Henry JA, Kerr JA, Zacca JA
IN THE CAYMAN ISLANDS COURT OF APPEAL
CAYMAN ISLANDS CRIMINAL APPEAL NO. 1 of 1984
BEFORE: The Hon. Mr. Justice Zacca, President
The Hon. Mr. Justice Kerr, J.A.
The Hon. Mr. Justice Henry, J.A.
R. v. VICTOR A. SABAZ & ROSMAN D. MOREL
Mr. N. Hill, Q.C., and Mr. George Giglioli
for applicant SABAZ
Mr. John Stafford and Mr. Peter Polack
for applicant MOREL.
Mr. R. Ground for the Crown
December 3, 4, 5, 6, 7, 1984 & April 4, 1985
PRESIDENT:
This was an application for leave to appeal against convictions for murder. On December 7, 1984, we treated the application as the hearing of the appeals and dismissed the appeals. We promised to put our reasons into writing. This we now do.
On the 23rd April, 1983, at about 3.15 a.m. a boat the "Vicki Vaughn" left the George town dock and aboard the boat were the two applicants, Gilberto Martinez and the deceased, Santos Manuel Mejia. They were members of the crew. Prior to this there was an argument between the applicant, Sabaz, and the deceased when blows were struck. The Port Security was informed that the boat was being taken out to sea to anchor. The real purpose, however, was to take the boat to Columbia to sell it. The anchor had in fact been cut and was later found in the sea. The deceased was shot at sea with a gun which had been left on board in a brief case by Captain Carter who was the Captain of the "Vicki Vaughn".
After he was killed he was thrown overboard by the two applicants. The gun was later handed over to the police. In it was seen four spent shells and one live cartridge.
The "Vicki Vaughn" was registered in Grand Cayman and owned by one Leonard Hew and his brother. On the morning of the 23rd April, 1983, Mr. Hew went to the George Town dock at about 9 a.m. He did not see his boat and he stated that he had given no instructions for the boat to be moved.
A search was made for the boat and it was seen about seven miles south-west of Grand Cayman. The engine had been damaged and it was eventually towed back to dock at about 1 p.m. The deceased was not on the boat. Mr. Hew asked applicant, Sabaz, of the whereabouts of the deceased and was told that the deceased had gone ashore on Friday night to sleep and he had not seen him since.
At about 1 p.m. that same day applicant Sabaz was seen on the dock by Reynerio Garcia. Applicant Sabaz told him that he had an argument with the deceased and he had hit him. A .38 cartridge was shown to Garcia by the applicant Sabaz. Applicant Sabaz told Garcia that the deceased had gone out into the streets and had not returned. Later that day at about 3 p.m. Garcia saw the two applicants and Gilberto Martinez on Eastern Avenue. Applicant Sabaz called Garcia aside and told him that he had killed the deceased.
On being charged for the murder of the deceased the applicant Morel stated: "The thing is that I did not do it voluntarily."
Gilberto Martinez was called as a witness for the Crown. He had given several statements to the police and his evidence at the trial was in serious conflict with these statements. He was discredited at the trial that the learned trial judge in effect warned the jury that he was not a reliable witness. It could be said that the learned trial judge directed the jury to reject the evidence of Martinez. In our view the evidence of Martinez could not have played any part in the verdict of the jury.
The jury was therefore left with the evidence of the other witnesses, and the several statements which the applicants had given to the police and also the unworn statements made at the trial.
Any account as to how the actual shooting took place must be discerned from the statements of the applicants prior to the trial and their unworn statements made at the trial.
It will therefore be necessary to detail the various statements made by the applicants.
The applicant Sabaz gave two written statements to the police. The first on April 24, 1983 was as follows:
"I am a driver presently working on the Lisa P. (Shrimp Boat) as a sailor. The Lisa P. is owned by Lenny Hew of North West Point, West Bay, Grand Cayman. On Friday 22nd of April, 1983 at about 9:00 p.m. me and my friend Rosman Diaz and Santos Manuel (old man) went to Racquet Club, while at the Racquet Club we had a few drinks. At about 01:00 hours when the place closed we left and went back to the boat.
After boarding the boat I spoke to Hill who acts as Captain when Captain Stoel is not around telling him that we should do the work the Captain said to do tomorrow we should do tonight so that we won't have to get up early, but the old man, Santos started to dip in with me, telling me that am not any boss because I was telling the other men to work tonight and then Rosman said, I done tell you to kill him.
So then Hill told me let's carry the boat to Columbia to sell it, then I told Hill if you're thinking like that, let's go do it, but Rosman told me, let's go to port security and tell them we're going to anchor down.
I called Hill, let's the two of us go to port security, me and Hill then went to port security, and told him that we going to anchor down and then we returned to the boat loosed the ropes which were holding the boat in place and we left the dock. After reaching about three (3) miles out a sea headed in a 280 degree to 290 degree South, South-West. At this time I was at the stern of the boat with the old man, Santos, talking to him about how he go into problems with us (that is to say, the argument at the dock). While talking to the old man at the stern of the boat Rosman came up to us with a gun in his hand, the gun looked like a .38 revolver being black in colour, the muzzle (barrel) was about 4" long, the bullets shell was silver and a 1" long. Rosman said to me "Move from there". With this I moved. Just after I moved away from the old man, Santos, Rosman then fired a shot from the revolver and I saw the old man grab his
"Left side and went inside the wheel house, then
Rosman gave the gun to me and asked me to open it, I tried to open the gun but I couldn't get it open, then I ran to the wheel house, while there I saw the old man trying to stab Hill with a knife, the blade was about 6" long being silver coloured and has a black handle.
I shouted to HILL, watch out the old man might stab you, then Hill ran come down to me, then I gave Hill the gun to open it, then me and Hill went up top the wheel house, then Hill managed to open the gun and put more bullets into the gun and then gave the gun back to Rosman.
Rosman then went after the old man "and shot him two more times in the left side of his body that is to say around the area of the heart. I then went to the old man and shook him, the old man didn't move, his arms were like dead, there weren't any signs of breathing, the old man appeared to be dead. Rosman then came up to me and said let's throw him over board. I then grabbed the old man hands, Rosman held his feet and we threw him over board.
