Caswell Franklyn, Head of Unity Workers Union
Caswell Franklyn, Head of Unity Workers Union

In the case R. v. Sussex Justices, ex parte McCarthy I1924), Lord Chief Justice Hewart, in quashing the conviction, said: “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

On November 8, 2008, 16-year old Anna Druzhinina died a horrible death at the hands of Omar McCollin and Teereth Persaud, who received 16 and 21 years respectively for their crime.

I have heard this case discussed by several persons, all laymen, and all of them, like me; believe that this child’s killers have gotten away with murder. As I understand it one will walk out of prison in 12 years and the other in 15 years and 9 months. That is a small price to pay for such a gruesome killing.

They were originally charged with murder but pleaded guilty to manslaughter. While I have the highest regard for both the judge and prosecutor, and personally believe that their integrity is beyond reproach: I am of the view that one or both of them should have recused themselves from taking part in the case. My belief has nothing to do with any wrongdoing or bias on the part of either the judge or the prosecutor, who accepted a plea and did not allow a jury to deliberate on the evidence in a murder trial. From the layman’s perspective, it has everything to do with the appearance that justice was not done in this case. One of the killers, the judge and prosecutor are all Guyanese. For that reason, and only that reason, there is an appearance that justice was not done in this case.

224 responses to “Murder or Manslaughter? Depends on Who is the Killer”


  1. @david
    Most people don’t even understand the concept of tipping point, far less how to give that needed “nudge.” While you’re at it read “Outliers” as well.

    @bushie
    They shouldn’t be in the positions they are, but, they are. Now what. Where/how do we effect change or agitate enough to lay the stage for future generations to fulfil our current desires? They hold the cards and the table, we have the players. Will the real players please stand up and take control of the game?

    @pat
    I tekking u advice and dunning way wid fretting. You holding a no fretting party by any chance?

    @baffy
    Man amused is my type of blogger. Being pun he/she/he-she/she-he side aint bad at all 🙂

    Observing

  2. mash up and buy back Avatar
    mash up and buy back

    This guyanese DPP man is going to make Barbados look worse than Somalia,bit by bit,watch carefully and see.

    You have the British women complaining about charges brought against the wrong man,you have this case with another British national crying out injustice by the DPP,and I am sure if we search back we will find more.

    If what John Iackson say is true Leacock needs to be held accountable and ultimately removed from his position.

    Notice that jackson is coming out clearly in the public and speaking out.


  3. @ jeff Cumberbatch .
    Jeff I have always felt that the abolition of the constructive malice , murder felony rule makes sense in Britain where THERE IS NO DEATH PENALTY . The difference in that country between a verdict of murder and one of manslaughter is merely a case of how much time the convicted person will spend in prison . One would normally expect that the convicted murderer would be given the harsher sentence . In our jurisdiction however it is a different proposition ; we have a mandatory death sentence for any conviction for murder .
    I myself do not understand the fine distinction that has been drawn in a number of recent homicide trials when a guilty plea has been accepted from persons originally charged with murder on the ground that the intention was not clear . As you have pointed out the mental element required for sustaining a charge of murder is that the accused intended to kill OR CAUSE SERIOUS BODILY HARM to the victim . Herein lies one of the anomalies of the criminal law in that in order to sustain a charge for ATTEMPTED MURDER , it must be proven that the accused INTENDED TO KILL simpliciter.
    Now pray tell me what could be more logical than that a man who strung up a person by a rope from a beam INTENDED AT LEAST TO CAUSE HIM SERIOUS INJURY ; or that a burglar , cornered in a house by the occupant and shoots at him or lunges at him with a knife to make good his escape or repel the occupant INTENDED TO CAUSE SERIOUS INJURY AT LEAST ? That is all that is required to satisfy a murder conviction . I remain firmly of the view that this area of our criminal law is in need of serious review in order to avoid a continuation of the absurd .


