A plea of autrefois acquit made on behalf of furniture dealer Patrick Nasralla, by way of the local Court of Appeal, was upheld by the United Kingdom Privy Council in 1967, thus allowing the 21-year-old businessman of Orange Street in Kingston to escape a possible prison sentence for manslaughter.

Nasralla, who had been originally charged with the murder of Gilbert Gillespie, 38-year-old furniture seizer, employed at the time to his furniture company, was found not guilty of murder by a mixed jury of 12, when he appeared before the No 1 Home Circuit Court in February 1963.

A new trial was ordered by the late Justice Small after the jury failed to agree on a verdict on the alternative count of manslaughter. Among the steps taken by Nasralla’s legal team to avoid the retrial was an application by way of a plea of autrefois acquit to the Supreme Court, which dismissed the application on January 5, 1964. An appeal to the Jamaican Court of Appeal was successful.

A later bid by the prosecution to overturn the decision of the Court of Appeal proved unsuccessful.

For the benefit of those who may not know the meaning of the term, a plea of autrefois acquit is a special plea in bar to a criminal prosecution that the prisoner has already been tried for the same offence before a court of competent jurisdiction and has been acquitted. The plea can only succeed where an accused person was in jeopardy on the first proceedings; eg where the decision of the court was that the evidence of the prosecution was insufficient to support the prosecution’s case.

Nasralla was defended by two prominent Queen’s Counsels, Vivian Blake and David Coore, instructed by JHN Forrest, solicitor (all deceased).

Case for the prosecution was presented by independent Jamaica’s first-ever director of public prosecutions (DPP) William H Swaby, with whom was associated Crown Counsel Lascelles L Robotham (later Supreme Court Judge, and both now deceased).

The judgment of the UK Privy Council delivered on January 20, 1967 outlines most succinctly the ramifications of this case, in part, as follows-

“On 9th October, 1962 the respondent shot and killed Gilbert Gillespie, whom as an escaping felon, he was attempting to arrest. On 4th February 1963 he was arraigned before Small J and a jury of 12 in the Kingston Circuit Court on an indictment charging him with murder. By a well-established rule of the common law which the industry of counsel has shown to have originated in R. v. Salisbury(1554) 1 Plowden 100, it is open to a jury, if they are not satisfied of the prisoner’s guilt on a charge of murder, to convict of manslaughter.

“The procedure to be followed in Jamaica on the application of this rule, is laid down in the Jury Law s44. This provides that a unanimous verdict is necessary for the conviction or acquittal of any person for murder; and that after the lapse of one hour from the retirement of the jury, a verdict of a majority of not less than 9 to 3 of conviction or acquittal of manslaughter may be received.

“Small J in his summing up, left the two issues of murder and manslaughter to the jury and they retired at 2:27 pm on 11th February.

“Shortly before 3 p.m. they returned to court and after the foreman had stated that they had arrived at their verdict, he was asked the following questions: –

“The Registrar: On the charge of murder, are you unanimous?

A. Yes, sir.

Q. Do you find the accused guilty or not guilty of murder?

A. Not guilty of murder.

Q. On the charge of manslaughter, are you unanimous?

A. No.”

“The learned judge told the jury that a majority verdict could not be received under one hour and that they must retire again. They returned at 4:05 pm when they were asked the following questions:

The Registrar: Mr Foreman, please stand! On the charge of manslaughter, have you arrived at a verdict?

A. Yes, sir.

Q. Is your verdict unanimous?

A. No, sir.

Q. How are you divided?

A. Four for acquittal.

Q. Just tell me how you are divided.

A Eight to four.

“The learned judge told the jury that he could not accept that verdict and asked them to retire again. They returned at 5:17 pm when the foreman said that they were still of the same mind. The learned judge being satisfied that there was no reasonable probability that the jury would arrive at a verdict on manslaughter, discharged them in accordance with s.45(1) of the Jury Law. The indictment was endorsed as follows – “Verdict: Not guilty of murder. Not agreed on manslaughter — Divided 8-4.”

“…On 25th February the prosecution applied to Small J for an order adjourning the trial on the issue of manslaughter. The defence opposed the application on the ground that at any further trial the plea of autrefois acquit would be bound to succeed. The learned judge granted the application and made the following order:

“In accordance with Section 45 (3)(A) Cap 186 the Court adjourns the case for trial at the next sitting of the Circuit Court on the issue of manslaughter. Accused allowed bail in five hundred pounds. Surety five hundred pounds to appear on 17th April, 1963.”