This was about 03.00 hours, Saturday 23rd April, 1983. The old man was about 4'6" - 8", 120-130 pounds, fair complexion, clean shaven, bald forehead, white short hair and wearing light blue shirt, blue jeans pants and white tennis shoes, no rings, no watch, one silver chain. Mr. Santos (old man) was shot about three times on the left side of the upper body around the heart. Mr. Santos (old man) was thrown over board about three (3) miles off the Island while we were in a 280 - 290 degree South, South-Westerly coast. 100 weights was used in order for the body to sink. The body was thrown in the ocean with the mentioned clothing still on his body.
After the incident we kept on the same course. About 1/2 hour later I heard sounds coming from the engine room as if something had burst. I went down into the engine room and there I noticed engine oil leaking from one side of the engine, with this I told the others about it and we stopped the engine and we set adrift and went to sleep. At about 07:45 hours I awoke
"Rosman as he had told me to wake him. I then called port security and told them that we had engine problems and that they should send something to tow us in. About one (1) hour later the police boat brought us in. At no point in time did anyone say anything to me about the incident that is to say about Mr. Santos (old man). On Sunday, 24th April, 1983 at about 2:00 p.m. I saw Mr. Lenny who told me that the police were looking for me, I then told him since they looking for me it's best you carry to them. Mr. Lenny brought us to the police station. While here at the police station I was questioned about Mr. Santos, old man being missing and I gave a written statement as to what took place.
"I further state that before leaving the dock an argument arose between the old man and me because I suggested for us to do the work Friday night instead of Saturday, as we were instructed by Captain Stoe1. With this the old man stood beside me and struck me in my stomach and I slapped him on the face. With this the old man went to the boat and got a knife and returned at me. I then ran up on the dock; then Rosman and the old man started to argue. Rosman then went to the boat and got the Captain's dagger knife. After Rosman and the old man quarrelled for a period of time the old man then went to the pilot house, and sat down in the chair shouting after we left the dock. This is the whole incident."
The second statement was given on April 27, 1983 and was as follows:
"On Friday, 22nd April, 1983, at about nine o'clock Rosman, Santos and myself went to Racquet Club. It ended at about 1:00 a.m. After that the three of us returned to the boat. We arrived at the boat about 1:15 or 1:30. We got on the boat and I asked Rosman, what the Captain had said, so we could do the work
"for Saturday. Santos then told me that I was not the boss and that I could not boss them, also that I could not force him to do the work. I told him that it did not concern him. Its if the other two want to work with me, they can, but it did not concern him.
The old man said to me that I was not the boss to give the boys work. I told him it was not him, it's if they wanted. At that moment, the old man came towards me, and I slapped him in the face. The old man told me, "yes, you hit me like that;" he said. The old man went into the bath-room and took out a knife. I ran to the dock. Rosman came out and told me, "I am going to kill him." Rosman and the old man were on the boat arguing. Gil came out and told me, "Lets carry the boat now." And I told Gil, "Since the owner has you as Captain here, and he trusts you, let's do it." Then he told me, "Let's go." I told him, "Let's go to port security and tell them we're going to anchor," then we left port security. Gil went into the engine room and started the engine. I stayed on deck and loosened the ropes. I also cut the anchor rope. We then left the dock. We sailed for about half an hour. The old man went on deck and he stayed on deck with me. I said to the old man; "why did you get in problems with me. It's been days since we have been on the boat, and we have never had any problems." Then Rosman came out of the house of the boat and said to me, "move out of the way." So I moved. Rosman then shot the old man. After that the gun did not have any more bullets and Rosman called me and told me to break the gun. I could not break it; he had also given me about eight bullets. The old man had already gone into the wheel-house. I ran and went into the wheel-house. I told Gil, "Careful, he'll stab you with the knife." After that Gil left the steering and came up on deck. I went behind Gil and told him, "You break the gun. I cannot break it."
that
"After/he told we should go on top of the little house. Gil broke the gun and I gave him the shots which I had; and he put them in. Rosman was under the winch, and Gil gave Rosman the gun. The old man was standing near the three new beds. "Rosman came by the window on the aft window, and shot him another two times. I went inside and touched the old man; and he was dead. After that, Rosman told me, "Let's throw him away," and I told him, "let's do it." I grabbed the two hands, and he grabbed the two feet; and we threw him overboard. We than sailed for about fifteen to thirty minutes. Gil told me I should do the first shift steering the boat. I took the steering and he layed down in the wheel-house. I heard a noise from the engine. I slowed down. Rosman and I went down to the engine room. When I went to the engine, it was leaking oil from a hole in the screw. I then went back up. I told Rosman and Gil that I was going to stop the engine, and we should sleep. I stopped the engine and we went to sleep. I got up at about eight thrity and called port security; and told them we were floating, about four or five miles off the island; and if they could send something to tow us in. About two hours after that, the police boat asked me at what degrees we were at. I told them about two hundred and fifty to two hundred and sixty. About half an hour after, the police about arrived. We tied up and they brought us to the dock. When we got to the dock, Mr. Lenny asked me, "What happened to you."
I told him when I came from the party, the anchor rope was not there; that's why I told Gil we should go and anchor with the small anchor. After this, the captain of the boat (Capt. Stowell), went to look for the anchor, and took the end of the rope and said to me, "It's cut." After that, he did not tell me anything else. After that, Mr. Lenny told Gil, that the three of us should leave the boat. I went to get a soft-drink, by the bath-rooms of the work-men at the dock. I fell asleep on the dock. No one asked me anything about the old man. After I woke up at about two or three
"o'clock in the afternoon I went to the boat and Gil and Rosman were there. I am sure that no-one asked me anything about the old man."
At his trial he made the following unworn statement:
"My name is Victor Alvarado Sabaz. I would like to make the following statement in my defence. What I said at the Police Station, that was the whole truth. The first thing I would like to say I never knew whether or not there was a pistol aboard. The first time I saw it was when I was on the deck speaking with the old man. Rosman came over with the pistol in his hand. That was the first time I saw the pistol. I had never threatened anyone. Neither inside the wheelhouse nor outside. The second statement I would like to say that I helped Rosman to throw the old man into the sea. Rosman put the pistol into my face and said are you going to help me or not. Then I was afraid to say no and I had to do what he said. That is why I helped him.
