Shalto v The State

• Jurisdiction: Trinidad & Tobago
• Judge: Bernard, C.
• Judgment Date: 22 April 1988
• Neutral Citation: TT 1988 CA 6
• Docket Number: Crim. App. No. 3 of 1987
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 22 April 1988

Court of Appeal

Bernard, C.J.; McMillan, J.A.; Edoo, J.A.

Crim. App. No. 3 of 1987

Shalto

and

The State

Appearances:-

V. de Lima and N. Mohammed for the appellant

L. Skinner for the State

Criminal law - Appeal against conviction and sentence — Murder — Defence — Provocation — Whether trial judge erred in withdrawing defence from the jury — Evidence that deceased taunted appellant just before the shooting — Words described did not fall within the description in the case law as to what words constituted a taunt of extreme and exceptional character such as would amount to provocation — Appeal dismissed.

Bernard, C.

1 At the close of the arguments in this appeal, we dismissed it and affirmed the conviction and sentence. We also said that we would, at a later date, give our reasons for so doing. This we now do.

2 Leroy Shalto (“the appellant”) was convicted for the wilful murder of Rozalia Shalto (“the deceased”) on September 28, 1978. At the trial the evidence for the prosecution was, and it was not in dispute, that he and the deceased were lawfully married to each other but that on the aforementioned date she was no longer cohabiting with him at the matrimonial home and had, on the day before, taken up residence at the home of a friend of the family by the name of Francillia St. John. It was also not in dispute that the death of the deceased had resulted from an incident between herself and the appellant which occurred shortly after lunch time on 28th September at her place of employment, to wit, Standard Distributors Limited, situate at Henry and Queen Streets in Port-of-Spain.

3 According to the eye witnesses for the prosecution of whom Miss Marva Neverson - a co-worker - was the main one, just prior to the incident the appellant and the deceased had been engaged in an inaudible conversation by the front of the store. At a certain stage the deceased was seen to turn away from the appellant and to walk back further into the store. She then halted and engaged in a further but brief and inaudible conversation with the appellant. Thereafter, she suddenly turned around and began to flee further inside the store. The appellant then whipped out a revolver from his waist. With her back by this time facing him the appellant fired a shot. She fall to the ground mortally wounded. In recalling the incident prosecution witnesses did not concur in the suggestion of the defence in cross-examination that a struggle had taken place between the parties that day.

4 The prosecution evidence also revealed that attempts at restraining or pacifying the appellant after he had done the deed by, among others, Cpl. Lambert, a passerby at the times who had overheard the report of gunshot, fell an deaf ears. On the contrary, the appellant took hold of one of the eye witnesses, to wit, Miss Marva Birchwood, another co-worker who was nearby. He then pointed the firearm at her head and threatened to kill her if anyone dared to intervene. He was eventually subdued by timely and heroic action on the part of the store porter, Michael Francis, and Cpl. Lambert himself. It came about this way. Francis had happened to lick the firearm out of his hand. It fell to the ground. This caused it to go off again. The appellant then tried to retrieve it. He did not succeed in doing so because Cpl. Lambert frustrated his attempt by shooting him in the leg.

5 There was some support for the contention of the prosecution that the deceased was shot from behind and in her back. The post mortem examination which was conducted on her dead body by Dr. Ragu the next day so revealed. Dr, Ragu did not testify at the trial as he was not then available. However, his post mortem report was admitted into evidence under the provisions of s. 19 of the Evidence Act Ch. 7:02 as amended by s. 2 of the Evidence (Amendment) Act, 1983. It indicated that the deceased had died as a result of a firearm injury. This injury was located in the region of her back. A singly bullet was extracted from there. There was no exit wound. The bullet, which had entered in the manner just stated, was recovered from soft tissue near the left breast. The evidence also revealed that there was a hole in the back of the jacket which the deceased had been wearing at the time of the shooting. This, of course, was some support for the contention of the case for the prosecution that the deceased was shot from behind.

6 The appellant when formally charged and cautioned by the complainants Asst. Supt. Prime (then an Inspector), gave, what the prosecution contended and the trial judge found after a voir dire to be, a voluntary written statement. For reasons which will appear later it is reproduced hereunder in extenso.