  4. Call me an unrepentant admirer of the british justice system if you like.This matter discussed above and the matter caswell referred to with the sing fellas pleading guilty in the lower court and paying a hefty fine to save a high court trial and nuff years in jail smells fishy.I am not saying because there were a lotta guyanese involved in key roles in both scenarios that bajans get short changed but i would remind all and sundry that EWB kicked out a big able guyanese from bout hay in the early, early 60’s for failing to dispense justice according to rite!!!He din know what hit ’em when EWB made his pleasure known.


  5. Something has seriously gone wrong with the Justice system in Barbados. The Barbarians are ruling this country and in charge of the Justice system.


  6. @John Jackson and Larissa

    I met you several times at chatted with you at Solo when you first started up. I remembered Persaud , he told me you treated him like family. I am so sorry how you have been treated in Barbados. May you and Larissa find some solace. Words alone cannot describe how I feel about the manner in which the courts treated you and your family. May you and Larissa have the strength to move forward.


  7. It is BU’s fervent wish that the ‘big fishes’ reading this blog take some action. Unlike the forth estate issues dealt with on the blogs DON’T die.


  8. @John Jackson

    On behalf of the BU household we wish you a speedy recovery and hope that with time you and your wife can overcome.


  9. @observing

    It is on the iPad waiting to be read 🙂


  10. The BU legal luminaries have presented clear interpretation of law.

    What I don’t understand is this. How could a person not know that the death by hanging is the likely consequence of putting a rope around a person’s neck and making them stand on paint cans.

    The penalty for the death of this child should have been death by hanging or at least 25 years to life with no chance of parole.

    What is even worse about this judgement is that they lynched an innocent child.


  11. In his initial post Caswell stated that:

    “As I understand it one will walk out of prison in 12 years and the other in 15 years and 9 months. That is a small price to pay for such a gruesome killing.”

    However, in the sentencing remarks linked above, the judge decided that the appropriate starting point for sentencing Persaud would be 30 years. This was reduced by 4 years for time spent on remand, and another 4 years as this was a first offence and Persaud had entered a guilty plea.

    So the final sentence was 25 years, with 4 years allowed for time spent on remand.

    That does not seem to be a bad result for the DPP. Does anyone know how old Persaud is?


  12. Once again the DPP and the Police find themselves firmly in the crosshairs of a legal matter that will bring even more disrepute upon the Nation. As a layman I wonder if the matter between Persaud and Jackson wouldn’t give rise to premeditation which would support a murder charge. The fact that he rented a home near the Jacksons after the altercation should be a supporting factor.

    How come the Police didn’t arrest Persaud if he was wanted on an assault charge and they were informed of his whereabouts?
    Caswell certainly stirred up a hornet’s nest with his post.


  13. @Brutus

    The Nation report posted earlier listed Persaud as 44 years old.


  14. Sargeant “As a layman I wonder if the matter between Persaud and Jackson wouldn’t give rise to premeditation.

    A good lawyer would suggest that they intended to kill the father but the child was collateral damage so the killing of the child was “accidental”.


  15. This is disturbing. A 16yr old girl being put to stand on paint cans, with a towel over her head, and with an electrical cord around her neck is being tortured, pure and simple. The assailants knew this could have resulted in her death, and neither stuck around to prevent this from happening as one was allegedly busy robbing the house and the other was cooling out out on the balcony. And when she was found dead, no one attempted to resucitate her or call for medical help. In fact, there was an attempt to burn her body to “destroy evidence”. And we are being asked to believe there was no intention to kill this girl?. Please… After reading that account, I would have wished for her that she had been shot with a gun. it would have been faster and kinder.

    I also don’t understand how the co-accused convicted of manslaughter in 2010 could have received a lower sentence, when the co-accused convicted in 2012 has claimed the former was the person who was the main perpetrator. Can the 2010 convict now get a longer sentence, perhaps the same length of time as the one in 2012, as they both seem equally responsible for this dreadful matter?

    I don’t know the Jacksons, but I do wish them all the best for the future after their terrible ordeal.


