Port of Spain man wins murder appeal

A retrial has been ordered for an east Port of Spain man who was convicted of murder in 2016.

On Wednesday, Justices of Appeal Alice Yorke-Soo Hon, Gregory Smith and Malcolm Holdip allowed Hakim Brathwaite’s appeal on the second of five grounds of appeal, setting aside his conviction and his death sentence.

Brathwaite was charged with the murder of Kevin Miguel Williams on the morning of April 17, 2008. Williams was shot four times to his head and upper body.

At his trial, prosecutors advanced evidence from Insp Kester Billy who testified he saw Brathwaite, whom he knew as Gargamel, standing over a man, pointing a gun at his head before firing the weapon.

Billy was on his way to work at the St Barbs police post when he heard several loud explosions coming from the Plannings buildings at Old St Joseph Road and went to investigate.

The officer’s testimony was that he and Brathwaite stared at each other for three to four seconds before the latter ran off. Billy did not pursue him but walked into the Plannings and called emergency responders.

He returned to the scene, preserving it until the police arrived. Brathwaite was first arrested on April 21, 2008, and released three days later before being held again by police.

Billy pointed him out at a verification exercise. The officer claimed he had known Brathwaite for ten years from patrolling the Besson Street area and would see him some five to six times each month while speaking to him on occasion.

At his trial, Brathwaite testified and called his common-law wife as his sole witness. His defence comprised fabrication, alibi and mistaken identity.

He claimed he was at home with his common-law wife, his stepdaughter and daughter. He denied going to the Plannings at Old St Joseph Road or killing Williams, whom he knew as “Pongo.”

He said Billy could not have known him for ten years since he spent his early years at the St Michael’s Home for Boys after which he was committed to the Youth Training Centre where he stayed until 2001.

Brathwaite said after his release at age 19, he went to live with his mother and was later incarcerated for two years, after which he moved into his apartment at Foster Quevado Circular, which he later shared with his common-law wife.

He said he only came to know Billy in 2005 as “Billy the Bear” after he was arrested and charged for using obscene language and resisting arrest. He said whenever he saw Billy, the senior officer would provoke him and tell him, “Gargamel, like you ent gone to jail yet, just now you going dey.”

Brathwaite’s successful ground, advanced by his attorneys Peter Carter and Aleena Ramjag, was that the trial judge failed to direct the jury on how to approach Billy’s evidence since the two previously had a “verbal altercation” which resulted in his arrest.

Carter argued if the jury accepted Brathwaite’s evidence of his acrimonious history with Billy, a senior officer with power and influence, then it was open to them to find that the police officer displayed a degree of prejudice towards his client. He also argued that since there was no other evidence corroborating Billy’s “identification” of Brathwaite, fairness dictated that the jury should have been directed to approach his testimony with care as he may have been a witness with an interest to serve.

In their ruling, the judges said, “In this case, the judge directed the jury that there was ‘beef’ between the parties and its relation to the appellant’s account as to why Insp Billy had fabricated the case against him.”

However, they said while a judge has the discretion to decide whether to give a “care warning” and the terms of such a warning, “based on the circumstances of this case, more was required.

“...The judge barely raised the issue as to whether Insp Billy had an interest to serve (because of prejudice or spite towards the appellant and a motive to lie) but went no further.

“She ought to have to have directed the jury to approach Insp Billy’s evidence with care before they accepted it.”

In ordering a retrial, the judges directed that it be held at the earliest available opportunity.

Yorke-Soo Hon said although the prosecution’s case stood or fell on certain evidence, it was still strong.

She also said a retrial would not give the State an advantage or a “second bite of the cherry” as Carter submitted, since the Appeal Court’s ruling merely provided guidance.

Yorke-Soo Hon further noted that gun violence was “prevalent and quite alarming” and should not be treated lightly by a court.

“Any killing... A deliberate killing cannot be diminished…This was a cold-blooded killing on the evidence.

“...A gun was pointed to the head of the deceased and that ought to shock one’s consciousness.

“A retrial will not be oppressive.”

The State was represented by deputy Director of Public Prosecutions Joan Honore-Paul and acting DPP Sabrina Dougdeen-Jaglal.