Murder accused with alibi defence found guilty of manslaughter
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Lost appeal – manslaughter verdict accepted

ON Boxing Day 1966, John Francisco De Freitas, in an apparent drunken condition strolled into the “Pinky Galaxy” city night spot in Regent Street, where he shot Cleo Samuels, three times.

Samuels later died in hospital.

De Freitas, identified as the killer was later charged with murder. At his trial he led an alibi defence – alleging that he was somewhere else at the time of the crime.

But the jury rejected his story and convicted him of the lesser count of manslaughter.

Dissatisfied with the jury’s verdict, the accused, represented by Mr. J. O. F. Haynes, Q.C. , appealed, but the Appellate Court headed by Chancellor Edward Luckhoo and included Justice of Appeal Guya Persaud and Victor Crane, dismissed the appeal and affirmed the jury’s verdict of manslaughter.

The Appellate Court had agreed with the trial judge, telling the jury that there was no provocation in the case to warrant manslaughter, but after taking the other circumstances in which the accused, in spite of his alibi defence, was properly identified and that there was only a scintilla
of evidence in relation to drunkenness, dismissed the appeal and affirmed the jury’s verdict.

The main judgment was delivered by Justice of Appeal Crane.

According to him, at about 8 p.m. on the evening of December 26, 1966, at the “Pinky Galaxy”, a city night spot in Regent Street, Cleo Samuels was wounded several times. He was shot at point blank range by a gunman with whom he had an altercation. Samuels was rushed to the Public Hospital where an emergency operation was performed, but he succumbed from bullet wounds on December 30, 1966.

The accused John Francisco De Freitas, was later identified as the assailant, and his apprehension some three months following the incident led to his being charged with Samuels’ murder.

The principal witnesses for the prosecution were three female employees of the “Pinky Galaxy” – Theresa Balkarran, Sylvia Austin and Doreen Persaud. They were present at the incident and, at the trial, gave eyewitness accounts of it. Each identified the accused as the person who was engaged in a quarrel with the deceased and who discharged a loaded revolver at, and a few feet away from him.

Through them, it was established that the accused was a frequent visitor to the “Pinky Galaxy”, where he was in the habit of resorting for entertainment; that on the evening of the fatality he visited the hotel, danced once with Sylvia Austin and slapped her on the face when she refused his request for a repeat dance.

This was the beginning of the trouble, for when Doreen Persaud interceded on Austin’s behalf, she too was slapped.
This incident brought about the intervention of the deceased, Cleo Samuels, and the altercation between him and the accused.

The three women also related how both the deceased and the accused were ordered out of the hotel by the caretaker, how the deceased returned some minutes later followed by the accused who pulled a revolver from his waist and shot the deceased at least three times at very close range.

At his trial, the accused raised an alibi supported by one witness, viz., that at the time when the offence was alleged to have been committed he was at his father’s home, where he passed the entire night, and that his identification by Doreen Persaud at a parade was a case of mistaken identity.

The jury, however, rejected both the alibi and his claim to have been mistakenly identified when they convicted him of the lesser offence of manslaughter.

Continuing, Justice Crane said that foremost among the amended grounds of appeal, is a complaint that the trial judge failed to direct the jury adequately on the effect of drunkenness on the question of mens rea in relation to manslaughter. It is contended that the jury ought to have been directed that the offence of manslaughter involved some mens rea, that drunkenness could negative it and thus be a complete defence thereto, and that if they were in any doubt about what ever the degree of drunkenness exhibited by the accused in fact negatived his mens rea , they ought to have been told to acquit him altogether of the charge.

According to Judge Crane, the law remains that a condition of drunkenness at the time of the commission of the offence which causes death may only reduce the crime, if it reduces it at all, from murder to manslaughter.

This is still good law today just as it was restated in 1920; there is therefore no room for a verdict of total acquittal from a capital charge when death is occasioned by the influence of alcoholic excess.

The contrary was, however, the suggestion of the learned counsel who argued for the application of the principle in Church’s case (8); but a verdict of manslaughter arising from the inability of an accused to form the specific intent to constitute murder, stands on a different footing from any other verdict of the like kind and a specific direction on mens rea (guilty knowledge), as suggested, is unnecessary to sustain the verdict.

Contrary to the counsel’s suggestion the accused indeed lost no chance of an acquittal by the absence of the direction because there can be no complete acquittal, the Appellate Court said.
Justice Crane noted that the only other ground of appeal which it is thought worthy of consideration deals with the complaints on the question of the identification of the accused.

The complaint is made that the judge failed to give a full and sufficient direction on the point as to whether the identity of the accused as the assailant had been properly established.

It will be recalled that the accused was not arrested until the expiration of three months from the date of the incident. He was arrested by Reginald Rogers, the proprietor of the “Pinky Galaxy” at the Atkinson Field motor race circuit where he attended a meeting , and was given in charge of a police constable as the “gentleman wanted by the police to assist in the investigation of a murder which was committed at my premises on December 26, 1966.”

Evidence of the identity of the accused, in which the prosecution was no doubt saying, was provided by the three female employees, the justice of Appeal observed as he dismissed the appeal and affirmed the jury’s conviction of manslaughter .

Solicitor General, J. Gonsalves-Sabola had appeared for the Crown.

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