Buffonge et Al v R

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Cecil Lewis, C.J.
• Judgment Date: 05 December 1973
• Neutral Citation: MS 1973 CA 1
• Docket Number: Criminal Appeal Nos. 1 & 2
• Date: 05 December 1973

Buffonge et al

and

R

Lewis, C.J. Peterkin, J.A. (Acting) Renwick, J.A. (Acting)

Criminal Appeal Nos. 1 & 2

Court of Appeal

Criminal Law - Appeal against conviction — Murder

Held: Conviction of appellant Lee quashed. As regards the appellant Buffonge, there was a finding that having regard to the strength of the case by the prosecution against him the result of the trial would not have been affected by any misdirections. The appeal against the appellant Buffonge dismissed.

Facts: Two appeals were heard together by consent. The grounds of appeal concerned whether the directions of the trial judge to the jury were adequate. Finding that the evidence failed to establish on the appellant Lee's part any firm agreement and positive physical participation in the actual commission of the crime. Also, that as a result, the trial judge's directions as regard the appellant Lee were inadequate and conviction could not be allowed to stand.

1 Cecil Lewis, C.J. (Ag.) delivered the judgment of the Court.

2 These two appeals were heard together by consent.

3 At the conclusion of the hearing on October 23 the Court announced its decision on each appeal and intimated that it would give its reasons in writing at a later date. This the Court now proceeds to do.

4 The appellants were jointly indicted for the murder of Sarah Meade at some date between the 25th and 27th days of September 1972. They were convicted on July 24th 1973 and sentenced to death. Each now appeals against his conviction.

5 Sarah Meade who is also called “Mon”, a young girl 16 years of age, lived at Victoria Village with her mother Sarah Dyett and her mother's husband John Dyett. Some three months or so before her death Sarah Meade was in the habit of leaving her parents home around 6 p.m. to go to sleep at the home of her great aunt, Charlotte Lynch and her great grandmother, Christiana Barzey in George Street, Plymouth.

6 On Sunday 24th September, 1971, Sarah Meade dressed and left to go to choir practice at the Roman Catholic Church in George Street with the intention of going to her great grandmother's place as usual to sleep after the practice. She took with her a plastic bag containing her night clothes. Her great grandmother Christiana Barzey said she came to her home that night to sleep and arrived at about 6 p.m. She did not leave the house that night. She said however that she saw her leave the house next morning when “the morning was open”. She also said in answer to a question by counsel for the appellant Buffonge “that she left when it was bright morning”.

7 Joseph Wyke who lives in George Street, Plymouth and who knew Sarah Meade said that he was in the habit of seeing “her in the morning hours about 5.15 a.m.” walking along George Street, and on Monday 25th September, 1972 he saw her around 5.15 a.m. on the Northern side of George Street walking in a westerly direction. She had a paper parcel under her arm. Sarah Meade was never seen alive again after this time.

8 When her stepfather John Dyett awoke on Monday September 25, Sarah Meade was not at home. He went off to his work and at about 4 p.m. when he came down from the mountain Sarah was still not at home. He made inquiries for her, and as he could get no information about her whereabouts he made a report to the Plymouth Police Station between 6 and 7 p.m. that day.

9 Some time in the morning of the 27th September a girl called Glendora King came to John Dyett's house and spoke to him. As a result of this conversation he went to the junction of Wall and Osborne Streets where he saw one of the shoes which Sarah Meade was wearing when she left his home. He took up the shoe carried it to the police station and made a report. A little later the police came to him and he went and showed them where he had found the shoe. A search was instituted in this vicinity and in a bushy area between the Coconut Hill Hotel and the premises of one Mr. Wall a body was found which he identified as being that of his step-daughter, Sarah Meade.

10 About 10.30 a.m. the same day Dr. Bailey was called to the spot where the body was found. He observed the body of a young girl lying in a clump of bushes. It was clothed in a mini dress but there was no covering on the lower half of the body. Her stepfather also said when he saw Sarah's body that her panties were missing.

