A Barataria man has lost the appeal of his conviction for murdering a neighbour more than two decades ago, despite the Court of Appeal finding some merit in his legal challenge.
In a majority ruling yesterday morning, Chief Justice Ivor Archie and Appellate Judges Alice Yorke-Soo Hon and Mark Mohammed affirmed Gabriel “Ninja” Joseph’s conviction.
On July 20, 2017, Joseph was convicted of the murder of Keon “Culture” Stewart at the end of his second trial.
Stewart’s murder took place on September 29, 2002, when he and his friends were at a spring on Coco Road, Laventille.
Stewart was washing his clothes at a makeshift pipe connected to the spring when Joseph and a group of men arrived. Joseph and another man left the location and when they returned, Stewart was arguing with one of their friends about causing the water from the spring to become muddy.
Joseph reportedly joined in the argument before taking a bath. Stewart reportedly picked up a stone but put it back down after telling Joseph he did not want any trouble.
After finishing his bath, Joseph reportedly retrieved a firearm and threatened one of Stewart’s female friends with it. Stewart tried to get between Joseph and his friend and was shot in the chest. He was taken to the Eric Williams Medical Sciences Complex in Mt Hope where he died almost a month later.
Justices Yorke-Soon Hon and Mohammed ruled that the judge who presided over Joseph’s trial should have raised the issue of provocation for the jury to consider.
“Although the issue of provocation was neither raised nor canvassed at the trial by either side, it was raised on the prosecution’s evidence and there was a reasonable, rather than a merely speculative possibility that the provoking conduct caused the appellant to lose his self-control and to act in the manner in which he did,” the judges said.
However, they decided against quashing Joseph’s conviction and ordering a retrial as they ruled that the judge’s error did not result in a substantial miscarriage of justice.
The judges said while the defence was possible, it would have inevitably failed.
“No reasonable jury, properly directed, would have concluded upon an evaluation of whether a reasonable man similarly circumstanced as the appellant, would have been so provoked as to form the intention to kill or cause grievous bodily harm to Culture and would have acted on that intention,” they said.
“In other words, on the totality of the evidence, the objective limb would not have been satisfied.”
CJ Archie delivered a dissenting judgment, in which he disagreed with his colleagues’ disposition of the case. He ruled that the judge’s handling of the case should not have been faulted.
“This was a very experienced judge. She did not mention provocation because there was nothing there,” he said.
He suggested that requiring judges to put unsustainable defences to a jury would make their jobs unnecessarily difficult and could lead to perverse verdicts.
“If that is the law, then it requires urgent legislative intervention. For me, the intellectual dissonance is unsustainable,” CJ Archie said.
Dealing specifically with Joseph’s case, CJ Archie said he felt Stewart’s conduct amounted to provocation.
“The bottom line is that after the deceased picked up the stone, he said he did not want any trouble and he put it back down,” he said.
Joseph was represented by Keith Scotland and Asha Watkins-Montserin. The Office of the Director of Public Prosecutions (DPP) was represented by Travers Sinanan, now deceased.