"The third statement, I would like to say is that I never saw Garcia on the dock on 23rd April. The first time I saw him was next to my uncle's house next to the Blue Marlin. I looked and and I saw that he was talking to Gilberto Martinez. I never told him that I killed the old man because I did not speak with him and he did not speak with me. But I saw that he was talking to Gilberto because they are good friends. And I had never shown him any bullets. I made a sign to him from the other side of the court because he was lying against me. This was/the Magistrate's court at the Preliminary Inquiry. That is all I would like to say."
The applicant Morel gave two written statements to the police. The first on April 24th, 1983/as follows:
"On Friday, 22nd April, 1983, at about 8:00 a.m. I got up and began to work onboard the boat where I work, the Lisa P. On board this boat four of us works, myself, Rosman Diaz-Morel as a seaman 2) Victor chief mate 3) Hill the dark guy, captain 4) and Satin the old man. I was chipping the rust from the boat from about 8:00 a.m. until
"12 p.m. At about 5:00 p.m. I went and changed my clothes.
We left the boat, and went to Macdonald Restaurant, which is owned by the owner of the boat (Lennie), and we ate. I ordered some beef. After eating we went to the Racquet Club, sometime between 7:15 p.m. and 8:00 p.m. I drank about 9 to 10 drinks of gin and orange juice. When the dance ended at one a.m. Saturday, I, Victor and the old man returned to the boat. The dance ended at about 1:00 a.m. Saturday morning.
Hill was already on board the boat as he didn't go to the dance with us. The back part of the boat was tied to the dock with the bow out to sea. After reaching on board the boat I warmed up a tin of sardine because I was hungry; after I warmed the sardines I ate them. After I got through eating I went to the rear of the boat, sat down, and stayed awake all night without sleeping.
After myself and the others reached the boat sometime between 1:15 to 1:20 a.m. Victor told me that the boat was hitting against the dock and that he was going to anchor the boat out. Victor cut the rope from the anchor and turned loose the ropes which were tied to the dock, started the engine and took off at full speed. I saw that the boat had passed where it was supposed to be anchored. I got afraid and was going to jump over board to swim ashore but by this time the boat was too far out from shore. I was sitting down accompanied by the old man, Satin. Victor run the boat straight out at full speed for about 1/2 an hour. As we were talking I noticed a light from a flashlight coming from the kitchen, I saw that it was Victor. He had a pistol in his right hand and a flashlight in his left. I got afraid because Victor had a gun in his hand. I walked a few steps and stopped to look. Victor then said to the old man "Remember the debt we had sometime ago, you pay for it today."
The old man then replied, "That debt is long passed how can it be today?" I then heard three shots fired, one after another.
The old man walked along the right side of the boat and went in
"through the wheel house and stopped by a bunk. Victor put the pistol in through a window and fired two (2) more shots at the old man. The old man Satin dropped/dead. Victor went through the kitchen grabbed hold of the old man's two hands and began to drag the old man.
Victor asked me to help him but I did not go because I didn't want any trouble. Victor dragged the old man and passed by me and he rubbed him on my pants. He rubbed the old man against both my legs and rubbed blood on my pants. I went and took off my pants. I left the pants hanging in the boat, they still had the blood, because I have not washed them. Victor then dragged the old man and threw him into the sea on the left side of the boat. Victor threw the old man overboard he didn't say why he had killed him. He only told me that he was going to Columbia to sell the boat because he had sold a boat like that. Victor continued to run the boat for about another 1/2 hour after he killed the old man. Hill and I spoke and Hill said that he was not going to Columbia. Hill went down to the engine room and did something to the engine and the engine stopped. After the engine stopped running, the boat began to float. This was at about 3:00 a.m. Victor called by radio at about 9:00 a.m. to port security. The police boat came at about 12 p.m. and tied us and towed us back to the dock. I didn't make any report of the incident because the owner of the boat told me to clean the boat. Victor cleaned the blood off the boat with water. The owner of the boat then got vexed and told us to come off the boat. And we left the boat. The old man had on jeans and a green shirt with white stripes. On Sunday, 24th April, 1983 I went to the owner of the boat and spoke with him. He gave me supper and he told me that he was taking me to the police station. He me and left me there. I don't know how the owner found out what had happened. But I told the police of what had happened. Before we left the dock Victor and the old man had a fight. Victor smacked him in the right eye with his fist."
The second statement was made on April 25, 1983 and was as follows:
"On Friday night 22.4.83, Victor, the old man, and myself left the Racquet Club at about 1.15 a.m. The three of us stopped at a shop and bought eight beers. On the way we drank about 5 beers and took the other three on board the boat. We arrived at the boat at about 1.20 a.m. Me and the old man went into the kitchen and heated some sardines. Gil was on board but he was sleeping. Victor called him and he got up. The old man was eating the sardines, but I did not want any, so I opened a can of meat and that's what I had to eat. Victor told me, the old man and Gil to go and work at night. The old man told Victor that he wasn't a slave for no-one; that the money would be no good to him if he worked extra hours; because he would spend it anyway. The old man asked me if I wanted to work at night also. I told him it would be better if we left that till morning. Victor cursed the old man. He called him a son-of-a-bitch. The old man pushed Victor, when Victor told him this. Victor then hit him in the face with his fist. The old man then went into the bathroom and took out a knife which he had in his suitcase. Gil saw all of this. When the old man came out, I told him not to bother with that; to leave that until morning and he could fix that with the owner of the boat. At the door at the back of the wheel house, I told the old man not to do that and he put away the knife in his pocket. He also said that if Victor troubled him again, he would stab him. I stayed on board the boat and Victor went by Port Security. Victor came back on board and started the engine. After doing this, Victor cut the ropes himself and Gil was at the steering. I was below and when I came up, I saw Victor coming with the knife. Gil then put the engines full speed. When we were out, Gil reduced speed a bit, but Victor came and again put the engines full speed and tied down the controls. Victor then told me to go and get the Captain's brief-case. He told me this three times. Victor still had
"The knife which he had used to cut the anchor rope. I went to the Captain's room, took the brief-case, and carried it to Victor. Victor told me to open the brief-case; he also told me to throw it down. I threw it down as he told to, and the brief-case came open. When it came open, I took up the gun. Victor told me to give him the gun; so I did. After this, I went up on deck to talk with the old man, who was sitting by the hatch. Gil was at the steering. The old man got up, and the two of us walked to the back of the small engine. Victor was coming out of the kitchen and was walking towards us with the flashlight and the gun. I moved to one side. Victor then told the old man, "The debt - today is the day you are going to pay."
