Travis McDougall, who is currently serving a 25-year sentence for the shooting death of businessman, Ashok Raghoo, is of the view that the judge who conducted his trial made implications to the jury that he (McDougall) needed to prove his case to them.
In his challenge before the Guyana Court of Appeal, the Appellant is also contending that the sentence imposed upon him is too excessive, when compared with what he described as comparable cases to his.
At the hearing of the appeal last Friday, attorney Narissa Leander who represents McDougall, said that trial judge Navindra Singh in his summation of the case placed some of the burden of proof on the Appellant and not the prosecution as is required by law.
She said the judge had told the jury that the things the then-accused would have said to them did not have to be proven “beyond a reasonable doubt.”
Leander said that what this in fact implied, is that her client had something to prove – just that it did not have to be proven with the same beyond reasonable doubt standard – as is required by the prosecution.
Acting Chancellor Yonette Cummings-Edwards however pointed to the record of appeal where the judge had repeatedly admonished the jury that the accused had absolutely nothing to prove and that at all material times that duty rested with the prosecution.
The Chancellor then enquired from Leander whether she was “cherry-picking” aspects of the summing-up as she found convenient to her.
Leander responded that she was not.
She argued that the judge did indeed repeatedly caution the jury that the burden of proof rested with the prosecution; but maintained her contention that the seeming implications he made may have caused the jury nonetheless to believe that some amount of that burden still rested with the accused – just not at the level required for the prosecution.
Meanwhile, State Counsel Natasha Backer argued that the directions given by the trial judge were more than adequate.
To this end she said that Justice Singh went even further to tell the panel that where it disbelieves the story of the accused, that alone was not enough to convict him as he had nothing to prove, only the prosecution.
That burden she said the judge made clear to the jury, remains with the prosecution throughout the trial and never shifts.
Leander asserted however, that the burden seemed to have been placed on her client to prove his defence, while arguing that even in light of the several admonitions to the jury, the damage had have already been done and therefore could not cancel any perceived misdirection.
Backer however, rebutted by pointing out that the judge went even further to explain to the panel that any person charged enjoys the presumption of innocence until the prosecution proves beyond a reasonable doubt that they are guilty, and the jury so finds in a case such as this.
She added that the judge even explained to the jury that if they found the accused guilty, it must be on the strength of the prosecution’s case and not on the weakness of his own, as he had nothing to prove
The prosecutor iterated that the jury was repeatedly told that the defence had nothing to prove.
Meanwhile, in addressing the issue of sentencing, Leander argued that the aggravating factors in the case law authorities she cited, were worse than those of her client’s case, yet the convicts in those matters were afforded lesser sentences than was given to the Appellant.
Backer argued, however, that the cases could be distinguished.
She argued that present in the case laws was some sort of provoking factor from the deceased; while noting that in Mc Dougall’s case, Raghoo was “viciously and unjustifiably attacked.”
In those circumstances she said the State does not share the view that the sentence was excessive.
With hearings complete, the appellate court has indicated that it will reserve its ruling for a date to be announced.
The appeal was heard by the Chancellor and Justices of Appeal Dawn Gregory and Rishi Persaud.
Back in 2017, a jury had found McDougall guilty in a majority of 10-2 on manslaughter, for the unlawful killing of the businessman during a robbery on August 18, 2014 at the Vlissingen Road and Regent Street traffic lights.
McDougall’s story was that he had nothing to do with the commission of the offence and was elsewhere at the time. His caution statement, which was admitted in evidence, however, said he told police that he had ridden the motorcycle from which the shooter had dismounted.
In a notice of appeal, he contends that Justice Singh misdirected the jury on the law and elements of alibi, and failed to adequately direct them on the law and requirements of identification.
He also contends that the judge “wrongly” admitted his caution statement into evidence and allowed hearsay evidence to be admitted by allowing witnesses to testify about the content of a video tape that was not admitted into evidence and not made available to the defence.
Wife of the deceased, Shirzaydah Raghoo, in her testimony, had identified McDougall as the rider of the bike from which the killer gunman dismounted. She had told the court that she clearly saw the faces of both McDougall and the shooter.
Raghoo had recounted that Ashok, who was a miner, had travelled from the interior some days before he was killed, and had gone to the Guyana Gold Board, where he uplifted a cheque for $4 million. Thereafter, they went to Citizens Bank, where he cashed the cheque.
She said that on the day in question, they left home together around 12.45 pm to transact business in the city; the money was in a black haversack.
The witness recalled that while on Vlissingen Road, her husband brought their car to a halt at the traffic light, which indicated red at the intersection with Regent Street.
Almost immediately, the woman said, she saw a motorcycle ride up alongside her husband’s window, which was halfway up. She recalled that a man dismounted and demanded the bag, but her husband refused and was shot in the chest. Raghoo said the man then turned and shot her in the right foot, when she tried to grab the haversack, which was in the backseat. The couple was also robbed of a firearm and cellphones.
