DEREK ACHONG

The Court of Ap­peal had be­gun to hear sub­mis­sions in the ap­peal of five men con­vict­ed of kid­nap­ping and mur­der­ing busi­ness­man Dr Ed­ward Koury. 

Lawyers rep­re­sent­ing Caleb Don­ald­son, Jerome Mur­ray, Robert Franklyn and Ter­ry Moore be­gan pre­sent­ing their sub­mis­sions in their ap­peal dur­ing a hear­ing be­fore Ap­pel­late Judges Mark Mo­hammed, Ron­nie Boodoos­ingh, and Maria Wil­son at the Hall of Jus­tice in Port-of-Spain, yes­ter­day. 

The five men were charged with kid­nap­ping and mur­der­ing Koury on Sep­tem­ber 21, 2005. Koury was at his im­port and dis­tri­b­u­tion com­pa­ny lo­cat­ed in the Ma­coya In­dus­tri­al Es­tate when four men en­tered and de­mand­ed guns and mon­ey. He re­sist­ed and was stabbed in his leg be­fore be­ing tak­en away by the men. 

Two days lat­er, his head­less corpse was found in an aban­doned cit­rus plan­ta­tion in cen­tral Trinidad.

Dur­ing their tri­al be­fore for­mer High Court Judge and cur­rent Ap­pel­late Judge Mal­colm Holdip, State pros­e­cu­tors claimed blood stains were found on Don­ald­son, Moore and Mur­ray’s shoes when they were ar­rest­ed hours af­ter Koury was ab­duct­ed.

The blood was even­tu­al­ly linked to Koury through DNA test­ing. A gun al­leged­ly found at the same house was al­so matched to spent shell cas­ings re­cov­ered at Koury’s of­fice. 

Franklyn, a for­mer po­lice of­fi­cer whose wife worked as Koury’s per­son­al as­sis­tant, was al­leged to have rent­ed a car used in the kid­nap­ping as Koury’s DNA was not ex­clud­ed from a sam­ple tak­en from a rear head­rest. Franklyn al­so al­leged­ly made a call to a for­mer col­league as­signed to the E999 com­mand cen­tre to make a re­port on Koury’s ab­duc­tion. 

Pros­e­cu­tors pre­sent­ed a state­ment al­leged­ly signed by James in which he de­tailed his in­volve­ment in the kid­nap­ping and claimed he was stuck with the stolen taxi used to trans­port Koury’s body. 

James, whose par­tial fin­ger­print was al­leged­ly found on a cash pan in Koury’s of­fice, claimed he drove to Mos­qui­to Creek where he chopped Koury’s head off and threw it in­to the sea. He then dumped the re­main­der of Koury’s body. 

Pros­e­cu­tors re­lied on a sec­ond post-mortem by pathol­o­gist Dr Sha­hee­ba Bar­row at the re­quest of Koury’s fam­i­ly. 

Dr Bar­row sug­gest­ed that Koury died from haem­or­rhag­ic shock from blood loss caused by a sin­gle stab wound to his thigh and was al­ready dead when he was de­cap­i­tat­ed. De­fence lawyers re­lied on an ear­li­er au­top­sy by foren­sic pathol­o­gist Dr Hughvon Des Vi­gnes, who claimed Koury died from a wound to his neck which sev­ered his spine. 

Don­ald­son’s lawyer Ra­jiv Per­sad, SC, said the judge did not prop­er­ly di­rect the ju­ry on how to con­sid­er the di­a­met­ri­cal­ly op­posed med­ical opin­ions.

 He said their de­ci­sion to up­hold Bar­row’s find­ings in­flu­enced their de­ci­sion to find the men guilty based on their en­gag­ing in a joint en­ter­prise. 

He said Des Vi­gnes meant that James was sole­ly re­spon­si­ble for Koury’s mur­der. 

“You must make a find­ing on one or not ac­cept ei­ther,” Per­sad said. 

He said based on the ev­i­dence the oth­er men could on­ly be con­vict­ed of felony mur­der, un­der which the manda­to­ry death penal­ty for mur­der is waived. 

“At its high­est, it was a plan to kid­nap and rob not to kill,” he said. 

Per­sad al­so com­plained about the judge’s de­ci­sion to take al­most two weeks to sum­marise the le­gal and ev­i­den­tial is­sues for the ju­rors. 

Don­ald­son’s oth­er lawyers, Karunaa Bis­ram­s­ingh and Shane Pa­tience, chal­lenged oth­er as­pects of the case in­clud­ing the way the judge dealt with the DNA ev­i­dence pur­port­ed­ly link­ing the men to the crime.

Franklyn’s lawyer Wayne Sturge claimed James’ ev­i­dence could not be re­lied up­on to con­vict the co-ac­cused. 

“There is no ev­i­dence to sug­gest that Franklyn was one of five per­sons at drop off point . . . The judge in­vit­ed the ju­ry to spec­u­late,” he said. 

He al­so claimed that cir­cum­stan­tial ev­i­dence of Franklyn rent­ing the car did not prove that the men had a shared in­ten­tion to mur­der Koury. 

“The ju­ry may con­clude that he rent­ed this car for this ad­ven­ture to kid­nap and rob. Un­less he was present and aware of the facts you could not in­fer joint en­ter­prise,” he said. 

Pre­sent­ing a sub­mis­sion for James, Daniel Khan chal­lenged the judge’s de­ci­sion to al­low the al­leged con­fes­sion state­ment in ev­i­dence. He claimed the judge wrong­ly dis­missed claims that James was co­erced by the po­lice in­to con­fess­ing. 

He al­so claimed the of­fi­cer made promis­es to James in ad­di­tion to ar­rest­ing and de­tain­ing his moth­er while he was Ap­pin po­lice cus­tody.

The Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) is be­ing rep­re­sent­ed by Wayne Ra­jbanse and Danielle Thomp­son. 

 The ap­peal is ex­pect­ed to con­tin­ue to­day.