R v Young et Al

• Jurisdiction: Barbados
• Judge: Williams, C.J.,Husbands, J.,Rocheford, J.
• Judgment Date: 22 March 1985
• Neutral Citation: BB 1985 CA 7
• Docket Number: Crim. Appeal. No. 1 and 2 of 1983
• Court: Court of Appeal (Barbados)
• Date: 22 March 1985

Court of Appeal

Williams, C.J.; Husbands, J.; Rocheford, J. (Acting)

Crim. Appeal. No. 1 and 2 of 1983

R

and

Young et al

Appearances

Mr. L. Kissoon for Desmond Young

Mr. P. Moseley for Cameron Fergusson

Criminal law - Appeal against conviction — Robbery with aggravation. Prisoners sought leave to appeal against their convictions and sentence — Convicted of robbery with aggravation and were each sentenced to 15 years imprisonment and 12 strokes with the tamarind rod — Whether the verdicts were unsafe or unsatisfactory — Whether the statements alleged to have been made by the prisoners (applicants) were admissible — Whether judge should have left it to the jury to determine whether one of the applicants had withdrawn from the plan — Crown found that the statements were admissible as they were free and voluntary — No evidence on which the jury could find that the prisoner had withdrawn from the plan to rob — There was no sufficient break in the chain of causation — However the judge had directed the jury that if they found that the second defendant was deliberately lying in one respect they would have to reject his evidence completely — Court held that this direction had the effect of destroying the second defendant's credibility in the eyes of the jury — The verdicts in each case were therefore unsafe and should not stand — The duty of the jury is to assess the credibility of the accused and to find him guilty or not guilty — A conviction cannot automatically follow a lie told by the accused — Sentences ordered to be set aside — Taking into consideration the principles and guidelines to be considered by an appeal court in deciding whether or not a new trial in a criminal case should be ordered, a new trial was ordered in the interest of justice.

JUDGMENT:

1 On the 18th of January, 1983 Desmond Young and Cameron Fergusson were convicted before a Judge and jury of robbery with aggravation and were each sentenced to 15 years imprisonment and 12 strokes with the tamarind rod. Both prisoners are seeking leave to appeal against conviction and sentence.

2 The record discloses that in December, 1981 Ernest Griffith and his reputed wife, Gwen Workman, ran a shop at the corner of Wellington and Beckwith Streets, Bridgetown, in which liquor and foodstuff, among other things, were sold. Martin Rock, Griffith's nephew, used to assist in the business and on the 17th of December he arrived at the shop shortly before midnight. He remained on duty during the early hours of the morning and at about 4:10 a.m. he counted the takings, arranged the notes according to their respective denominations and put the money in a tin, over $1500 in all. He turned away from the tin towards an inside doorway to call his uncle and as he moved away from cash desk he noticed a man, with a kerchief over the lower part of his face, pass in front of the shop's doorway. Another man, who too had a kerchief over the lower part of his face, came wards the doorway with a gun in his hand. Rock, who started to run, heard this second man say “hold it” and then an explosion. He collapsed on the floor and was later taken to the Queen Elizabeth Hospital where he received treatment for an injury to his spinal cord caused by a bullet wound. On the following day Rock was taken to a hospital in Miami where he remained until the 14th of April, 1982 after which he was moved to a rehabilitation centre in Virginia. He returned to Barbados at the beginning of July, 1982.

3 The testimony of P.C. Bowen was that on the 18th of December, 1981 at about 4.15 a.m. he went to the shop where Rock made a statement to him. In a gutter nearby he saw a cash tin containing documents and a set of keys. These he handed to Inspector Taitt. Rock identified the tin as that in which he had placed the money on the morning of the 18th.

4 The crown based its case against each accused on a confessional statement, which Inspector Taitt testified was recorded in accordance with the Judges Rules. Objection was taken by each accused to the admission in evidence of the document but in each case it was admitted after a voir dire.

