Marshall v R

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Hyatali, C.J.
• Judgment Date: 06 February 1976
• Neutral Citation: TT 1976 CA 11
• Docket Number: Criminal Appeal No. 77 of 1975
• Date: 06 February 1976

Court of Appeal

Hyatali, C.J.; Corbin, J.A.; Rees, J.A.

Criminal Appeal No. 77 of 1975

Marshall

and

Regina

Appearances:

C. Bernard, Ag. Solicitor general for the Crown.

V. de Lima and R. Nelson for the appellant.

Criminal Law - Appeal against conviction — Murder

Hyatali, C.J.

1 Julien Marshall (the appellant) and his brother Martin Marshall were convicted of the murder of Lochan Ali (the deceased) sometime during the period of 24 and 25 June 1973. Following their convictions the appellant was sentenced to death but Martin who was 16 years old when the offence was committed was ordered to be detained during Her Majesty's pleasure. The appellant only has appealed against his conviction on grounds, which are referred to hereafter.

2 The evidence in support of the case for the Crown showed that the deceased was at the time of his death 84 years of age. He carried on the business of a shopkeeper and lived alone on his premises at Sangre Grande. His daughter Rosie Dean stayed with him from 9 to 16 June 1973. When she left him on 16 June he had in his possession at his home a number of articles. Among them were a terylene shirt, a stainless steel knife, a reddish bed sheet, a pair of blue socks, a pink towel, pair of black shoes and a paintbrush with a red handle. His grand daughter Sherida Dean visited him on 18 June 1973, spent the night with him and left the following day: She owned a pair of gold bracelets which she had placed in a drawer of the deceased in the house but forgot to take them with her when she left.

3 On the morning of 26 June 1973 Shairoon Ali, a niece of the deceased, went to his home. She found it locked up. She observed, what appeared to be blood, dripping from the floor of his house, which was about 4 ft. off the ground. She went to the Sangre Grande Police Station and made a report. In consequence thereof Sgt. Celestine went to the house of the deceased and discovered his dead body on a bed, clothed in pyjamas with a wound on the right side of the neck. Sgt. Celestine removed the body to the Sangre Grande Hospital where Dr. Edwards performed a post mortem examination. He found a gaping wound 10” long, 4 ¹/₂ “wide and 5” deep. It extended from the right ear to the left side of the neck. Severed were the right side of the lower jawbone, the right mastoid muscle, the jugular vein, the 4th cervical vertebrae, the cervical spinal cord, both carotid arteries, the windpipe above the vocal chords and the oesophagus. Dr. Edwards attributed the cause of death to shock and haemorrhage from a partial severing of the neck as the result of the wound referred to. He was of opinion that it could have been inflicted by one or more than one blow from a sharp cutting heavy instrument like a cutlass wielded with a severe degree of force.

4 On 12 July 1973 Sgt. Celestine received certain information, obtained a search warrant and executed it at the appellant's home. A pair of gold bracelets was found under the pillow of a bed in the house. The appellant stated that the bracelets belonged to his girl friend Sheila. Sherida Dean however identified them as the bracelets she had forgotten in the drawer of the deceased when she left his home on 19 June 1973. Rosie Dean also identified it as Sherida's bracelets.

5 On 13 July 1973 Sgt. Celestine received further information. In consequence thereof he obtained another search warrant, executed it at the appellant's home and found a reddish bed sheet, a blue handled knife, a large creamish towel, a pair of blue socks, a blue sheet and two pieces of cloth. The appellant said he had bought all these articles. Rosie Dean however identified the blue socks and the towel as the property of the deceased.

6 Following the discovery and identification of the articles referred to Sgt. Celestine spoke to the appellant at the Sangre Grande Police Station. It was at 12 noon on 13 July 1973. Sgt. Celestine told him of the murder of the deceased, staffed that some of the articles found in his possession belonged to the deceased and cautioned him. The appellant elected to make a statement. At his request Sgt. Celestine took it down in writing. The appellant read it over, said it was correct, appended to it a certificate in his own hand and signed it. The statement was tantamount to a confession that he and Martin, armed respectively with a long blade knife and a cutlass, entered the house of the deceased during the early hours of the morning of 25 June 1973 to rob him of money. In the course of so doing, Martin chopped the deceased on his neck and in the event they took from the deceased $10.97 in cash, a bed sheet, a towel, a pair of blue socks and a pair of gold bracelets. Entry into and exit from the house were effected, he said, through the floor, after Martin had removed one of the boards thereof by pushing it upwards. The board was replaced on leaving the house.

7 After the statement was given the appellant agreed to show Sgt. Celestine the board to which reference was made, Sgt. Celestine took him to the house of the deceased and on arrival there the appellant went under it, pushed a board of the floor upwards and said that was where he and Martin passed to get inside the house of the deceased.

8 At 5.30 p.m. on the same day, namely, 13 July 1973 Sgt. Celestine interviewed Martin at the Sangre Grande Police Station. After being cautioned he too made a statement which was tantamount to a confession of the crime of which he was convicted. As he has not appealed it is unnecessary to say mare about it.

9 At the trial, counsel for the appellant objected to the admissibility of his statement on the ground that it was induced by a promise made to him by Sgt. Celestine. The record to the objection is stated 9n these terms in the Judge's notes of evidence:

“Mr. Persad objects on the ground that the statement is not a voluntary statement. The (appellant) did tell the Sargeant what to write down and the Sargeant did write down what he told him to write but the officer held out a promise to the (appellant).”

10 In the absence of the jury the learned judge heard evidence on the issue of the admissibility of the statement. The promise which it was alleged Sgt. Celestine held out to the appellant, who was then in custody at the police station, was that he will be allowed to go home as soon as he gave a statement. Sgt. Celestine refuted the allegation that he had made any such promise to the appellant. Inspector James, who was present when the statement was given, denied that any such promise was made and said that he affixed his signature as a witness to the statement after the appellant had written in his own hand the certificate appended to the statement and signed it. Adolphus Cox, a Justice of the Peace who witnessed and certified the statement, testified that the appellant admitted that he had signed the statement, that it contained nothing, which he had not said, and that no threat or violence was used to induce him to make the statement.

11 The appellant, on the issue, testified that he gave the statement to Sgt. Celestine. He identified the original after it was shown to him, stated that he could sign his name and insisted that he could not read. On being cross-examined, he agreed that he did not complain to the Justice of the Peace of the promise held out to him to make the statement, but excused his omission to do so on the ground that he did not know that Cox was a Justice of the Peace. He further stated that he did not know what was in the statement as he could not read. The whole of his statement was then read to him whereupon he exclaimed that he did not tell Sgt. Celestine so at all.

12 No further evidence was called. The learned judge recalled the jury to their box, inquired from counsel then whether he wished in the presence of the jury to crass-examine on the issue (an unusual course we would observe) and on receiving a reply in the negative admitted the statement in evidence as a voluntary one and had it read to the jury.

13 At the end of the prosecution's case, the appellant elected to make a statement from the dock. In it he alleged, that on the night when the deceased was murdered he went to the Ascot cinema at 8.30 p. m., returned home and went to bed about 11 to 11.30 p. m., got up a little while after to open the door for his brother Martins whereupon both of them went to bed. They got up the next morning and after having tea, went to work. He then...