After that, the case took on new meaning, when Nasralla’s legal team, instead of arguing the plea of autrefois acquit at the further trial, opted instead to take the matter to the Supreme Court, by way of a provision of the Constitution — entitled “Fundamental Rights and Freedoms”.

The application under s.25 of the Constitution was heard by the Supreme Court and dismissed on January 5, 1964. An appeal to the local Court of Appeal was allowed on June 11, 1965, causing the DPP to seek leave to appeal to the UK Privy Council. The court granted him the leave sought and he then applied to that body to have the judgment of the Supreme Court restored.

But to his dismay, the UK Privy Council upheld the finding of the local Court of Appeal and Nasralla, therefore, was set free.

Throughout this trial, there was no day that the courtroom was not filled to capacity. Hustlers could be seen reserving seats for their ‘patrons’ before the arrival of the police and the putting up of restraining barriers to keep the situation under control. Feelings were mixed and emotions ran high.

The accused, Nasralla, an ardent Roman Catholic sat, it seemed, silently, rosary in hand, while all the time praying as he clutched his beads.

Then the trial started. The opening to the jury was informative but concise.

Among the witnesses testifying for the prosecution was 16-year-old Beverley Harrison, who told the court that she had lived with her mother and Gillespie at 130 Orange Street in Kingston at premises owned by Nasralla. She said she saw Nasralla point a gun in Gillespie’s face after they had an argument on Orange Street that morning. She said Nasralla fired two shots in the air, and then followed Gillespie up Luke Lane with a gun in his hand.

She ran and stopped Gillespie in Luke Lane, whereupon Nasralla came up and pointed the gun at Gillespie. Nasralla, she told the court, wanted to take Gillespie to the police in connection with the theft of a bed and a transistor radio, but Gillespie refused to go.

Gillespie ran up Princess Street and Nasralla fired a shot over his head.

Harrison said that Gillespie ran onto Charles Street and down Matthews Lane. She never saw him again until the morning of October 10 when she identified his body at the public mortuary.

Cross-examined by counsel for the defence, Vivian Blake, she said that neither Nasralla nor Gillespie looked pleased when they spoke to each other on Orange Street that morning.

Hursell Tomlinson, shoemaker of 9 Wellington Street, Kingston, said that on the afternoon of October 9, he saw Gillespie running along North Street then jumped into a gully at the corner of Bread Lane and North Street. Shortly afterwards, Witness testified, he saw Nasralla and another man come up on a Quickly motorcycle. Nasralla had a gun in his hand, and he bent over a rail and looked down into the gully into which Gillespie had jumped. Nasralla fired a shot and left soon after in a van. He (deponent) then went to the bridge and saw Gillespie sitting in the gully, bleeding.

Clifford Brown, furniture dealer of 32 Beeston Street, Kingston, said he saw Nasralla discharge a gun after talking to Gillespie.

He said that about 2:45 pm on October 9, he heard an explosion and as he came out of his premises, he saw Nasralla and Gillespie (both of whom he knew before) walking almost side by side on Beeston Street. He heard Nasralla say to Gillespie: “Turn back with me…otherwise a shoot you.”

Nasralla then pointed the gun in the air and fired, while Gillespie went up Luke Lane. They came back down Luke Lane and went up Princess Street. Brown said a few hours afterwards he heard that Gillespie had been shot.

Dr P S Jackson told the court that in performing a post-mortem examination on Gillespie’s body on October 10, he had found a gunshot wound behind the left leg by the buttock. Death was due to shock and haemorrhage as a result of the gunshot wound.

Vincent Powell, labourer of Jones Town, Kingston, testified that on October 9 he was walking on North Street when he heard a shout of “Hold him!”

He said he saw Gillespie run up Bread Lane with some men running after him. Gillespie jumped over a bridge in the lane and Nasralla came up on the pillion of a motorcycle. Nasralla leaned over the bridge with a gun in his hand and fired. Witness said he looked over the bridge and he saw Gillespie writhing in pain in the gully beneath. Powell said Nasralla pointed the gun at Gillespie and said: “Come up now.” Nasralla then called on the motor cycle rider to fetch an ambulance.

