R v Holder
| Jurisdiction | Barbados |
| Judge | Williams, C. J.,Johnson, J.,Tulloch, J. |
| Judgment Date | 19 December 1976 |
| Neutral Citation | BB 1976 CA 11 |
| Docket Number | No. 4 of 1975 |
| Court | Court of Appeal (Barbados) |
| Date | 19 December 1976 |
Court of Appeal
Williams, C. J. (Actg.); Johnson, J.; Tulloch, J.
No. 4 of 1975
Dr. Richard Cheltenham and Mr. A. Shepherd for the appellant
Mr. E.F. Belgrave, Acting Director of Public Prosecutions, for the Crown
Criminal law - Murder — Summing up — Whether there had been a misdirection on the standard of proof.
Evidence - Circumstantial evidence — Confession statement — Whether judge misdirected jury with regard to circumstantial evidence.
Evidence - Res gestae — Whether statement part of res gestae
On February 6, 1975, the appellant was convicted before a judge and jury for the murder of his wife, Geraldine Holder, and he was sentenced to death on the same day.
The evidence for the Crown showed that Geraldine Holder was living apart from her husband, the appellant, Silver Hill, Christ Church; that on the evening of September 4, 1974 the police went to her home as a result of a report made to them and found Geraldine's body lying on a bed in a state of decomposition; that she had died from shock and haemorrhage from a three-inch wound above the left breast; and that Geraldine had been last seen alive shortly after 10.00 p.m. on September 1.
The case for the Crown was that the appellant had killed his wife and it was based on the following evidence –
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(i) the testimony of a neighbour, Mr. Everton Licorish that he had seen Geraldine Holder go into her home shortly after 10.00 p.m. on September 1, 1974; that at about 10.30 p.m. he saw the appellant go into Geraldine's house through the front door; at about 11.20 p.m. he heard Geraldine shouting “Murder, murder, I beg you Dudley, don't kill me, Lord have mercy.” According to the witness this shouting continued for twelve to fifteen minutes;
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(ii) an oral confession allegedly made to the police by the appellant — “Yes, Inspector, I am glad you come, I kill my wife and I feel I should dead too.”
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(iii) the testimony of a friend of Geraldine's, Mr. Beresford Estwick, that the appellant was at Geraldine's home when he, Estwick, arrived there about 2.45 p.m. On September 1, 1974 and that when they began to speak after Estwick entered the house, Estwick noticed that the appellant's hands were trembling. The prosecution tendered in evidence a letter which the police found open on top of a cabinet in the drawing room of Geraldine's house. It was from Mr. Estwick to Geraldine and it read in part as follows:
“Hello Dear,
Sorry to hear what you have said in your letter of 26th instant, But one think I know and I am very certain about is, that if you hold on to the Lord long enough, you will get the victory.
Do not constantly grope over what your husband says, tell it to Jesus and leave it there, and what you pray in secret, will be rewarded openly. I think I know what is really wrong; you need me close to you, and this is the reason for your feelings, but if you will try to brave the storm, you will be happy when the calm appears. You can phone me, tomorrow Wednesday night at 7.00 o'clock.
This is your sweetheart
Beresford.”
The prosecutor sought to connect this latter with Mr. Estwick's evidence that the appellant's hands were trembling on that Sunday afternoon, suggesting that the appellant had read the letter, had become enraged and had killed his wife in anger. Objection was taken to the admissibility of the confession and the letter but both were admitted in evidence. The appellant made a long unsworn statement in which he set up an alibi.
The grounds of appeal raised and argued before this court are as follows:
- That the direction given to the jury on the standard of proof fell short of the high standard required by the original law and were contradictory and inconsistent and served only to confuse the jury. 2. That the learned trial judge misdirected the jury on the law relating to circumstantial evidence and the inference which would be drawn therefrom. 3. That the learned trial judge erred in law in receiving into evidence the letter of Beresford Estwick to Mrs. Holder. 4. That the evidence of the prosecution witness Licorish “Murder, murder, Dudley don't kill me” was inadmissible in law and ought not to have been received into evidence by the learned trial judge. Further, that the learned trial judge mis-evaluated the evidence of Licorish insofar as it related to shouts for “Murder, murder Dudley don't kill me, Lord have mercy” and as a result prejudiced the case against the accused. 5. That the learned trial judge erred in law in his treatment of the discrepancies existing between testimony given by some of the prosecution witnesses at the preliminary enquiry and at the trial. In addition, his evaluation of the testimony of the said witnesses was inadequate to the point where it confused the jury and prejudiced the case for the defence. 6. That the learned trial judge departed both from accepted practice and from fair play in summing up the case for the prosecution last and in consequence prejudiced the case for the defence. 7. That the learned trial judge erred in law in ruling the alleged confession voluntary.
