R v Henrigues et Al
| Jurisdiction | Jamaica |
| Judge | White, J.A. |
| Judgment Date | 25 March 1988 |
| Neutral Citation | JM 1988 CA 51 |
| Docket Number | Criminal Appeal Nos. 97 and 98 of 1986 |
| Court | Court of Appeal (Jamaica) |
| Date | 25 March 1988 |
Court of Appeal
Kerr, J.A.; White, J.A.; Bingham, J.A.
Criminal Appeal Nos. 97 and 98 of 1986
F.M.G. Phipps, Q.C., Earl DeLisser & Mrs. Bennett-Sherman for the applicant Garth Henriques.
R.C. Rattray, Q.C., Ian Ramsay, Gayle Nelson and Mrs. Jacqueline Samuels-Brown for the applicant Owen Carr.
Lloyd Hibbert and Canute Brown for the Crown.
Criminal law - Murder — Applicants convicted of manslaughter — Applications for leave to appeal convictions — Treated as hearing of appeals — Deceased beaten to death — Appellants questioning deceased during beating — Appellants implicated by doctrine of common design — Various grounds of appeal — Whether verdict unreasonable and cannot be supported by evidence — Whether directions of trial judge inadequate — Whether defence adequately put to jury — Identification evidence — Dock identification — Caution statement — Admissibility of deposition of medical practitioner absent from island — Whether directions confusing to jury — Finding that verdict of jury reasonable — Finding that no miscarriage of justice occasioned by terms of summing up — Appeals dismissed — Convictions and sentences affirmed.
At the end of the arguments propounded before this Court in support of these applications for leave to appeal, we took time to consider. After much reflection, we now hand down our decision. We wish to thank the counsel on both sides for the meticulous analysis of the issues which they argued arose from the evidence and the summing-up. In this judgment we will be considering those issues with similar care.
The matter has come before: this Court following the conviction of the applicants for the offence of manslaughter, consequent upon their trial on a charge of murder which occupied the attention of Malcolm, J., and a jury for a period of nine (9) days. The hearing of those applications extended over a period of nine days during which the close and searching inquiry was developed along what Mr. Phipps stated were broad areas of complaint: (1) The verdict is unreasonable and cannot be supported in light of conflicts in the evidence of the chief witness for the Crown; (2) The directions which the learned trial judge gave to the jury err the principles relating to common design. (3) The reading into the evidence of the deposition of the doctor who performed the post mortem examination. (4) The concept of manslaughter by flight, which it was contended was wrongly left to the jury by the learned trial judge. (5) The issue of identification in so far as the summing-up treated the caution statement of the appellant Henriques as a confession, and not as exculpatory; and most importantly; the value of the dock identification of the appellant Henriques without a proper direction thereon by the learned trial judge, the chief witness for the Crown having failed to point out the applicant Henriques at the identification parade, although he said he did see Henriques on that parade. (6) The defence of the applicants was not adequately put to the jury.
This abridgement of the sixteen stated grounds of appeal is itself consonant with the criticisms which were levelled at the way in which the learned trial judge dealt with the several Issues which arose in the case. It should be stated at the outset that the facts are in a narrow compass in that the chief witness, Junior Blackwood, gave what was essentially a simple story: that the two appellants were present at the beating of the deceased, Clive Gibbons, whom they and the actual beaters were accusing of stealing “the weed” (ganja). The Crown's case was that the appellants by their question of the deceased during the beating were thereby implicated by common design in that criminal activity which resulted in the death of Clive Gibbons. According to Malcolm, J., half of the trial time was “spent in legal matters regarding the admissibility of certain things.” He was alluding to the caution statement given to the police by the applicant Henriques, and the admitting into evidence of the deposition of Dr. Venugopal who had left Jamaica anti had not returned up to the time of trial. Despite the narrow compass of fact, the attorneys-at-law for the appellants contended that on the evidence in the case and the summing-up several issues arose. Hence, the points of law which were strenuously argued. The thrust was to show that the convictions were vitiated by being based on prejudicial and inadmissible evidence, and that in several areas of the evidence the summing-up was inadequate and showed imbalance to the prejudice of the appellants, especially bearing in mind that the learned trial judge failed to put their defence to the jury adequately or at all.
