Henry v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Bernard, C.J. |
| Judgment Date | 28 May 1986 |
| Neutral Citation | TT 1986 CA 19 |
| Docket Number | Criminal Appeal No. 10 of 1983 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 28 May 1986 |
Court of Appeal
Bernard, C.J.; Narine, J.A.; Persaud, J.A.
Criminal Appeal No. 10 of 1983
R.L. Maharaj for the appellant.
C. Brooks, S.C., D.P.P. and H. Almandez for the State.
Practice and procedure - Trial by jury — Directions to jury — Evidence — Whether judge should have directed jury on circumstantial evidence and how it should be approached and visual identification — Appellant was convicted of murder after being identified by persons who had been present when the unlawful acts leading to death of one their party took place and after being found in possession of watch which they said had been stolen from the deceased — R. v. Turnbull (1976) 63 Criminal Appeal R. discussed — Appeal dismissed.
Practice and procedure - Criminal trial — Unsworn statement from the dock — Correct approach laid down in R. v. Coughlan (1977) 64 Criminal Appeal R. 11 — Statement of persuasive rather than evidential value because maker not a witness and his statement could not prove facts that were not otherwise proved by evidence.
At the class of the arguments in this appeal we dismissed the said appeal and affirmed the conviction and sentence. We said then that we would give our reasons therefor later. We do so now.
Allan Henry (“the appellant”) was convicted at the Port-of-Spain assizes of the murder of one Michael Crocker (“the deceased”) on the 30th January, 1982, and was thereby ordered to suffer the mandatory penalty of death by hanging. The circumstances leading up to the untimely and gruesome death of the deceased and to the eventual apprehension of the appellant are hereinafter recounted.
About midday on Friday January the 29th, 1982, a yacht called the “N.Y.N.” with its dinghy sailed into and anchored in the Port of Spain Harbour. On board were two married couples namely, the deceased and his wife Tricia and David and Christine Drakes. Actually the “N.Y.N.” had set sail from England in July of 1981 with the Crockers alone on board. The couple had intended to sail round the world and had planned to meet the Drakes with whom they were quite friendly in the Caribbean. It would appear that the latter were to accompany them onwards from there. After being at sea for about five to six months, the “N.Y.N.” docked in Barbados round and about the middle of January of 1982 where the Drakes joined them as planned. From there they sailed to Tobago where the party spent some time after which they sailed for Trinidad arriving here, as we said, on Friday the 29th January where they docked a short distance from shore. Later that day they went ashore, did some business and returned to the yacht some time in the afternoon. The parties relaxed on board for some time and later that night repaired to bed but not before the deceased and his wife Tricia had gone on dock where they happened to see the island ferry the “Tobago” set sail for that island. This was sometime around 11.00 p.m. or shortly thereafter. The parties found the weather quite hot (which is understandable, they being foreigners, and as such quite unaccustomed to the type of weather here); so they all went to bed in the nude. But before going to bed the deceased had placed a lighted lantern to the front of the boat. That apart the yacht was also wired with electricity. It was of the fluorescent type. Also on the instructions of the Immigration authorities steps were taken to fasten the dinghy to the yacht. Left hanging in the navigation area was a man's “Tissot” watch. It belonged to the deceased. It was given to him by his wife, Tricia as a gift. On its back she had had engraved therein the words (Mike for all our tomorrows, love Tricia”. That fateful night the couples slept in different areas of the yacht. The Crockers occupied the bed in the forepeak which was at the front of the boat while the Drakes slept on the one in the cabin. The cabin itself was only about seven (7) feet in length.
