Why I freed Coast Guard officer

Allum was committed by Chief Magistrate Sherman Mc Nicolls in the Port-of-Spain Magistrates’ Court in 2006 for the murder of Mohammed in August of that year.

After reviewing the evidence at the committal hearing, Henderson formed the view that the evidence was not sufficient to warrant a trial.

This decision has sparked protest among the Charlieville community that justice was not done.

In his letter to the Commissioner of Police dated May 2, Henderson explains his decision:

1. I refer to the death of Shazad Mohammed (“the deceased”) and the criminal proceeding arising therefrom in which Quincy Allum (“the accused”) is charged with murder.

The facts in this matter are well known. I have provided you with the complete proceedings from the Magistrates’ Court so that you may understand the basis of my decision in this matter.

FACTUAL BASIS OF CHARGE

2. The accused, a member of the Trinidad and Tobago Coast Guard was charged with the offence of murder on September 1, 2006. The evidential basis of the decision to charge was contained in the witness statements of Ishwar Ryait and Adesh Ramkissoon. Both civilian witnesses were on board the pirogue with the deceased when he was shot and killed.

3. In his statement dated July 28, 2006, Ishwar Ryait said, inter alia - “...ah see the driver and ah man with de gun in he hand to the back of the boat. Thy’s de man who shoot Shazad. He was standing. He reached across and tried to switch off Shazad engine and when he stretch he hand Shazad tried to push back his hand Shazad just hit it away. When he hit it away, de man fire de gun. Shazad did stand up when he hit away the man hand. Then Shazad did just fall to ground and start to bleed...”

Although he never pointed out the accused, the obvious inference is that Quincy Allum was the Coast Guard Officer who shot the deceased.

4. Adesh Ramkissoon said;

“....This same guy he shove by the engine by the stop button and Shazad push him off the engine and as Shazad push him all ah see is he use his left hand and pull something from his waist on the right and he raised his hand and point it in Shazad direction and ah heard ah loud noise and Shazad started to lean inside the boat and he fell backward into the boat and he landed on his back. Then when Shazad fall Avinash was in the back of the boat where the engine is then Avinash hold Shazad on the ground the boat was still running and then after when ah get up and ah watch dem in the back...”

The shooting took place after a high speed boat chase in which the Trinidad and Tobago Coast Guard and the Customs and Excise Marine Division were on a joint counter narcotics interdiction exercise.

5. The issues properly raised on the facts are whether this death was an unlawful killing. For the killing to be unlawful the prosecution must negative both self-defence and mistake of fact. Relevant to the issue of self defence is the Defence Act Chapter 14:01 which provides as follows:

“6.(1) An Officer, Petty Officer or man in command of any unit of the Coast Guard, in any case where he has reasonable cause to suspect that any vessel is engaged in any unlawful operation whatever within the territorial water of Trinidad and Tobago, may stop and board and search, with any assistance, any every part of such vessel and if he thinks it necessary may direct such vessel to proceed to such place as he may specify.”

(2) In exercise of the power conferred by subsection(1), such Officer or Petty Officer of man may-

(a)......;

(b) Use such force as may be necessary to compel a vessel to comply with any direction he may give as to such vessel’s movements.

EVIDENCE DISCLOSED

ON THE DEPOSITIONS

6. The case for the prosecution relies on the eyewitness accounts of the incident provided by Adesh Ramkissoon and Ishwar Ryait (who gave evidence using the name Avinash Ryait.)

7. The evidence on disposition was carefully reviewed. The main evidence for the prosecution at the committal proceedings was Adesh Ramkissoon. At pages 252 and 255 he described the shooting of the deceased in the following terms -

“Shazad was standing up when the man (the accused) reached to turn off the engine. After the man reached across to turn off Shazad’s engine, Shazad pushed away his hand. Shazad shoved away the man’s hand. Then after the fella pulled something from his waist and he point it at Shazad and he shot him. They were close to each other.” (my emphasis)

8. The other eyewitness who testified at the preliminary enquiry on behalf of the prosecution was Avinash Ryait. His evidence at pages 196-2000 of the committal proceedings was to the following effect:

“When the Coast Guard Zodiac was alongside the pirogue, the pirogue was tilted. It leaned on the side of the dinghy. Shazad was leaning and one of the man try to switch off the engine and he leaned. The man stretched out his hand and put it by the engine. Shazad was leaning and I wasn’t sure if he try to grab on to the boat to brakes the fall, but he push back the man hand. After Shazad pushed back the man’s hand they back balanced and the same time someone shot him. The person who fired a shot and shot Shazad was somebody in the boat, in the dinghy. Somebody to the back of the dinghy.” (my emphasis)

9. Assistant Superintendent of Police Harry also gave evidence at the committal hearing. ASP Harry’s evidence differed from that of his police statement. On his police statement in outlining the procedure employed while conducting the identification parade where the accused was pointed out by Adesh Ramkissoon, Assistant Superintendent of Police Harry said -

“I explained the purpose of the one-way mirror to the witness and asked him to speak loudly in the microphone saying what occurred on July 29, 2006 and he did so.”

