Narine v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Hyatali, C.J. |
| Judgment Date | 25 May 1981 |
| Neutral Citation | TT 1981 CA 30 |
| Docket Number | Crim. Appeal No. 33 of 1979 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 25 May 1981 |
Court of Appeal
Hyatali, C.J., Corbin, J.A.; Cross, J.A
Crim. Appeal No. 33 of 1979
R.L. Maharaj - for the appellant.
Lionel Jones, Assistant Director of Public Prosecutions - for the respondent.
Criminal Law - Appeal against conviction — Murder
Practice and procedure - Trial by jury — Directions to jury (Evidence)
JUDGMENT OF THE COURT DELIVERED BY As previously intimated we now give our reasons for allowing the appeal of Motilal Narine (the appellant) against his conviction at the Port-of-Spain Assizes on 30 November 1979 for the murder of Gail Slinger between 22 and 27 December 1977 at Sangre Grande. The evidence on which the State relied to prove that the appellant murdered Gail Slinger (Gail) was to the following effect:
At about 7 p.m. on Friday 23 December 1977 Lucy Slinger (Lucy) left her children Winston aged 5, Gail aged 3 and Hayden aged 2(years at her three-room apartment in Vega de Oropouche on the Toco Road, Sangre Grande, to go to the home of one Mrs. Mohan at the Vega de Oropouche Junction, where she was employed as a maid. Before leaving she locked the windows of her apartment and, somewhat curiously, for which she have no explanation, she merely pulled in the front door thereof without locking it. When she left, Gail and Hayden were asleep in the bedroom.
Later that evening at about 8 p.m. one Jordan Joseph, a resident in the area, was on his way to the Vega de Oropouche Junction when he saw the appellant going towards the front door of Lucy's apartment. He heard him call out to her, but heard no reply. Joseph continued on his way the junction where he met Lucy and spoke to her.
Lucy then returned to her apartment around 9 p.m. to find the appellant lying on the floor of her living room. She and the appellant knew each other well. They had not only grown up together but he was a constant visitor to her home. Lucy, however, did not take kindly to his presence at her apartment and she consequently ordered him out. He did not budge. She tried to pull him outside but that proved too much for her. She then told him she would get someone assist her to put him out but he pretended he was drunk and smiled. She tried next to get assistance to eject but failed to Get any. In the event, she returned to work leaving the appellant in her dining room and her children in the bedroom.
Between 9 and 10 p.m. on the same evening, Bertie Dublin, a 68 year old cripple living opposite to Lucy's apartment, was sitting at the open window of his house facing the road when he saw the appellant walking towards Sangre Grande holding Gail in his arms, Dublin heard her saying at time “I want to go to Mummy.”
At 10 p.m. Lucy returned to her apartment to find that the appellant was not there. On looking into her bedroom she observed that one of her children was missing. She did not know which of them it was, and yet she did not check to find out. After speaking to her neighbour, Roslyn Vilaberia, she went to the home of one Vencina Davis, where she had drinks with her and a few other friends.
Lucy eventually returned to her apartment at 3 a.m. Saturday 24 December 1977. It was only then she checked and discovered that her missing child was Gail. She did not however feel disturbed as she assumed that Gail's putative father, Ivan Barclay, from whom she had separated a few years before, but who visited the children regularly and maintained them, had taken Gail away.
Later that morning Lucy had breakfast with Winston and Hayden. She then went in search of someone to paint her apartment. She came upon the appellant between 7 - 8 a.m. and after disclosing her mission to him he agreed to do the painting. He accordingly went to her apartment painted it and left at about 2 p.m. Surprisingly, there was no evidence that Lucy spoke to the appellant either about his presence in her apartment on the previous evening, or the time when he left it, nor that she asked him whether anyone had taken Gail away while he was there.
By midday on 24 December, Lucy realised that Gail was not with her putative father, Barclay, nor with another 14 year old daughter of hers named Gilian, who lived away from her in the same district. Lucy then started to search for Gail but failed to find her. At 10.45 p.m. she made a report to the Sangre Grande Police station. She continued to search for Gail on 25 December but to no avail. Bertie Dublin knew that Lucy was searching for Gail, but somewhat strangely, he said nothing to Lucy of having seen the appellant with Gail in his arms on the night of 23 December going towards Sangre Grande. On 26 December Barclay instituted a search for Gail. He found her dead and nude body in an abandoned shack in a cocoa field located some 50' off the Toco Road and about 700' away from Lucy's apartment.