11 Dr. Bailey observed that the body was lying on its back with the legs parted and slightly flexed. The arms were apart and flexed and the whole position being that assumed during sexual intercourse. The body was then in a state of putrefaction. It was removed to the Glendon Hospital where he performed a postmortem examination at about 1 p.m. On examination he found that the body and the clothing were much soiled with dirt, grass and bush. A clump of grass was found in her mouth which had pushed the tongue to one side. The whole surface of the body was seething with maggots and grubs upon and beneath the skin. The face was completely smashed in across the eyes and the bridge of the nose. A broad groove ran across the face, and the left eye in particular was grossly disorganized, i.e. the normal relationship of the eye to the eye socket had been disturbed and this was as a result of the fracture of the bone in this region causing displacement of the eyeball. There were cuts over the nose and left side which showed broken bone splinters beneath. A one and a half inch cut of the scalp over the right parietal region showed fracture of the skull. In view of the position of the body Dr. Bailey carried out a particular examination of the external sexual parts but on account of the advanced state of putrefaction it was impossible to observe any injury which might have resulted from sexual engagement. Similarly, the state of putrefaction made it impossible to identify bruises or surface scratches on the rest of the body. Internal examination revealed the organs such as the lungs, the heart, the bowels and liver were normal although putrescent. The skull showed multiple fractures of the facial bones particularly over the left eye and nose. There were similar fractures of the vault of the cranium in both temporal and the right parietal bones. The brain tissue had been destroyed and consumed by maggots.

12 The doctor concluded that death had occurred as a result of multiple injuries to the face and skull which were probably the result of blows delivered with a blunt instrument, possibly the edge angle of a stone or a bar. The state of undress and the attitude of the body suggested that sexual interference had occurred and in the doctor's opinion “the attitude of the body was that present at the time of death” which he estimated to have occurred some 48 hours previously; certainly more than 24 hours and probably within 72 hours of discovery. The doctor also stated that the body would be preserved in the position in which it was found if death had been caused suddenly or under violent circumstances and that the muscles of the body would fix the attitude of the body after death.

13 In cross-examination the doctor stated that it would be difficult to say if the injuries which he saw on the body were made before or after death but he found no reasons for the cause of death other than the injuries on the body.

14 Sergeant Winfield Griffith who was present when the body was found said that he observed a depression in the ground about 5 feet 2 inches from the body from whicha stone appeared to have been removed. He saw a large stone about 3 feet 8 inches away from the depression and he examined it and he observed what appeared to be blood and human hair on the stone. He took the stone and placed it into the depression and it fitted. This stone was afterwards handed to Gerald Popplewell, a Chemist who testified that on examining it he found bundles of hair adhering to it at three points. This hair was human hair of negro origin.

Case against appellant Buffonge:

15 The case for the prosecution in relation to the appellant Buffonge rests mainly on the evidence of the witness Joseph Buffonge, the prisoners Peter Ryan, George Cooper and Gabriel Paul to whom this appellant made statements while in prison on remand, and to a lesser degree on that of the witnesses Joseph Meade, Matilda Gage and Henry Ryan who all said that they saw and heard the appellant call out to Sarah Meade on different occasions when she passed along the Fort Barrington Road. The evidence of these witnesses will now be considered in detail.

16 A rather important witness for the Crown was a man called Joseph Buffonge who was a first cousin of the appellant Buffonge and has the same Christian name. His evidence is to the effect that on Monday of the 25th September 1972 he was in his boat on the northern part of the pier when the appellant Lee who was on the pier called out to him and told him that his family Midda (i.e. the accused Buffonge) was in difficulty and wanted to see him. He asked him where was the appellant Buffonge and he told hint to come with him. The witness Buffonge tied up his boat and walked along the pier and when he got to the middle of the pier he met the appellant Buffonge and his father Joe Joe Buffonge walking along the pier. The appellant told him he was the man he was looking for and pushing his hand in the pocket of the witness, said “that is only a tip for you”. The witness Buffonge put his hand in the same pocket and pulled out a $50 American bill which the appellant Buffonge had placed there. He kept this money. He said he asked the appellant Buffonge where were they going and he told him that “he had a dead home and he wanted me to help him”. At this time four of them were present namely, the appellant Buffonge's father, the appellant Lee, the appellant Buffonge and himself. They went towards the house where the appellant Buffonge lived and as they were doing so the appellant told...