house. When Lezama arrived
there he found Vincent lying on the floor of the house suffering from
injuries. Would that not seem to connect with what Alexander said? At
least he knew that Vincent was injured and was in the gallery. Sample
said he saw a man going from the steps to the gallery. So would that not
fit in with the fact that Alexander knew that Vincent was there?
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 Alexanders evidence? Further, the fact is that Vincent was

injured and was in that gallery, and that is what Alexander said.
And he ended these comments by saying:
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.
A judge should be relied upon to be coldly neutral even when the
opinions which he expresses are strongly in favour of one of the parties. He
must be
422
strictly impartial, and no less so when the issue is between the subject
and the Crown. We agree that, neutrality notwithstanding, a judge may so
marshal the facts in his direction to the jury as inevitably to persuade. But,
in our opinion, there is a distinction to be drawn between persuasion by facts
and persuasion by a judge.
The amazing feature about the passages quoted is that the setting to
which the learned judge referred had nothing whatever to do with the
appellant Gomes or the prisoner Trotman: it related to an attack earlier that
evening by the deceased Vincent on the appellant Mills who reported it to
the Besson Street Police Station; that the coincidence of the three prisoners
putting themselves in the vicinity on which so much was said stemmed from
statements made by them that they were there in the afternoon whereas the
murderous attack occurred at some time near midnight; that neither Lezama
nor Sample spoke of seeing any of the prisoners anywhere at all that night;
that the defence was that none of the prisoners participated in or was present
at the commission of the crime; and that, as herein before stated, the

principal challenge to Alexanders evidence went to his recognition and

identification of the prisoners as parties to the crime.
Again, this court would adopt the language of Lord Parker CJ. We gave
to this matter most anxious consideration, but we feel that the learned judge:
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.
Appeal allowed, convictions quashed.