On 28 December 1977, Dr. B. K. Bhootra, a Forensic Pathologist, performed a post mortem examination on Gail's dead body. It was then in a state of decomposition. He found (1) a rupture of the tissues between the vagina and the rectum (the area called the perineum); (2) the hymen intact; and (3)15 cc of blood stained fluid in the right and left sides of the chest cavity. From these findings he concluded that death was due to shock and haemorrhage resulting from the rupture of the perineum. Dr. Bhootra also found that there was peeling of the skin and a greenish discolouration all over the body, and concluded from these symptoms that death had occurred four to five days prior to the post mortem examination.
These facts and circumstances, if believed, undoubtedly raised an inference that the appellant was the person who must have unlawfully and with malice aforethought inflicted the injury on Gail which caused her death on 23 or 24 December 1977; and provided, there mere no co-existing circumstances to weaken or destroy that inference, the jury on a proper direction were entitled to convict the appellant murder. Indeed the case for the State rested upon that inference and the absence of any such co-existing circumstances.
In answer to the State's case, however, the appellant gave evidence on oath setting up an alibi. In addition, he denied the allegation that he went to the door of Lucy's apartment around 8 p.m. on 23 December 1977 and called out to her as Joseph claimed, or that he was lying on the floor of Lucy's living room around 9 p.m. the same evening as she alleged; or that he was walking towards Sangre Grande bearing Gail in his arms around 10 p.m. on that very evening as Dublin had sworn.
At the trial, the depositions of Dr. Bhootra, who was proved to be absent from the country then, was admitted in evidence by the trial judge against the objection of counsel. The exercise of the judge's discretion in admitting the depositions formed the subject matter of a specific complaint in this appeal and is dealt with hereafter.
But leaving aside for the moment the complaint made in this regard, it as of importance try note two facts made in Dr. Bhootra's depositions: firstly, that one and only one cause of death was given therein, namely, that death occurred from shock and haemorrhage resulting from the rupture of the perineum; and secondly, that the time of death was stated to be on 23 or 24, December 1977.
The first of these facts was hardly in dispute, but the sworn testimony of the appellant in answer to the case for the State, raised an issue with respect to the second of them, that was crucial to the appellant's case, namely, the true time of death. If Dr. Bhootra was present at the trial, it would have been open to the appellant to cross-examine him to show that it was at least possible for death to have occurred not four to five days before 28 December 1977, but six to seven days before. In this connexion it is of interest to note that the indictment alleged that the murder of Gail took place between 22 and 27 December 1977, that is to say, between one and six days before the December 1977. If death had occurred six days before then the testimony of Dublin, by which the State sought to establish a vital link in the chain of circumstantial evidence against the appellant, would have been rendered nugatory. Consequently, the absence of Dr. Bhootra at the trial for cross-examination operated unfairly and unjustly against the appellant.
In his summing-up on the cause of death, the learned judge invited the jury to consider not only whether the appellant had ruptured Gail's perineum with the necessary intent to constitute murder, but also whether he had caused her death by abandoning her in the shack in which she was found; and, if the latter, to find him guilty of murder if he was “conscious that the natural and probable result of leaving or abandoning her in that shack was to cause her death”; further, he directed them to find manslaughter, if there were “circumstances which would raise a reasonable expectation that she would be found and saved.”
The first, second and fourth grounds of appeal, complained in effect, that the learned judge erred in directing the jury to consider murder by abandonment on the part of the appellant. That direction loomed large in the summing up, for it was given to them on at least three occasions in the course thereof. It was submitted that it was based on a theory advanced by the learned judge which was not warranted by the evidence, and that it must have thoroughly confused the jury about the cause of death and the particular intent that was necessary to find the appellant guilty of murder. We agree entirely.
If the verdict of the jury was founded on the theory advanced by the judge, as it may very well have been, then it was clear, as counsel for the state frankly conceded, that their decision could not be sustained. We were at a loss to understand why the learned judge pressed this theory upon the...
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