Gray et Al v R

• Jurisdiction: Guyana
• Judge: Massiah, C.,Fung-a-Fatt, J. A.,Harper, J. A.
• Judgment Date: 10 October 1986
• Neutral Citation: GY 1986 CA 4
• Docket Number: Criminal Appeal Nos. 30 to 34 of 1985
• Court: Court of Appeal (Guyana)
• Date: 10 October 1986

Court of Appeal

Harper, J.A.; Massiah, C.; Fung-a-Fatt, J.A.

Criminal Appeal Nos. 30 to 34 of 1985

Gray et al

and

R

Nandram Kissoon for the 1st and 5th appellants.

Peter Britton and Miss C. Jamos for the 2nd and 4th appellants.

J. Goolsarran for the 3rd appellant.

C.L. Luckhoo, S.C., Edward Luckhoo and W. Henry, Senior State Counsel, for the State.

Criminal practice and procedure - Directions to jury — Appeal against conviction and sentence for three counts of murder — Circumstantial evidence — Judge must explain to jury in simple language which they can easily understand and assist them in marshalling their thoughts — Alibi: trial judge adequately directed the jury on the alibi of the appellants — Acting in concert: Sufficient evidence from which the jury would have found that the appellants were acting together to steal the fish and prawns of seafood but this is not the same as that they were there implicated in a plan to kill the crew of sea foods — Appeal allowed for No. 2 and 4 — Conviction affirmed for 1, 3 and 5 as they had planned together to kill the crew of the trawler and carried out their plan almost fully: their appeals dismissed.

Massiah, C.

1 The events with which this case is concerned may in no way be described as quotidian. Yet their delineation by the main witness for the prosecution disclosed nothing that is involute, indeterminate or anfractuous. The evidence is crystalline. And through it all there can be been the unblushing figure of avarice tricked out in rather meretricious robes.

2 The cruel and impudent story, reminiscent of the piratical days of man of the ilk of the infamous Scottish sea robber Captain Kidd, unfolds on 24th March, 1984, when Joseph Fernandes who is employed at Georgetown Seafoods Ltd. as the captain of the trawler Miss Lanita loft for shrimping grounds in the Atlantic Ocean. The crew, apart from the captain, consisted of his brothers, Henry and Jerome, and the captain's nephew, young Michael Dially, then only eighteen years old. Their intention was to trawl at sea for about 45 days and were accordingly provided by their employers with stores and fuel for that period.

3 By the 7th May, 1984, they had caught about 9,000 pounds of prawns which were put in 90 boxes, each box containing 100 pounds of that delectable crustacean. There were also about 12,000 pounds of fish. The captain was satisfied with his catch, and on that day, 7th May, began preparations for his return to his base at Providence, Fast Bank, Demerara.

4 About noon, when the trawler was about a mile from Georgetown, the second appellant Jagat Narine Soomrah, and four other men who remain unidentified, passed the Miss Lanita in a small boat equipped with an outboard engine. A noise, such as might come from a discharged gun, was heard, whereupon Joseph Fernandes rushed to the starboard side of the boat and there, by the wheelhouse door, he saw a man wearing a mask and a knitted woollen cap whom he later recognised as the first appellant, Pelham Gray. Fernandes was acquainted with Gray for he had known him some time before when Gray was the captain of several boats including the Sea Knight, a trawler that also belonged to Georgetown Seafoods Ltd.

5 Gray, who was armed with a revolver, told Fernandes in language that was rather less than refined that they were taking over the boat. Fernandes said that in a matter of seconds he saw the third appellant, Roy Gladd, by the galley door, running on the starboard side of the trawler with a pistol in his hand. Gladd ran up to him and placed the pistol at his back. He too told Fernandes that they were taking over the boat. This was said in the presence of the first appellant. Fernandes had known Gladd before, for they had been crew members on the Japanese trawler Utaka Maru.

6 The captain next saw the fifth appellant, Winston Jacobs, whom he had not known before, running through the galley door and into the wheelhouse with a large knife and piece of wood that looked much like an American baseball bat.

7 Gladd later took the captain and his brother Henry to the crew's quarters where the captain saw the fifth appellant guarding his brother Jerome and his nephew Michael Dia11y. The captain and Henry were then put in the same cabin with Jerome and Michael. The first appellant was then steering the trawler. Fernandes was than compelled by threats of violence laced with expletives and emanating from Gray and Gladd to radio Providence and pretend that his catch was small and that he would continue to trawl for a few more days. As soon as he was finished speaking, the captain was taken back to the cabin in the crew's quarters where he rejoined the other crew members. On his way back to the cabin the captain saw the second and fourth appellants in a small fishing boat which was moving at the side of the Miss Lanita. It was the same boat that he had earlier seen with five men inside. The boat and the trawler were now both going out to sea and away from Guyana, and were about ten feet from each other.

