Wesley Mirjah Appellant v The Queen Respondent [Ecsc]

• Jurisdiction: Grenada
• Judge: CECIL LEWIS. C.J. (Ag. ),ACTING CHIEF JUSTICE
• Judgment Date: 13 October 1972
• Judgment citation (vLex): [1972] ECSC J1013-1
• Court: Court of Appeal (Grenada)
• Docket Number: Criminal Appeal No. 3 of 1972
• Date: 13 October 1972

[1972] ECSC J1013-1

IN TIE COURT OF APPEAL

Before:

The Honourable the Acting Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Louiay (Ag.)

Criminal Appeal No. 3 of 1972

BETWEEN:

WESLEY MIRJAH

Appellant

and

THE QUEEN

Respondent

J.O.F. Haynes, with E.A. Heyliger and M. Sylvester for Appellant

D. Lambert (Ag. D.P.P), and K. St. Bernard for Respondent

The judgment of the Court was delivered by —

CECIL LEWIS. C.J. (Ag. )

1 The appellant was convicted on July 10, 1972 of the murder of Alwyn Phillip and sentenced to death. He has appealed against his conviction with the leave of the single judge. The case for the Prosecution which rests substantially on the evidence of three eye witnesses, Clyde Thomas alias Zaka, Agnes Thomas and Zephirin White, is that on December 24, 1971, an accident took place at Rose Hill in Morne Fendue opposite the house of one Miss Brownie. The accident involved a bus named Gaiety owned by Carlisle Rathan, the brother of the appellant, and a motor cycle. Two men, Lennard and Lennox who were on the motor cycle were injured. Lennox was a friend of the deceased and of the witness Clyde Thomas. News of the accident spread around the area and came to the knowledge of several persons. The deceased man, Alwyn Phillip heard about it when he was in the shop of one Miss Queenie at Rose Hill. In the shop with him at the time were Clyde Thomas and Agnes Thomas, two witnesses for the Grown, and other persons. Alwyn Phillip, the two Crown witnesses just mentioned, and David Collymore travelled to the scene of the accident ina car driven by one Appo. On their way they met the other Crown witness Zephirin White on the road speaking to Patrick Andall and these two men entered the car. On arriving on the spot where the accident had taken place, they came out of the car and found the appellant at the scene.

2 The witness Clyde Thomas said that it was the appellant who had informed him of the accident and that is why he went to the scene, and this statement receives support from the appellant himself who says that when he went to the Rose Hill junction to turn his car he saw some men and told them there was an accident "down the road". According to Clyde Thomas, there was a crowd of persons standing on the road and Alwyn Phillip entered the crowd and said:

"What happen here? I want to know how these 2 fellas got bounce. Wesley Mirjah answered and said: All yuh hungry niggers its just an accident happen here and all yuh come running up all yuh mout. Alwyn then answered and said I'm only enquiring. By that time Wesley and Alwyn was about arm's length from each other. I was also standing near…………. Wesley then push Alwyn. Alwyn cuffed him. He cuff hack Alwyn. Wesley. Alwyn fell to the ground, got up and they hold on to each other. I tried to separate them. I went towards them trying to pull Alwyn from Wesley. I was unable to separate them.

Wesley then pushed his hand in his pocket pull it out and made a lash which caught me on my right shoulder. He then made another lash which caught Alwyn along his leg underneath his belly here. (Witness indicates groin on left side.) Alwyn hold his belly and walk across the road and Alwyn said……………."

3 At this stage in the evidence of the witness notice was given that objection would be taken to the admission of the words which the witness was about to say the injured man Alwyn used.

4 The words in question were "Oh God Dora, if ah dead you could tell anybody its Wesley that kill me". It should be observed in passing that there is no evidence to indicate who Dora was or whether she was present when Alwyn Phillip receivedthe injury from which he subsequently died. The trial judge heard argument in the absence of the jury on the question of of the admissibility of the words and he ruled that they were admissible as part of the res gestae and also as being a statement made in the presence and hearing of the appellant. The appellant now challenges the correctness of this ruling.

5 After receiving the wound Alwyn walked across the road "holding his belly" and the witness said he saw blood falling on the ground and that Alwyn fell face downwards. The witness was then holding the appellant because he had seen him "make a lash at Alwyn and I saw Alwyn walking across the road and the weapon he used cut Alwyn." He added that he was holding the appellant "to see the weapon he used to cut Alwyn." His evidence then continues:

"While I was holding the accused I saw he had a knife in his hand and a yellow handle screwdriver.

In holding him I was trying to take away the knife from him.

