By JADA LOUTOO Wednesday, July 4 2012
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Chief Justice Ivor Archie...
SHOULD a trial judge have admitted oral evidence from a police officer and invite the jury to infer that a man, accused of killing a taxi driver in 2004, had intentions of fleeing the country to Grenada, without the ticket having been produced at the trial?
This is one of the questions the Court of Appeal will have to answer in an appeal against conviction filed by Tabaquite resident David Donald. Donald has advanced several grounds of appeal which were argued by his attorney Evans Welch before Chief Justice Ivor Archie, and Justices of Appeal Alice Yorke-Soo Hon and Rajendra Narine.
It is Welch’s contention that to allow the jury to infer on the contents of the ticket — that Donald allegedly intended to flee to Grenada — went against the hearsay rule, especially since the ticket was never produced in court during the trial before Justice Herbert Volney.
Volney resigned from the bench to join the United National Congress (UNC) and was later elected as the Member of Parliament for St Joseph. He is at present the Justice Minister in the People’s Partnership coalition government.
Welch faulted the judge’s handling of the case as it related to admitting the evidence on the ticket as well as excluding Donald from a part of the trial, after he made an outburst in court in the jury’s presence.
Donald has said he does not know what caused him to do so, and an affidavit has been presented to the appellate judges, who will decide on whether they will allow it to form part of the appeal.
Welch also contended the trial judge potentially prejudiced his client’s trial by enquiring from the jurors whether they could deliberate on a verdict fairly, following Donald’s outburst. The attorney also said the judge should not have allowed the jury to retire to deliberate on the same day the incident took place, since at least three of the jurors expressed shock and indicated that their concentration had been broken.
“It was a trial of a capital nature and a jury trial. The judge should have adjourned the case at least to the next day,” he said. In her reply, Dana Seetahal SC, who was asked to address the court on the issue of admitting hearsay evidence as it related to the airline ticket, argued that it formed part of the circumstantial evidence in the prosecution’s case and was not relied upon for the truth of its contents.
She said the production of the ticket would have only gone to the credibility of the police officer and whether the jury believed that the item was found on Donald. But she noted that it was only part of the evidence advanced by the state in the case, as the State also had a full confession and an oral admission.
“It was not hearsay evidence but was circumstantial evidence which was permissible,” she argued. Donald of Brothers Road, Tabaquite was found guilty of the murder of Tabaquite taxi driver Ramesh Seelochan by a 12-member mixed jury in the San Fernando First Criminal Court. He was charged with murdering the 34-year-old driver between August 8 and 12, 2002, at Rio Claro.
Seelochan’s body was discovered in a teak field off the Tabaquite Main Road with a single gunshot wound to the head. Donald claimed the gun went off accidentally. The judges will give their decision at a later date. Criston Williams also represented Donald at the Appeal Court.