Moses v The State
Trinidad and Tobago - Crime - Homicide - Murder - Constructive malice - Direction to jury in accordance with principle - Whether rule abolished - Whether proviso to be applied - Whether alternative verdicts to be substituted -
The common law rule or principle of constructive malice, whereby a killing in the course of a felony involving violence constitutes murder irrespective of intention, ceased to apply in Trinidad and Tobago when the distinction between felony and misdemeanour was abolished there by section 2(1)(a)of and Schedule 1 to the
Where, therefore, the defendant appealed against the dismissal by the Court of Appeal of Trinidad and Tobago of his conviction for murder following a direction by the trial judge to the jury in accordance with that rule: —
Held, allowing the appeal, that the judge had misdirected the jury, and since the proviso to section 44(1) of the Supreme Court of Judicature Act could not be applied to uphold the conviction the defendant's conviction for murder would be quashed; and that, in the particular circumstances, a substituted verdict under section 45(2) was not available (post, pp. 544H–545C, H–546A, C).
The following cases are referred to in the judgment of their Lordships:
Gransaul v. The Queen (unreported), 9 April 1979; Appeal No. 26 of 1978,
Reg. v. Perman [
The following additional cases were cited in argument:
Director of Public Prosecutions v. Beard [
Leach v. The King [
Reg. v. Reid (Barry) (
Reg. v. Roberts (Kelvin) [
Reg. v. Serné (
Reg. v. Skeet (
Reg. v. Stewart [
Rex v. Betts and Ridley (
Vaillancourt v. The Queen [
APPEAL (No. 1 of 1995) with special leave by the defendant, Andrew Moses, from the judgment of the Court of Appeal of Trinidad and Tobago (Bernard C.J., Sharma and Ibrahim JJ.A.) given on 29 October 1992 dismissing his appeal against his conviction of murder on 17 January 1989 at the Port of Spain Assizes before Wills J. and a jury.
The facts are stated in the judgment of their Lordships.
Sydney Kentridge Q.C. and Martin Evans for the defendant.
Mark Strachan Q.C. and Peter Knox for the state.
29 July. The judgment of their Lordships was delivered by LORD MUSTILL
This appeal raises an important question on the law of murder, as currently practised in Trinidad and Tobago. The subject is variously described as the “felony/murder” rule, or the principle of “constructive malice.” The question is whether on 29 November 1985, when Lionel Harewood was murdered, or on 17 January 1989, when the defendant, Andrew Moses, was convicted of being a participant in the murder, this rule or principle still formed part of the law of Trinidad and Tobago; and, if it did not what course should now be taken on his appeal to their Lordships' Board.
The evidence against the defendant at his trial came from two sources: persons nearby the scene and the defendant's statements to police officers, which were admitted on a voire dire after objection. This evidence, the gist of which the jury must have accepted, was to the following effect. Lionel Harewood was a drug dealer. On the morning in question Paul Isaac went to Harewood's house to “get something,” but for some reason Harewood would not deal with him, so he asked the defendant, who was there with another man, to buy “the thing” for him. The defendant did so, and Isaac departed, leaving the defendant standing outside the window of Harewood's house. Less than 15 minutes later Isaac saw three people running from the direction of the house. It was not suggested that the defendant was among them. As a result of what he was told he went to the yard of Harewood's house, where he saw him on the ground bleeding from a wound. Another witness spoke of an occasion when he was about 100 metres from Harewood's house. He heard shots, and after three or four minutes saw the defendant and another man walking away from the house. Afterwards, he went to the house where he saw a pool of blood outside the bedroom door, and a little later saw Harewood lying outside in a pool of blood. Another witness also spoke of finding Harewood lying wounded, outside a house.
Obviously, the defendant could not have been convicted of any relevant offence on this evidence alone. The strength of the case against him lay in his statements to the police, both written and oral. The first statement was oral. According to a police officer, early in the morning after Harewood was shot he cautioned the defendant who said:
“Boss, is not me weh kill the man, is Jano Christopher Pascall, he come by me about a week before and we plan to go and rob him. He showed me a revolver. Dexter was by me. He tell me how the house located and they plan to go and take him a next day.”
The first written statement gave an account of going with Pascall to Harewood's house:
“When we reached by the cocaine man and going in the yard we bounced up another rasta and the rasta man called me and give me $20 and tell me to buy a twenty stone meaning a cocaine rock for $20 because the man who selling does not want him in his yard, but when I was going to buy the stone the same rasta came in the yard and the man who selling ended up making noise saying ‘boy I don't want you in my yard’ so when the man start to get on so we ended leaving the yard and we went opposite to him … The other rasta ended up going and me and Jano remained liming in the yard opposite the cocaine man … I asked Jano if he ent buying nothing and he give me $20 and I leave him in the yard next door to the cocaine man and went to the cocaine man called him and asked him for a $20 rock. Whilst he was giving me the rock through the louvres I heard a noise to the back of the cocaine man house and the cocaine man ran to the back of the house, the back room and I hear a gun shot fire. After I heard the shot fired I was still by the louvres and I hear the cocaine man saying what is that in the back there. I looked through the louvres and I saw Jano and the cocaine man fighting up and I hear a next shot fire so I leave from by the louvres and (went) was walking away leaving the premises and on reaching a stand pipe on the track about 50 feet from the cocaine man house I heard another shot fired and I see Jano come running and I asked what he end up doing the man and he tell me he end up shooting the man. I asked what he shoot the man for and he tell me the man try to pull something and he end up shooting the man.”
Two days later, after the officer had told the defendant that Harewood had died of gunshot wounds the defendant said:
“All you hold Jano yet? … Leh me tell you how I really get in this. When Jano came by me I know he had a revolver and we did going and rob the cocaine man as planned.”
After a further caution the defendant made a second written statement. In this he gave an account of a conversation two weeks before Friday, 29 November 1985, when the defendant was with the men called Dexter and Derrick:
“Jano take out a gun, a revolver from his back pocket and show me. [Dexter left to buy food and when he returned] he end up coming back with Derrick and telling Jano to show Derrick the revolver. Jano say how he hear it have a cocaine man up in the back of Malick they call Leo and he want we to go and rob him. Derrick say that the cocaine man and he is family and he have a revolver and that he have money and make him suffer in jail. So Derrick start explaining to we how the house situated. We made we plan to rob the cocaine man another day …”
Later in the same statement the defendant gave an account of how Pascall had come to his home on Friday, 29 November, had told him that he “went and scope out the scene by the cocaine man,” and had said to the defendant “you going?” The statement continued:
“When Jano say to me you going I know what he mean and what he was talking about. It was by the cocaine man who we had planned to rob before. I know Jano had a revolver on him and he was going to rob the cocaine man. When I heard the first shot fire I was standing by the louvres and heard Jano telling the cocaine man to lie down on he back. The man say ‘Oh God rasta man don't kill me. This is all ah have, take it.’ Then I heard a second shot. I peeped through the louvres and I see the cocaine man on the ground and Jano over him still...
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