  16. in this instinct the law isindeed an “asshole” unbelievable . this is a clear case of :deliberate intent to give a devastating result . one has to be blind dumb and stupid not to see the method used to killed the girl were not intentionall on the muderers part their intentions even went further since it was obvious they was no turning back once the act got started and even when completed by hanging the muders intent went even a little farther in their haste for total completetion of death by fire at which point robbery became secondary, these guys should have been hung by their balls.


  17. Hants
    A good prosecutor could also shoot down the defence of “I shot at A and killed B so it was an accident because I intended to kill A”

    BTW Amy L Beam also related how threats were made against Jackson by Persaud while Persaud was undergoing treatment at the hospital which in my mind is also premeditation however I don’t know if this is “hearsay” or otherwise..

    Perhaps the legal luminaries on BU could guide me along the path to enlightenment.


  18. This act of murder was premeditated. They knew exactly how the girl father died many years ago and they used the very same method. That was not an accidental murder. He rented a house nearby to keep an eye on the household. Threatened John and attempted to get money from him through harassment. If this wasn’t a clear cut act of premeditated murder I don’t know what this is.


  19. If this story hits the UK papers it will be another stain on Barbados’ justice system. Haven’t the DPP no shame? No dignity?


  20. Sargeant my point is that the penalty should fit the crime.

    They knew what would happen if the girl moved. i.e she would hang by the noose THEY PUT around her neck.
    That is tantamount to pre meditation.

    Buh I ent nuh lawya.

    I hope the fellas at Dodds make these child killers pay.


  21. Correction Hasn’t the DPP no shame?


  22. IG246
    The British mess up too, not that this should excuse our own cock up and the sense of injustice that haunts the victim’s next of kin. Sometimes the British mess up is not uncovered for years, ever heard of Stephen Lawrence?


  23. For you people’s information, this is the sort of thing that happens routinely in ‘other’ jurisdictions, where criminals systematically take revenge on citizens who defend themselves, who report crimes to authorities or who seek to give evidence on court.

    It comes about when lawful citizens lose confidence in law authorities and find themselves isolated from the law.
    It come about when jurist become more concerned with legal technicalities than with JUSTICE…..allowing criminals to run things.

    There ain’t one shoite wrong with hanging murderers. It sets a STANDARD FOR SOCIETY. As soon as the usual bunch of sissy, effeminate jokers come with their asinine focus on moderating this societal standard, they introduce the route for criminals to run things.
    They know not what they do….

    Ask anyone who has lived in one of our neighboring jurisdictions about these kind of revenge crimes, and about the impact that the trend has had on future attempts to deal with criminals…..with witnesses backing out of testimony under fear, or actually being intimidated or worse….

    This is a situation that has already gone too far…. But who will address the sore….? Frun? If Broomes had no clear boss, then the DPP must be even worse…

    @ Pat
    When you talk about Magistrate Perry, NOW you are talking about a proper Jurist. GREAT MAGISTRATE. No nonsense, fair, firm and best of all…..funny as hell.
    You have raised an example of Guyanese cheese to be compared to Guyanese chalk…..


  24. Thank you Hants and wishing you the same!


  25. Hants
    Thanks, but I sent that link to David yesterday in the thread “Freundel biding his time”


  26. Sarge I guess the politicos will be enticed to do their Laundry in Canada if they read that article.


  27. The prosecutor said it was Persaud’s first offence did the probation report cover the time he lived in Guyana?

    Just curious


  28. I would like to correct one minor mistake I made with a date in an earlier post on this blog. I was in court on Nov. 26, 2012, not Dec 4, 2012, as I misstated, when Madam Justice Crane-Scott gave a five-minute lecture for receiving Victim Impact Statements from Anna’s “mother” and “auntie”. The Nation News wrote a half-page feature by Heather-Lynn Evanson under “Court Report”. The story was entitled “Judge: Not proper”. It began “A high court yesterday castigated a relative and a friend of the slain 16-year-old Anna Druzhinina…”
    After one hour of searching Google, Yahoo, and the Nation News search, I can find no record of this story. Perhaps someone else can locate it. Is it an incident of disappearing news?