The old man told him that that debt had already passed; why was he talking about that. Victor then shot the old man three times in the chest. I saw blood coming from the old man's chest. The old man did not fall down; he kept walking - he went through the wheel-house and went down to where the new beds were. Gil was still at the steering. The old man was standing by the beds. Victor then shot the old man twice again through a window. The two shots hit him in the forehead. The old man then fell dead.
I was in a position where I could see everything. Victor told me to remove the old man from where he had fallen; but I told him no. Victor took the old man by the two arms and dragged him outside. Victor told me to help him throw the body over-board; but I told him no. Finally, I helped Victor throw the body over-board. Gil was still at the steering. Victor went up and he took over the steering.
I t was then that he handed me back the gun. I took the gun and put it back in the brief-case and put the brief-case on top of the bed, but I did not lock it. After this, I went to the back of the boat to sit down. After Victor had taken over the steering, Gil went down to the engine room with the flashlight. A while after that, he came back up. About half an hour after this, the engine began to make noise and the boat slowed down. Gil and Victor then went into the engine room. When Gil came/ he told me it seems as if something in the engine is cracked, and that it was pouring out oil.
"Then that engine stopped and the boat floated. I went on the deck and sat down. At this time, it was about three in the morning. Victor was seated in the wheel-house. After Victor went to lie down, I went inside to light a cigarette; and went back out again. Gil was sitting on his bed. At about 6:30 that morning; I called Port Security but no one answered. I went back and sat down. Victor woke up about eight o'clock; and he called Port Security by radio. After this, Victor asked me to help him wash off the blood and I helped him. We finished at about 9:00 o'clock, and I too went to lie down. At about 11:30 a.m. the police boat came along-side us and they towed us into the dock. After we got to the dock; Gil and myself were washing the deck because it had diesel on it. I went by Port Security to drink some water; and went back to the boat. I had almost reached the boat and the owner had arrived. The owner asked me about the old man. I did not tell the owner anything at that moment. Shortly, after I told him we had left the old man drinking."
The applicant Morel made the following unsworn statement at his trial.
"My name is Rosman Diaz Morel. I would like to state what happened on Friday April, 23rd. On Friday 23rd April, I began work early in the morning. I finished about 6 p.m. I changed my clothes. As we used to eat at the McDonald's Restaurant I went there accompanied by Victor Sabaz, the old man and myself. I ordered the food to eat. And from there when I finished the three of us went out to the Racquet Club. We left there about 1 a.m. I arrived at the boat. When I arrived at the boat I saw the guard at the gate at Port Security. I raised my hand like this (demonstrates) and I went into the boat. When I went in Hill was asleep in the boat. Victor was the one who called and he woke up. The old man asked me if I could open a can of sardines. And I opened the sardines. When the old man was eating Victor
"told him to go to work. All three of us. The old man said he was going to work because it was not time to go to work. He told him three times, and the old man told him he was no-one's slave to work at night. From there Victor called the old man a bad word, saying that he was a son-of-a-bitch, and the old man came to push him in the chest. Victor hit the old man in the face. From there the old man went inside the bathroom. When the old man took out the knife Hill saw everything and went to the back of the boat. And the old man went out. I told the old man to stop because I could be a witness in making a statement before the captain or the owner of the boat, and from there the old man said it was alright and said "Thank you" and he put the knife in his back pocket and the old man went out on deck, I went after him. The old man was standing on the boat inside the hatch. When I went out I saw Victor and Gilberto on the deck talking. I don't know what they were talking about. I went inside and sat on my bed and the old man also went inside and sat on his bed and Gilberto and victor arrived together. Victor went inside the engine room. He turned the engine on and went out. Gilberto went to the wheel. I saw Victor let go of two ropes at the stern. From there he went to the bow of the boat and cut the rope for the anchor. From there I saw the boat leave at full engine throttle. Then I went out from inside accompanied by the old man. The old man asked me if I knew where the boat was going. I answered that I did not know. I said to the old man that it was too far from the dock to swim for it. From there I saw Victor lower the two booms on the boat. From there Victor came to where me and the old man were standing. He pulled out the knife he had used to cut the anchor. He came over to where I was standing with the old man, and the old man walked towards the back part of the boat, and Victor placed a knife against me like this (demonstrates, touching left breast). He told me to go and get the Captain's brief-case. I said: no and again he said to me: to go and get the brief case.
"Fearfully I walked and he placed the knife behind me. I walked in front of him and I then took out the captain's brief case and he ordered me to open it. I told him I did not know the combination for the brief case and also the brief case was not mine. He told me to throw it on the floor. Fearfully, I threw the brief case on the floor. I saw the gun, pistol, inside. I grabbed the pistol first and Victor said to give it to him. I did not want to give it to him. He took it from my hand. I grabbed the captain's brief case and put it on the captain's bed. When Victor took the pistol from me Hill was present at the wheel, and I went out of the right side door of the boat, and I went to where the old man and the old man asked me if I knew where the boat was going. Since I did not know I told him I did not know. The old man stopped and we both started walking to where the small engine was and we both sat there. And I asked the old man if he had cigarettes. The old man told me he did not have any. I said to the old man I had cigarettes but they were on my bed. I got up from there and told him I have cigarettes on my bed. I got up and walked about four steps. I saw Victor coming to where I was with the old man. I stood up and I turned to see the old man. The old man was coming behind me. The old man stopped in front of Victor. Victor said to the old man: "You remember the debt you have, today you are going to pay it." The old man said it was something that had passed; why talk about that. Victor shone the flash light at the old man's forehead. I saw Victor shoot at the old man with the pistol three times. The old man did not fall. He went on the right side of the boat and saw blood coming out of the old man's chest. And Victor ran with the pistol on the left side of the boat, and from there Gilberto came to the back of the boat on the left side. He climbed up the winch to the cabin on the boat. I climbed up to where Gilberto was and told him: why was Victor going to kill the old man. Gilberto answered me and said: I don't know. That is what he said to me. I was standing with Gilberto when Victor
"came with the pistol and the flashlight in his hand.