5 Inspector Taitt's evidence was that on the 30th of December 1981 he saw Young at the Criminal Investigation Department, told him who he was and that he was carrying out investigations into an incident, in which Martin Rock was shot and robbed while at Gwen Workman's shop during the early hours of the morning of the 18th of December, 1981. According to Taitt he told Young that he was in receipt of information that he (Young) was involved in the matter and Young replied that he took up the cash tin but Rough Rough did the shooting. Taitt said that he later recorded the following written statement from Young in accordance with the Judges Rules (Exhibit B) –

“About a week before Christmas, a Thursday night, I leave Rough Rough home and I went to the theatre next to the Fire Station. A little before the first picture finish Rough Rough came into the theatre and sit down next to me. After the picture was finished the two of us went in Nelson Street, we went where the toilets are, we met a fellow there. Rough Rough told the fellow about going by a shop and getting some money and the fellow arranged to meet him there, Rough Rough and I then left and went in an old upstairs wall house waiting for the fellow but he did not come. About three o'clock in the morning Rough Rough and I left the old house and went by a shop opposite a big tamarind tree, and he told me he gine in the shop across the road when the customers come out. I saw customers in the shop at the time, so people keep coming all the time and we had to wait. After the people stop coming Rough Rough say come let we go long. I tie a coloured kerchief on my nose and mouth and I think Rough Rough did the same thing. I enter the shop by the centre door and Rough Rough went through the below door facing the road. The fellow behind the counter looked at me and started to run. I saw Rough Rough lean over the counter and shoot the man that started to run. I ran out of the shop. Rough Rough called me back. I jump over the counter, pull out the cash tin with the money, and me and Rough Rough run out of the shop. He tek the tin from me and tek out the money and throw the tin by a car. We run down a street by the Fire Station and then he carry me by a boat. We stayed there for a while and then after we came across the bridge and we catch a taxi and went home and Rough Rough gave me about $600.00 out of the money.”

6 Taitt testified that Young then took him and other officers to the scene and pointed out, and made statements about, the places mentioned in Exhibit B. In relation to Fergusson, Inspector Taitt's testimony was as follows: On the 29th of December 1981 he saw Fergusson at the Criminal Investigation Department. He told Fergusson that he was carrying out investigations in connection with an incident in which Martin Rock was shot and robbed while in Gwen Workman's shop during the early hours of the morning of the 18th of December 1981 and that he was in receipt of information that he (Fergusson) could assist in the matter. He cautioned Fergusson who said “That man G.T. is who put me in this foolishness.” He again cautioned Fergusson and asked him what foolishness he was referring to that G.T. had put him in. Fergusson replied, “The two of us went to the shop, but it is he who shoot the man.” The following statement from Fergusson was later recorded in accordance with the Judges Rules (Exhibit A)#x2013;

“About two Thursday nights ago, I do not know the date, me and a Guyanese who lives at me, who I does call G. T. left home and went in Nelson Street. We went in an old house in Nelson Street. While in there we plan to stick up the man in Gwen T Workman shop and carry away the money. G.T. show me a rusty looking spin barrel gun and tell me he gine use it to stick up the man. Well about 3.00 to 3.30 the morning time we left the old house and went by the tamarind tree facing the shop. A man was in the shop like he buying something. We wait until he left. Me and G.T. mask up and run in the shop, G.T. was in front and I behind. I see the man behind the counter look at me. I draw back behind the door, then I step in the shop and the man behind the counter started to run in the back, and I run back out the same time. I hear a shot and I hear the man behind the counter hollering for Sam. G.T. hold me by my pants and pull be back, then he jump the counter and I run back through the door and he came after me with a pan with money in it. We ran and went through the alley. G. T. drop the pan after he take out the roll of money. We ran down in Independence Car Park and catch a car out by Nelson and went home.”

7 According to Taitt, Fergusson then took him and other policemen to the scene and pointed out, and made statement about, the places mentioned in Exhibit A. Inspector Taitt's testimony was that Young is also known as G.T. and Fergusson as Rough Rough. Young and Fergusson were charged that they together robbed Rock of $1500 Barbados currency.

8 Young made an unsworn statement in which he stated that he was innocent of the charge and was charged with something he did not know about. He said that he was arrested by a policeman a couple of days before Christmas and he remained in custody until after the holidays. He was then taken into the Criminal Investigation Department where Inspector Taitt came to him with document, which Taitt asked him to sign. He refused. Taitt left. Then some officers came into the room and started to beat him. They told him that if he did not sign a statement they would not stop beating him. After some dime he agreed to sign on condition that they would stop beating him. Then Taitt returned, handed him the document, told him what to write on it and asked him to sign his name. Afterwards he was put into a car with Taitt and other...