Melanson Harris Marvin Joseph Appellants v The Queen Respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: SATROHAN SINGH J.A.,Satrohan Singh,Justice of Appeal,Albert Matthew,ODEL ADAMS
• Judgment Date: 17 March 1997
• Judgment citation (vLex): [1997] ECSC J0317-1
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: CRIMINAL APPEALS NOS. 5 AND 10 OF 1996
• Date: 17 March 1997

[1997] ECSC J0317-1

IN THE EASTERN CARIBBEAN COURT OF APPEAL

Before:

The Hon. Mr. Justice Satrohan Singh Justice of Appeal

The Hon. Mr. Justice Albert Matthew Justice of Appeal (Ag.)

The Hon. Mr. Justice Odel Adams Justice of Appeal (Ag.)

CRIMINAL APPEALS NOS. 5 AND 10 OF 1996

Between:

Melanson Harris

Marvin Joseph

Appellants

and

The Queen

Respondent

Appearances:

Mr. Clement Bird for the first named appellant

Mr. Gerald Watt for the second-named appellant

Mr. Rex Herbert Mc Kay, S.C., Mr. Cosbert Cumberbatch

DPP and Mr. John Eli Fuller with him for the Respondent

Criminal Law -Murder conviction -Death sentence -Murder in the course of a robbery -Eye-witness evidence of accomplice -Second appellant's defence of an alibi -Admissibility of statements given to police by first-named appellant -Allegedly made in circumstances of oppression and contrary to the 1964 Judges' Rules -Claim that appellant was 'interrogated' without being advised of his rights -Alleged inducement by a detective constable to secure appellant's statements -The test of the admissibility of a statement — Ibraham v R (1914) P.C., The State v de France (1978) 26 WIR 179, inter alia, cited in support -'The Judges' Rules are not rules of law but rules of practice drawn up for the guidance of police officers' -Object & scope of the Judges' Rules -What constitutes 'oppressive questioning' - Francois v The State (1987) 40 WIR 376, DPP v Ping Lin (1975) H.L. cited -Quality of evidence of certain prosecution witness, including a minor -'Serious' inconsistencies in fourteen year old witness' statements - Black v R (1989) 42 WIR 1 (Bahamas C.A.) considered - State v Mootoosammy & Budhoo (1974) 22 WIR 83, Daken v R (1964) 7 WIR applied -Alleged irregularity in the Voir Dire held to determine the capacity of the child to be sworn -Alleged inadequacies and omissions in judge's summing up -Whether trial judge in dealing with accomplice's evidence ought to have addressed that witness' bad previous record -Whether this omission could have resulted in a miscarriage of justice -Alleged failure to adequately deal with certain inconsistencies disclosed in witness' evidence -Whether judge erred in putting first appellant's defence of lack of a common intention to murder to the jury. Appeals dismissed (2:1 majority). Dissenting judgment entered by Honourable Mr. Justice Odel Adams J.A. (Ag.) as regards second named appellant.

SATROHAN SINGH J.A.

1 Sometime during the night of January 27, 1994, Kathleen Maria Cleever, William Thomas Cleever, Ian Trevor Gridland and Thomas Williams, foreigners to the State of Antigua and Barbuda who were holidaying on the yacht Challenger, moored off the coast of and in the territorial waters of the 62 square miles island of Barbuda, were savagely killed on the said yacht after they were robbed of certain of their personal belongings. The robbers, armed with a twelve guage pump action shotgun, surreptitiously in a stolen sunfish, crossed the waters to where they were moored. The robbers entered the yacht and at gunpoint manoeuvred the abovenamed four victims into the yacht's 18' x 16' salon. Then, with rope and tape they tied and taped the hands of the victims, taped their mouths and forced them to sit. They then executed the robbery stealing, inter alia, some Guernsey pound notes, about $1,000 U.S, a BB gun and a scarf. Having completed the robbery, they then cold bloodedly executed the four victims by shooting them at point blank range of about 6" -8", three of them in their chest and one in his head with their hands still tied and mouths still taped and with the use of the words "No witnesses". And this, despite the pleas of the female victim and her attempt at invoking the mercy of the deity .

2 On January 29, 1996, the appellants and Donaldson Samuel appeared before Redhead J to answer to an indictment filed against them for the offence of the Murder of the aforementioned four people. Upon arraignment, the Director of Public Prosecutions accepted a plea of guilty of Manslaughter from Donaldson Samuel. The two appellants pleaded not guilty to Murder and the trial proceeded. On February 28, 1996, a mixed jury of nine, convicted the appellants of the offence of Murder and they were sentenced to die by hanging. On the said day, Donaldson Samuel was ordered to serve 15 years imprisonment with hard labour for the offence of Manslaughter. At the trial of the appellants and before he was sentenced Donaldson Samuel testified on behalf of the Crown.