“Well sometime early in the month of August this year 1978 between 9.00 a.m. to 10 a.m. I give my wife some money and send her in town to shop with my two children, I didn't go to work that day so I remained in the house. While there lying down I heard a vehicle stop in front of my house. I then heard my gate open, I got up and come and open my front door. As I looked outside I saw a police corporal in front of my door. He told me that he was Corporal Quashie and told me the reason why he was at my home is because me and my wife had a little trouble and he came to investigates I asked him how far he come from and he said Besson Street. I then tell him that it is a small matter between me and my wife and I really can't see the reason for the police. I also told him that it have San Juan and Morvant Police just they and you come from quite Besson Street to investigate how that funny to me. He told me “Well alright I will see you” and he walk away and went outside. About half an hour after that my wife came. As she came inside I told her “girl like you cheating me”. She told me no and ask me why I tell her that. I tell her that someone was here by the name of Corporal Quashie you know him and she said no. I told her that I asked him if he know my wife and he said yes but she keep telling me she didn't know the man. We reached to high words and I pelt a lash at her. She pelt back a lash at me and run out the yard and her false teeth fall and breaks I went back inside and she came back in the yard, took up her teeth and walk out the yard. She went away leaving me with the two children. I kept them for two weeks and after that I took them by her mother in Rio Claro and leave them they. I told them that I was coming back for them when school open. Two weeks after that I went back for them and her mother tell me that she pass and take them and she don't know where they gone. I went back to my home. Sometime in September 1975 it was between the 4th or the 11th I was walking along Henry Street when I saw my wife working in Standard Distributors Store. I went inside the store and spoke to her she told me that I will see her the evening to come back and meet her. I got a taxi the evening and went back and meet her. She came into the car and we went up to the Memorial Park where we came out of the car. We stopped there and talk. This was around 5 p.m. The taxi returned and took we up about 6 p.m. the same evening and dropped we by the Diego Martin taxi stand. We came out and I told her that I will hire a taxi to take her home because she tell me she was living Diego Martin. She told me not to hire any taxi she will take one herself. I decided to stay with her because I was begging her to come back home. We remained there until late. Then she jump in a taxi and tell the driver to drop her Besson Street, I also got in a car and went to Besson Street Station. I went into the station with her and she told the police I was following her and she have divorce proceedings against me. The police told me that I should not follow her and I leave and went to my home. The next day I went to where she was working at the store on Henry Street. When I got them I saw a man dressed in plain clothes who I later got to know as Edwards who is a policeman. I told her that a friend name Scott was outside to talk to her and the man Edwards told me “let me tell you something young fellow I don't talk much I am a serious man, keep way from this woman.” I tell him “Man this is my wife and is two kids involved and ah must speak to her.” This was in the morning time. I leave the story and I went away. I returned the evening around 4.30 p.m. but I really can't remember the date. I met the same policeman Edwards standing up outsides the store. I also stood up outside. As the employees came out my wife also came up. I went up to her and started to talk to her. Edwards came between us. I told him that if we could go and sit down and talk this over it will be alright. He told me look I working move away from here. I kept on walking trying to talk to them and he push me off. I see as if he wanted to lack me up and I walk away. The next day I went to the mirror building and mach a report against Edwards to the big man there. I can't remember his name and he put me on to a superintendent name Gittens and I made a report to him. He called acting Inspector Tracey and told him that he was sending me to him to give a statement. I leave there went to where I am working at Telco on Henry Street. There I took up some clothes took them to my wife at the store. As I came out of the store I met Edwards, Corporal Quashie and another police. Edwards held me, arrest me and took me to Besson Street Police Station walking and he gave me three charges. I got bail about 3.30 p.m. I now remember that this was Tuesday 26th September, 1978. After I got bail I went back to the superintendent and Mr. Gittens he call Tracey and tell him he was sending me to him to give a statement. This was on the telephone. I left the office and I returned to Besson Street where acting Inspector Tracey took a statement from me. The next day I gent to Court and while in the Court Corporal Quashie and Edwards came...