Malick man loses murder appeal

A Malick man sentenced to hang for a 2002 murder at a spring at Laventille Road has lost his appeal.

While Chief Justice Ivor Archie and Justices of Appeal Alice Yorke-Soo Hon and Mark Mohammed unanimously agreed that Gabriel “Ninja” Joseph’s conviction was safe, they did not on the issue of provocation.

However, the judge applied what is known as the proviso which allows a court to dismiss an appeal if it considers no substantial miscarriage of justice took place despite having agreed that the point raised on appeal was in the appellant’s favour.

In Joseph’s case, Yorke-Soo Hon and Mohammed agreed the judge failed to leave the partial defence of provocation for the jury’s consideration, denying him the opportunity of a lesser conviction.

However, Chief Justice Archie did not agree that the issue of provocation arose in the case.

“I agree with my learned colleagues that the conviction and sentence for the offence of murder should be upheld.

“I also agree with the analysis and conclusions on all the grounds of appeal except for the issue of provocation.

“Although the majority is of the view that that issue should have been put for the jury’s consideration, they have concluded, as have I, that any reasonable jury, properly directed, would reject the partial defence of provocation.”

In his separate analysis, Archie said an overly cautious approach by an appellate court could shift the balance of justice unfairly towards an accused and could also serve to inhibit trial judges in “the delicate balancing act they must perform to ensure the fairness of the trial process.”

He also suggested possibly legislative intervention was required on the issue since he was of the view there was no evidence to support a defence of provocation.

Joseph, of Upper Seventh Avenue, was convicted by a jury in 2017, for the murder of Keon ‘Culture’ Stewart at Coco Road, Febeau Village, San Juan, on October 12, 2002.

It was his second trial and he was sentenced to hang by Justice Maria Wilson after the jury took less than an hour to return a guilty verdict.

Joseph went to bathe at a spring at Laventille Road in San Juan. Stewart and a group of neighbours were already at the spring when Joseph arrived. After being told to wait his turn, Joseph became angry and started to argue with Stewart and his friends.

“Anybody that want to live better run,” Joseph said as he drew a gun from a bag he was carrying and began shooting at the group.

Stewart was shot several times while his friends managed to escape and reported the incident to police. Stewart’s friends were placed in protective custody and testified against Joseph at the trial.

They claimed to have known Joseph before the incident and were able to point him out at identification parades.

Joseph claimed he was assisting in campaigning for that year’s general election at the time of the incident.

At his appeal, he was represented by attorneys Keith Scotland and Asha Watkins-Montserin while Travers Sinanan was the special prosecutor before his death.