Cottle et Al v R

• Jurisdiction: St Vincent and the Grenadines
• Judge: Cecil Lewis, C.J.
• Judgment Date: 20 May 1974
• Neutral Citation: VC 1974 CA 8
• Docket Number: Crim. Appeals Nos. 5, 6, 7 of 1975
• Court: Court of Appeal (Saint Vincent)
• Date: 20 May 1974

Court of Appeal

Cecil Lewis, C.J. (Actg.; St. Bernard, J.A.; Peterking, J.A. (Actg.)

Crim. Appeals Nos. 5, 6, 7 of 1975

Cottle et al

and

R.

Appearances:

H. Samuel for appellant.

Dr. K. John for appellant.

Criminal law - Joinder of counts — Convictions for murder and firearm discharge with intent to cause grievous bodily harm — Appellants charged with three counts — Whether there was risk of jury when considering one count not being able to disregard evidence relating to other counts — Whether defence prejudiced by joinder of parties — Whether certain statements were wrongfully admitted — Whether indictment contained capital and non-capital charges — Appeal against murder conviction dismissed but appeal on third count set aside.

Cecil Lewis, C.J.

1 The appellants were jointly charged on an indictment containing three counts. In the particulars of the first count it was alleged that they together with another person named Marcus James on the 13 ^th May, 1973 at Kingstown in the State of St. Vincent murdered Cecil Rawle. On the second count they were acquitted of the offence of attempting to murder one Allanby Gaymes on the 11 ^th day of Mar, 1973; but they were convicted on the third count which alleged that they discharged a loaded firearm at Allenby Gaymes on the same dare with intent to cause him grievous bodily harm. Both of the appellants were sentences to four years imprisonment on this count, but only the appellant Laidlow has appealed. The three appeals have been heard together by consent.

2 The case for the prosecution put very shortly is that the appellants and the man Marcus James went to the house of Cecil Rawle and in pursuance of a common design fired several shots into his body on the 11 ^th day of may, 1973 and as a result of the wounds he sustained from these shots he died on the 13 ^th of May. Mr. Rawle's assailants were not apprehended until some considerable time after they had perpetrated the attach on him. The appellants evaded capture until the 26 ^th or 27 ^th of May, 1973 and indeed the third man Marcus James was not captured at all but his dead body was found on the 21 ^st of May, 1973 at about 4p.m. in some bushes overlooking the sea at Edinboro. Assistant Superintendent of Police Felix Constantine said that when he found the body he saw a .38 special Smith and Wesson revolver bearing serial No. R. 501.1 lying near his outstretched right hand. This revolver was loaded with three live and three spent cartridge cases. It has been assumed that the man Marcus James committed suicide.

3 Mr. Rawle lived in a house called Fort Cottage !situate on the Fort Charlotte Road. Around 7.30 PM on May 11th, 1973 one of his neighbours Marilyn Smith heard cries of “help” “murder” coming from the direction which she thought was Mr. Rawle's house. She phoned Mr. Henry Williams who lives not too far away. He had just arrived at his own home and as a result of the telephone call he went in the direction of Mr. Rawle's house. As he was approaching the cottage and when he was about 80 yards away from it he heard a cry coming from the cottage. It was a cry for help. He stopped his car went up the front steps, and when he got to the top of the steps he found Cecil Rawle lying on his back. There were blood spots on several parts of his torso, he was naked from the waist up and seemed to be in great pain. He asked him what was wrong with him and he told him that he had been shot. He said he had come in and was having supper, that he heard a knock at the door and that when he went to the door there were three persons standing there and he said they shot him. He identified one of the persons to be the appellant Cottle and added that he did not know the names of the other two but that he would recognise them at sight. The witness also added that when he first went to Mr. Rawle's house and found him lying on his back he said “I am dying, take me to the hospital.” Mr. Williams went for assistance and returned with two persons Hugh Toney and Hugh Antoine with whose help he lifted the injured man into his car and took him to the hospital. Mr. Williams says that these two men Hugh Toney and Hugh Antoine were together with him in Mr. Rawle's house and were in a position to hear what Mr. Rawle told him.. In fact Mr. Toney says that when Mr. Williams called for him in his car around 7.30 p.m. he went with him to Mr. Rawle's house where he saw him lying on his back on the perch. He said Mr. Raw1e stated “take me to the hospital I am dying° and further added that Junior Cottle and two others had shot him.

