Judge clears Tobago man charged with brother's attempted murder

A TOBAGO man accused of attempting to murder his brother has been acquitted by a High Court judge who sat in the first virtual trial defended by the public defenders’ department.

On Wednesday, Justice Gail Gonzales delivered her ruling at the end of the judge-alone trial of Kerbin Holder.

Holder had opted for a trial by judge alone on November 5, 2020. The trial started on March 1 and ended on Wednesday, when the judge gave her decision as mandated by law.

In a release on Wednesday, Attorney General Faris Al-Rawi spoke of the case, saying it was one of the Government’s four pillars of criminal justice reform.

He said the case demonstrated the operationalisation of major reforms taken in the last five years aimed at enhancing the justice system. The four pillars are plant and machinery; people; process; and law.

The public defenders’ department was established in 2020, arising out of the need for legal representation for accused people in an increasingly saturated pool of criminal practitioners which had been identified as a long-standing and significant contributor to delays in criminal trials.

Chief Public Defender Hasine Shaikh was appointed on March 2, 2020, and the department consists of over 30 public defenders. Holder was represented by public defenders Stephen Wilson and Renee Atwell.

Al-Rawi also lauded virtual hearings and taking evidence virtually, a pipeline project which was forced into existence because of covid19. He said the virtual court has saved the State approximately $25 million in transport fees for remanded prisoners. The recently legislated Miscellaneous Provisions (Administration of Justice) Act 2020 provides for criminal trials to be held virtually using evidence given by audio and visual link.

The AG also mentioned the proclamation of the Miscellaneous Provisions (Trials by Judge Alone) Act in June 2017, choosing also to criticise the Opposition for resisting and obstructing the legislation.

“This judgment symbolises the realisation and amalgamation of the four pillars of justice reform,” the release said.

In her ruling, Gonzales said she was not satisfied beyond a reasonable doubt that Holder was guilty of attempting to murder Andrew Holder on July 3, 2009, at Belle Garden.

He was also on a second count of wounding with intent to do grievous bodily harm, in the alternative. He was acquitted of the alternative count since Gonzales said he was entitled to use self-defence as his defence.

Gonzales said to be liable for attempted murder there must have been an intention to kill. She also said to be liable for wounding with intent, there must be proof of an injury to the victim involving breakage of the skin.

In Holder’s case, self-defence was disputed. He testified that Andrew was about to strike him with a piece of metal and he struck out with a cutlass.

She said Holder did not have to prove his innocence, but the prosecution had to prove his guilt.

It was the State’s case that Andrew Holder approached his brother and asked to speak to him. Kerbin Holder walked away, and as he was doing so, Andrew pulled him and they began to scuffle.

They released each other and Kerbin ran to his father’s house while Andrew ran to his sister’s. Andrew saw Kerbin approaching him with a cutlass and went to close the gate between the two properties. It was alleged that Kerbin fired a chop at Andrew, who ducked and raised his hand. He was chopped between his thumb and little finger.

Kerbin was alleged to have continued his attack on his brother by swinging the cutlass, repeatedly telling him he was going to kill him and everyone.

It was also the State’s case that Kerbin pointed the cutlass at his sister, Alana, and told her,“Is you cause this, I want to kill you. Is you cause this. Is you I go chop.”

Andrew was said to have called out to his sister and she ran to a nearby store.

Kerbin left and then returned, broke a bottle and began approaching Alana.

Alana reported the incident to the police and they cautioned Kerbin. He also allegedly told police, “My brother was swinging an iron behind me so I had to defend myself.”

Kerbin pointed to a cutlass on the step and said, “That was the cutlass that I had with me when me and my brother Ding was fighting. Officer, I had to defend myself.”

Andrew had surgery on his hand and was hospitalised for four days.

The State called three witnesses, including Andrew and Ayana Holder.

Kerbin also testified and maintained his elder brother attacked him with a piece of iron. He said Andrew had approached him earlier, asking what took place between him and his sister. He told his elder brother, “Daddy done deal with that,” and Andrew grabbed him by the neck, warning him he would make him “taste his own blood.”

He said he ran but Andrew pursued him and then he saw him with the iron pipe in his hand, coming towards him.

He ran into his father’s yard and saw a cutlass on the step and when Andrew came and swung the piece of iron, he swung the cutlass, which made contact with the iron, sliding down, cutting his brother on the hand.

Gonzales said an accused can raise self-defence
where he believes it was necessary to use force to defend himself from an attack or an imminent attack.

“Even if Andrew was not armed, once he was approaching Kerbin, given what had just transpired Kerbin was entitled to ward off the attack. There being only one blow, no pursuit of Andrew and one injury, there is no evidence from which I can find that the response was not reasonable, especially where Kerbin was choked for almost ten seconds by Andrew just prior to this.

“Any 20-year-old in the position that Kerbin found himself in may have reacted in this manner in the face of an imminent attack

“The State, therefore, has failed to satisfy me beyond a reasonable doubt that Kerbin’s response was not proportionate to the threat,” Gonzales said in her ruling.

The State was represented by prosecutors Stacy Laloo-Chong, who is now a High Court Master, and Kezia Grey-Burkette.