The 1967 murders; Age saves accused from gallows
THE year 1967 is remembered by many Jamaicans, not only for the emergence of Hugh Lawson Shearer as prime minister, but for two horrific murders, one of which rocked the Wolmer's Boys' School community in Kingston.
The first murder involved the well loved and highly respected elderly caretaker, a Mr McDonald, at the Wolmer's Boys' School, and the second, a young, scholarly Andrew Barton of a St Andrew address. Police records disclosed that both victims were set upon by a teenaged gang of hoodlums, who snuffed their lives as if they had been blowing out candles at a birthday party.
Five teens were arrested and charged in connection with the two murders. Of the five, only one — Maloney Gordon — was convicted and sentenced to death, and that was in connection with the killing of Barton who reportedly met his terrible end on the night of February 19, 1967, along the Palisadoes Road in Kingston.
One co-accused, Dennis Barth, o/c 'Copper', referred to in police circles as a "notorious cop-killer", was acquitted following a no-case submission by his defence.
In respect of the other three co-accused (who cannot be named because they were teenagers): One (CG) was traced to Nassau, Bahamas, and deported to Jamaica to face trial; the body of another (HS) was found in a shallow grave in the infamous Wareika Hills,
St Andrew, where the coroner determined he had been buried alive; the third (JT), son of a senior police officer, was ably defended by his lawyer.
CG and JT were also acquitted and set free on the trial judge's direction to the jury to enter a formal verdict of 'not guilty of murder' at the end of the prosecution's case. Maloney Gordon was left to face the music alone.
Justice Edun presided over the brief trial in the No 1 Home Circuit Court in November 1967. The mixed jury took very little time in coming to a unanimous guilty verdict.
Maloney Gordon hailed from what is today called the inner city. He was the only one who asked for and was granted legal aid; he was the one most shabbily dressed as they all appeared in the prisoners' dock. He was defended by attorney James 'Jimmy' Kirlew, QC (now deceased). James Kerr, QC, deputy director of public prosecutions, later Judge of Appeal (now deceased) presented the evidence on behalf of the Crown.
The teenagers had been arrested and charged consequent upon the forensic evidence which linked both murders to the modus operandi (that is, similarity in the commission of the offences); but with respect to the death of the Wolmer's caretaker, they were all acquitted the previous week in the same court, due to legal technicalities.
They returned before the court in relation to the death of Barton and at the point of Maloney Gordon's trial.
The scarcity of what is known as "I-see" evidence — that is, very little or no credible evidence as to the commission of the crime — at first seemed to bog down the proceedings.
Then two things emerged in favour of the Crown. One was the result of the ballistics tests carried out on a gun allegedly recovered from Gordon, and two, comparisons between the results of the ballistics tests, fingerprints of the accused, and the striation marks on a bullet recovered from Barton's body. And here is where this case took a most unusual turn.
Gordon, giving sworn evidence from the witness box, denied all the allegations put forward by the Crown. He claimed he was "framed"; that on the night of Barton's death, he never left his East Kingston home. He called no witnesses. The judge summed up the
case for the jury and left it in their hands.
Upon Gordon's conviction, Kirlew took issue with the age of the accused, arguing that his client had not yet reached the age of 18 years, and, therefore, the court had no jurisdiction to pass the sentence of death upon him. The following exchange took place between the trial judge and counsel for the Crown at that stage:
His Lordship: Mr Kerr, I would
like some evidence as to the age of the accused.
Mr Kerr: Yes, M'Lord. I feel that is important.
His Lordship: Is there evidence available?
Mr Kerr: M'Lord, apparently it is not here.
His Lordship: Yes. I know the provisions of the Juvenile Law.
Mr Kerr: M'Lord, apparently, this evidence is not now available. I assume, being what it is, it is not difficult to get.
His Lordship: Well you see, I have certain provisions of the Constitution to look into...
Mr Kerr: I know, M'Lord.
His Lordship: ...and that is relevant as far as the age of the accused person at the date of the crime, so that is why I must have evidence as to his age. When can you get that? I cannot postpone it any longer (than) today, that is, the sentence.
