R v Sailsman

• Jurisdiction: Jamaica
• Judge: Lewis, J.
• Judgment Date: 22 May 1963
• Neutral Citation: JM 1963 CA 2
• Docket Number: Criminal Appeal No.189 of 1962
• Court: Court of Appeal (Jamaica)
• Date: 22 May 1963

Court of Appeal

Cundall, P.; Lewis, J.; Henriques, J.

Criminal Appeal No.189 of 1962

R.

and

Sailsman

Appearances

Mr.Dudley Thompson, Q.C. for the appellant

Mr.Huntley Munroe, Deputy Director of Public Prosecution for the crown

Criminal Law - Conspiracy to murder — Evidence

Lewis, J.

1 The appellant was convicted in the home Circuit Court on the 30 ^th December, 1962, along with two other persons named Stanley Smith and Cornelius Barnes on an indictment charging them with conspiracy to murder, the particulars being as follows: -

“Elva Sailsman, Stanley Smith and Cornelius Barnes on the 11 ^th day of November, 1961, and on divers days before and after, in the parish of Kingston, conspired together and with other persons unknown to murder Eastwood Sailsman.”

2 The appellant alone has sought leave to appeal.

3 The evidence adduced at the trial related to meetings between the three cased during the months of September to November 1961, the attempted purchase of cyanide of potassium, a deadly poison; the reported failure of a plan to poison the appellant's husband Sailsman the consequent formation of an attempt to carry out a plan to drown him; the failure of this plan and the subsequent suggestion that he should be killed by burning his house. It was alleged that the appellant was the principal conspirator, the suggested motive being her desire to get rid of her husband because he stood in the way of her illicit association with Smith, himself a married man, and at the same tine to obtain the proceeds of an insurance policy on his life for £5,000.

4 The first ground of appeal is that the indictment is bad in that: -

• (a) it is vague and uncertain as to the time of the offence charged and allowed the prosecution to range over an unlimited period of time, and

• (b) it embraced three distinct conspiracies rolled up in one count, and that the learned trial judge erred in rejecting a submission to this effect at the close of the case for the Prosecutions.

5 Where objection is taken at a trial on the ground of inadequacy of particulars as to time of offence in an indictment, it is usual for the trial judge to deal with this, if he accepts the submissions, by ordering further particulars and allowing an amendment to facilitate their insertion. This Court sees nothing in the record to indicate that objections was taken and learned counsel for the appellant stated that he had no clear recollection that such objection was taken, though he is of the opinion that he raised the point at theclose of the case for the Prosecution.

6 The transcript of summing up indicates that the period covered by the events deposed to extended from September to November, 1961, and this fact was no doubt disclosed by the depositions. Even assuming that any real embarrassment was caused to the appellant a fact of which court is not convinced, it is now too late to attack the indictment on that ground, section 12 of the Criminal Justice Administration Law, Cap.83 provides that -

“No judgment upon any indictment or information for any felony or misdemeanour, whether after verdict or by confession, default or otherwise, shall be stayed or reversed for…stating the time (at which the offence was committed) imperfectly.”

7 We think that there is no merit in this submission. In support of the substantive complaint that the indictment, though appearing to charge only one conspiracy in fact charged three different conspiracies, counsel submitted that each of the three alleged episodes to which the evidence related, namely, the purchase of poison, the plan to drown, and the suggestion to burn, constituted a separate agreement and ought to have formed the subject matter of a separate count. He urged that there was no evidence that either smith or the appellant was a party to the plot to kill by poisoning and that the verdict does not indicate what view the jury took as to the extent to which the appellant was implicated in any of these plots.

8 Reliance was placed upon a number of cases which the most important were O'Connell v. R., (1844) 11 CL.& Fin., 155 and R. v. West et al, [1948] 1 ALL 718.In O'Connell's case it was that upon a count in an indictment against eight defendants, charging one conspiracy to effect certain objects, a finding that of the defendants were guilty generally, that four of them were guilty of conspiring to effect some and not guilty as to the residue of these objects was bad in law, and repugnant; in as much as finding that the three were guilty, was a finding that they were guilty of conspiracy with the other five to effect all the objects of the conspiracy, whereas, by the same finding, if appears that the other five were guilty conspiring ( part of sentence missing) In our view there was evidence, which, if accepted by the jury, connected the appellant with all the three episodes, and we do not think O'Connell's case is applicable to the circumstances of this case.

9 In R. v. West et al, the appellants were charged with conspiracy to contravene the Defence Regulations in that between 1940 and 1946 they had conspired together to contravene orders made by the Board of Trade for the control of the manufacture and supply of toilet preparations. It was held that the effect of the indictment was to charge a conspiracy to contravene the law as to control, that is, the existing law, which would be known to the conspirators, and was the law of the country at the time the conspiracy was formed; that as orders made in 1941...