Melville and Winchester v The State

• Jurisdiction: Trinidad & Tobago
• Judge: Weekes, J.A.,Kangaloo, J.A.
• Judgment Date: 15 December 2008
• Neutral Citation: TT 2008 CA 53
• Docket Number: Criminal Appeal No. 24 of 2004; Criminal Appeal No. 25 of 2004
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 15 December 2008

Court of Appeal

Archie, C.J.; Kangaloo, J.A.; Weekes, J.A.

Criminal Appeal No. 24 of 2004; Criminal Appeal No. 25 of 2004

Melville and Winchester

and

The State

Appearances:

Mr. A. Welch and Mr. L. Gokool appeared on behalf of the appellant No. 1.

Mr. P. Godson Phillips appeared on behalf of appellant No. 2.

Ms. D. Seetahal appeared on behalf of the respondent.

Evidence - Admissibility — Res gestae — Whether utterances made amounted to res gestae.

Criminal law - Conspiracy to murder — Attempted murder — Kidnapping — Assault occasioning actual bodily harm — Appeal against conviction and sentence — Whether trial judge's directions on trial statements were adequate — Whether trial judge's statements to the jury went beyond the bounds of judicial comment — Joinder of inchoate offences.

1 Weekes, J.A. The appellants, Joseph Melville and Hilton Winchester, were charged with conspiracy to murder, attempted murder, kidnapping and assault occasioning actual bodily harm.

2 On 15 March 2004, both were convicted on all four counts. Melville (appellant no. 1) was sentenced to a term of 20 years hard labour on the charge of conspiracy to murder, 20 years hard labour on the charge of attempted murder, 10 years on the charge of kidnapping and 5 years on the charge of assault.

3 Winchester (appellant no. 2) was sentenced to a term of 10 years hard labour on the charge of conspiracy to murder, 10 years hard labour on the charge of attempted murder, 5 years on the charge of kidnapping and 2 years on the charge of assault occasioning actual bodily harm

They both appealed against convictions and sentences.

The Prosecution Case

4 Melville was an attorney-at-law and the virtual complainant, Ms Patricia Cox, had been his secretary for four years up to 2001. Her duties included making appointments for clients, filing and collecting documents at the various registries and taking statements in his absence. On occasion she visited Melville's clients outside of his office to collect documents and/or statements. As his secretary, she became aware of his dealings in 1999 with a Mrs. Rostant, on whose behalf he had collected insurance monies as part of Mrs. Rostant's son's estate. On two occasions in 2001, Mrs Rostant visited Melville's law firm accompanied by a police officer in an attempt to collect the money. He assured her that the money was safe and that she would “get organised”. He advised her to return on June 29, 2001 to have the matter settled.

5 On June 25, 2001 Ms. Cox reported for work as usual and discovered a young man seated in Melville's chair in his office. The young man identified himself as Jason Holder and she remembered having seen him at Melville's home a few days earlier. Holder remained at the office until noon, leaving after Melville arrived. When she reported to work on June 28, 2001 she again met Holder at the office and he later left in the company of Melville.

6 During that absence from the office, Melville and Holder met one Ainsley Alleyne. (Alleyne's evidence was admitted via his deposition since he died between the date of the preliminary enquiry and the date of the trial). Alleyne deposed that Holder approached him and introduced him to Melville, whom he indicated was an attorney-at-law prepared to pay them $40,000 to kill a lady. Holder in Melville's presence indicated that they were to accompany the lady on the pretext of signing documents but that they were really supposed to kill her. According to Alleyne's deposition, later that day at a meeting of Melville, Alleyne and Holder, Alleyne drafted Winchester into the arrangements and informed him that he would be paid whatever he requested. Melville then told Alleyne that the lady “had to come out of it” since the Fraud Squad was getting too close to him because she was talking his business with a policeman.

7 At around 3:00 pm that day, Melville telephoned Ms. Cox and told her that he was stuck in traffic and advised her to go to the corner of Park and Pembroke Streets, Port-of-Spain where she would meet Holder and another man. He told her to accompany them and to collect a statement and some documents relative to a case in which he, Melville, was involved. After speaking with Cox, Melville told Alleyne, as per Alleyne's deposition, that it was supposed to be “a skillful operation; she must not rise back up at all.”

8 Finding nothing unusual in her employer's request, Ms. Cox secured the office and proceeded as instructed. The building's watchman noticed her departure and saw her proceed up Pembroke Street.