Mr Kerr: M'Lord, it seems to me an adjournment until, say 2:30, it would mean Spanish Town and back and a few minutes for research — 3 o'clock, M'Lord, to be safe.
His Lordship: (addressing the foreman and members of the jury) In order not to
do anything which would, perhaps, not be in the practice of criminal procedure, I would ask you, members of the jury, to be present; because it is usual, Mr Kerr, to have a sentence of this kind, delivered in the presence of the jury, who have delivered the verdict.
Mr Kerr: Yes.
His Lordship: (again addressing the jury) Members of the jury, I take the adjournment until 3 o'clock, and that is to ascertain the age of the accused person. I believe I will get the information by
3 o'clock. May I ask you to return at 2:45 pm in order to make yourselves available as jurors in this case.
When court resumed that day, the jury heard the following dialogue as between Justice Edun and prosecutor Kerr:
Mr Kerr: May it please you, M'Lord, we have made strenuous endeavours and there is a certificate to hand. As it stands, M'Lord, it will be necessary for some oral evidence to identify the accused man with the certificate, because his name under which he is charged is not on the certificate.
His Lordship: You see, the difficulty has arisen, Mr Kerr, because of Article 20 sub-section (7) saying, inter alia '...no penalty shall be imposed for any criminal offence which is severer in degree or description than the maximum penalty which might have been imposed for that offence at the time when it was committed'.
Therefore then, my duty is to be satisfied, beyond a reasonable doubt, that on the date — the 19th of February, 1967, whether the accused person, was over or under the age of 18.
Mr Kerr: I know, Sir, it is of cardinal importance.
His Lordship: And I do not think I should place Mr Kirlew in any invidious position in the circumstances.
Mr Kerr: Yes, M'Lord.
His Lordship: When will you be ready?
Mr. Kerr: Well, M'Lord, the mother of the accused man is here. But I have no idea what evidence she is capable of giving.
His Lordship: Well, let the officer come and produce the certificate and subpoena the mother, or somebody to say that these particulars compare favourably with the names of the mother and father of the accused person and then this becomes a question of fact.
Mr Kerr: I think the
mother is here, M'Lord. (To Court Inspector). Call Violet Gordon, please.
Before the witness entered the courtroom, His Lordship asked Kerr:
Q. Anyone can produce the certificate under oath?
Mr Kerr: Yes. Anybody.
Evidence was then adduced from a sergeant of police, who tendered a certified copy of a birth certificate, registering the birth of a male child, born at the Victoria Jubilee Hospital in Kingston, on September 28, 1948. Registration took place on October 1, 1948, but
the baptismal name of the child, following registration, was Eustace Washington Gordon. This was done on January 7, 1949.
The mother of the accused, Violet Bailey was then called, in order to clear up this mix-up. Examined by the judge, she testified that her son had been known by the name "Maloney Gordon". She did not recall the date of his birth, but believed he was about 17 years old.
Cross-examined by Kerr, Bailey admitted to having, in addition to Maloney, three other sons — Eustace, Clive and Barrington. According to the witness, Eustace was supposed to be the eldest, but it was her testimony that Eustace was older than Maloney.
With what appeared to be a troubling situation at that point facing the court, an important decision followed this exchange between His Lordship and the prosecution:
His Lordship: Well, there is authority which says, 'Where the age of any person at any time is material for the purposes of any provision of the law under the Juvenile Act — para 692 — or of any Order in Council made thereunder, regulating the powers of the court, his age at the material time shall be deemed to be, or to have been that which appears to the court, after considering any available evidence to be or to have been his age at that time.'
I have before me what appears to be a certified copy of the birth certificate in the name of Eustace Washington Gordon and according to the certificate, the mother's name is mentioned as Violet Bailey, and the age of that person is that in October last year he was 18 years old. Is that so?
Mr Kerr: In September last year, according to the certificate, Eustace Gordon was 18 years old in 1966.
His Lordship: Last year?
