R v Mcgraw and Innis
| Jurisdiction | Jamaica |
| Judge | Henry, J.A. |
| Judgment Date | 20 November 1979 |
| Neutral Citation | JM 1979 CA 35 |
| Docket Number | Criminal Appeals No. 39 & 40 of 1978 |
| Court | Court of Appeal (Jamaica) |
| Date | 20 November 1979 |
Court of Appeal
Henry, J.A; Rowe, J.A.; Wilkie J.A. (Ag.)
Criminal Appeals No. 39 & 40 of 1978
Mr. A.G. Gilman and Miss D. Lightboume for McGraw.
Mr. D. Daly for Innis.
Mr. K. Pantry for the Crown.
Criminal Law - Appeal against Conviction — Murder.
Criminal practice and procedureLaw — Murder trial – Treatment of evidence.
This is an application for leave to appeal from convictions in the Hanover Circuit Court of both applicants for the murder of Cheryl McBride. The application of both applicants having been refused on July 13, 1979, we now set out reasons for that refusal.
Cheryl McBride and her friend Ivy Fasko arrived in Jamaica from the United States on September 6, 1977. They rented a motor car and drove to Negril where they booked into a Negril Beach cottage. Later that same day they met the applicants on the beach and subsequently other social meetings took place. According to Miss Fasko, they went to a Yellow Bird cottage occupied by the applicants at about 7:00 p.m. on September 8, 1977 in consequence of an arrangement apparently made with Miss McBride that they should all have dinner together. Upon arrival they found the applicant Innis alone at the cottage. When they enquired for Joe (the applicant McGraw), Robert (the applicant Innis) told them that Joe was waiting for them where they usually parked the car at the beach connected to their cottage. They talked for a few minutes and then Miss McBride left saying that she was going to look for Joe. She never returned. As soon as she left, Innis attempted to make love to Miss Fasko but his advances were rejected. Some time later Joe came to the cottage appearing nervous and agitated. He called to them to go out dinner and said Cheryl was on the next beach. Miss Fasko and Mr. McGraw walked towards the beach. Robert who was still in the cottage, came out, began walking in the opposite direction, but turned round and followed when Joe called to him. They had reached a point on the beach where Miss Fasko expected to but did not see Miss McBride when she was struck in the head by Joe and fell to the ground. She was dazed but did not attempt to get up because she had been warned not to do so by Joe who said he had done this sort of thing before, that he had a knife, and that Miss McBride was tied up in the bushes and had not given him any trouble so she (Miss Fasko) should not. Joe also said that he wanted to rob her. At that stage Robert was about 12 feet away. Joe sent him for a rope from the cottage and on his return they tied her and told her to walk to the car which she and Miss McBride had rented. They entered the car and at first Robert attempted to drive it but when this proved unsuccessful he came to the back of the car to guard her and sat with a knife pointed in her direction while Joe drove. They proceeded to a spot which was pointed out by Robert in terms suggesting that Robert and Joe had previously decided upon that very spot, where she was tied to a tree. Joe then left in the car while Robert remained. Upon Joe's return some 45 minutes later, Robert went towards the car. After some minutes they both returned to the tree. Joe sent Robert back up to the car and then proceeded to inflict several more blows to Miss Fasko's head, apparently leaving her for dead. However, she survived, managed to free herself and staggered to the road nearby where a passing motorist early the next morning stopped to assist her. The body of Miss McBride was discovered partly covered with a log on the opposite side of the road from the spot where Miss Fasko had been left tied. She had received several blows to the head and death was due to brain injury.
Other prosecution witnesses gave evidence of subsequently seeing the two applicants in the car which had been rented by Miss Fasko and Miss McBride and one witness said the applicants had offered the car to him for sale. McGraw admitted offering the car for sale but explained that he was merely joking. Another witness said that he saw what appeared to be bloodstains on the back seat of the car but Joe said these were caused by red sugar syrup.
The applicant McGraw gave evidence on oath. He stated that he came upon the dead body of Miss McBride lying on the beach. Later Miss Fasko, after trying to make out that she and Miss McBride had been attacked by unknown, eventually confessed to killing Miss McBride by accident. He was so incensed at the killing of a girl he had liked that he struck Miss Fasko several times in the head and back. At first he proposed taking her to the Police but eventually “because she was a white woman and an American” he agreed to help her. They devised a plan to tie her loosely to a tree so that she could free herself and relate the story they had made up to the effect that she and Miss McBride had been attacked and raped by hitchhikers who had taken their car. He denied having killed Miss McBride.
