Griffith et Al v R
| Jurisdiction | Barbados |
| Judge | Husbands, J.A. |
| Judgment Date | 14 July 1995 |
| Neutral Citation | BB 1995 CA 21 |
| Docket Number | Criminal Appeal Nos. 24–30 of 1992 |
| Court | Court of Appeal (Barbados) |
| Date | 14 July 1995 |
Court of Appeal
Husbands, J.A.; Smith, J.A.; Moe, J.A.
Criminal Appeal Nos. 24–30 of 1992
Mr. R. Worrell for appellants Tennyson Griffith and Anthony Mayers.
Mr. O. Alleyne for appellant Adrian Stuart.
Mr. C. Sue for appellant Fabian Harris.
Mr. M. Carrington for appellant Hark Harris.
Mr. L. Kissoon for appellant Michael Barnett.
Mr. D. Thompson in association with Mr. G. Patterson for appellant Victor St. Rose.
Mr. C. Leacock for the respondent.
Criminal law - Appeal against conviction — Murder — Seven appellants convicted — Four were under 18 years and were ordered detained during Her Majesty's pleasure, three were sentenced to death — Case against each appellant based on oral and written statements to the police — Summation of trial judge in case of each appellant analysed — Directions were fair and adequate — Ample evidence to support verdicts — Application to adduce fresh evidence to support additional ground of appeal refused — Appeals dismissed — Convictions and sentences affirmed.
On the 19th May, 1992, the seven appellants were convicted for the murder of 48 years old Earlyn Garner on the 24th January, 1991.
Because they were under 18 years of age, the appellants Tennyson Griffith, Fabian Harris, Mark Harris and Michael Barnett, were ordered to be detained during Her Majesty's pleasure. The other appellants were sentenced to death.
About 8.50 p.m. on the 24 January, 1991, the police, in response to a telephone call, went to the car park at Pelican Village in St. Michael. There they found, on the ground, the body of a man, Earlyn Garner, clothed in a bloody short sleeve shirt and a short grey pants. He had a wound in his left breast and one on his left buttock. The short grey pants however were not cut. Some six feet away was his motor car with its engine running, headlamps burning, its left front and rear doors open. There was a blue cap on the left side of the dash board. A pair of white shorts, a pair of blue shorts and a pornographic magazine were on the back seat. Two small towels were between the two front seats. About 10.30 p.m. that evening Dr. Bannister visited the scene and certified that Garner was dead.
The police began their investigations. Henderson Daniel, a traffic superintendent at the Pelican Village bus stand, gave evidence that sometime after 8 p.m. on 24 January, 1991 a young man came into his office requesting the use of the telephone. It was in use at the time and he directed the young man to a public phone booth. Soon after he saw an ambulance going to the Pelican car park.
Anderson Rollock, a security guard at the Bridgetown Fishing Complex, said that about 8 p.m. that same evening, he permitted a young man the use of the office telephone and soon after he saw an ambulance and the police go to the Pelican car park. Clyde Thompson, a watchman on duty at the Industrial Development Corporation building in Pelican Village, testified that around 9 p.m. that evening, a group of about ‘five young men ran past him. Soon thereafter another young man come and spoke to him. He pointed the direction in which the five had gone. He (Thompson) later went to the Pelican car park and saw the body of a man on the ground.
Charles Brathwaite, the caretaker of the sports pavilion at Murphy pasture, testified that on 28th January, 1991, he found under a seat in the pavilion, a wallet containing a driver's licence, an I.D. card and a medical certificate, all bearing the name Garnes. He handed these over to W. P.C. Thomas.
Lennox Crichlow, a resident of Mason Hall, St. Michael, testified that sometime in early February, 1991, he found a cutlass by a garbage heap near his home. He gave it to his mother who handed it to the police on 8 February, 1991. It was marked Exhibit D. W. S.
On 28th January, 1991 Dr. Ramulu, a forensic pathologist did a post mortem examination on the body of Earlyn Garnes.
His findings included the following injuries –
- A 2.4 cm. x 0.5 cm. skin deep oblique incised wound on the right shoulder. 2. An oblique deep cut/stab wound on the back of the left buttock. 3. An oblique gaping stab wound to the left side, of the chest. It was 3 cm. x 1.5 cm. and down into the abdominal cavity. The right ventricle and the right border of the heart were cut and there was a stab in the left lobe of the liver.
