1. Leroy Langford 2. Mwanga Freeman Appellants v The State Respondent
| Jurisdiction | Dominica |
| Judge | Matthew J.A.,D'Auvergne J.A. (Ag.),Redhead J.A |
| Judgment Date | 05 June 2001 |
| Judgment citation (vLex) | [2001] ECSC J0605-1,[2001] ECSC (DMA) J0605-1 |
| Court | Court of Appeal (Dominica) |
| Docket Number | CRIMINAL APPEALS NOS.8 and 9 OF 2000 |
| Date | 05 June 2001 |
IN THE COURT OF APPEAL
The Hon. Mr. Justice Albert Redhead Justice of Appeal
The Hon. Mr. Justice Albert Matthew Justice of Appeal
The Hon. Madame Justice Suzie d'Auvergne Justice of Appeal (Ag.)
CRIMINAL APPEALS NOS.8 and 9 OF 2000
Mr. Lennox Lawrence and Ms D. Yearwood for Appellant No.1
Mr. Marcus Foster for Appellant No.2
Ms O.Edwards, Director of Public Prosecutions, for the Respondent
Ossie Osmond Charles met his death on the evening of October 28, 1998 about 11.00 p.m. following a pounding of stones to his chest in Roseau just outside the Chambers of Dame Eugenia Charles. He was a 38 year old black male. He was taken from the location by ambulance to the Princess Margaret Hospital where he was seen by the night duty doctor, Dr. Niniola Aderigbe, who saw no sign of life on him and pronounced him dead at about 11.20p.m.
Dr. Peter Bellot, the pathologist attached to the hospital, performed an autopsy on the body of Ossie Charles on October 30,1998. His internal findings included the following:
(a) a fracture of the left 5 th rib laterally;
(b) a left haemothorax, which is blood in the left chest cavity; and
(c) pleural lacerations of the left upper and lower lobes as well as parencymal contusions with extensive intra pulmonary haemorrhage.
In his opinion the cause of death was due to the left haemothorax which was secondary to chest trauma including the rib fracture. He said further, if a person or persons were fighting with the Deceased and striking him with stones that could cause the trauma he described.
The Crown's case before the trial Judge was that the Appellants and another unidentified man were responsible for beating the Deceased on the night in question. They were tried before Cenac J. and a Jury and on June 28, 2000 verdicts of guilty were returned against both Appellants. The Judge then handed the sentence of the Court, Death by Hanging.
Both Appellants have appealed against their conviction and sentence. Although the Appellants were separately represented, they presented joint submissions with respect to their appeals. A number of grounds of appeal were submitted by each Appellant but before us four main issues were raised as follows:
(a) Identification;
(b) Alibi;
(c) Hearsay evidence;
(d) Verdict unsafe and unsatisfactory.
I shall deal with these issues seriatim.
It cannot be denied that the central issue in this case against the Appellants is one of identification, and in particular the identification of the Appellants on the night of October 28,1998 by the Prosecution's main witness, Joseph Alexander.
Some scrutiny should then be given to the evidence of Joseph Alexander. Alexander said that he had known appellant No.2 for three years before the incident and was accustomed to seeing him at Goodwill by the Savanah. He said he also knew Appellant No.1 with whom he went to the Roseau Boys' School for about 9 to 10 years until the time of the incident. So clearly that was not a fleeting glance case if Alexander is to be believed.
He said on the night of October 28, 1998 about 11.30p.m. he was coming from Soufriere and then reached by the Royal Bank of Canada and subsequently into Cork Street and saw both Appellants at Cork Street below Miss Charles' office where he saw them beating up Ossie. He saw three men running after Ossie. He saw they held him and tried pushing him in the road whilst he was coming down with the vehicle. He said he was driving a car at the time. He stopped. He saw they had stones in their hands beating Ossie with the stones. All three had a stone in each hand beating him with the stone. He reversed his vehicle higher up by Mr. Seignoret's house and remained in his vehicle.
From that spot he stayed and saw them beating Ossie, kicking and cuffing him. Ossie was standing when they were beating him and said "please man what are you beating me for, chill out". He said Ossie was standing until he got a last blow and fell at the front of a Fed Ex Suzuki vehicle and they kicked him under the vehicle. He said he saw both Appellants clearly. Alexander did not recognize the third person. After Ossie was kicked under the vehicle they left.