With respect to the first ground counsel referred us to the three passages in the summing up in which the learned trial judge dealt with the standard of proof required. At p.9 of the record the following passage appears:
“Now, the standard of proof which the prosecution must reach is that they must satisfy you of the guilt of the accused to the standard where, if you are considering a verdict of guilt, you can say to yourselves: I am sure that this man is guilty as charged.”
At p.15 of the record the following passage appears:
“Apart from the evidence of the alleged confession, the prosecution's case is based upon circumstantial evidence, and in respect of this kind of evidence where the charge is murder, it is proper to tell you that for you to be satisfied of the killing by the accused and not any expert alleged confession, and you rely only on circumstantial evidence it ought to hold you to such certainty as you would act on a matter of great consequence, which this matter is.”
At pp.97, 98 of the record the following passage appears at the end of the summing up:
“Remember it is for the prosecution to satisfy you as to the guilt of the accused, it is for them to negative any alibi raised by the accused. And where you are dealing with circumstantial evidence remember the safeguards which I spoke of, and remember if you are dealing with a case of this nature in order to bring in a verdict of guilty you should be satisfied to a degree of certainty where you can feel quite sure that this is the right verdict.”
Counsel made no criticism of the first passage quoted above but he contended that in the other two the learned trial judge fell into error. Counsel relied on Ramroop v. R. (1963) 6 W.I.R. 425, a decision of the Court of Appeal of Trinidad and Tobago which was referred to with approval in subsequent cases including R. v. Bromfield (1965) 8 W.I.R. 273 and R. v. Powe (1965) 8 W.I.R. 395. The following passage appeared in the judgment in Ramroop's case –
“It is a cardinal principle of the criminal law that the jury must be told to apply certain standards before convicting, namely, that they must be sure of the prisoner's guilt or satisfied of it beyond reasonable doubt. To tell the jury that that the degree of satisfaction to be preferred is one which they would feel in some matter concerning themselves was a misdirection, since it suggested no particular standard and fell short of the well settled degree of proof required to establish guilt on a criminal charge.”
Counsel relied too on R. v. Worrell (1972) 19 W.I.R. 180 a decision of this court in which at p.182 the court referred to the danger attendant on a direction that before there can be a verdict of guilty, the prosecution must make the jury feel sure that the verdict is the right one.
It is our view that there is some substance in counsel's criticism of the learned judge's directions on the standard of proof and consequently that there is merit in the first ground of appeal.
However, with respect to the second ground of appeal we think otherwise. As we understand it, apart from the criticisms relating to the directions on standard of proof with which we have just dealt, counsel further suggested that the learned judge's directions on circumstantial evidence led to a subjective rather than an objective approach by the jury to the question of the guilt or innocence of the appellant. Counsel criticised the following passage at p.17 of the record:
“If more than one inference may be drawn and amongst those inferences there is one which points to innocence, the law is that that inference of innocence is the only one which may be drawn from that fact or from those facts. It is only where the jury are satisfied that the sole inference which may reasonably be drawn is one of guilt that they may draw that inference, and before they do so they should make sure that there are no other co-existing circumstances which would weaken or kill such an inference. An inference should only be drawn if the jury considers in the circumstances that it is a reasonable inference. Where one inference which can be drawn is more favourable to the accused than another such reasonable inference, the jury should only draw the one most favourable to the accused.”
Counsel's submission was that proof by way of circumstantial evidence was a matter of logic and not of reasonableness; the former being an objective test while the latter tended towards a subjective assessment. But in our view a basic point which this submission ignores is that juries in the exercise of their functions deal with life as well as with logic. They bring to each case they decide their joint collective experience of life and they approach each decision against this...
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