  29. The Nation News story entitled “Judge: Not proper” by heather-Lynn Evanson, was published Tuesday, Nov 27, 2012.


  30. @Amy

    The Nation, our widely circulated dead tree edition, does not routinely update all the reports in its online version. Perhaps Caswell who is a biweekly columnist can request a copy of the report from the Nation Librarian so that we can add to the information pool online about this matter.


  31. @Bush Tea

    Building a society is serious business.


  32. Amy L. Beam

    I have a copy of the article that I took out of the Nation. I was more than a bit annoyed when I first read that report. It stated that the High Court castigated a relative and a friend of slain 16-year old Anna Druzhinina for acts it said were attempts to “influence the judge behind the scenes”. I found it particularly disturbing when I read the quote attributed to Mr. Leacock. He said, “If in my judgment, I consider it to constitute contempt, I will instigate due process”. It is not too late to institute contempt proceedings but I hope that he would find a little empathy in his heart and consider the pain that the relatives and friends were going and continue to go through.

    I have never met the little girl or any member of her family but the entire episode troubles me deeply, so I could imagine the family’s pain.

    Sent from my iPad


  33. David

    I have the hard copy, but BAFBFP has not sent the scanner yet.

    Sent from my iPad


  34. @Caswell

    You have an iPad, line up the article and capture it. There are also a scanner apps you can download for small cost.


  35. David

    You have just taught me something. I have captured the story and forwarded it to your email.

    Sent from my iPad

  36. Poltical Intelligence Avatar
    Poltical Intelligence

    I sincerely hope that somebody puts Persaud out of his misery at Dodds. He seems to enjoy suffering; let him get his every day and night until he cannot sit, stand nor go. Then die. Slowly. He is evil incarnate. The comments by Amy are lucid and logical and the information about Leacock is deeply disturbing.
    @Caswell you are totally out of place and offensive to that because the DPP and Judge are from GT they consipired to ease Persuad. Other bloggers have dealt with you re that matter, but who the hell do you think you are to characterise Justice Crane Scott in that manner? She is one of the top jurists in this country and from reading the newspapers the hardest working one. She seems to be clearing Marston Gibson’s backlog single handedly!
    And it is known throughout this hemisphere that her judgements are always sound. Your reference to country of origin was irrelevant, trivial and petty.
    But wait! Since you introduced the spectre of recusing, you should not be engaging in this debate or even starting it. You did not declare your hand / interest Caswell. So your positioning has no merit. My intelligence reveals that you had a Guyanese woman who Cynthia Forde used to protect from you. Your boxers showing man!


  37. Here is the article captured by Caswell’s iPad.

    http://bajan.files.wordpress.com/2012/12/ana1.jpg


  38. This matter has raised the spectre of whether a judge can be expected to waive their right to preside on a matter as in this case based on nationality i.r. the homebased nationality of central players involved in the case.. Caswell may have anchored his position to the unstable national climate which existed at the time around the Guyanese issue. Many have dismissed his position as a weak thesis.

    Here are a couple links which show judges who voluntary recused themselves to promote transparency. It is not that they would not have been right to preside mind you.

    http://www.publicserviceeurope.com/article/2371/the-case-of-gibraltar-at-the-european-court-of-justice

    http://dominicanewsonline.com/news/homepage/news/crime-court-law/high-court-judge-court-recuses-herself-again/

  39. Caswell Franklyn Avatar

    David

    Thanks for posting the Dominican case. Now, maybe, some of my critics may understand what I was trying to say. It is not a matter of what the law strictly requires. It has more to do with the perception of the untrained legal mind which would be the vast majority of the people in this country.

    Some clowns think that I have a problem with Madam Justice Crane-Scott. Nothing can be further from the truth. I worked with this lady back in 1985 to 1990, and I know the calibre and quality of her intellect. She is one of, if not, the hardest working person that I have ever encountered. I hold her in the highest regard. She is through and has one of the keenest minds in this country. Be that as it may, I am still entitled to comment on her work as I see fit, mind you, it is completely without malice.

