Duporte v DPP
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Hariprashad-Charles, J.A. |
| Judgment Date | 06 March 2009 |
| Neutral Citation | KN 2009 CA 1 |
| Docket Number | Criminal Appeal No. 17 of 2006 |
| Year | 2009 |
| Court | Court of Appeal (Saint Kitts and Nevis) |
| Date | 2009 |
Court of Appeal
Edwards, J.A. (Ag.); Gordon, J.A. (Ag.); Hariprashad-Charles, J.A. (Ag.)
Criminal Appeal No. 17 of 2006
Dr. Henry L.O.S. Browne and Mr. Hesketh Benjamin for the appellant.
Mrs. Pauline Hendrickson, Director of Public Prosecutions and Mrs. Rhonda Nesbitt-Browne, Crown Counsel for the respondent.
Criminal law - Sentence — Death sentence for murder — Whether conviction unsafe and unsatisfactory — Whether directions on circumstantial evidence sufficient.
Evidence - Identification evidence — Murder — No identification parade — Whether admission of identification evidence unfair.
Hariprashad-Charles, J.A. [AG.]: On 26 th June 2006, the appellant Travis Duporte (also known as Darkman) was convicted of the murder of Sattora Williams (also known as Shakabee). He was sentenced to death by Belle J. on 20 th July 2006. He has appealed against both conviction and sentence.
The murder took place on the morning of 28 th June 2004 in front of Shakabee's house, close to his gate, in Sandown Road, Newtown near the capital city of Basseterre. Shakabee, then aged 17, lived there with other members of his family.
The following represents a summary of the case for the prosecution. At about 6 a.m. on the day of the incident, Shane Degrasse (also known as Toasting), a construction worker, was in search of something to eat. He saw Duporte (whom he knows as “Darkman”) in Manchester Avenue, Newtown coming towards him. Duporte approached him and asked to show him where “Sword” and “Shakabee” live. He told him that Shakabee lived down the road with his mother but he did not show him the exact house. Toasting said that at the time, Duporte was wearing a pair of short blue jeans pants, a black shirt and a white shirt over his head. He did not see Duporte with a firearm nor did he witness the shooting of Shakabee.
About half hour later, Ashton James, then 9 years of age, was at the water-pipe, close to Shakabee's house. He went there to fetch some water. While he was at the pipe, a man whom he described as slim and fair-skinned dressed in a pair of blue jeans, a black shirt with a white shirt over his head and carrying a black pistol came and spoke with him. He saw the man's eyes and mouth but was unable to recognize him. The man then went over to Shakabee's house. He called Shakabee who came out of the house. As Shakabee was going back inside, the man shot Shakabee in his back and he fell down. Ashton said that he jumped when he heard the gunshot. He then went through Sgt. Hector Alley. He was walking ahead of the man (who shot Shakabee) who came down the same alley. He looked back and saw the man putting the gun in his waist. At the Preliminary Inquiry, Ashton was asked whether the person who shot Shakabee was in court and he said no.
Kishama Tweed also gave evidence for the prosecution. She said that she knew Duporte for about 7 to 8 years prior to the incident. They attended the same school. Kishama stated that at about 6:30 a.m. on that day, Toasting and Duporte passed her on the road. They went straight to Sgt. Hector Alley. Shortly after, she went in search of her brother. She went down the road to Lower Pitcairn Street. Whilst there, she saw Duporte standing in front of Shakabee's gate. He was wearing a pair of jeans pants, black or blue and a shirt, black or blue with a white t-shirt on his neck. She did not see her brother so she went up the road. About 2 to 3 minutes after, she heard a gunshot. Then she saw ‘Travis coming up the alley with a white shirt on his head tied like a mask and fixing the pistol in his waist and when he reached back by me he put his hand them in he ear and shouted ah!’ She said that he was in the alley right in front of Sgt. Hector's house and she was by the alley facing Lower Pitcairn Street. She said that nothing was blocking her view of Duporte and when she saw him outside Shakabee's gate, he was alone.
