Death sentence overturned for Princes Town man who killed ex-wife

A Princes Town man who was convicted and sentenced to hang for killing his ex-common-law wife at a New Grant maxi stand in 2003 will be resentenced by the Court of Appeal.

Shawn Marcellin was successful in having his conviction overturned and substituted with manslaughter.

The Appeal Court’s ruling in Marcellin’s case now gives judges in the criminal division additional guidance on the defence of provocation.

In what is considered a landmark decision, Justices of Appeal Alice Yorke-Soo Hon, Prakash Moosai and Mark Mohammed directed that the previous guidance of a 2017 local case on the partial defence of provocation should no longer be followed.

Instead, they drew new guidance from a Hong Kong case.

Attorney Daniel Khan represented Marcelline and attorney Jagdeo Singh appeared for the Public Defenders’ Department (PDD).

The State was represented by Travers Sinanan and Wayne Rajbansie.

Marcellin was convicted in June 2014 for the murder of his ex-common-law wife Juliet Cummings on August 2, 2003.

At his appeal, Marcellin challenged the way the trial judge explained his defence of provocation to the jury that eventually convicted him.

At his trial, evidence of a previous domestic dispute was presented to the jury. Police were called after a neighbour saw Cummings with marks around her neck.

On the day of her death, Marcellin followed her into the maxi taxi she entered just before 7 pm. The driver heard her say, “Oh God, I tell you don’t follow me here.”

Marcellin asked three times if she had applied to the court for a maintenance order against him.

She initially said yes, but then told him no after he asked, “Why you have me in court for maintenance? You know when I working I does mind my children and them, and now I am not working I can’t mind them…Why you do that for?”

He then stabbed her 19 times.

Cummings died at the Nipdec car park, Princes Town, at the New Grant maxi taxi stand.

Marcellin told police Cummings repeatedly told him, “I go make a jail till I dead.” He did not remember stabbing her.

He testified at his trial, during which he raised the partial defence of provocation. He said months before, he had confronted Cummings about her infidelity. He also said his co-workers would taunt him about it.

He moved out after the choking incident and left money for his four children with her aunt. He said she refused to let him see his children, which left him hurt.

On the day of the killing, Marcellin was going to New Grant to take money for his children when he saw Cummings. He told her he wanted to see him and she refused.

They argued and he said as he was about to leave the maxi taxi, she slapped him. A scuffle took place and then he said he could not remember what happened afterwards.

He said all he remembered was the next day, his sister told him he had killed Cummings.

As fresh evidence at the appeal, Khan introduced a medical report from a forensic consultant psychiatrist who said Marcellin suffered from Graves’ disease, an autoimmune condition that attacks the thyroid gland, resulting in hyperthyroidism, known to cause an array of disturbances of mental function.

Khan argued that Marcellin’s mental abnormality at the time of the killing would have compromised his ability to exercise self-control and led to an excessive reaction.

In their ruling, delivered by Mohammed, the judges agreed the fresh evidence on diminished responsibility and provocation raised doubt about the safety of Marcellin’s conviction.

They also held that the trial judge’s misdirection on provocation had fatally compromised his conviction, which they substituted with manslaughter.

In the ruling, Mohammed said TT and Hong Kong were the few jurisdictions that retained provisions on provocation in their statute books which requires tribunals of fact to interrogate whether the provocation was “enough to make a reasonable man do as he did.”

“We are of the view that this is a matter which may require consideration by the legislative arm.”

The type of provocation Marcellin relied on was cumulative provocation, or, as it is sometimes termed, “slow burn” provocation. The Appeal Court held that the judge did not have to explain what this meant once the jury was told they could take into account the history of the provoking acts.

The trial judge did so, but where he went wrong was removing certain elements of provoking behaviour, including the earlier domestic event when Marcellin confronted Cumings on her infidelity, which started the period of estrangement from his children.

They advised judges to direct on the objective standard as adopted in the Hong Kong case.

They also made it clear this decision should not be seen as a reformulation of the two-stage test of provocation, which requires an assessment of the subjective and objective elements of the defence.

“A reformulation would, in any event, be impossible since the partial defence is governed by statute.”

Mohammed said any change to the concept would be a matter for legislative reform if considered appropriate.

Marcellin will be sentenced once the court receives reports from the prison and an updated psychiatric assessment.

Also representing him was Ula Nathai-Lutchman. The Chief Public Defender Hasine Shaikh and Khadija Sinanan also appeared for the department.