Convicted murderer freed -impugned hearsay statement not proved to be that of victim

THE last words said to be uttered by murdered woman, Elizabeth Griffith in 1985 before she was found dead satisfied a Demerara Assize Jury that Fred Martin called ‘Bull” was the killer.

‘Bull,’ who was found guilty by the jury, was sentenced to death by the trial judge but he appealed.
But on appeal, the Guyana Court of Appeal, supported by inconsistencies and contradictions from the evidence of the prosecution witnesses, that court freed Martin called ‘ Bull’ and set aside the conviction and death sentence.
The Appellate Court was constituted by Chancellor Kenneth George and Justices of Appeal Mr. Cecil Kennard and Mr. Maurice Churaman.
The facts disclosed that the accused was charged with the murder of a woman who died after being violently struck with a stick. Three witnesses testified that within minutes of being hit, the deceased cried out “Ow mummy look how ‘Bull’ come and lash me.” The accused was more familiarly known as “Bull” than by his real name.
The admissibility of the words “Look how ‘Bull’ come and lash me” was unsuccessfully challenged at the trial on the grounds of inconsistencies among the testimonies. The appellant was convicted and sentenced to death but he appealed.
The Appellate Court held that:
The trial judge failed to establish as a question of fact whether the impugned hearsay statement was in fact uttered by the victim. Therefore, the preliminary question of admissibility on the principle of contemporaneity and spontaneity was never raised.
The trial judge did not have all the material upon which she could have properly decided to admit the evidence.

Appeal allowed
Sixty-four cases were referred to in the case.
Mr. Rex Mc Kay S.C, Mr. Stanley Moore and Mr. V. Persaud represented the appellant.
Mr. Desmond Christian appeared for the respondent.
Chancellor George, delivering the judgment said: “The uncomplicated nature of the facts in this appeal belies the legal problems that have arisen. The facts as presented by the State at the trial were as follows.”
“Oswald Tappin, aged 18 years, was sitting alongside the deceased Elizabeth Griffith on a plank next to a step in a yard in Barr Street, Albouystown.”
“It was about 7.30 p.m and there was a blackout. The accused who was playing cards under the stairs of another house in the yard came up to them. He had a piece of wood in his hand. He expressed his displeasure to the deceased about something that she had done earlier. She replied that the worst that he could do was to lash her. He thereupon struck her on her head in the vicinity of the temple with the piece of wood. All this evidence came from Tappin, who was the only eye witness.”
“The medical evidence was that this blow resulted in her death. The appellant was charged with the offence of murder and was convicted of that offence by an assize jury on October 22, 1987.
“It is against this conviction and sentence that he now appeals to the court. The other witnesses who gave evidence at the trial were all relatives of the deceased, viz her mother, sister and step-father. At the material time they were all in the home, which is in the same yard, and the deceased had lived with them. The substance of the evidence was that about the time when Tappin said that the accused had struck the deceased, they had heard her moaning or shouting “Mummy, Mummy, look how Bull come and lash me” or words to that effect.”
“Several grounds of appeal were argued. The first challenges the adequacy of the judge’s direction on the issue of the many inconsistencies, most of them unexplained, between the deposition of the witness Tappin and the evidence he gave at the trial.
“More especially it is contended that the trial judge failed to give the jury any sufficient guidance as to their approach to a consideration of such inconsistencies and the effect which they should have on his evidence at the trial, especially having regard to his insensitive and irresponsible statements that he just says things for the sake of saying them and that he says the first thing that comes to his mind.”
“Among the many inconsistencies in the present case were the following: (i) This witness said that he had known the accused for one year before the incident, but told the magistrate that he had known him for only three months before the occurrence. He explained this obvious difference in testimonies by saying that he meant that he had known the accused one year before the date of the trial. But this clearly was a hopeless attempt to explain away the inconsistency as the trial had commenced on October 14, 1987, some 2 ½ years after the incident. (ii) He said at the trial that when he arrived at the deceased’s home at about 7 p.m on May 11, 1985, he had called out for her but had to wait for about five minutes before she appeared, but in his deposition, he said that when he arrived there she was already seated on the plank on the bridge leading to her home. (iii) At the trial his evidence was that he told no one of the incident leading to the deceased’s death except his mother, but in his deposition he did not make any such exception. (iv)He said in evidence that he had given the police a description of the accused, but in his deposition he stated to the contrary. (v) His evidence was that the weapon used resembled a baseball bat but in his deposition he said he was unable to describe it.”
“The trial judge catalogued these several and other inconsistencies between this witness’s evidence and his previous statements, but failed to give appropriate guidance to the jury as to the approach that they should adopt when considering his evidence.”
“AS regards the first of these, listed above, she merely said that “from the sum total of that it seems that he only knew the accused three months before the incident.“
“This was clearly the wrong approach and must have conveyed to the jury the impression that they could act on the deception evidence of the witness in preference to his evidence at the trial, even if he did not accept the former as true.”
“The submission that ‘assuming the hearsay statement had been properly admitted no proper directions were given to the jury is by now of course academic, but it is one which clearly would have succeeded in as much as no directions were given to the jury on the possibility of concoction or fabrication by the victim to her advantage or the disadvantage of the accused, R. v- Andrews (Supra) clearly enjoins a trial judge to ‘make it clear to the jury that it is for them to decide what was said and to be sure that the witnesses were not mistaken in what they believed had been said. Further they must be satisfied that the declarant did not concoct or distort to his advantage or the disadvantage of the accused’ the statement relied upon and where there is material to raise the issue that he was not activated by any malice or ill-will.’ No direction whatsoever along these lines was given, and this submission, though in the circumstances and for the reasons I have given I say is largely academic, is one nonetheless well taken.”
“I have not of course dealt with the additional points raised by Mr. McKay, namely the inadequacy of the trial judge’s directions on the question of identification and the way the jury ought to have approached the manifold inconsistencies and contradictions, arising out of Tappin’s evidence. I endorse with respect the conclusions (that is to say the adequacy of the trial judge’s directions on the question of identification , but the lack of it on the question of inconsistencies and contradictions in Tappin’s evidence) reached by the learned Chancellor and my brother Kennard J. A. Nothing that I may say likely to add to the thouroughness with which they have each dealt with these questions.”
“For these reasons I would accordingly allow the appeal, quash the conviction and set aside the sentence of death.”

(By George Barclay)

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