During the wee hours of the night Christine Drakes was aroused from her sleep. According to her this happened because she had felt a pressure of some sort on the cushion at the side of her head. Thinking that it was the deceased who had got up and had been inspecting the boat, she called out to him. There was no answer to her call; so she opened her eyes. When she did so she happened to see the shape of the head of a man silhouetted against the windows. With the assistance of the lights in the harbour area she saw an upraised arm holding a knife. She screamed out for the deceased. Just then she saw that arm make a downward motion in the direction of her husband, David. She sought to put up a struggle with the intruder and kept on shouting. The fluorescent lights in the cabin came on and the intruder jumped backwards. She recognised the assailant. That person was the appellant. The knife in his hand was bloodstained and her husband was by that time bleeding from a wound in the region of his neck. While the assailant was in that position and with the lights in the forepeak and the cabin still on, the deceased and his wife, Tricia, entered the cabin. The deceased, who himself was quite a big man and one who had had some training in the martial arts, approached the appellant and sought to soothe him but the appellant warned him to “keep back or I'll kill him” presumably referring to the injured David. The appellant then ordered all four to go into the forepeak, which they did, after which he closed the door which was between the forepeak and the cabin. He remained in the cabin (but in the meantime according to the evidence Tricia, the wife of the deceased made good her escape with the assistance of the deceased by going through the hatch in the forepeak and swimming, in the nude towards shore when she was shortly after rescued by two men). While the three were in the forepeak they overhead rummaging taking place in the cabin. Shortly after the door and was opened by the appellant and with the light still on in the cabin he summoned Christine Drakes to him. He was still armed with the knife. Christine obeyed. The appellant demanded money. Acting upon the instructions of the deceased she went and fetched the money which was in a bag and placed it on the table. She took out the money which was about one hundred and forty T.T. dollars ($140.00) and handed it to him. He swore obscenities at the paltry sum and demanded more. Christine complied by fetching, some money that she had in a black purse which she gave to him. All this time the parties were pleading with the appellants. At that point in time she had got close to about two to three feet from the appellant. He was bareback, clad in a tightfitting pair of red swimming shorts and his face and head were at all times uncovered. But the evidence went further than this! As a matter of fact the appellant had gone on to further summon Christine to him again, cased her to sit down, which she did, after which he crouched in front of her and told her to take a good look at his face which she did, but he warned her to forget it. He engaged her in further conversation and followed thus up later by pursuing her into the forepeak where he met the deceased and David. The latter who was injured was lying on the bed and he sat next to him. He made them all to understand that they must forget his face. We digress to observe that during all these excursions and indeed what next transpired the evidence is that the lights here still on in the yacht and that the lighting was at all material times good.
Still armed with the knife, which according to Christine did not belong to the yacht, and disregarding the earlier entreaties of the parties to take whatever he wanted and leave, the appellant ordered the deceased and Christine into the cabin. He fetched a piece of rope and ordered Christine to tie the hands of the deceased “half-hitch” after ordering the latter to place them behind his back. Not satisfied with the way that Christine had done the job, he proceeded to tie the deceased's wrists together behind his back very tightly. He then ordered the deceased to kneel on the floor which he did. He then went on to cut off part of that rope and with it he proceeded to tie his ankles very tightly. Next with the deceased still in this kneeling position the appellant cut off the loose rope from the ankles of the deceased, made a noose with it and slipped it around the neck of the deceased. He then pulled it tightly and thereafter proceeded to pull the deceased backwards. Efforts on the part of the Drakes to cause the appellant to desist not only failed but were met with obscene rebuff on the part of the appellant. This physical action on the part of the appellant caused the face of the deceased to grow purple and to swell and his eyes to close after which he ceased to make any physical movement of his own.
The Drakes eventually succeeded in escaping from the appellant and getting to the deck of the yacht from whence they jumped naked into the sea and began to swim towards shore. While doing so they happened to observe a searchlight aimed at the “NYN”. At that stage David Drakes saw the appellant get into a dinghy and row in the direction of two large ships about two hundred yards away to the East. One of these ships was the “Hiladi I” to which we shall come in a moment. The Drakes were eventually rescued by three men who were is a tug about one hundred and fifty yards away.
This then is a chronicle of the events that occurred on the “NYN” that fateful night according to the eye witnesses Christine and David Drakes, and to a lesser extent Tricia Crocker, and which according to the Drakes lasted for as much as forty to forty-five minutes during which time they both engaged in much conversation with the appellant in good lighting, and when at all times both his head and his face were uncovered. David Drakes had had him in view for about thirty...
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