MILLS ET AL v.

R
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Citation # TT 1963 CA 72
Country Trinidad and Tobago
Court Court of Appeal
Judge Wooding C.J | McShine, J.A. | Hyatali, J.A
Subject Practice and procedure
Date November 22, 1963.
Suit No. No. 128 of 1963
Subsubject Trial by - Jury - Direction to jury - Summing-up - Credibility of principal
witness shown to be negligible - Rehabilitation of witness by judge in
summing-up - Whether misdirection - Facts: Appellants were convicted for
murder. At trial a key witness for the prosecution made two diametrically
opposed statements on oath. On appeal argued that judge should not have
suggested explanations for the contradiction in his summing-up - Held: 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. The summing-up in this
case goes far beyond what is permissible. The extent to which the witness 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. Appeal allowed.
Full Text WOODING, C.J.: 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 20th 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 trials 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 17th August 1961. They lived is the East Dry
River/Laventille area of Port of Spain. Her 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 (end of page 1) 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. At 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 20th August 1961.
The principal challenge to Alexander's 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 cross-examination 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 recognised 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".
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 (end of page 2) 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 oath - each 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 Rex v.
Leonard Harris 20 Cr. App.R. 144. But in view of pertain 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 Alexander's evidence in the present case, he went on to
erode 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 his
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 (end of page
3) 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 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 persons 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 music 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, C.J., in R. v.
Robert Blackley in the Court of Criminal Appeal on 18th March 1963 when he
said: (end of page 4)
"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 Alexander's evidence and the criticisms by defense 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 moreso 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 them 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 cafe 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 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?" (end of page 5)
Later, still referring to Alexander's evidence, the 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
what Alexander has 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 metro 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 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, (end of page 6) 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
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 Beeson 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 hereinbefore stated, the principal challenge to Alexander's 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, C.J. (end of page 7)
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
tilted 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 section 44(2) of the

Supreme Court of Judicature Act, No.12 of 1962. But we are satisfied that the
interests of justice do not so require. In our pinion, 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.