While trying to take away the knife from the accused Mr. Leon came and hold me and he said to me: What all yuh fighting for? I said I'm not fighting I'm holding Wesley because he cut Alwyn.

No Sir, I did not succeed in taking away the knife from Wesley. Mr. Leon take me away from him. He come and hold me from behind and pull me away from Wesley.

When Mr. Leon pull me away I saw Wesley running through his mother flower garden."

6 He went back to where Alwyn was lying and (to use his own words) "I touched him to hear if he say anything or if he could walk. He said nothing and made no move. I saw the condition of his clothes. It had blood—plenty blood."

7 He was asked in cross-examination if he had a stick that night and he said no, nor did he see anyone else with a stick. He also denied that on Christmas eve night he and his friends came down from Rose Hill to attack the Mirjahs. He further stated that Alwyn did not have a stick that night, that he, thewitness, was not beating the appellant and that the appellant never fell to the ground during the time he was at the scene. Agnes Thomas' version is that when she reached the scene of the accident she saw the two men Lennard and Lennox lying on the ground and that Clyde Thomas helped to put one of them in a car. She went with Alwyn Phillip a little lower down the road text she saw the appellant leaning on his car and Alwyn text "Where is Carlisle?" The record of her evidence then antinues as follows :—

"Nothing happened at that time. Carlisle was also leaning on the car. Then Alwyn move up a little to the car and he ask: Where is Carlisle? There was no answer. He ask the question again and then he said is a questi on I want to ask. Nobody did not answer. He then said ah asking for Carlisle? He then move up a little closer to the car. I heard Wesley say Man Move! and he make a lash with his hand. It catch Alwyn. I can't remember which leg but some where across his belly. (indicates region of left groin with her left hand.) Alwyn got cut. The accused had something in his hand. I see the blade of a knife. When I was going down the road with Alwyn he did not have anything with him. When this thing happen there were other people about. I heard Alwyn bawl Oh! and he fall. When he fall I left. I saw Alwyn again. When I came back down I saw Alwyn lying in the car with Zaka."

8 In cross-examination she emphasised that she saw the appellant with a knife. She said "I saw Wesley with a knife. It was a knife, not something like a knife". And in re-examination she said "yes sir, I saw the blade of the knife."

9 Zephirin White, the other eye witness went in a car to the spot where the accident occured. As he came out of the car, he saw Lennox Edwards lying on the ground and he assisted Alwyn Phillip in putting Lennox in the said car. He said:

"I heard a noise lower down. About 60 feet from where I was standing. I walked to where I heard the noise. Reaching there I saw Wesley Mirjah holding on to Alwyn Phillip (Indicates). They fell to the ground.

Both o' them fell. Wesley fell on top of Alwyn. I held Wesley and. pull him up from Alwyn. (Indicates) I was behind him when I pulled him up.

Alwyn get up and say Oh God! I get cut. He held his belly and staggered about 40 feet way. While he was staggering I saw blood oozing from his side. Coming in a bulk. Then he fell on his face like that (indicates.)"

10 In cross-examination he said that after Alwyn staggered and fell he went up to him and saw him bleeding before he was'taken away and he explained that when he said that he saw the blood "coming in a bulk" from Alwyn, he meant that he "was bleeding plenty."

11 In the meantime, the injured man had been taken to the Princess Alice Hospital in St. Andrew's by Sergeant Giffard where he was seen by Doctor Harinarayanan. On examining him he found that he was dead. This was around 9 p.m. He did a post mortem examination on the body which was identified to him by Sergeant Giffard as being that of one Alwyn Phillip. He found that the left femoral artery was cut and the length of the wound was 2¹/₂inches and the depth 5 inches. The upper end of the wound started one inch below the mid inguinal point and ran down towards the centre of the body cutting all the underlying muscles which were about 1 to 4 inches beneath the wound. The cut, he said was a lacerated one the ends of which were jagged. The witness indicated the position of the wound as being in the area of the left groin. The cause of death was bleeding from the severing of the femoral artery and underlying muscles. The degree of force required to cut the underlying muscles, he said, would depend upon the sharpness of the weapon used, and the injury he saw was consistent with a wound being caused by something sharp like a knife, sword, cutlass, or axe. In his opinion the injured man did not fall on any instrument and get the wound which he saw as it would then have been a punctured wound.

12 Bunyan Giffard, a sergeant of police had received a report at the Sauteurs Police Station at 8.45 p.m. and as a result hewent to the Mirjahs' place at Morne Fendue where he met the appellant near to his home. He carried out investigations and looked inside a car on the back seat of which he saw Alwyn Phillip and Clyde Thomas. Alwyn...