Quincy Williams, the brother of Shakabee said that on the morning in question, Shakabee was in his room when he called out to him and told him something. As a result, Shakabee went outside to meet his “partner” who was standing by their mother's car which was parked by the gate. Quincy heard Shakabee and the “partner” speaking but was unable to discern the nature of the conversation. But, at one point Quincy heard Shakabee saying “don't play wid me, boy.” Shortly after, he heard a gunshot. He then saw Shakabee “holding his stomach” and running into their house. Quincy saw the face of the “partner” who was speaking with Shakabee by the gate. He saw that the “partner” was wearing a black pants and a shirt which he believed was red in colour. Quincy did not indicate whether the “partner” was Duporte.
Dr. Stephen Jones, a consultant pathologist at the Queen Elizabeth Hospital in Barbados also gave evidence for the prosecution. He performed the autopsy on Shakabee. He saw a single gunshot entry wound on the anterior chest, 9 cm below the sternal notch, 1 cm to the right of the midline. The corresponding exit wound was located on the posterior right chest, 26 cm from the top of the shoulder and 8 cm from the midline. He opined that Shakabee died as a result of the gunshot injury to the chest with haemorrhage and shock.
Shortly after the incident, Duporte gave a statement to Sgt. Dore which is exculpatory. He merely said “let me tell you where I was.” He spoke of being in carnival city.
Before this court, Dr. Browne advanced a multiplicity of grounds of appeal against conviction. Essentially, they raise the following issues: (1) whether there should have been an identification parade; (2) were the trial judge's directions on the identification evidence sufficient; (3) did the trial judge fail to direct the jury on the weaknesses and inconsistencies in the prosecution's case; (4) did the trial judge give sufficient directions as it relates to circumstantial evidence vis-à-vis direct evidence and (5) whether the verdict can be sustained having regard to the evidence. Issues (1) and (2) overlap so I will deal with them collectively.
Dr. Browne, dealing first with the appeal against conviction, placed at the forefront of his argument the fact that there had been no identification parade although no issue was raised at the trial about the lack of such a parade. Dr. Browne submitted that because of the inconsistencies in different descriptions given of the assailant, it was vital and necessary for the police to conduct an identification parade. He further submitted that the sole eye-witness should have been given an opportunity in an identification parade to identify the person who shot Shakabee. He contended that the failure of the police to conduct an identification parade amounted to a material irregularity and a miscarriage of justice.
The House of Lords in R v Forbes 1 agreed with the Court of Appeal in R v Popat 2 that in cases of disputed identification “there ought to be an identification parade where it would serve a useful purpose”. Lord Bingham of Cornhill opined:
“If an eye-witness of a criminal incident makes plain to the police that he cannot identify the culprit, it will very probably be futile to invite that witness to attend an identification parade. If an eye-witness may be able to identify clothing worn by a culprit, but not the culprit himself, it will
probably be futile to mount an identification parade rather than simply inviting the witness to identify the clothing. If a case is one of pure recognition of someone well-known to the eye-witness, it may again be futile to hold an identification parade.” 3
The Privy Council in Mark Anthony Capron v The Queen 4 and Goldson and McGlashan v The Queen 5 approved R v Popat.
In the present case, the sole eye-witness, Ashton, saw the eyes and the mouth of the man who shot Shakabee. He did not see his face because it was covered with a shirt. However, he was able to describe the clothes that the man was wearing. In either situation, it would be meaningless for the police to mount an identification parade. Then, there is unchallenged evidence that the two independent witnesses, Kishama and Toasting knew Duporte. In the case of Kishama, she had known him for many years. In this case, an identification parade is unnecessary as it will serve no useful purpose. Therefore, there was no material irregularity or miscarriage of justice in the trial in respect of this issue.
Learned counsel contended that the trial judge failed to properly put the defence concerning eye-witness identification evidence to the jury during the course of the summing-up. In particular, he submitted that the judge did not give the full warning envisaged in R v Turnbull. 6
R v Turnbull sets out several important guidelines which a judge should follow
during summing-up. Some of these guidelines are:
“First, whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such
witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as...
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