Victor ordered Gilberto to load the pistol. Gilberto loaded it.
Victor had the pistol in his hand and Gilberto loaded it.
Victor went back down. I went down after him to see what would happen to the old man. When I arrived Victor shined the flashlight through a window. I saw the old man standing at the side of the new beds. Victor fired another two shots through window and told me to come and take the old man from where he was, dead. I told him I was going to touch nothing in there.
He put the pistol like this (demonstrates placing in trousers top) and went and grabbed the old man's two hands and took him outside. I stood next to the winch. Victor told me: Help me throw the body, yes or no; he said to me. And he pulled out the pistol and pointed it at me. I had nothing to say I had to help get the body out to the sea. After I helped throw the sick body out to sea after 10 minutes Victor gave me the pistol.
I went to leave it in the Captain's cabin in the brief case.
There Victor told me that he was going with the boat to Columbia.
He said that and also said he had sold a boat in Columbia.
And from there he also told me he had once seen the Captain's pistol. The Captain was working on the map with the compass.
That was the time he had seen the pistol he told me. And from there I told Gilberto I was not going to Columbia. I told Gilberto do something with the engine. He said to me: Yes. And he went down to the engine room. Later when he came out he said he had done something to the engine. From there the boat ran another 15 minutes. The engine started to make a noise. And we went down to see it. The engine was spilling lubricant oil. From there I went outside. And I sat in the rear of the boat. From there at around 6 a.m. I called up Port Security. No one answered me and I left it and went to lie down. Afterwards Victor got up and called the radio. The police boat arrived. When the police boat arrived I threw the rope/anchor so that they could tow us.
"They brought the boat to the dock. Before arriving at the dock Victor told me and Gilberto: If I said this thing he had done he would kill both of us. And when the boat was brought to the dock the owner and captain told me to go wash where the diesel was on the deck. Me and Gilberto washed it. And from there the Captain told me to go and get a mask and flippers. And I went and got them. I brought them to the captain. Then the captain put on the mask and flippers and went diving looking for the anchor. And from this the captain came and asked me who had cut the rope on the anchor. Well I did not say anything to him. Before arriving at the dock Victor had told me and Gilberto that he done all the things and if we told the owner or the captain he said that he would kill us both. That is why I did not tell the captain when he asked me. And from there the captain told me to stay on boat. When the Captain left the boat for the McDonald Restaurant Victor went in the boat and told me to go with him and I went out with him. And he took me to his uncle's house. And I saw Victor talking with a young man by the Blue Marlin, by the right. I think he was talking to the young man. Me and Gilberto were somewhat apart from him to know what they talked about. And from there he took me to his uncle's house. And from there we left and he took me to a house which he said was a friend of his. From there, the following day I was coming along the way, Victor and Gilberto, and Mr. Lenny arrived at that street. He stopped the car and spoke to me. Since I could not speak English Victor translated for me. Mr. Lenny said for me to go inside his car. All three of us. And he came and stopped at the police station. And he took Gilberto and Victor down. He left me in the car. From there the owner, Mr Lenny, came and took me to his Restaurant.
"From there he brought me back to the Police Station. And from there the policeman asked me about the old man. I told them, I told them all that happened on the Friday night. Then I gave a statement.
"What Victor had done I told everything to the Police.
From there, on the following day they asked me for another statement and I gave another statement. And I asked the police to take me to the boat to show them, and they took me to the boat. I showed everything I saw that night with Hill, and they took photographs of the boat. I would show and they would take photographs and they brought me back to the Police Station. And from there they brought me to Court, and they brought me here to court and took me back to the Police Station again. I had told them everything I had done on the boat. What Victor had done. I think that's it. One moment. About the withdrawal of the brief-case I did not go and take it out voluntarily. He took me under threat. And the throwing out the old man's body, I did not do that voluntarily. I did it under threat and also the washing of the blood. He also threatened me about that too. I had no part in the theft of the boat. And the killing of the old man I had no part in that. That's it."
The defence of the applicant Sabaz was that he took no part in the killing of the deceased. He did admit to handling the gun and assisting to throw the deceased overboard.
On the other hand the applicant Morel also stated in his defence that he took no part in the killing of the deceased. He admitted to handling the gun and assisting in throwing the deceased's body overboard but said that this was done under duress from the applicant Sabaz.
Several grounds of appeal were argued on behalf of both applicants. It is only necessary to deal with some of these grounds. On behalf of the applicant Sabaz the following grounds of appeal will be considered. Grounds C, D, and N, which were argued together and grounds G and O. They were in these terms:
"(C) The learned trial judge misdirected the jury when he suggested that the evidence in the prosecution case could be compared to a scenario where three men go out in a boat and only two returned because inter alia:
(i) The allusion failed to take account of the vital role played by the fourth person in taking the boat out and in the transaction of the murder itself;
(ii) The allusion was a simplistic version that bore no relation to the evidence.
(D) The learned trial judge misdirected the jury by suggesting that there was evidence before them upon which they could draw the irresistible inference that there was a common design between the first accused and the second accused to kill the deceased.
(N) The learned trial judge misdirected the jury when he said:
"And the point to be made here is that all the evidence to establish the scenario outlined from the prosecution evidence can be found quite independently of the evidence of Gilberto Martinez."
(G) The learned trial judge's directions on the law and on the facts with respect to common design were inadequate, misleading and confusing.
(O) The learned trial judge misdirected the jury when he said:
"Because if you believe him ..... it is very damaging against the first accused, particularly in view of the second accused's own admissions which I brought to your attention in outlining the scenario in these statements which I have brought to your notice."
Grounds of Appeal C, D, and N:
It was submitted on behalf of the applicant Sabaz that the learned trial judge's directions on "the example" of a common design and the scenario being an analysis of the facts "were prejudicial" in that they assumed a common design on the part of the applicant. It was contended that the learned trial judge was leaving the scenario as evidence of a common design to kill the deceased.
In his directions on common design the learned trial judge in explaining to the jury what was necessary to constitute a common design,
offered an example for their consideration.
At page 271 of the summing-up the learned trial judge stated:
"For example, say three people decided to form a common plan to kill a fourth at sea and dump him overboard, one beguiles him into believing that they are going out to sea merely to anchor.
