Clive Castello Rawlson Straugh Appellants v The Queen Respondent

• Jurisdiction: St Vincent and the Grenadines
• Judge: Georges, J.A,Justice of Appeal,Ephraim Georges,Sir Dennis Byron,Albert Redhead
• Judgment Date: 17 July 2002
• Judgment citation (vLex): [2002] ECSC J0717-2
• Court: Court of Appeal (Saint Vincent)
• Docket Number: CRIMINAL APPEAL NOS. 10 & 11 OF 2001
• Date: 17 July 2002

[2002] ECSC J0717-2

IN THE COURT OF APPEAL

Before:

The Hon. Sir Dennis Byron Chief Justice

The Hon. Mr. Albert Redhead Justice of Appeal

The Hon. Mr. Ephraim Georges Justice of Appeal [Ag.]

CRIMINAL APPEAL NOS. 10 & 11 OF 2001

Between:

Clive Castello

and

Rawlson Straugh

Appellants

and

The Queen

Respondent

Appearances:

First Appellant unrepresented, Ms. Kay Bacchus-Browne for 2 ^nd Appellant

Mr. Roger Gaspard Director of Public Prosecutions with Ms. S. Bollers Assistant DPP for the Respondent

1 Georges, J.A (Ag.): This is a consolidated appeal which concerns two appellants who were both convicted on 22 ^nd October 2001 on a charge of manslaughter of St. Clair Davy (the deceased) at Biabou in St. Vincent and the Grenadines and were each sentenced to twelve years imprisonment.

2 The Crown's case is that about 2:30 am on the 22 ^nd October 2000 AI Johnson was at his home in Biabou when he heard his brother the deceased calling him and shouting for help. On going to his assistance the witness said that he found the deceased "down by the road lying on his back with his two hands and feet in the air like struggling."

3 On inquiring of him what was wrong the deceased did not tell him anything but asked for some water which he gave to him and again asked him what was wrong whereupon the deceased told him "Shabba, Running Things and the boy for Shibby burn him."

4 The appellant Castello testified that he was also called "Running Things" and that he knew the appellant Straugh as "Shabba". The appellant Straugh admitted that he was also called "Shabba."

5 Sylvia Samuel, the deceased's sister testified that around the aforementioned time and place she saw the deceased lying by the road calling his brother AI. He asked AI to call one Lorraine Stephenson and requested a glass of water. Lorraine told him that before she gave him the drink of water he would have to tell her what was wrong whereupon she heard the deceased say to Lorraine that it was Shabba, Running Things and Shibby's boy who had burnt him adding that he was sitting by the Computer Centre when the three of them gave him a lash then held him and carried him down to Miss Ellis Robinson's residence at the downstairs, threw gas on him and lit him. He managed thereafter to get out and roll on the grass and beat out the fire.

6 Sergeant Calbert Straker, the investigation officer testified that around 3.00 a.m on the 22 ^nd October, 2001 after receiving a telephone report he left Baibou Police Station and went to an area called Old Pasture where he saw the deceased lying by a house close to the road. He (Sergeant Straker) spoke to him and he told him that Shabba, Run Things and Shibby's son had thrown gas on him and lit him afire in the vicinity of the Biabou Library.

7 At the time of these utterances by the deceased Sylvia Samuel, AI Johnson and Sergeant Straker testified that they had observed that the deceased's body was almost entirely burnt and his skin was peeling. An ambulance was summoned and the deceased was taken to Kingstown General Hospital where he was examined by Dr. Lennox Adams who found the patient to be suffering from partial and full thickness burns and his entire body except for the proximal thighs, the buttocks and the perineum (i.e. between the genital organs and the anus)

8 He was warded and treated for one and a half months. Initially, he responded to therapy but soon began to deteriorate slowly and despite best efforts the patient eventually succumbed to his injuries. In the doctor's opinion death was due to open flame burns to 90% of his total body surface area complicated by sepsis/infections. The chances of survival were extremely slim in such circumstances the doctor opined.

9 In the course of his investigations Sergeant Straker caused photographs to be taken of an area of an occupied house opposite the public library allegedly owned by Miss Ellis Robinson which revealed the presence of burnt articles some of which were identified by Gideon Browne as part of his property which had been stored and secured there the day prior to the incident.