A sharp cutting weapon like a knife or dagger wielded with moderate to great force could have caused these injuries. In his opinion the injury numbered 3, was the cause of Garnes' death. The cutlass, Exhibit D. W. 5, which was negative for human blood, could have caused injury No. 2 but not injury No. 3.
Under cross—examination by counsel for the appellant Stuart, Dr Ramula said that he took smears from the glands of Garnes' penis and found spermatozoa, indicating that he had ejaculated before he died. He also took anal smears from the deceased and these were negative for spermatozoa.
On the 6th and 7th days of February, 1991 at various times and places the appellants, with the exception of St. Rose, who was then in the neighbouring island of St. Lucia, were interviewed by the police and made oral statements. Later, on those days, at the Criminal Investigation Department each appellant gave a statement which was reduced to writing and signed by him. The appellant Stuart wrote and signed his own statement.
On the 8th February, 1991, the appellant St. Rose returned by air from St. Lucia and was interviewed by the police at the airport. He was taken to the Criminal Investigation Department and there made an oral statement and later made another statement which was reduced into writing and signed by him.
The oral and written statements of each appellant were the bases on which the case against each appellant rested.
The appellants have appealed against their convictions and filed a number of grounds. One ground, argued by several of the appellants related to the Constitution of Barbados and to the learned judge's direction on constructive malice. In the appeals of Tennyson Griffith and Anthony Mayers it was stated in these term:
“That the learned trial judge erred in directing the jury in accordance with the provisions of the constructive malice rule as that rule is unconstitutional in that it contravenes inter alia sections 11, 12 and 18 of the Constitution of Barbados.”
In the appeals of Mark Harris, Fabian Harris and Adrian Stuart the ground was framed as follows—
“The learned trial judge erred in law by misdirecting the jury as to what is capable of constituting proof of malice in so far as he relied on the constructive malice or felony murder rule which is unconstitutional and at the material time did not form part of the common law of this Island.”
Also in Adrian Stuart's appeal there was the following ground
“8. That sections 2 and 3 of the offences Against the Person Act, Cap. 141 under which the sentence was imposed are unconstitutional and consequently the sentence is in all the circumstances unconstitutional and ultra vires.”
It must be noted that the constructive malice rule was part of the common law of Barbados at the time of the commission of this offence in 1991 and continued to be so until 1st September, 1994, when it was abolished by the Offences Against the Person Act (1994–18).
In support of their submissions counsel cited and adopted the arguments which were argued unsuccessfully before this court in Peter Bradshaw and Denzil Roberts and the Attorney General (Nos. 31 and 36 of 1992).
In that appeal it was argued, inter alia, that sections 2 and 3 of the offences Against the Person Act (Cap. 141), which prescribe the penalty of death for a conviction of murder and the manner of its execution, though existing laws within the meaning of section 26 of the Constitution, are not thereby saved from being tested and that when so tested they contravene the protective provisions of the Constitution because the imposition of the death penalty is mandatory. It was also contended that the constructive malice rule is unconstitutional because it enables someone to be convicted of murder even though an intention to kill or cause grievous bodily harm is not proved, and thereby negates the presumption of innocence guaranteed by the Constitution. Accordingly, counsel submitted that the constructive malice rule offends section—11, 12 and 18 2(a) of the Constitution and cited in support Vallain Court v. The Queen 47 D. L. R. (4th) 399. These submissions failed. However, the submissions of counsel in that appeal were adopted by counsel in this appeal and it was further urged that the constructive malice rule infringed the spirit of the “principles of fundamental justice” although these words are not, as in section 7 of the Canadian Charter of Rights and Freedoms, verbally enshrined in our Constitution. Counsel also cited the cases of Vasquez v. R. [1994] 2 All. E. R. 674 and A.G. of Hong Kong v. Lee Kwong-Kut [1993] 2 L. R. C. 259.
Following the decision of this court in Peter Bradshaw and Denzil Roberts and The Attorney-General, we are of the view that at the date of the commission of this offence, the constructive malice rule formed part of the common law offence of murder in Barbados and was not contrary to the provisions of our Constitution. These submissions therefore fail.
The Crown's case against the appellants was based on the oral and written statements attributed to each appellant. The case was that each appellant had participated in a plan to commit a felony of violence, that is to rob Earlyn Garner, who died in the execution of that plan. Each appellant with the exception of Adrian Stuart challenged the statements attributed to him and objected to their admission on the ground that they were fabricated or improperly obtained by the police. Voire...
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