Mr Kerr: Yes, M'Lord.
His Lordship: So that on the date of February 18, 1967 he was over 18 years old. I have seen the accused person in the course of evidence in the witness box. He has given evidence. I have had an opportunity of observing him and I find as a fact from all the circumstances, that on the date of February 18, 1967 he was over 18 years old.
The judge, having arrived at that conclusion, and Maloney Gordon having declared his innocence, the sentence of death was then pronounced.
Was Maloney Gordon under
18 at the time of the murder?
Gordon was quickly removed from the building under heavy police escort.
An appeal was lodged with the Court of Appeal which was dismissed on May 1, 1968. Special leave to appeal to the Judicial Committee of the Privy Council in England, by virtue of the Poor Prisoners' Defence Law, was granted on May 23, 1969, main point taken, being: "That the learned Trial Judge sentenced the Appellant to death without ascertaining, in a proper manner, that he had attained the age of 18 years."
The Privy Council was of the view, in a judgment delivered on December 1, 1969 that the section of Archbold's Criminal Pleading Evidence & Practice (36th Edition) which sets out Section 80 (3) of the English Criminal Justice Act, 1948, has no application to the determination of age for the purposes of passing the sentence of death either in (England) or in Jamaica.
The judgment continued: "Although there is no reference in the Jamaica Act in this connection to 'age at the material time' the judge's citation of this passage in no way caused him to misdirect himself. Visual evidence must always be relevant although it varies in weight with the apparent age of the person observed. He took steps to obtain evidence to assist him in his task and he did arrive at a conclusion which must have been based on his view of
the accused, judged
by appearance... That the appearance of the accused caused a doubt in the judge's mind or at least that he required confirmation of his opinion as to age cannot be denied. This shown by the fact that he called upon the prosecution for evidence of age.
"The evidence which was produced after a short adjournment to enable the prosecution to make research was all one way and did not show that the accused was over 18. The certificate produced relates to one "Eustace Gordon" not the accused "Maloney Gordon" and the mother Violet Bailey gave evidence that Eustace was her eldest son. The date of birth on the certificate is 28th September and if Eustace was older than the accused the latter could not have attained the age of 18 on 19th February, 1967, the date of the offence.
"The position accordingly is that, the judge, having indicated that he required to be satisfied as to the age of the accused, evidence was called that the accused was under the age of 18 on 19th February, 1967. There was no evidence to the contrary and their Lordships have refused leave to the respondent to adduce further evidence upon the hearing of this appeal.
"It may be that the judge, in referring to his observation of the accused and all the circumstances, was by implication rejecting all the evidence which had been adduced before him to show that the accused was in fact under 18. He did not, however, in terms reject that evidence. This is an exceptional case and their Lordships are of the opinion that a question as to age having arisen, and the matter being one of difficulty and exceptional gravity, the evidence cannot be ignored.
"They have accordingly humbly advised Her Majesty that the appeal should be allowed and that the sentence of death be quashed and that the accused be detained during Her Majesty's pleasure."
About a year or so later, Jamaicans woke up one morning to the startling news that Maloney Gordon had escaped from the St Catherine District Prison. Immediately, the police declared an all-island manhunt. Reports came in fast and furious. Witnesses reported sightings all over the Corporate Area and beyond.
During the tension and excitement, came an increase in the number of murders, robberies and rapes. The commissioner of police and his men began to face tremendous pressure as authority pressed for a solution to the problem. Vox populi — the voice of the people — rose up loud and crystal clear. Maloney Gordon had to be found! And soon!
Then just as dramatically as it started, the end came.
Maloney Gordon was sighted in the area of the Caymanas Park race track. Cornered, it was reported he traded bullets with a police party, was shot seven times all over his body and was severely wounded. Still, he survived.
Next week: Hitmen sent to kill David Darby, the Telstar Cable principal
Sybil E Hibbert is a veteran journalist and retired court reporting specialist. She is also the wife of Retired ACP Isadore 'Dick' Hibbert rated as one of the top detectives of his time. Send comments to email@example.com