Eversley Thompson Appellant v The Queen Respondent [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | MATTHEW J. A. (Ag.),ALBERT N. J. MATTHEW,JUSTICE OF APPEAL,SATROHAN SINGH |
| Judgment Date | 12 December 1995 |
| Judgment citation (vLex) | [1995] ECSC J1212-1 |
| Date | 12 December 1995 |
| Court | Court of Appeal (Saint Vincent) |
| Docket Number | CRIMINAL APPEAL NO. 9 OF 1995 |
IN THE COURT OF APPEAL
The Hon. Mr. C.M. Dennis Byron - Justice of Appeal
The Hon. Mr. Satrohan Singh - Justice of Appeal
The Hon. Mr. Albert N. J. Matthew - Justice of Appeal (Ag.)
CRIMINAL APPEAL NO. 9 OF 1995
Mr. C. Glasgow for the Appellant
Mr. B. Cottle for the Respondent
On June 21, 1995 the appellant was convicted by a Jury before Joseph J. of the offence of murder of a little 'girl, D'Andra Ollivierre. The learned Judge sentenced him to death. He appeals from the conviction and sentence.
The case for the prosecution is that D'Andra Ollivierre aged 4 years 10 months disappeared from her mother's home at La Pompe, Bequia between 7:00 p.m. and 9:00 p.m. on December 18, 1993 and soon after 9:00 p.m. several members of her family and others searched the surrounding area for her unsuccessfully.
Three members of the family testified that during the search they saw the accused, whom they knew to be living not too far away, by the help of a flash light hiding under a tree and when one of thesearchers asked to take him his gun the accused left where he was hiding and ran down the beach. The brother of the deceased ran after him but in so doing fell on the beach and never caught up with the accused.
Members of the search party found a little girl's panty in the surrounding area and they also saw on a stone what looked like a pool of blood mixed with human faeces. The police officers who came on the scene gave similar evidence.
Sergeant Warrican who investigated the case obtained oral and written statements from the accused.
The case for the prosecution was based therefore on the statements and the several bits of circumstantial evidence referred to above.
The accused at the trial challenged the admissibility of the statements whereupon the learned Judge conducted a Voir Dire at the end of which she ruled that the oral and written statements were voluntary statements. The appellant in his testimony from the witness stand denied making the statements and denied knowing anything about the death of Penny as the deceased was also known.
The appellant filed three grounds of appeal and dealt with them in the following order:
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1. There was no proper identification of the accused.
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2. The case for the defence was not properly put to Jury.
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3. The verdict is unsafe and unsatisfactory.
In respect of identification the learned Judge told the Jury in the course of her summing up the following:
"The question also of mistaken identification has been raised. The accused does not have to prove that there was a mistaken identification. Again the burden rests squarely on the prosecution to prove that there was an identification of the accused in the vicinity of the Ollivierre's home that night under that tree."
The learned Judge followed this later on in the summing up with directions on identificationmodelled on the guidelines laid down in R v. Turnbull 1976 3 AER 549.
Learned Counsel for the appellant could not quite say that there was a defect in the general directions but what he submitted was that the learned Judge did not draw attention to the discrepancies or highlight those discrepancies arising from the evidence of the witnesses for the prosecution who identified the accused. That is not a fair criticism. The learned Judge referred extensively to the conflicts in the evidence of the witnesses.
This ground of appeal fails and as I will indicate below any consideration of the issue of identity in this case can be regarded as purely academic.
Under this head learned Counsel for the appellant questions whether in fact there was a crime and he observed that the blood and faeces seen on the stone were never tested scientifically. The learned Judge in her summing told the Jury that the evidence in this case was circumstantial evidence because nobody had seen the accused do anything that night and she also reminded them that the case was unusual because no body was found. She correctly explained to the Jury the meaning of circumstantial evidence and by making reference to Archbold Criminal Pleading, Evidence and Practice she referred to a case where it was held that the fact of death is provable by circumstantial evidence notwithstanding that neither the body nor any trace of the body has been found and the accused has made no confession of any participation in the crime.
Learned Counsel shifted his attack to the Judge's directions in connection with the statements. Counsel submitted that the ruling of the learned Judge at the end of the Voir Dire did not indicate that there was compliance with the Judges' Rules and that the learned Judge should have asked the Jury to conclude whether or not the accused made the statements.
Counsel also observed that the accused was arrested in the morning and taken to thepolice station bare backed and bare footed and was left without food until about 3:30 p.m.
At the end of the Voir Dire the learned Judge gave her ruling in these terms:
"A caution should be administered when a police officer not merely suspects an accused of having committed an offence but when the police officer has evidence to put before a Court. However, even where caution is not administered Judge has a discretion to admit a statement unless statement was not made voluntary. So that the test to be applied is 'was the statement made voluntarily'.
I hold that oral and written statements are voluntary statements."
Learned...
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