They sail out to sea, one of them being at the steering wheel, as part of the plan, when out at sea, one supplies a loaded firearm to a colleague - as part of the plan - then goes and talks to the intended victim - to distract him - then the one with the gun comes up and shoots the intended victim and the two then throw him overboard.
"If they were acting in concert although playing different roles, all three would be equally guilty of the offence of murder, including the person whomever left the wheel, because he played his part in bringing the boat to the place where the murder was to take effect.
The act of one, that is to say, the one who shoots becomes the act of all. That is the law. I am not saying that that in fact happened in that way here, but it is for you to say what has happened in this particular case. I have merely given an example with some similarities to concentrate your mind on the point of law I am trying to explain."
The learned trial judge made it quite clear that he was not relating the facts of the instant case but giving an example of a situation which could amount to a joint venture. While we consider it unfortunate that the learned trial judge should have given an example so closely connected with the facts of the instant case, we are unable to say that such an example was prejudicial to the applicant's case. We do not consider that such an example could have influenced or confused the jury.
The word "scenario" was used by the learned trial judge in an examination of the prosecution's case. He was relating a set of facts for analysis by the jury. At pages 289 - 290 of the summing-up the learned trial judge observed:
"In examining the prosecution case, it may be helpful if I put forward a set of facts for analysis.
"Three men go out to sea (I say three and you will see why shortly). Three men go out to sea on the Vicki Vaughn.
"We will call them Nos. 1, 2 and 3. Those two admit that No. 3 was shot to death on board. First in the chest or stomach at the stern of the boat and later in the forehead in the cabin, those later shots being the one which felled him. Nos. 1 and 2 together throw the body of No. 3 over-board. No. 2 admits taking the gun which killed No. 3 from the captain's brief case. The gun got into the hands of No. 1 before the later shots in the forehead because No. 1 admits that and admits playing a part in having it reloaded. The gun eventually got back into the hands of No. 2 because he admits putting it back in the captain's brief case. They had engine trouble and they were towed back by police to the dock. Neither No. 1 nor No. 2 volunteered any information about what happened to No. 3 on the boat. In fact both state something which, in effect, suggests that No. 3 had never been on board on that trip.
"Then you can ask yourselves: is there an irresistible inference from those facts alone"
"Take it a stage further: On their return, No. 1 tells a young man on the dock that he hit No. 3 and shows him a bullet. And later that same day in another place confesses to the young man that he killed No. 3. A few days later No. 2, when charged with the murder of No. 3 says, "the thing is I did not do it voluntarily."
"Again, is there an irresistible conclusion to be drawn from that series of facts.
"Now, that scenario is in essence the same as the prosecution has laid before you, except for one different factor.
"In the case laid before you by the prosecution there was a No. 4, on board, Gilberto Martinez .............
"And so, in its essentials you may think that there is no significant difference from the scenario I outlined at first and the scenario outlined on the evidence from the prosecution.
"And the point to be made here is that all the evidence to establish the scenario outlined from the prosecution evidence can be found quite independently of the evidence of Gilberto Martinez.
That picture of events can be built up from the evidence without
"relying on the evidence of Gilberto Martinez."
Learned attorney for the applicants submitted that when the learned trial judge used the words "that there is no significant difference from the scenario outlined on the evidence from the prosecution" (page 290), he was comparing "the example" given and the scenario outlined. The effect of this being that since the example given would amount to a common design, then the scenario was evidence of a common design. In other words, the jury was being told to assume a common design on the evidence of the scenario.
In our view, when reference was made to "the scenario," there was no cross-reference to "the example". The scenario was the set of facts which the learned trial judge summarised for analysis by the jury as being the case which the prosecution intended to prove. He related this scenario with the scenario of the actual prosecution evidence tendered by the Crown. No reference was then being made to "the example" of a common design given by the learned trial judge at page 271. We do not accept the contention that the learned trial judge was saying that "the example" and "the scenario" were the same. Nor can it be said that the jury would have been led to that conclusion.
The scenario outlined at first was an analysis of the facts of the Crown's case excluding the evidence of Gilberto Martinez. The scenario outlined in the evidence of the prosecution included the evidence of Gilberto Martinez. This is the distinction which the learned trial judge was making when he made reference to "the scenario I outlined at first."
The learned trial judge was indicating to the jury that the evidence to establish the scenario could be found independently of the evidence of Gilberto Martinez. It was not necessary to rely on the evidence of Martinez to establish the scenario.
We are therefore of the view that there were no misdirections on the part of the learned trial judge as it related to the above grounds of appeal.
Ground of Appeal G.
It was submitted on behalf of the applicant that the learned trial judge misdirected the jury on the directions on common design in that:
"(1) He failed to tell the jury that the defence of duress raised by the applicant Morel could not be used as a basis for inferring that the applicant Sabaz was a party to the killing of the deceased.
(2) The learned trial judge should have directed the jury that an intention to steal the boat could not be used as evidence to establish a common design to kill the deceased on the part of the applicant Sabaz.
(3) The example on common design given by the learned trial judge was so similar to the prosecution's case, that it was highly prejudicial to the applicant Sabaz.
(4) The learned trial judge ought to have directed the jury that if one party went outside of the common plan then the other party would not be liable for the acts of that party who went outside the plan. Reliance is placed on R.V. Anderson and Morris [1966] 2 All E.R. 644.
The directions on common design having been challenged it will be necessary to look at what the learned trial judge told the jury at pages 271 - 272:
"The two accused are charged together because the allegation of the Crown is that they were acting in concert, in furtherance of a common plan to commit this murder. The Crown's case is that they were acting together in committing it.
That it was a joint venture.
If two or more persons form a common design to commit a crime and they put that design or common purpose into effect then each of them is responsible for the acts of
"the other in furtherance of that plan in order to put it into effect and commit that crime, even though they may play different roles, different parts - in furtherance of the common design. Each is guilty of the crime committed pursuant to that common plan or joint venture. For example, say three people decided to form a common plan to kill a fourth at sea and dump him overboard, one beguiles him into believing that they are going to sea merely to anchor. They sail out to sea, one of them being at the steering wheel, as part of the plan, when out at sea, one supplies a loaded firearm to a colleague - as part of the plan - then goes and talks to the intended victim - to distract him - then the one with the gun comes up and shoots the intended victim and the two then throw him overboard.
