Laventille man appeals 2019 murder conviction

A man sentenced to hang in 2019 for a 2006 murder has complained of his second trial.

Ijah Oba Braithwaite, of Eastern Quarry, Laventille, was convicted of the murder of Anthony McCarthy at Plaisance Terrace, East Dry River, Port of Spain, on May 16, 2006, while his co-accused Akera “Kera” Allsop was freed.

Mc Carthy was gunned down close to where he lived at Building No 3, Plaisance Terrace, East Dry River. He was returning from visiting his mother at her Laventille home when neighbours heard several gunshots and found McCarthy dead in a drain with ten gunshot wounds.

In his defence, Allsop claimed he was mistakenly identified and the identification parade held by police was flawed since the witness admitted she only saw his face briefly.

Braithwaite also advanced a mistaken-identity defence at his trial and fabrication, while the prosecution had contended that the witness was his cousin.

In his primary grounds of appeal, advanced by his attorney Wayne Sturge, Braithwaite complained that although arrangements had been made for a video link for the testimony of the State’s main witness from the United States, it did not happen.

Sturge said no reason was given and the morning of the trial, the State instead presented two applications that the witness would not be testifying out of fear and was out of the country.

Instead, the transcripts from the first trial and depositions given at the preliminary inquiry were used.

"It was expected the witness would testify from the US.” Sturge said the failure to have the witness testify and cross-examined by the defence, deprived Braithwaite of the opportunity to challenge her identification evidence.

Sturge said when the Court of Appeal, in its ruling on the first trial which led to a new trial being ordered, held the prosecution had relied too much on the fact that Braithwaite and the witness were related.

He said although they might have been cousins, the defence at the second trial did not get the opportunity to test their familiarity. He said the failure to have the witness testify by video link was tantamount to a manipulation of the court’s process since the legislation on the admission of evidence, provides for the State to take reasonable steps to find a witness.

"You took reasonable steps but abandoned them without cause… You give no explanation.” He also said there was no evidence to support the contention that at the time of the second trial, the witness was actually out of the country as the police relied on a WhatsApp conversation.

Sturge also complained of the failure by the trial judge to question the main jury panel after one of the jurors – on the second day of the trial – was discharged because they were from the East Dry River area.

He said the court had a duty to ensure fairness and that the judge found it sufficiently serious enough to discharge the juror, there was also a duty to ascertain if the minds of the other jurors on the panel were “poisoned” by any information that may have been shared with them.

“The jurors may have had discussions. Yes it is admirable to nip it in the bud, but it was necessary to find out there was a potential poison spread to the other jurors,” Sturge maintained.

He also complained of the conduct of the prosecutor at the second trial and an attack on defence counsel – he represented Braithwaite at the trial. He said the judge had a responsibility to stop the attack.

Sturge said the discrediting of defence counsel would have had a prejudicial effect on his client.

On the statements made by the prosecutor of the defence at the trial, special prosecutor Travers Sinanan said while it fell “far short of perfection,” prosecutors were entitled to be enthusiastic “but not go overboard.”

However, he said it did not reach the threshold of professional misconduct.

On the complaint of the judge’s failure to question the other jurors, Sinanan said the judge made the right enquiry, asked all the right questions and made the right decision to exclude the single juror from the panel. He said had she gone on to question the rest of the panel, it could have “raised a hornet’s nest” with jurors being given information they did not originally have.

He also could not say why attempts to provide a video link for the main witness was abandoned, but said it did not prejudice Braithwaite at his trial.

At the end of Thursday’s hearing, Justices of Appeal Alice Yorke-Soo Hon, Gillian Lucky and Malcolm Holdip asked attorneys to provide further submissions on the effect the failure to provide the video link to take the evidence of the State’s main witness had on the defence as well as the court’s use of the transcripts from the first trial and the depositions for the identification evidence.

Braithwaite’s appeal was adjourned to February 15.