Powell told the judge and jury that he did not see anything in Gillespie’s hand.

Another witness, John Evans of a Luke Lane address, told the court that he saw Gillespie being followed by Nasralla on Luke Lane on the fateful afternoon. Nasralla, who had a gun in his hand, fired a shot in the air. Both men stopped for a while then turned back going to the corner of Luke Lane and Beeston Street. At that stage Gillespie said, “Why you call down so much crowd on me?” Nasralla replied, “Come on with me …”

Gillespie then replied, “I’m not going.”

A woman then came up and said to Gillespie: “Gwan wid him before him shoot you.”

Gillespie repeated: “I’m not going.” He took off his shirt and put it into his pocket. Both men went westward on Beeston Street, and then up to Princess Street.

The Witness said he saw nothing more of them that afternoon.

Cross-examined by defence counsel Coore, the witness denied hearing the accused tell the deceased: “Turn back wid me . . .otherwise a shoot you.”

Ralph Stevenson, owner of a bicycle shop at 41 Regent Street in Kingston, testifying for the prosecution, told the trial judge and jury that he was sitting in front of his shop when he saw a man running from Regent Street towards North Street. The man was shirtless and barefooted. The man then turned west on North Street. The Witness said he got up and went to the corner. He then saw the man, who was trotting on the left side of North Street going west, cut across North Street onto Bread Lane.

The man went to the bridge at Bread Lane and went down the gully which runs under the bridge. Witness said that soon after, he saw two men on a motorcycle approach the bridge. One, he identified as the accused.

The Accused, according to the witness, had a gun in his hand which was resting over the bridge rail. The Accused then left the Bread Lane bridge and went down to the North Street bridge with the gun in his hand. Soon after, the accused left in a van.

The Witness stated that he went in the gully under the North Street bridge and there he saw the person lying down on the concrete, bleeding from the leg. The man had nothing in his hand when he (witness) saw him trotting along Beeston Street.

It was on that evidence that the prosecution closed its case.

The defence by way of an unsworn statement, was that he only fired to scare the deceased; he had no intention to kill him.

Following upon the divided verdict of the jury, and the decision of the learned trial judge that Nasralla face a new trial for manslaughter, his legal team took the matter before the Full Court of the Supreme Court.

That court, comprising the then president, Justice Cools-Lartigue, Justice (Randy) Douglas (later Sir William Douglas, former chief justice of Barbados) and Justice Shelley (all deceased) — during seven days of legal arguments in May, 1963 — dismissed the application. The Attorney General Victor H Grant, QC, and the Asst Attorney General Edwin H Watkins (later Judge of Appeal and both now deceased) had appeared at that sitting as amicus curae.

Before the Full Court the applicant, Nasralla, through his counsel, had sought under Section 25 of the Jamaica (Constitution) Order in Council, 1962: one, that the order of Justice Small that he be retried on a charge of manslaughter be set aside; two, that the DPP be directed not to proceed upon that order whether by way of presenting a new indictment against him or by way of trying him on the judge’s order.

That application was refused by the Full Court which ordered that he stand trial at the next sitting of the Home Circuit Court on a charge of manslaughter.

It is against that order that Nasralla had appealed to the Court of Appeal.

That court comprised Justice Duffus, president of the Court of Appeal, (later Chief Justice of Jamaica Sir Herbert Duffus); Justice Lewis, who succeeded Justice Duffus as president and Justice Henriques (later Sir Cyril Henriques) who later took over the presidency from Lewis (all now deceased).

Having considered all the submissions put before them, in the final analysis, the UK Privy Council found inter alia:-

“…Their Lordships conclude that the rule that a jury cannot be directed to give a partial verdict is inconsistent with modern practice and absolete. This conclusion destroys the foundation of the respondent’s case and of the judgments of the Court of Appeal. Their Lordships have dealt with the point at length, not only out of respect to the Court of Appeal but also because of its practical importance. The respondent’s argument, if sound, would have led either to remedial legislation or to an alteration throughout the Commonwealth of the form in which bills of indictment are presented…”

Next week: Who murdered that Immaculate Conception High School girl?

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 Jamaican detectives of his time. Send your comments to allend@jamaicaobserver.com