THE CASE FOR THE PROSECUTION:

3 The case for the Prosecution against the first-named appellant [Harris] rested mainly on the eye-witness evidence of Samuel the accomplice, the stolen Guernsey pound notes found in one of his shirt pockets, shot gun pellets, the stolen BB gun, his possession of the stolen scarf and three statements he gave to the police under caution. In the first two of these statements, applying the modern day concept of joint enterprise, this appellant Harris was confessing to the offence of manslaughter. His evidence before the jury also allowed for a similar conclusion. His third statement however was a confession to Murder. In that third statement he confessed to shooting one of the victims.

4 The case for the prosecution against the second named appellant [Joseph] was the eye-witness evidence of accomplice Samuel, an alleged oral confession made by Joseph to a then 12 year old crown witness Kevin DeSouza, evidence from John Cephas relating to the allegedly stolen U.S. dollars and this appellant's possession of the stolen BB gun. Joseph's defence was that of an alibi. He gave two statements to the police under caution to this effect and in his evidence before the jury maintained his alibi that at the relevant time he was at home sleeping. He also gave an explanation of innocent possession of the BB gun, that it was loaned to him by Harris.

5 Donaldson Samuel's evidence against both appellants was that himself and Harris, having stolen the shotgun (the murder weapon) from one Johnny DeSouza's home, the two of them and Marvin Joseph hatched the plan to rob the yacht with the aid of the gun. The plan was simply to rob. No one was to be killed. However, having completed the robbery and whilst he was downstairs, his evidence was that he saw when Joseph shoot one of the victims. Joseph then offered the gun to him to shoot the others but he refused as he said he did not know how to use a gun. Joseph then gave the gun to Harris who shot the other three victims. He then remonstrated with them for going against the plan not to kill but he left with them and hid the stolen goods and the gun. During his cross-examination by Mr. Watt, this witness admitted that he had previous convictions and that among them was one for stealing a shotgun for which he served six (6) months in prison.

6 Both appellants have appealed from their convictions.

THE APPEAL

7 The issues raised in this appeal relate to:

• 1. The admissibility of all the statements given to the police by the first-named appellant.

• 2. The quality of the evidence of prosecution witness Kevin DeSouza as it affected the second named appellant.

• 3. The quality of the evidence of prosecution witness John Cephas as it affected the second-named appellant.

• 4. Omissions and inadequacies in the summing up of the judge.

1. THE ADMISSIBILITY OF THE STATEMENTS OF HARRIS:

8 The major ground of appeal of the appellant Harris challenged the admission into evidence of the three statements he made to the police under caution, on the sole ground that they were made in circumstances of oppression resultant from breaches of the 1964 Judges' Rules. The submission of Mr. Bird was that this appellant didn't really give "statements" but was interrogated. He submitted that in his first statement the appellant was asked some 170 questions without "a water break", without the benefit of counsel and without being advised as to his right of defence or of his right to counsel. That in his second statement he merely wanted to change the name of a player in the crime and he was asked some 89 questions. Learned counsel concedes that the third statement (the confession to Murder) was properly taken but argues that it was tainted by the alleged illegality in the taking of the first two statements, it being a follow up of those statements.

9 The record discloses the sequence of events as follows: The crime was committed on January 27, 1994. The dead bodies were discovered on January 29, 1994 and the police commenced their investigations. On February 16, 1994, the police searched Harris' home in Barbuda and found the stolen Guernsey pound notes in his shirt pocket and some shot gun pellets. Harris was taken into custody at 5 p.m. the said day and held in a room at the Sunset View Hotel in Barbuda. Michael Lawrence, Detective Superintendent of Police attached to the International and Organised crime branch had a short interview with Harris, not more than 15 minutes that said night about 10:15 p.m. His evidence was that Harris was tired. He recorded Harris' first statement under caution the next day February, 17, 1994 from 10:45 a.m. to 2 p.m. The statement is in the form of questions and answers and disclosed therein are these words "12:40 p.m. Refreshment Provided". At the end of that statement Harris was told he would be detained to be later charged with this Murder. He was again cautioned.

10 On February 18, 1994 between 8:30 p.m. and 10:15 p.m., Superintendent Lawrence recorded a second question and answer statement from Harris. The text of this statement begun with this question "I understand that you wish to change certain aspects of the statement that you gave us yesterday. Is that correct? Harris answered "Yes Sir". Lawrence then asked him "Which parts of yesterday's interview do you wish to change". Harris answered "Just the name of Nanout". Lawrence then asked him "What do you mean...