Arthur Martin Appellant v The Queen Respondent [ECSC]

JurisdictionCaribbean States
CourtEastern Caribbean Supreme Court
JudgeLOUISY, J.A. (Ag.)
Judgment Date02 Mar 1973
Neutral Citation[1973] ECSC J0302-1
Docket NumberCriminal Appeal No. 1 of 1973
[1973] ECSC J0302-1

IN THE COURT OF APPEAL

Before:

The Honourable the Acting Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Louisy (Ag.)

Criminal Appeal No. 1 of 1973

Between:
Arthur Martin
Appellant
and
The Queen
Respondent

W.V. Herbert and Miss C. Mitcham for Appellant

Lee L. Moore, Attorney General for Respondent

1

The judgment of the Court was delivered by—

LOUISY, J.A. (Ag.)
2

The appellant was indicted on the 5th of January, 1973 on the following counts:

3

Count 1—storebreaking and larceny; Count 2—Larceny; Count 3—receiving stolen property and count 4—as an accessory after the fact to storebreaking and larceny. The trial judge withdrew counts three and four from the jury and left counts one and two for their consideration. The jury returned a verdict of guilty on count one. The appellant appealed against this conviction and sentence on six grounds but only argued the following -

1. That the verdict should be set a side on the ground that it is unreasonable or cannot be supported having regard to the evidence.

2. That the learned judge erred in law in refusing to withdraw the case from the jury at the close of the case for the prosecution as there was no evidence of the accused being in recent possession of the stolen goods.

3. That the learned judge misdirected the jury on the question of whether the accused could be an accessory before the fact to the offences charged as there was no evidence to support such a finding.

6. That the sentence is excessive.

4

The facts of the case are as follows:-

5

On the 10th of August, 1972 the Public Officers Socio Economic Co-operative Society Limited, which I will refer to hereinafter as POSECS, carried on business in a two-storey wooden building with a varandah to the front facing Bay Road and an entrance to the building on the ground floor through doors on the front side of the building. The company sold the type of goods mentioned in the first count of the indictment. The manager of the company was one Charles Elmes and he was assisted in the business by a youngster called William Connor who apparently slept on the premises.

6

On Thursday the 10th of August, 1972, Elmes left the premises about 7.00 p.m. but before leaving he made sure that the doors and windows of the building were properly secured. In that building there was a storeroom where the goods mentioned in the indictment were stored. The door to the storeroom was secured by a padlock. As a result of a report made to Elmes on the following day about 3.00 a.m. he went to the premises to the storeroom, he observed that the hasp had been ripped away from the door and the lock was on the staple; he went into the storeroom and inspected it and found a number of articles which he had left there missing; he later went to the Police Station at Basseterre where he saw bags of rice, looking like those missing from the storeroom and other articles.

7

William Connor, who was sleeping on the premises on that night, said he was in his room about 2.40 a.m. on the 11th of August when he was awakened by a noise, he said this noise was coming from the storeroom and it sounded as if something was being broken from a door, the noise continued, he said for about five minutes; after that he heard footsteps in the storeroom for about 20 minutes. Then he heard footsteps coming from the yard. He got out of bed, opened the door to his room, and went outside in some bushes near to one Mrs. Moore's premises, quite near to the POSECS building and spoke to Mrs. Moore. He then left and went back to a part of the garden and looked in the direction of the road. There he saw a parked car on the left side of the road near POSECS premises; he saw two men in the street taking things from three other men on the premises; but he did not recognise any of the men as it was dark. He saw the men carrying things like cartons to a car. After that he saw the lights of the car then go on, he crouched where he was, and when the car had almost passed him, he recognised the number of the car as P 2398. It is admitted that this car, P 2398, belongs to the appellant. Connor went again and spoke to Mrs. Moore, and whilst he was there, the police came to the premises, examined them and observed the door to the storeroom was broken.

8

Sargeant Hanley, Corporal Houston and P.C. Sargeant then left for Haynes Smith Village in the vicinity of the appellant's restaurant. On arrival there they saw motor car P 2398 parked on the side of the road; they looked in the back seat and saw bags of Indian Maid Rice, Ovaltine, Beans and other articles. The trunk of the car was later opened and they saw cigarettes, and more Indian Maid Rice. Some of the articles seen in the car bore the mark 'POSECS'. The rice found in the back seat of the car and in the trunk was the same brand which was sold by POSECS. She police searched the yard of the appellant's premises and under the steps of this restaurant they found Indian Maid Rice, Ovaltine, Sifto Salt, Strawberries and some Kidney beans, some of these articles were also marked POSECS. The witness Elmes say that all the articles found resemble he stocked at POSECS business premises.

9

The police, before carrying out their search knocked on the premises of the appellant; after waiting a few minutes they saw him coming from the north along Millionaire Street. He had a bunch of keys with him, these keys, it was admitted, were the keys of his car. The police told him that they suspected he had stolen goods in the motorcar, cautioned him and asked him to give an explanation as to how he came in possession of the articles, he replied, "I don't know anything about the goods, I only know about the cigarettes and batteries in the trunk of the car." A police witness said that the trunk of the car was not locked, it was open, but another one said that the trunk was locked and was opened with a key; the appellant said that it was not locked. This was the evidence before the jury when the Crown closed their case.

10

After the Crown closed their case, counsel for the appellant submitted that there was no evidence of ownership of the goods and that the fourth count could not stand as a receiver could not be an accessory after the fact. The trial judge ruled that there was no evidence to support the fourth count but overruled counsel's submission on the other count.

11

The accused then gave evidence, he stated that he knew nothing about the goods in his car except for the cigarettes in the trunk. He denied also that he knew anything about the goods found under...

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