4 Mr. Antoine was presented for cross-examination by the Crown and he said that on the same date, that is the 11th of May he went with Hugh Toney and Henry Williams to Cecil Rawle's house and that they met him on the porch. He said that he was bawling “help, help T am dying take me to the hospital.” He further added that Cecil Rawle said that he had been shot and that Junior Cottle and two others had shot him.

5 Mr. Williams and the other two witnesses arrived at the hospital with the injured man at about 7.57 PM. Around 8PM sergeant of police Lester Bacchus went to the General Hospital where he saw Mr. Rawle lying an a bed in the casualty department. This witness said he looked weak and pale and was crying and saying he was dying. Mr. Rawle made a statement to him in the presence of Henry Williams which he took down in writing, he read it over to him and he said it correct but was unable to sign it. In this statement he said he had heard a knocking on his door and as soon as he opened it Junior Cottle and two other men had shot him.

6 Defence counsel at the trial objected to the admissibility of this statement but the trial judge admitted it on the grounds that (a) it was part of the res gestae and (b) that it was a dying declaration. The correctness of this ruling is now being challenged.

7 When Mr. Rawle was taken to the hospital he was examined by Dr. Manjeri Sunderam a medical practitioner attached to the Kingstown General Hospital. This person had left the State before the trial commenced and his deposition was road at the trial. He found the patient in extreme shock and his blood pressure was hardly recordable. On examination six external injures were found and an X-ray of the neck and shoulder revealed that the right collar bone was cracked. There were also severe internal injuries. Special mention should be made of one wound referred to by Dr. Sunderam. This was a wound one-sixth of an inch in diameter on the back of the right shoulder which caused a swelling on the right side of the neck. An X.-ray of this part of need showed that an opaque object resembling a bullet was lodged on the right lateral aspect of the cervical vertebral. column in the region of the: seventh cervical spine. Some controversy centered around -this wound and it will be referred to later in connection with the issue as to the cause of death.

8 Certain medical procedures (including an operation) were carried out by Dr. Sunderam who decided that it was not necessary to remove the bullet at the root of the neck on the right side, as in his opinion it was not causing any immediate threat to the life of the patient and when the operation was completed the patient was taken to the wards for intensive medical care. In the meantime the Government of St. Vincent had obtained permission from the Government of Trinidad for a surgeon Mr. John Busby who was attached to the General Hospital of that State to come to Saint Vincent to give such assistance as he was able to offer in an effort to save the life of the injured man. Mr. Busby performed a second operation on Mr. Rawle and removed the bullet from his neck. He says he did s o with Dr. Sunderam's consent but Dr. Sunderam in his deposition denied this. Mr. Busby is a very qualified surgeon and holds the Fellowship of the Royal College of Surgeons, Edinburgh, and is also a Fellow of the American College of Surgeons. He is an associate lecturer in surgery of the University of the West Indies and has been a medical practitioner and surgeon attached to the General Hospital in Port-of -Spain, Trinidad since 1955. He said that he was brought to St. Vincent as a Specialist/Surgeon because an operation of the nature which he performed called for skill. Preferably the skill of a person with specialist surgical knowledge. Despite all efforts however the one patient died on the 13th May, 1973 and one of the questions which arises on this appeal is what was the cause of his death. This question will be examined at a later stage.

9 The appellants do not deny that they were in the vicinity of Mr. Rawle's house around 7.30 PM. on the 11th May, 1973. They were taken to the Fort Road together with the third man Marcus James in a car belonging to one Kelvin Lettine who drove them there himself. One Errol Russel was also in the car. According to this witness when the car got to the draw bridge on Fort Road the men asked the driver to leave them there and they got out of the car and paid the driver $2 for the trip. This was about 7.10 PM. The appellant Cottle made an unsworn statement from the dock in which he said that he took a taxi on the night of the 11th May and went to the Fort Road and that he did so for the purpose of borrowing the car of the deceased man Rawle who was his friend. That is his explanation for his presence near to Mr. Rawle's home. The appellant Laidlow also said in his unsworn statement from the dock that he and Marcus James and Spirit (i.e. Cottle) hired a taxi to go to the Fort Road to borrow Mr. Rawle's car; so he too asserts that his presence in the vicinity of Mr. Rawle's home was for the lawful purpose of borrowing his car. They both say that the person who killed Mr. Rawle was the man Marcus James who was afterwards found dead in the bush. at Edinboro. In other words both appellaits denied that they had any unlawful...