Singh et Al v R
| Jurisdiction | Trinidad & Tobago |
| Judge | Hyatali, C.J.,Phillips, J.A. |
| Judgment Date | 26 February 1976 |
| Neutral Citation | TT 1976 CA 16 |
| Docket Number | Crim. App. Nos. 12, 14 & 16 of 1975 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 26 February 1976 |
Court of Appeal
Hyatali, C.J.; Phillips, J.A.; Corbin, J.A.
Crim. App. Nos. 12, 14 & 16 of 1975
N. King for the first and second appellants.
L. Sanguinette for the third appellant.
A. Warner, Q.C., Solicitor General and E. Prescott for the Crown.
Criminal Law - Appeal against conviction — Murder
Criminal Law - Appeal against conviction — Robbery.
Practice and Procedure - Trial by Jury — Whether the illegal and void trial on the counts for robbery with aggravation had the effect of vitiating the trial on the counts for murder by an array of jurors which was lawfully constituted for the latter but unlawfully constituted for the former.
Harry Singh, David Andrews and O'Reilly Clement were tried at the Port-of-Spain Assizes on an indictment containing two counts. The first charged that they murdered Clifford Imamshah (the deceased) and the second that they robbed him with aggravation of $449.76 in cash. Both offences were alleged to have been committed on 11 January 1974 at the Shell gasoline station at Golden Grove Road, Piarco, of which the deceased was the shift manager at the material time.
The jury found Singh and Andrews guilty of murder. As to Clement, however, they found him not guilty of murder but guilty of robbery with aggravation. Each of them has appealed against his conviction on grounds which are referred to hereafter.
Around 5.30 p. m. on 11 January 1974 two men entered the gasoline station aforesaid. One of them shot the deceased in the hest while the other robbed him of money which he kept in a yellow tray in one of the drawers of his desk. They then made good their escape in a car which was waiting for them at a convenient distance away from the scene of the crime. The deceased died soon afterwards, It was clear that he was killed in the course or in furtherance of a felony of violence and that in law, the persons responsible therefore, were guilty of murder. The main issue at the trial with respect to Singh and Andrews was whether they were the two men who shot and robbed the deceased; and with respect to Clement, who admitted that he was the driver of the car which transported the robbers to and from the scene of the crime, whether or not he was acting in concert with them.
The evidence presented by the prosecution to the jury showed that in consequence of information received, Sgt. Villafana went to Singh's home about six hours after the murder, found him sleeping, woke him up, told him of investigations that were being made into a report of robbery and murder and cautioned him. Singh looked at Sgt. Villafana in the face for two or three minutes and said “I ain't know the man dead.” From there Singh was taken to the St. Joseph Police Station. At 8.35 a.m. on 12 January 1974 he gave a statement to Cpl. Lodge in which he confessed in effect that he had shot and robbed the deceased with the assistance of a man he named as ‘Winty’. Later that day, at two separate identification parades conducted by Asst. Supt. Gregory Lopez at 3.25 p.m. and 3.40 p.m. respectively, four witnesses, Sonny Charran, Pooran Dalchand, Phillip Ramsaran and Doodnath Lutchman, identified Singh and Andrews as the two men who entered the gasoline station and left it after the deceased was robbed and shot. Of these witnesses, three of them positively identified Singly as the person who shot the deceased at the gasoline station and Andrews as the person who took and carried away a yellow tray with money in it from the drawer of the desk previously mentioned.
The admissibility of Singh's confession was objected to at the trial, on the ground that he was induced to make it by threats and promises held out to him by Cpl. Lodge; but the learned judge over-ruled the objection and admitted it in evidence as a voluntary confession.
He did so after hearing in the absence of the jury, the evidence of Cpl. Lodge, who denied the threats and violence alleged; of Ganesh Singh, a Justice of the Peace, who verified that the appellant had signed the statement after declaring that he made it of his own free will; and on Singh himself, who alleged he made the statement in consequence of violence applied to him by Cpl. Lodge.