"If they were acting in concert although playing different roles, all three would be equally guilty of the offence of murder, including the person who never left the wheel, because he played his part in bringing the boat to the place where the murder was to take effect. The act of one, that is to say, the one who shoots becomes the act of all. That is the law. I am not saying that that in fact happened in that way here, but it is for you to say what has happened in this particular case. I have merely given an example with some similarities to concentrate your mind on the point of law I am trying to explain.
First of all, then, you have to decide whether these two accused were acting in concert. Acting in concert - just the two of them or with Gilberto also - and whether that common design was to murder Santos Mejia. Then ask yourselves if they put that common design into effect, although playing different roles in effecting the end sought in their common plan; and then decide whether throughout the joint enterprise both accused had an intention to kill Santos Mejia, or an intention to do him grievous bodily harm, that is an aspect which I will be dealing with later.
"Decide if that intention existed in the minds of the persons acting in concert when the old man was killed.
"If you find that one was not acting in concert with the person who actually fired the fatal shots, then, you would find the accused, who is not so acting in concert, not guilty. For both to be found guilty you must find that they were acting in concert. So I will ask you to concentrate on that question of a common plan. Because, if they were acting in concert
"it would not matter which one fired the fatal shots. They would both be guilty subject to any defence which I will deal with later. If they were not acting in concert then you would try to determine which of them did fire the fatal shots and if you could not be sure which of them fired the fatal shots you would find both not guilty.
"In the circumstances, you may well feel that it was one or other of the accused who fired the fatal shots. There were only three on board apart from Santos Mejia. And although Gilberto may have been in on the plan to get rid of him and assisted in reloading the revolver, neither accused implicates Gilberto in any way in the actual shooting and so you are left with one or other of the accused, if you accept the evidence. But if you cannot be sure which you must find both not guilty unless you decide that they were acting in concert. And if you find that both shot him at different times, then, you may well find that they were in fact acting in concert in which event they would both be guilty subject to any defence which I shall later explain."
Whilst it is correct to state that in his directions on common design the learned trial judge did not tell the jury that the unworn statement of the applicant Morel as to duress could not be used against the applicant Sabaz to infer a common design, the jury were told that such a statement could not be used as evidence against the other applicant. The learned trial judge made it quite clear in his summing-up that statements made by an accused could only be used as evidence against the maker of the statement and it was not evidence against the other accused. At pages 262-263, the learned trial judge says:
"Now the second important point I wish to make about those statements is one that I have already reminded you of several times in the course of this trial. But it is my duty again to remind you now. Each of those statements is evidence against the maker of the statement and no other person. You can only take it into account against the accused person who made that statement and not against his co-accused.
"And so, at the risk of tedium, I will remind you, and I emphasise, that when you come to deal with those statements you will remember that where one accused says something against or implicates the other accused that is no evidence at all against the other accused and you must not take it into account against that other accused.
"You must, of course, take it fully into account as part of the explanation of that accused person - of the person making it. Take it fully into account as part of his defence, but do not treat it in any way as evidence against his co-accused. .............
"I should, perhaps, make it clear that what I have just told you also applies not only to those formal statements which have been recorded but to any statements made by one accused against the other. .....................
"And, of course, exactly the same principles applies to the unworn statements made from the dock."
The jury having heard these directions must have been aware that the unworn statement of the applicant Morel could not be used to infer a common design on the part of the applicant Sabaz.
The failure to tell the jury this could not be regarded as a misdirection.
In his summing-up the learned trial judge indicated to the jury what was the evidence against the applicant Sabaz. This did not include the unworn statement of the applicant Morel.
In dealing with the evidence relative to the stealing of the "Vicki Vaughn" the learned trial judge told the jury at page 271:
"Mr. Foreman and members of the jury I was just about to explain to you that we are not here to try whether anybody was a party to a theft or attempted theft of the Vicki Vaughn.
"If, as part of the narrative, you form the view that there was indeed a plot to steal it by certain
persons that is unavoidable and inevitable. All I can tell you is this. You must not let it prejudice you in any way against either accused in relation to the charge on which they are standing trial."
The learned trial judge then went on to direct the jury on the issue of common design. He made it clear to the jury that the common design that the Crown must prove was that of killing the deceased. Nowhere in his summing-up does he tell the jury that the stealing of the "Vicki Vaughn" could be used to infer or find a common design to kill the deceased.
The failure to tell the jury that a common design to steal the "Vicki Vaughn" could not be used as evidence to establish a common design to kill the deceased, was not in our view a misdirection.
The case of R.V. Anderson and Marris, (supra), does not assist the applicant having regard to the facts of the instant case.
We have examined the summing-up as it affects the directions on common design and we are unable to say there were misdirections or that they were inadequate or confusing.
Ground of Appeal 0:
In his directions on the evidence of Reynerio Garcia the learned trial judge stated at page 302:
"Now we turn to the evidence of Reynerio Garcia. He is a very important witness from the prosecution point of view. And you should assess his evidence very carefully. Because if you believe him to be a truthful witness and a reliable one his evidence is very damaging against the first accused, particularly in view of the second accused own admissions which I brought to your attention in outlining the scenario in those statements which I brought to your notice."
It was submitted that the learned trial judge misdirected the jury when he told them that Garcia's evidence was damaging, particularly in view of the second accused own admissions. It was contended that the learned trial judge was asking the jury to take into account the applicant Morel's admissions
to assist them in assessing the evidence of Garcia.
It is to be observed that the learned trial judge used the word "admissions" and not "statements". Admissions could only refer to acts done by the party making the admission and not acts of any other party. The learned trial judge in dealing with Garcia's evidence was relating it as it affected the case against the applicant Sabaz.
It was his admissions that could be considered in assessing the evidence of Garcia.
We can only infer that, if the trial judge used the word "second accused" he made a mistake. Clearly he must have intended to be referring to the first accused admissions. And the use of the word "own" in relation to the admissions appears to confirm this.
In view of the careful directions given to the jury as to how they were to treat the statements of each applicant, we do not consider that this error was such as to cause any injustice or prejudice to the applicant Sabaz.
