Murderer sentenced to death, appealed and lost ON August 21, 1959, Essequibo farmer Flavio Da Silva and his worker John De Freitas, 40, who wanted to marry Da Silva’s 14-year-old daughter Gwendoline, went upriver on a duck-shooting expedition, when he was murdered by the man who wanted to be his son-in-law. Later the same day, De Freitas returned on foot with the sad news that Da Silva had fallen overboard and died by drowning.
Police investigations revealed that Da Silva was murdered; he had died from gunshot wounds and strangulation.
John De Freitas was therefore charged with murder.
At his trial, represented by criminal lawyer, J.O.F. Haynes, Q.C. and P.N. Singh, De Freitas put forward several defences including self-defence, provocation and accident, but the jury rejected the defences and found the accused guilty of murder.
De Freitas, dissatisfied with the jury’s verdict and the trial judge’s summing-up, appealed to the Federal Supreme Court in its appellate jurisdiction. That court, constituted by Chief Justice Hallinan and Justices Rennie and Marnan, dismissed the appeal by De Freitas and affirmed the conviction and death sentence. Summarising the facts of the case Justice Marnan said, “The case for the Crown was that the appellant and the deceased went out together in a 27-foot boat on the Essequibo River to shoot ducks. The only weapon they took was a 16-bore single-barrelled shotgun belonging to the deceased. A few days previously, the appellant who lived with, and worked for, the deceased, had disclosed to the deceased and his wife that he was in love with their daughter, Gwendoline, and wished to marry her.
The appellant being over 40 years of age, and Gwendoline only 14, the proposal led to a heated discussion, which was left unresolved.
The seeds of a quarrel had thus been sown when the appellant and the deceased set out at three o’ clock on the morning of August 21, 1959, alone in the small boat. Later the same day the appellant returned on foot with a story to the effect that the deceased had fallen overboard and drowned. He made a similar statement to the police. The boat was found moored in the river, but its anchor and a length of rope were missing. On August 22, the body of the deceased was discovered washed up on the river bank by the tide. There were wounds on the head, a gunshot wound in the chest, and a piece of rope was tied tightly around the neck.
The medical evidence was that death was due to the gunshot wound and strangulation. In the doctor’s opinion, the gunshot wound was the first injury inflicted; then the head wounds, which were consistent with blows from the barrel of the gun, and the deceased was still alive when the rope was tied around his neck, but died before he was put into the water.
The gunshot wound would eventually have caused death if not attended to, but the head wounds alone would not have been fatal. The appellant made further statements to the police on August 23 and 25. In the former, he repeated his story that the deceased had fallen overboard by accident. In the later statement, which was made under caution, he told an entirely new story upon which he relied at trial as constituting his defence. He did not give evidence or call witnesses, but made an unsworn statement from the dock which was as follows. “I made a statement to the police already, Exhibit N. I have said everything I have to say. I had no intention of doing anything. I am really sorry for what has happened. I have nothing more to say.” Continuing his judgement, Justice Marnan said, “In his summing up, the trial judge told the jury: ‘In this case, the defence is contained in a statement….which the accused made to the police and in his statement from the dock at trial. In these statements, you have intertwined four defences: the defence of insanity, with which you can couple Automatism; the defence of self-defence; the defence of accident and the defence of provocation.”
Justice Marnan explained, “The effect of the appellant’s statement, Exhibit N, was that while out in the boat the deceased told him, the appellant, that he was going to dismiss him and turn him out. The appellant replied that the deceased might regret that step because he would make Gwendoline follow him. The deceased then threatened to shoot the appellant and picked up his gun and loaded it. The appellant who had been sitting in the stern, steering, jumped up, caught hold of the gun in the deceased’s hands, and began to wrestle for it. The deceased fell, and the gun went off whilst the appellant was standing over him trying to take away the gun. The deceased was holding the barrel, but the appellant got the gun away from him The appellant then, “got mad or something” and remembered hitting the deceased on his head with the gun. The appellant then threw the gun overboard. The deceased said twice “Gwendoline my daughter – you is the cause of this.” The deceased looked as if he was dying and said to the appellant, “Sonny throw me overboard.” The appellant then tied a piece of rope, which he cut from the main sheet, around the deceased’s neck, but could not remember why he did so. He then threw the deceased and his baboon skin cartridge bag into the river, took down the sail, stopped the engine and dropped the anchor. Later, when he came to himself, he found that the anchor which had been attached to a chain was gone. He hoisted the sail and went ashore.
The Federal Court found that the trial judge had correctly directed the jury on all aspects of the case and had left no stone unturned as to cause them to interfere with the jury’s verdict. In his remarks to the jurors the trial judge, among other things, had told them, “Finally if you are satisfied beyond reasonable doubt that the death of the deceased was caused by the deliberate act or acts of the accused and that at the time of committing those acts, or immediately before he intended to kill the deceased or to do him grievous bodily harm and that in doing so, he was not acting in self-defence or under the impulse of provocation or suffering from some disease of the mind, your verdict should be one of guilty of murder.” The appeal was dismissed by the Federal Supreme Court.
LINK ORIGINAL: Guyana Chronicle