To ascertain the validity of those contentions, it is necessary, first of all, to recount the facts of the occurrence which resulted in the death of Clive Gibbons, and about which Junior Blackwood gave sworn evidence, remembering at the same time, that he was the only witness who purported to have seen what happened at the Greenwich Town Beach on the morning of the 19th day of April, 1984. Indeed, as the learned trial judge forcefully pointed out to the jury “the Crown's case stands or falls on his (Junior Blackwood') evidence.” It is necessary, therefore, at the outset, to recapitulate the evidence which Junior Blackwood gave.
The evidence revealed that several persons were engaged in the particular and special relationship with the decease, several were named by aliases. “Nyah Cawley, “Soldier”, “Jubio”, “Burbie.”, who is the appellant Carr. The record discloses that the witness Junior Blackwood — told of several occasions between 11th April, 1984, and 19th April 1984 when he saw one or the other of the appellants, or both of them together with the other persons whose names he called. For instance, he said that he first saw Henriques at about 12 midnight on the night of the 11th April, at the Greenwhich Town Beach on that occasion he saw Henriques for about two hours in the company of Nyah Cawley and “Burbie”. Blackwood asserted that he never saw him during the day on the 11th April, but he saw him in the night as first stated.
On the 13th April, ho again saw Henriques on the beach with “Burbie”, “Cawley” and “Soldier”. They were all moving around. According to Blackwood, “from the Incident start every day they on the beach.” On the 13th April “Turkey Buzzard” otherwise called “Jubio” otherwise called “Owen Carr” Burbie” and Nyah Cawley, came to the beach in a car; then they all spoke to “Soldier”. On that occasion with the help of fishermen who were on the beach they loaded three boats with “the weed”, (ganja). When those boats put out to sea, “Jubio” and “Soldier” were among those who left on the boats. On the 14th April, 1984, the boats returned to the Greenwich Town Beach. Thereafter, Junior Blackwood said he saw “Soldier” speak to a young man named “Giant”, and they left in the boat towards Port Royal. Later, “Soldier” alone returned on the boat. On the day after, Junior Blackwood said he saw the “whiteman — Henriques” — with “Soldier”.
On or about the 16th, Blackwood said he saw when “Soldier” was taking Clive, the deceased, away to go and watch the weed. “Soldier”, “Burbie”, and Clive toad a reasoning together before “Soldier” took away, Clive in the boat. On the 17th he saw Clive with “Soldier”, “Burbie” and “Cawley”. Clive was lifted from the trunk of the car and “Soldier” “was thumping up Clive.”
He saw “Cawley”, “Burbie” and “Soldier” in the morning and in the evening of the 18th. In the morning Clive was thumped several times. After this boating on the; 18th, “Burbie” and “Cawley” drove away leaving Clive with “Soldier” on the beach. In the evening, “Burbie” returned with Henriques by a car to the beach. “Soldier” again beat Clive with a fishpot stick in the presence of Henriques and “Burbie” and they all questioned Clive about the weed. “Burbie” and Henriques were under a shed at the round cabin where the beating was being administered. According to Junior Blackwood, “Soldier” beat Clive for about five minutes, during which Clive was bawling and protesting his Innocence. After the boating, Henriques, “Burbie” and “Soldier” left the beach with Clive at about 4 p.m. on the 18th April; “Burbie” and “Jubio” lifted Clive and put him in the trunk of the car. On the following morning, the 19th, before day-break the four of them “Jubio”, “Cawley”, “Burbie” and “the whiteman, Henriques”– came back with Clive to the beach. On this return Clive was lifted from the trunk of the car by two of the four men in whose custody he was; the other two being present. He was placed before the car, and it was then that Nyah Cawley and “Soldier” began beating Clive. Blackwood said “Soldier” cut Clive over here so (forehead), and under him chin and bus him foot-bottom with the knife.”
The witness said that although he did not see Henriques hit Clive, that appellant, during the beating, had a short gun in his hand. He just held the gun in his hand, not pointing it at anyone. During the immediate beating, Nyah Cawley also held a gun in his hand from which he fired a shot in the air. During this time, “Burbie” who was present, held in his hand a piece of iron pipe. He did not strike Clive; but all of them repeatedly asked Clive for “the weed'“, to which his constant reply was that he knew nothing about it, someone had stolen it from him.
The witness said the car was parked about six yards from the water (the sea) which was to the west, with the front of the car pointing to the south, down the beach. Clive had nothing in his hand while he was bong beaten. After the beating wand questioning had lasted for about five minutes, Junior Blackwood told the Court, “Clive get away from them and chucked in the sea.” About half an hour after, Junior Blackwood said, “A hear the whiteman said...
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