It was further argued on behalf of the applicant Sabaz that the learned trial judge ought to have warned the jury to be cautious in considering the evidence of the alleged oral confession made to Garcia by applicant Sabaz. Garcia had stated in evidence that Sabaz told him that he, the applicant had killed the deceased.
Reliance was placed on R. v. Belcon [1963] 5 W.I.R. 526.
In his directions on Garcia's evidence the learned trial judge stated at page 289:
"And so now I will also turn to give a brief word about the evidence of Garcia. He was an important prosecution witness. It was suggested that he gave the evidence he did in order to assist Gilberto Martinez, his friend.
"First of all ask yourselves: How the evidence could possibly assist Gilberto Martinez or anyone else in any way...
"I suggest that you should assess him as a witness as you would any other witness that has gone into that box and given evidence to you, and in the way that I explained earlier."
Again at page 302:
"And you should assess his evidence very carefully. ........."
"You should, of course, only act on his evidence if you are sure that he was telling the truth about what the first accused said to him. He was a rather tallish youth who appeared very earnest in the witness box and it is for you to decide how reliable you thought he was."
At page 307:
"Well members of the jury it is for you to decide whether he was telling the truth and what weight to give to his evidence."
At page 308:
"Of course, if you have any reasonable doubt, whether Garcia was telling the truth you must resolve that doubt in favour of the first accused."
In the case of R.v. Belcon, (supra), the Court of Appeal of Trinidad and Tobago considered the question as to whether there was a duty on the trial judge to warn a jury that oral confessions should be received with caution.
At page 531, Wooding C.J., stated:
"Finally, as part of the second ground of appeal, it is complained that the learned trial judge should have warned the jury, but did not, that the evidence of alleged confessions by the accused should be received with caution. What are these so-called confessions? There were two. First, there is the statement to which Bristol deposes, made in reply to the question by the appellant's brother: "Where you come out boy?" The answer was: "Where I come out? I come out and fix up a man. If you go now you will meet him stone cold dead."
The other was the appellant's statement to Inspector Reid on being arrested and cautioned:
"only three things can happen. They can either hang me, they can jail me, or I get off." The admissibility of these statements was never in issue. There was no charge or hint that, if made, they were other than voluntary.
Nor was there any suggestion of possible inaccuracy in the report of either of them. The challenge was, as regards the first statement, that if made, it was not by the appellant but maybe by his brother; and, as regards the second, that nothing at all was said by the appellant when arrested and cautioned. Accordingly, it was a straight issue of fact for the jury, and it was fairly and properly left to them, to decide whether or not they were fully satisfied that the appellant did make either or both of the statements alleged. But, counsel contends, that was not enough. The jury ought also to have been warned that such statements are liable to be unintentionally misrepresented by the witness and, therefore, that they should be cautious in acting on them.
"We doubt that either of the two statements falls strictly to be regarded as confessions but we are prepared to deal with them as if they do. In our judgment, if and when objection is taken to the admissibility of any such statements, the authorities do not go beyond requiring the judge, notwithstanding his ruling that they are admissible, to direct the jury that it is for them to determine what weight and value they should give to them after hearing evidence of the circumstances in which they were made. But when no objection has been or can be taken to their admissibility and evidence of them has been tendered and received, the test to be applied is the same as with regard to any other question of fact: that is to say, before the jury can act upon them, they must feel sure that the statements were made as alleged.
"We accept that in some cases juries need to be warned to be cautious in acting upon alleged confessions, especially if they are not in writing. The case of R. v. Simons is one such. There, two people gave evidence of overhearing remarks made by a prisoner to his wife but their respective reports of
what they heard differed so vitally as to make caution absolutely essential. But in the instant case, apart from the general need to feel sure that the witnesses' testimony was credible and could be accepted, there was in our view no special need for caution."
In the instant case, the admissibility of the confession was not challenged. The learned trial judge told the jury that they should assess Garcia's evidence very carefully. He left the confession for the jury to consider whether they were sure that Garcia was telling the truth. It was for the jury to assess the credibility of the witness like any other question of fact. There was therefore no special need for caution.
We have found it unnecessary to deal with the other grounds of appeal. Suffice it to say we considered them and found no merit in the arguments.
The evidence placed before the jury was such that it was open to the jury to consider whether or not the applicant Sabaz was part of a common design to murder the deceased. The jury returned a verdict of guilty and we see no reason for disturbing such a verdict.
Applicant Morel
To a large extent the grounds of appeal of the applicant Morel were similar to those of the applicant Sabaz. Counsel for Morel adopted the submissions made by applicant Sabaz's counsel wherever they were applicable.
It was submitted that the learned trial judge misdirected the jury in his directions when dealing with the defence of the applicant. In particular when he dealt with the issue as it related to the gun being taken from the applicant by force.
The learned trial judge dealt with it in this way at pages 281-282:
"If the second accused was in fear of the first accused in the mood that he found him at the time and had gone unwillingly to fetch the brief case and had had the gun taken away from him against his will, more or less as Gilberto told you in evidence, and the second accused has said in his earlier statement, and if he took no part in the actual shooting, then you might think that his conduct was inconsistent with, first of all, the common plan to kill the old man. And secondly, with the formation of an intention to kill the old man or causing grievous bodily harm. That in itself would mean that he would not be guilty of this offence because you could not be sure in those circumstances, on those vital issues, so as to justify a conviction. That is an aspect you will have to bear in mind as we go through the evidence."
We have examined these directions and find them to be a fair and correct assessment of the law. The learned trial judge fairly left the issue as to whether force was used, for the consideration of the jury.
The directions on common design were based on the evidence in the instant case. We have carefully examined these directions and can find no reason for saying that there were any misdirections. The jury was asked to say whether on the relevant and admissible evidence against the applicant Morel, there was a common design on his part to kill the deceased.
In our view there was sufficient evidence for the consideration of the jury to decide whether the evidence established a common design on the part of the applicant Morel.
We have given careful consideration to the submissions made on behalf of the applicant Morel with respect to all of the grounds of appeal argued.
On the whole the summing-up of the learned trial judge was fair and accurate.
We have been unable to discover any misdirections or grounds which could result in the application for leave to appeal being granted.
It was for these reasons that we dismissed the appeals and affirmed the convictions and sentences.