Brathwaite v R (No. 2)
| Jurisdiction | Barbados |
| Judge | Hanschell, J.,Ward, J.,Williams, J. |
| Judgment Date | 18 July 1969 |
| Neutral Citation | BB 1969 CA 3 |
| Docket Number | No. 14 of 1968 |
| Court | Court of Appeal (Barbados) |
| Date | 18 July 1969 |
High Court
Hanschell, J.; Ward, J.Williams, J.
No. 14 of 1968
Mr. J.A. Connell for the appellant.
Mr. C.S. Husbands, Q.C., Director of Public Prosecution and Mr. C. S. Payne for the Crown.
Criminal law - Evidence — Burden of proof — Defence of alibi — Whether direction adequate
Criminal law - Evidence — Witness with an interest of his own to serve — Warning as to need for corroboration desirable
On October 29, 1968, the appellant was convicted of the murder of Elizabeth Gale and sentenced to death. He has challenged his conviction on a number of grounds which will be considered later.
Elizabeth Gale met her death at Christmas, 1967, in circumstances which shocked the community. On Christmas Eve night her husband, Reverend Charles Gale, the vicar of St. Matthews Church, had left the vicarage to conduct midnight mass at his church. His wife, who was pregnant at the time, was in bed when he left. On his return home early on Christmas morning he found his wife still in bed, but with her arms tied across her chest and her head bound with items of clothing. He loosened the clothing which bound her and attempted to revive her, but to no avail. She died from asphyxia as a result of being smothered.
The case for the prosecution was that the appellant had bound Mrs. Gale and raped her and that on her death from asphyxia responsibility for the crime of murder came to rest on the appellant, malice being implied because her death occurred as a direct result of the execution by him of a felony involving personal violence.
The case for the Crown was based in substance on the evidence of one Carlton McGlorie — to the extent, indeed, that without his evidence the charge could not be established against the appellant. He had originally being charged jointly with the appellant for the crime, but had been discharged on a nolle prosequi being entered. At the trial he testified that he and the appellant entered the vicarage that night for the purpose of stealing. The appellant went upstairs and he remained downstairs. He heard a tumbling on the floor from upstairs, went upstairs himself and entered a room where he saw the appellant holding a woman by her throat and squeezing her. The woman's legs were shaking on the bed and then the shaking ceased. He asked the appellant what all this was for and the appellant told him that the woman had seen him. They then proceeded from the room. He went downstairs thinking that the appellant was following. When the appellant did not come he returned upstairs, re-entered the room where he had seen the woman and saw the appellant on the woman. The appellant jumped from the bed saying that McGlorie had frightened him. His pants were down and his penis erect. The woman's hands were tied behind her neck and her face was tied. The appellant stated that he had had intercourse with the woman and invited McGlorie to do likewise. McGlorie protested that he was not there for that purpose and refused. They then left the vicarage after the appellant had taken the wallet which was on the table downstairs. This is the substance of McGlorie's evidence. The medical evidence was to the effect that when Mrs. Gale was brought to the hospital about 2.25 a.m. she was dead, and that death had occurred within the preceding three hours.
The first ground on which the appellant seeks to challenge his conviction is that the verdict is unreasonable having regard to the evidence. Now it is quite true that the only substantial evidence connecting the accused with the crime was that of the witness McGlorie and that he admitted in evidence that he had lied in previous statements made to the police. However, this court cannot brand the verdict of a jury as unreasonable merely because it was based substantially on the evidence of one witness. If that witness was an accomplice or had or may have had an interest of his own to serve and there was some breach of recognised practice in the summation, that is another matter. Likewise, it is a different matter if adequate guidance was not given to the jury as to the manner in which they should approach the evidence of a witness who admitted having told lies in a previous contradictory statement. But for the appellant to succeed on the ground now being considered he must show that on an analysis of the evidence the verdict is unreasonable. In our view the appellant has not been able to do this here.
The next submission for consideration is that the learned trial judge attempted to rehabilitate the prosecution witnesses contrary to the principle in Mills and Gomes v. R. (1963) 6 W.I.R. 418. In our view this case established no new principle. It illustrates the consequences of a departure by a judge from his traditional role of impartiality. In that case the Court of Appeal of Trinidad and Tobago took the view that the trial judge had entered the arena on behalf of the prosecution and that the acceptance by the jury of the evidence of the main prosecution witness was due to the judge's advocacy. As a result the conviction of the appellants was quashed. Reliance was placed in that case on R. v. Blackley (1963) 6 W.I.R. 423 a decision of the Court of Criminal Appeal in England in which it was held that the deputy chairman who presided at the trial of the appellant had gone far beyond his proper functions and that the conviction of the appellant in the circumstances could not be upheld.
The gravamen of the complaint made by counsel in arguing this ground relates to the manner in which the evidence of McGlorie was dealt with by the learned trial judge. As will be revealed in the course of the judgment, we are of the view that the learned trial judge should have adverted to certain matters in his treatment of McGlorie's evidence. But omissions by themselves do not go to show unfairness or partiality. An omission can be the result of an unfortunate oversight just as it can be explained in other ways without imputing partiality. In Mills and Gomes v. R. and R. v. Blackley the appellate tribunal was able in each case to quote various passages from the summing-up to illustrate impropriety. This we are unable to do in this case because the material does not exist in support of this ground. Some of the submission was taken up with reference to relatively minor contradictions in the evidence with which it was submitted the learned trial judge did not deal and with other matters of little consequence. We are of the view that there is no substance in this ground of appeal.
A matter which was raised by counsel in his argument was the omission of the learned trial judge to remind the jury that the witness McGlorie had admitted in evidence that he had lied in his previous statements made to the police. Counsel also submitted that no adequate guidance was given to the jury on the manner in which they should approach McGlorie's evidence having regard to his previous statements to the police and his admission to having lied in them.
One of these statements was actually “put in” at the request of defence counsel. In this statement McGlorie told the police a substantially different story from that to which he testified in court. In this statement he said that the appellant told him that he (the appellant) was going somewhere to get some money, but that the appellant did not say where he was going, nor did he ask him. McGlorie further stated that about 10.35 p.m. on Christmas Eve night he left the appellant at home changing his clothes and walked down to Hothersal Turning corner. There he stopped a car and got a lift into town. McGlorie stated that the next time he saw the appellant was about a quarter to six on Christmas morning and that the appellant then told him that “he went to the place and had the reverend wife.”
The learned trial judge referred to this statement by McGlorie on two occasions. On the first occasion he said (at p. 38 of the summing up):
“It is also asked, and without objection by the Crown, that the statement which was given by the witness McGlorie be put...
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