9 When Cox met Holder at the designated point he was the front seat passenger in a car driven by Winchester. Holder then called out to Alleyne who was outside the vehicle. As Alleyne made his way to the vehicle, Melville pulled abreast in another car and shouted to Holder “Look at the time. Go and handle your scene.” Melville then repeated his instruction to Cox to go with Holder to collect the statement and documents and bring them back to him. While she had gone to collect documents for Melville in the past, this was the first time Cox had been asked to collect documents in company with persons who were not clients known to her. Fifteen to thirty minutes after Cox's departure from the office, Melville arrived. His arrival was noticed by the watchman. Two hours later, Melville emerged to ask the watchman whether he had seen Ms. Cox.

10 Without further instructions, Winchester drove the vehicle with Cox, Holder and Alleyne aboard to Fort George Road. There Alleyne grabbed Cox by the neck and told her “Don't make no f…ing noise, I am a f…ing murderer” Holder indicated that he too was a “f…ing murderer”. On hearing this Winchester made no objection but continued driving to Fort George. When the car came to Cumberland Hill, in the vicinity of a transmitting station, the paved road became a dirt track and the car could proceed no further. Winchester told Alleyne that the car could go no further and Alleyne forcibly removed Cox from the vehicle and he and Holder ordered her to walk up the hill while Winchester waited in the vehicle.

11 As Cox, Holder and Alleyne proceeded up the hill, Holder told Cox that Melville had paid him $1,000 to kill her. She offered to pay him $20,000 to spare her life. At the top of the hill Cox was placed to sit on a stone near a tower. Holder then picked up a stone and said, “Well we ain't have nothing, so this is the fastest way to do it.” He raised the stone above Cox's head and told her he would bash in her head. Instead he turned to Alleyne and suggested that Alleyne should strangle her since he was the stronger of the two. Alleyne replied “Handle yuh scene.” On hearing this, Cox flung herself off the steep hillside only to be pursued by Holder. During the pursuit Alleyne lost contact with Holder and so, according to his deposition, approximately 25 to 30 minutes after ascending the hill, he alone returned to the car where Winchester still waited voluntarily. Alleyne told Winchester that the girl was dead and that Holder had said to meet him on the other side. Alleyne and Winchester then left Fort George together.

12 Holder eventually caught Cox and brought her back to the top of the hill where he tied her hands and feet with her clothing. He ripped off her panties, positioned himself behind her and squeezed her neck until she lost consciousness. As he strangled her, he was spotted by Ainsley Letren, who was perched atop a nearby the Telecommunications Services of Trinidad and Tobago transmitting tower. Letren called out to Holder to stop and Holder left Cox to pursue Letren. In the meantime, Cox regained consciousness and made good her escape. She eventually made a report at the St James Police Station.

13 Both appellants were arrested after police investigations. Winchester gave a statement under caution in which he admitted to his participation in the events, inter alia that the man Alleyne, whom he knew as “Beetle”, told him that the lawyer was paying them $25,000 to kill his secretary and the body was not to be found. When taxed, Melville denied any knowledge of a plot to kill his secretary.

The Defence Case - Melville

14 Melville's case was that Ms. Cox had been his secretary from 1998 to the date in question. When he arrived at the office on June 28, 2001, she was not present but he made no enquiries of her whereabouts since this was not unusual. Not having seen her for the day, he asked the building's watchman, as he was about to leave at 5:30 pm, if he had seen her and the watchman replied that he had seen her go up Pembroke Street. Melville denied having spoken to Cox at the corner of Park and Pembroke Streets and denied that he had given her any instructions to go anywhere with anyone. He left the office to visit a client and called his office at about 7:00 p.m. but got no response.

15 The following morning, June 29, 2001, Cox's mother visited him at home before he left for work and enquired of her daughter's whereabouts. He was unable to assist but advised her to visit his office later that day when he would give her whatever information he had gathered. When he got to his office he noticed Cox's bag and sweater. When Cox's mother visited his office he gave them to her and advised her to make a report to the police.

16 Having heard of a warrant for his arrest, he visited the St. James Police Station where he was introduced by the police to a young man whom he had never seen before, by the name of Ainsley Alleyne. Alleyne was then asked “You spoke of a Melville in your statement; do you see that Melville here?” Alleyne said yes and left the room.

17 Melville knew Holder, who had been a witness in a matter in which he appeared as counsel, but Holder had never been to his home. He denied that there was any dispute between Mrs. Rostant and himself and further denied any involvement with the events surrounding the...