This evidence was amplified at the preliminary enquiry. At pages 145-146 of the committal proceedings he said that at the Identification Parade, Adesh Ramkissoon, in describing the incident said, inter alia -

“He said they know, knowing that there were pirates at sea, they started the engine and attempted to speed off, when one of the persons got onto the vessel, there was a struggle with the deceased Shazad Mohammed and guard. He was shot in the head.” (my emphasis)

10. The evidence of a struggle between the deceased and the accused that is raised for the first time in the case for the prosecution also receives support from at least one defence witness. Jason Watts, one of the occupants of the Coast Guard Zodiac stated that one of the occupants of the pirogue was struggling with one of the occupants of the Zodiac, ie Shazad and Allum.

11. At the close of the prosecution’s case, the presiding Magistrate found that there was prima facie evidence against the accused. The accused tendered his own statement and also that of three (3) defence witnesses. They were Simon Roopchand, Jason Watts and Michael Diaz, all members of the Coast Guard present on the dinghy. Having considered all the evidence the Magistrate committed the accused to stand trial at the next Assizes.

12. It is not in dispute that the accused was engaged in the lawful execution of his duty. He was a member of a Coast Guard team on a joint exercise with the Customs and Excise Division, pursuing a vessel within the territorial waters of Trinidad and Tobago. Prior to embarking on the operation, there was a briefing with respect to the intelligence and having regard to the nature of the information, the men on the operation were armed (see depositions p 87 line 28). It was suspected that this vessel was engaged in an unlawful activity. The Coast Guard Officers attempted to apprehend the occupants of the pirogue. It is also undisputed that the deceased and the other occupants of the pirogue were engaged in lawful activity, fishing at the time of the incident. The occupants of the pirogue laboured under the mistaken belief that they were being attacked by bandits at sea and were attempting to flee what they perceived to be a criminal attack.

13. The examining Magistrate committed the accused to stand trial. The issue that falls for resolution at this stage is whether there is sufficient evidence to indict the accused for murder of whether on a closer analysis of the proceedings, I should exercise my power pursuant to Criminal Procedure Act, Chap 12:02 to nolle prosequi this matter. In directing my mind to this issue and in the exercise of my powers under section 90 of the Constitution, I am guided by several factors, not limited to but including matters expressed by Lord Bingham of Cornhill in R v Director of Public Prosecutions ex parte Manning (2000) WLR 463.

“...In most cases the decision will turn not on any analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences.” (my emphasis)

In this case two (2) issues arise on the evidence, ie, Self-defence and Mistake of Fact.

SELF-DEFENCE

14. On the instant facts there is no dispute as to whether the accused killed the deceased. The issue is whether when he killed the deceased, he did so in lawful self-defence. The law in this regard is well settled.

“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion on the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction.” (Palmer VR[1971] AC 814 per Lord Morris, at pp 831- 832) cited in Archbold, 2007 para 19-41. In my view given the particular fact disclosed on deposition, self-defence, while an issue for the jury is difficult to negative.

MISTAKE OF FACT

15. On the facts disclosed on the committal proceedings, mistake of fact also arises. The following passage extracted from Archbold supra, para 19-49 is also apt -

“The ordinary doctrine of mens rea (ante, 17-10 et seq) applies to exculpate a person who acts, or who may have acted, under a genuine mistake of fact: see R v Williams (G), 78 Cr App R 276, CA, and R v Beckford [1988] AC 130, PC, ante, 17-16, 17-17. The reasonableness or otherwise of the mistake is a factor to be taken into account when determining whether the mistake was or may have been a genuine one. Thus, where a defendant is neither under threatened or actual attack, but honestly believed that he was, the jury should be directed to consider whether the degree of force used was commensurate with the degree of risk which he believed to be created by the attack under which he believed himself to be: Rv Oatridge, 94 Cr App R 367, CA.”

CONCLUSION

16. I have read and considered all of the evidence contained in the committal proceedings. I have read the evidence as led by the prosecution as well as that adduced by the accused through Counsel.

17. Having regard to the foregoing facts as disclosed, and applying the above mentioned legal principles, it is my informed view that, although self-defence and mistaken belief are jury issues, that in this case the prosecution will not be able to negative the issue of self-defence, nor can it show that the accused did not honestly believe that he was under some threatened or actual attack that required immediate defensive action.

Notwithstanding that there were other men on the Coast Guard vessel, this was a situation where:

(i) there was an intelligence/

operational briefing before the exercise and as a result of this, persons on the exercise were provided with firearms;

(ii) there was a high speed boat chase and the occupants of the pirogue gave the appearance of trying to evade arrest;

(iii) the boat was eventually intercepted and boarded by the accused;

(iv) at the time that the pirogue was intercepted, the accused firearm was not drawn;

(v) the pirogue was leaning at the time that the accused attempted to switch off the outboard engine of the pirogue;

(vi) the deceased appeared to strike the accused/there appeared to be a struggle;

(vii) there were two (2) other occupants on board the pirogue with at least one at quite close quarters;

(viii) the incident occurred at night in open waters situated in the Gulf of Paria

(ix) having been struck/shoved by the deceased, the reaction by the accused was immediate

In arriving at this position, I appreciate that on an analysis of the legal principles of self-defence, this is a jury issue. I have also considered how a case against this particular defendant would fare. I have directed my mind to the case of the State vs Dave Burnett and find that the facts in that matter are easily distinguished. In the exercise of my informed judgment of how the case against the accused would proceed, taking into account the defence raised and the submissions made at the committal hearing, I have come to the conclusion that the prosecution’s case would be tenuous and that the accused ought not to be indicted. In those circumstances, I have filed a Nolle Prosequi, a copy of which is enclosed for your records.

Geoffrey Henderson

Director of Public Prosecutions