Andrews made no statement to the Police, but Cpl. Castellano acting on information relayed to him while he was on mobile patrol duty, intercepted Andrews in the San Juan district one hour after the murder. On being searched, Andrews was found to have in his pocket $400 in cash made up of 20 twenty dollar bills. Apart from the witnesses who identified him at the parade as one of the robbers, Clement testified on oath at the trial that Singh and Andrews hired him to transport them to Piarco around 5.30 p.m. on 11 January 1974; that in consequence thereof, he drove them to the gasoline station at Golden Grove Road, dropped them off, waited for them nearby and upon their re-entry into the car sorry time later, he drove them back to the San Juan district. On the journey back, Clement said, “a yellow thing” was thrown out of the car while passing the Tacarigua Bridge. He later took the police to that Bridge where the “yellow thing” was retrieved, it turned out to be the yellow tray taken away by one of the robbers from the drawer of the desk of the gasoline station.
The prosecution case against Clement was founded on his oral admissions to the police at 11.50 p.m. on 11 January 1974, a written statement he made to the police at 9.05 a.m. on 12 January 1974, confirming those admissions and the evidence of Sonny Charran. In that written statement, which was admitted without objection at the trial, Clement stated that he operated his car PJ 4593 as a taxi; that around 5.00 p.m. he was given a job by a man he knew as Winty, to transport him and an Indian fellow to Piarco. He drove them from San Juan to the Shell gasoline station at Golden Grove Road, Piarco and back, for which he was paid $30. But there were several admissions in his statement, which it is not necessary for present purposes to set out here, from which it was deducible that he was acting in concert with the two men to hold up and tab the gasoline station.
In summing up to the jury the learned judge directed them that the killing of a person in furtherance of a felony of violence is murder; and that if they believed that the appellant Clement –
“knew of the intention to commit robbery with aggravation and was a party to it, even though he was not physically present in that office, but was sitting at a convenient distance away there from to favour the escape of these men after they had robbed the gasoline station, that would be sufficient participation in the offence to constitute him equally guilty with (Singh and Andrews).”
That was a correct direction in law but it was preceded by another legal direction that the two counts in the indictment charging murder and robbery with aggravation were alternative counts. And to emphasize that they were, the learned judge proceeded immediately thereafter to direct them as follows:
“The main thrust of the Prosecution's case is that these three men murdered Clifford Imamshah in the course of carrying out a felony of violence, to wit, robbery with aggravation. That is how I am going to present this case to you in law and this is how I direct you on this count. You will only direct your mind to the second count on this indictment if you are not satisfied to the extent that you feel sure of the quilt of anyone of these accused men on the first count. In relation to the accused whose guilt you are not satisfied about on the first count you will then direct your mind to the second count, and having so directed your mind if you are not satisfied to the extent that you feel sure about the accused person's guilt on the second count, well then you will acquit that person on the second count as well. So that you may find all or any of the accused guilty of the first count, or of the second county and you may find all or any of the accused not guilty on the whole indictment.”
The directions that these two offences were alternative to each other in the sense in which it was put to them, was in our view incorrect, since the robbery charged here had become merged, as it were, into the murder alleged; and subject to what is stated hereafter as to the validity of the trial of the count for robbery with the count for murder, the proper course for the learned judge to follow was to prevent the jury from convicting on both charges for the reasons indicated in R v Harris (1969) 53 Cr. App. R. 376. The judge, as both his original notes of evidence and the transcript thereof show, in fact took this course in the cases of Singh and Andrews by not taking a verdict against them on the second count. But it had to be remembered that by reason of the merger referred to, the commission of the robbery charged was such an integral part of the commission of the murder alleged that a verdict of guilty of murder, necessarily involved a finding that the robbery charged had been committed. The directions of the learned judge therefore that these two offences were to be regarded as alternative to each other was clearly inconsistent with his correct direction in law that killing in the furtherance of the offence of robbery with aggravation is murder.
Counsel for each of the appellants attacked the verdicts of the jury as inconsistent and therefore unreasonable. Mr. King for Singh and Andrews however, conceded that taken by themselves the verdicts of guilty of murder on the first count and the lack of any verdicts on the second count cannot be assailed as inconsistent. His submission however, was that when these verdicts were taken and considered together with the verdict of not guilty returned against Clement on the count for murder and that of guilty on the count of robbery with aggravation, the...
To continue reading
Request your trial