10 Investigations continued and on 30 ^th October, 2000 Sergeant Straker cautioned and interviewed the appellant, Costello who pleaded an alibi by way of his defence testifying that he knew nothing about the killing/death of the deceased and that at the time the deceased received his injuries he (the appellant) had already returned to his home in the village of Spring. The last occasion on which he had seen the deceased alive he added was around midnight on the night of 21 ^st October, 2000 at which time he (the appellant) was in the company of one Leo, Shibby's stepson. His only witness Glenroy Matthias also call ' Leo' supported his story in some respects.

11 The appellant Straugh alias Shabba testified that both Costello who was also called Running Things and Shibby's son Leo, had visited his home and shop during the early hours of the morning of 22 ^nd October, 2000 and at the material time he also was at his home thus raising an alibi. He further denied being involved in anyway in the burning of the deceased.

12 The appellant Costello appealed against his conviction on two grounds namely:-

• 1. that the evidence of the Complainant (sic) is not supported by any other independent material evidence;

• 2. the conviction was unsafe and unsatisfactory.

13 In his two grounds of appeal the appellant Straugh contends that:

• 1. the decision (of the jury) is unreasonable and cannot be supported having regard to the evidence;

• 2. the sentence is excessive

14 Turning to ground 1 of Costello's ground of appeal it is plain as the learned DPP pointed out that the deceased in this case gave no evidence at this trial as he was dead at the time and so there could have been no complainant. The case for the Crown therefore largely hinges on the utterances allegedly made by the deceased against the appellants and given in evidence by the deceased's sister Sylvie Samuel, AI Johnson, the deceased's brother and Sergeant Calbert Straker whose testimony was supported by and consistent with each other as the learned DPP pointed out. That ground of appeal therefore clearly fails.

15 Ground 2 of Costello's appeal namely that the conviction is unsafe and unsatisfactory can conveniently be dealt with Ground 1 of Straugh's appeal which asserts that the decision (of the jury) is unreasonable and cannot be supported having regard to the evidence.

16 Ms Bacchus-Browne, Learned Counsel for the appellant Straugh pointed out that when first questioned by his sister Sylvie Samuel and his brother AI Johnson as to what had happened to him the deceased made no reply. The question she therefore canvassed was whether the deceased's subsequent statements (after he had been given water to drink which he had requested) identifying the appellants as his assailants were properly admissible in the circumstances. The learned trial judge she complained did not properly direct the jury on the possibility that the statements could have been concocted or distorted. There was no indication of the basis on which the said statements had been admitted in evidence she submitted. Were the contents of the statements the truth she further queried?

17 The truth of the statements made by the deceased would clearly have been a matter for the jury to decide and the learned trial judge did so direct them. On the issue of the inadmissibility of the oral statements of the deceased in evidence which is the central issue of this appeal Ms. Bacchus-Browne referred to R v. Goddard (1882) 15 Cox CC7 in which Hawkins J. following Cockburn CJ in R v Bedingfield (1879) 14 Cox 341 held that where the deceased shortly after the occurrence which resulted in her death was found in a fainting condition and apparently dying and it was proposed to give in evidence as part of the res gestae a statement which she then made as to cause of her injuries, such a statement was inadmissible but it afterwards appearing that the deceased had prefaced her statements by words "I'm dying look to my children" he admitted the statement as a dying declaration. It was a fundamental requirement then that to be admissible in evidence as part of the res gestae the dying declaration of a victim had to be made in circumstances where he/she was in a settled hopeless expectation of imminent death thus eliminating or minimizing the possibility of concoction or malice.

18 In reply the learned Director of Prosecutions referred to paragraph F16.31 of Blackstone's Criminal Practice 2000 which illustrates that the law relating to the admissibility in evidence of dying declarations as an exception to the hearsay rule in that they form part of the res gestae has come a long way since Bedingfield and Goddard and today the modern focus is on the probative value of the evidence rather on the question whether it falls within some rigid and artificial category.

19 For example in R v Woodcock 1 Leach 500 which was cited and approved in R v Perry (1909) 2KB 697, 701; 2 Cr.App.R 267 Eyre CB declared that:

"The general principle on which this species of evidence is admitted is that they are declarations made in extremity when the party is at the point of death, and when every hope of this work has gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth: a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice."

20 Lord Ackner in the House of Lords decision of Andrews (1987) AC 281 later however clarified the law by...