Warner et Al v R

• Jurisdiction: Saint Kitts and Nevis
• Judge: St. Bernard, J.A.
• Judgment Date: 22 June 1973
• Neutral Citation: KN 1973 CA 2
• Docket Number: Nos. 2 and 3 of 1973
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 22 June 1973

Court of Appeal. Nos. 2 and 3 of 1973

Lewis, C.J., Bernard J.A., Louisy, J. A.(Ag.)

Nos. 2 and 3 of 1973

Warner et al

and

R.

Mary Moore for appellant.

W. MacIntyre, D.P.P. for respondent.

Criminal law - Appeal against conviction — Arson — Identification — Admissibility of evidence.

Facts: These were two appeals taken together by consent. The appellants were tried together and convicted of arson. The main issue at the trial was the question of identification of the appellants of the complainant. Whether the evidence concerning a conversation which took place between the complainant and the appellant was admissible.

Held: That this evidence did not directly prove or disprove the offence charged and was inadmissible. That the judge misdirected the jury on the issue. Court found the convictions unsafe. Appeals allowed and convictions and sentences set aside.

1 The judgment of the Court was delivered by–

St. Bernard, J.A.

2 These are two appeals which are taken together by consent. The appellants were tried together and convicted of the offence of attempted arson on 24th May, 1973, and each sentenced to two years imprisonment. They now appeal against the conviction and sentence on five similar grounds, two of which are withdrawn. The main issue at the trial was the question of identification of the appellants by one Alvarine Dennis, the complainant.

3 The facts of the case may be briefly summarised as follows: On 18th February, 1973, Alvarine Dennis owned a small house at Half Way Tree where she lived with her children. She went to bed about 8 p.m. She stated that about five minutes to 12 o'clock she heard the sound footsteps of more persons than one in the yard. The footsteps appeared to her to be getting closer to the house and so she got up and went by a window and in about five more minutes she heard an explosive sound “puff” and felt as if the house would fall. She looked out of the window and saw two men running from the into the main road and into one Fraser's yard. Fraser is sometimes called Willie George. She shouted Willie George and spoke. She stated that when the two appellants were running into Fraser's yard, Fraser's dogs were loose and rushed them, and the yard above Fraser's had dogs also and they rushed out and the appellants “turned back round and she saw them to their face part.” She knew both appellants for some time before that night. The other occupants of the house awoke and Alvarine and others went outside and she observed the house was on fire. The fire was put out. There was slight damage to the house by burning. There was a crocus bag underneath the house and this smelt strongly of gasolene or diesel oil. The same night a report was made to the police at about 12.25 a.m. and Sgt. Dudley Williams and P.C. Salters went to her home the same morning. On arrival the sargeant observed the crocus bag under the sill and there was a strong odour of diesel oil. He left with Alvarine, Alfred Percival, Alvarine's boyfriend, and P.C. Salters for the home of Duporte, the second appellant. He called and knocked several times but received no answer. The time was about 2.15 a.m. They left and went to the home of Julian George and there he saw the appellant Warner lying across wearing a dark pair of pants, a pair of brown shoes, and a white T shirt under a blue shirt. He called Warner and told him that Alvarine stated her house was on fire and she saw him and Duporte running away from the yard. Warner said nothing at the time. He was taken to the police station and Warner made a statement the same morning at about 4 a.m. The same day at about 1 p.m. Duporte went to the police station and he too made a statement. Duporte was arrested on the 1st April and Warner on the 9th April.

4 The defence of both appellants were alibis. Warner stated that he went to spend the week-end with his friend Julian George, and on 18th February — a Sunday, they went to play dominoes at Godwin's ghut. They played until about twenty-five past 5 o'clock p.m. From there they went to the home of Pansy Warner and watched television until about one quarter to 10 o'clock. Then he went to George's home and went to sleep in a white T — shirt and a white under pants. While he was sleeping Julian George awoke him and he saw Sgt. Williams standing at the door. The sargeant spoke to him and he went to the police station and there he made a statement. The witness Julian George supported this story.

5 Duporte stated that on the 18th February, after he awoke he went to his mother's home. After breakfast one James Norford and himself started to drink rum. About 6.30 p.m. he left his mother's home drunk and went to his home and straight to bed. Next morning, Warner and Julian George called him and told him the police were looking for him.

6 The witnesses for the appellants stated that on the 9th May, 1973, Alvarine Dennis told them that it was Josephine Herbert...