Under cross-examination by learned Counsel for Appellant No.1 he said he was driving on Cork Street towards the sea when he saw the men beating Ossie. He then reversed by Mr. Seignoret's home where he continued to see the beating. He said Langford was wearing a short pants, probably khaki and a gray T-shirt. This was an obvious discrepancy in his testimony because on the previous day he said Langford was wearing a brown shirt. Later he said he told Langford he was wearing short pants and a white T-shirt.
Under cross examination by learned Counsel for Appellant No.2 Alexander said he had told the Magistrate that he knew Freeman for about a year or so and that meant he had known him for more than a year. He explained that he got to know Freeman in the course of his work. He said he could sit in his car by Mr. Seignoret's home and see what was happening in front of the Fed Ex bus, a distance of 150 feet away. He said all three men had "locks" that night. He said he told the Magistrate Freeman was wearing a short khaki pants and a black T-shirt.
When Alexander gave evidence in chief he said that on the night of October 28 Freeman had short pants and black T-shirt and had locks at the time. At the police station three weeks later when he confronted Freeman he no longer had locks. The day after the incident on October 29, 1998 Alexander had given Inspector Laudat a statement and later in-the day he told the Inspector in the presence of Langford that Langford was one of the men he saw beating Ossie. Three weeks later he made a similar confrontation of Freeman.
There is no doubt that there were many discrepancies in the testimony of Alexander as regards the clothing of the Appellants on the night in question and the Director of Public Prosecutions must have realized this for upon reexamination Alexander answered "apart from the clothes the accused were wearing I was able to identify them by their faces."
In answer to the Jury, Alexander said there were lights in the area that night — a lamp post by Mr. Seignoret's house; one post after Miss Charles' office; Charles Drug Store sign; lights from under Ms Charles' office.
Another Prosecution witness supports to some extent what Alexander says. She is the witness Rosalind Bridet. She knows Langford and she knew Ossie Charles. On the night in question she left home with her daughter to go for a walk about 10.00p.m. and returned home about 11.00p.m. Straight away there is a discrepancy as regards time for Alexander puts the incident to be about 11.30p.m. But Bridet saw the fight going on while she was standing a block away. She saw three guys beating up one guy in the same location described by Alexander. She did not recognize who the three guys were. She said after the fight the three guys ran up Cork Street and later after the ambulance arrived she recognized the man lying on the road as Ossie. So it can safely be said she is speaking of the same fight Alexander spoke of, save that she did not recognize any of the three assailants.
There is an apparent discrepancy with Alexander as to the route the three men took before the fight but I do not consider that material. As regards lighting, Bridet said: "I was able to see how the men were dressed from the vehicle lights and lights from the business places, City Drug Store. There were no street lights around where she was standing. She said one of the men was wearing a black Jamaican style T-shirt with a short white pants and the other two guys were wearing beige T-shirts whitish, short pants.
The complaints made about the Judge's summing up were as follows:
(a) Judge failed to direct the Jury on specific weaknesses in the identification evidence of Alexander;
(b) No direction on the length of time Alexander had Appellants under observation;
(c) No direction as to the point at which Alexander identified Langford or Freeman;
(d) No direction as to the obstruction oi the view of Alexander by the Fed Ex bus;
(e) No where did the learned Judge inform the Jury that even in cases of recognition the witness may be mistaken.
(f) The Judge did not give the Jury the reason why they must be cautious; and
(g) Judge never told the jury the prudence of the identification parade; the Appellants should have been placed on an identification parade.
I turn to examine the Judge's summing up on identification. The learned Judge begins that part of his summing up with the special need for caution. He says:
"I deal now with the subject of identification. It is very crucial to this case. Because this is a trial where the case against the two Accused depends wholly on the correctness of one or more identification of them which the defence allege to be mistaken. I must therefore warn you of the special need for caution before convicting the two Accused or any one of them in reliance on the evidence of identification".
He then proceeds to state that an honest witness can make a mistaken identification. He continues "That is because it is possible for an honest witness to make a mistaken identification. There have been wrongful convictions in the past as a result of such mistakes. An apparently convincing witness can be mistaken. So can a number of apparently convincing witnesses."
The learned Judge follows this by the admonition to the Jury that they must examine carefully the circumstances in which the identification by each witness, and in this case the sole Prosecution witness, Joseph Alexander, was made and he lists some of the circumstances as -
(a) How long did Alexander have the Accused or...
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