Third trial for Laventille man on 2006 murder charge as State concedes verdict unsafe

A concession by the State that the guilty verdict against a Laventille man at his second trial for a 2006 murder was unsafe has led to his successful appeal.

However, Ijah Oba Braithwaite, of Eastern Quarry, will face a third trial for the murder of Anthony Mc Carthy at Plaisance Terrace, East Dry River, Port of Spain on May 16, 2006.

In 2019, Braithwaite was sentenced to hang at his second trial. His co-accused Akera “Kera” Allsop was freed.

Mc Carthy was gunned down close to where he lived at Building 3, Plaisance Terrace, East Dry River. He was returning from visiting his mother at her Laventille home when neighbours heard gunshots and found McCarthy dead in a drain with ten bullet 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. 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.

On Tuesday, special prosecutor Travers Sinanan admitted there was a legitimate expectation that the State was going to use the video link and it was a surprise on the morning of the trial, that an application to admit the transcripts and depositions was made instead made by prosecutors.

“I will concede it should have been handled better by those handling the trial,” he said, admitting it would have had an effect on the “fairness” of the prosecution’s case.

“I accept the fairness was a fundamental issue. I am not going to try to mollycoddle the basic mistake. Even with the rest of the evidence, the matter would be tainted. That the strength of the case depends on this one witness is not disputed. There is a fundamental error in the trial process…Clearly, the verdict is unsafe,” he submitted.

After determining that the appeal would be upheld, Justices Alice Yorke-Soo Hon, Gillian Lucky and Malcolm Holdip invited submissions on the possibility of them ordering a retrial.

Sturge said one should not since the matter was almost 16 years old which, in effect, was a life sentence for his client and it was still uncertain if the evidence of the prosecution’s main witness will be available giving her unwillingness to testify even from the US via video link from a court there even if she had to turn into a hostile witness.

“It would be a waste of the court’s time while the accused is made to wait.”

However, Sinanan suggested giving the State an opportunity to contact the witness to ascertain from her if she would now be willing to give evidence by video link or otherwise.

This was accepted by the judges who said they also had to look at other factors as they balanced the public’s interest in the prosecution of serious crimes to ensure justice is done.

“The availability of the main witness is still unclear. I think the State’s request might be reasonable,” Soo Hon said as she ordered a retrial, adding that the issue of the availability of the witness was one best fit for a judge in the criminal court.

“The DPP has enough time to put things in place to determine the witness’s availability.”

Also representing Braithwaite at the appeal was attorney Danielle Rampersad.