The applicant Innis gave a somewhat rambling unworn statement in effect denying complicity in the killing. He merely went along with McGraw to find out the cause of what was happening. “I followed to find out.”
Counsel for the applicant McGraw sought and obtained leave to argue 10 grounds of appeal. He however abandoned 5 of them and relied only on the remaining 5. Grounds 1 and 2 which were argued together are as follows:
- That the indictment laid contained one count, namely, Murder of Cherry McBride and in proof thereof evidence was led and admitted by the Court concerning an assault on the witness Ivy Fasko; that such incidence was improperly prejudicial to the accused. 2. That during the conduct of the case, undue emphasis was placed on the circumstances and details of the said assault on the said Ivy Fasko.
In support of these grounds, counsel submitted that while the injuries from which Miss McBride died were being inflicted on her, Miss Fasko on her evidence was with Innis at the cottage and there was nothing to show any attempt to attack or assault her; that the attack on her was removed in time from that on the deceased and the details given in evidence of the attack on Miss Fasko were more prejudicial than probative of the charge on the indictment. In our view the evidence discloses a series of activities which began prior to the arrival of Miss Fasko and the deceased at the cottage occupied by the applicants, the sequence of which continued unbroken until the body of Miss McBride was dumped under a log on one side of the road and Miss Fasko left for dead tied to a tree on the opposite side of the road. The evidence was plainly relevant and admissible in proof of the prearranged plan which the prosecution alleged existed between the applicants and to show the pan played by each in carrying out that plan. We see no merit in these grounds.
Ground 3 was “that during the cross-examination of the witnesses Ivy Fasko and Franklyn Mullings concerning use of dangerous drugs by them, the learned trial judge improperly interrupted Counsel for the defense and inhibited Counsel from exploring an area which was vital to the accused's defense.” Counsel referred to two passages at pages 37 and 83 of the transcript which are as follows:
Q. Up to that time-up to that point in time, would you say you were a user of ganja?
A. No.
Q. That was your first attempt?
A. It is the first time I had ever smoked ganja, yes.
Q. Do you remember any other occasion smoking ganja?
His Lordship: Mr. Robinson, before you goon with these questions…
Mr. Robinson: This, M'lord is not designed to incriminate.
His Lordship: Well, she should be warned she does not have to answer it. It is an offence to smoke ganja in Jamaica.
Mr. Robinson: These questions I assure you M'lord, are most worthy.
His Lordship: But why? She doesn't have to answer them. Miss Fasko?
A. Yes, sir.
His Lordship: Any question designed - well, not designed - any question which tends to show you up to some offence you need not answer. You can claim that you needn't answer in on the ground of privilege.
A. Yes, thank you, M'lord.
Mr. Robinson: Very well, M'Lord.
Q. Now, Mr. Mullings, on how many occasions did you indulge in the smoking of ganja with Ivy?
His Lordship: I am sorry, what is the relevance of that to the case?
Mr. Robinson: M'Lord, you will remember I put certain questions to Miss Fasko and very soon the relevance will be made clear.
His Lordship: Let me see if it is relevant, if it is not relevant, I will throw it out. What is relevant you indicate to me.
Mr. Robinson: Very well, M'Lord, there has been a certain admission which I won't press any further. No further questions.
In so far as the first passage is concerned, it is clear that all that the learned trial judge did was to warn the witness that she was not obliged to answer incriminating questions. In the second passage, the learned trial judge enquired from counsel what was the relevance of the proposed questions and counsel being either unwilling or unable to indicate the relevance did not pursue the question. We do not see that in either case there was a proper ground for complaint.
The next ground argued was “that during the trial, leave being given for counsel representing the accused McGraw to withdraw, the learned trial judge ought to have afforded the said accused an opportunity to make other arrangements to be legally represented.” We have considered this ground from two aspects - the requirements of the Constitution and the interest of justice. At the close of the prosecution's case at 10:55 a.m. on the fourth day of trial, counsel for the applicant McGraw sought and was granted ten minutes adjournment on the ground that, in his words… “since morning I have spoken to the accused, McGraw, and he has indicated something and by virtue of this I would like to take further instructions because in the light of what he is saying I...
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