8 The third appellant then removed the crew members from the cabin and secured them in the ship's lazaret, which is the after part of the hold used for stores. The only entrance to and exit from the lazaret is by means of its lid which is situated on the deck. In an effort to ameliorate his suffering the captain tried to open the lid but failed to do so. His captors had securely fastened the lid so that escape was not only hazardous but seemingly impossible also. Sometime later the captain was removed from the lazaret and taken to the wheelhouse where he was questioned about the radio. On his way there he saw the second and fourth appellants cooking in the galley. It was the first time he was seeing them on board. Later he was taken back to the lazaret.

9 The intruders were now in full control of the trawler and the captain and his men had become their prisoners.

10 At about 6.00 p.m. the third appellant, Gladd, still armed with his gun, ordered the captain out of the lazaret. When he got out Fernandes said he saw all five appellants there. The first appellant had his gun in his hand. The second, fourth and fifth appellants were eating. Fernandes also noticed that the whole stern was in disarray. Ice, fish and shrimp were scattered about. Gray and Gladd asked Fernandes how much fuel there was on the trawler and he told them there was not much, which was a lie told for obvious reasons. The captain was then taken back to the lazaret and on his way there he saw two boats tied to the stern of the trawler; he recognised one of them as the boat in which he had earlier seen the second and fourth appellants.

11 At about 4.30 o'clock next morning, the 8th May, 1984, the first appellant, gun in hand, ordered the captain to leave the lazaret and go to the wheelhouse. When he did so the captain saw all the other appellants also on deck. The third appellant was steering the boat. The second appellant was near to the third appellant. The fourth appellant was sitting at a desk nearby. They were all in the wheelhouse. The fifth appellant had a pistol in his hand and was near to the wheelhouse door and just outside of it. Fernandes said he heard the report of a gun, then his waist grew numb and he felt much pain. The fifth appellant, Jacobs, was standing close to him,.The inference can be drawn that Jacobs had shot him.

12 The captain said he heard his brothers and nephew begging for their lives. He fell, and Gladd then told Jacobs to hold his foot, and as Jacobs did so he saw the gun still in Jacobs' hand. Gladd and Jacobs then lifted him and threw him overboard in shark infested waters. As he started to drift he heard the loud report of a gun, and then another such report. He continued to drift and heard what he described onomatopoeically as splashing sounds. The State asked that this be construed as the sounds of bodies touching water. After a while everything became quiet.

13 Alone in the ocean like the mythological Icarus the captain contrived to stay afloat for six hours before he was rescued by a passing tug. Neptune must have been his guardian angel. He spent five weeks in the St. Joseph's Mercy Hospital, where Mr Honnett Searwar, the surgeon, removed a bullet from his spine. The doctor saw a gunshot wound to the right of the midline at the side of the spine and in the region of the lumbar spine. The third and fourth sacral nerves were damaged, and there was impaired sensation in the perinoal, scrotal and anal regions which persisted when Fernandes was discharged from hospital.

14 On 12th May, 1984, two identification parades were held at the hospital. At the first parade Fernandes identified the second appellant as one of the men on the trawler. At the second parade he identified the fourth appellant as another person that he had seen on the trawler. He claimed that they were the same men that he had seen in the small boat on 7th May.

15 So much for the captain Joseph Fernandes. But what of his brothers Henry and Jerome, and his nephew Michael Dially? The captain last saw them when he was removed from the 1azaret at about 4.3n a.m. on 8th May, 1984.They were never seen again. They can safely be said to be dead. The circumstantial facts prove this beyond a reasonable doubt.

16 On 8th May news was received from the Georgetown Lighthouse that the Miss Lanita was seen drifting. As a result, the Guyana Fisheries Ltd. sent one of their captains, Eric Shepherd, in search of it. Shepherd left in the trawler Creole Fish and at about 11.20 a. m. when he was about 2 (miles off shore he saw the Miss Lanita. Captain Shepherd boarded her. He found no one on board. She was “As idle as a painted ship, Upon a painted ocean.” (‘The Rime of the Ancient Mariner’ - Samuel Taylor Coleridge). The kitchen was ransacked and the kitchen utensils were missing. The electronic equipment was also missing; electrical...