    All I was trying to do is to suggest that considerations of nationality would occupy the minds of the average person if they were aware that the judge, prosecutor and accused killer were all Guyanese. From the perspective of the average man, and not any law, I suggested that it would have been better if the judge or prosecutor or both should have recused themselves.

    Justice must be seen to be done by the average man, not by the trained eye, or we would lose what little respect is left for the courts. When that happens and it looks like that is not too far off, there will be anarchy.

    Sent from my iPad


  40. Today’s Nation newspaper features a story which puts the DPP under some pressure. Are we seeing traditional trodding a different path by exposing these kinds of stories which we know are many?


  41. Regarding the “castigation” given by Madam Justice Crane-Scott, Nov. 26, 2012, to the mother and me (the “auntie”) for submitting Victim Impact Statements to her, I will add another comment. From the day after the murder in 2008 until the day we submitted our statements to Crane-Scott in 2012, we had been emailing, calling, and writing the DPP office, the Barbados newspapers, and anyone we thought would listen to the facts of the murder and be responsive. It turns out that free expression via the newspapers is under what might be considered a gag order by the courts or Barbados law. We were informed by the press that the victim’s family and friends could have our say-so on the murder, after the sentencing, but not one word from us could be printed before sentencing. Otherwise, the newspaper would risk heavy fines.

    It was not my intent to damage the reputation of the DPP or the judge, but rather to inform them of all facts and the impact on the family prior to sentencing so that the proper sentence of life in prison could be given. What good does our statements do AFTER THE SENTENCING? Does anyone think I really want to enter into a public debate on the Barbados justice system or run for office? No. I wanted the murderers of Anna to be locked up for life with no possibility of parole. If they could have been sentenced to death, I would have wished their hanging to be the same method they used on Anna. I would have volunteered to tie the noose myself and get them balanced on the cans, then walk away.

    In countries which consider Victim Impact Statements, the wishes of the victim’s survivors are “taken into consideration” in the sentencing phase. I guess that could be restated as “influencing” the sentencing decision. It’s akin to saying Anna “jumped off the cans and died accidentally” instead of “collapsed and strangled”. . . two different phrases, laden with meaning, are used to describe the same event.

    Justice Crane-Scott repeatedly stated in court that there is no law in Barbados giving guidance on how Victim Impact Statements should be handled. She suggested the Legislature should probably create such a law.

    Her harsh words regarding our written statements were primarily directed at DPP Charles Leacock. At the heart of her lecture was the unanswered question as to how evidence in this murder case could have come to her in this “unusual” manner instead of through the DPP in open court. Larisa and John Jackson had been denied their requests to the DPP to address the court and present evidence. The DPP ignored them. The purpose of the Victim Impact Statement in other countries is to appeal to the jurists or judge who will pass sentencing after the guilty verdict has been accepted. Thus, in good faith, we appealed to the judge who would be passing sentence. Since our earlier appeals to the DPP had met with silence, we had no confidence our Victim Impact Statements would be presented to the judge for her consideration in sentencing. I was, in fact, informed who to address my statement to and where to deliver it, never knowing I would bring the wrath of the judge upon me.

    It was curious that on the day of sentencing, DPP Leacock did not appear in court. The judge commented on his absence which is ordinarily cause for a continuation, but she decided to proceed that day with sentencing in spite of Leacock’s absence.

    I am not trying to attack the DPP or the judge. I am trying to get answers to justifiable questions. My questions remain the same:

    1. Why didn’t DPP Leacock charge Persaud with murder and hold a trial where evidence could be presented? This is not a rhetorical question. We would like an answer. Leacock stated “based on the circumstance, we were lucky to get a conviction.” Is he aware of circumstances that we do not know about?

    2. Why did the judge not give Persaud the maximum sentence of life in prison if both Leacock and she stated the law allows a sentencing of life in prison for the most serious manslaughter cases. The DPP and she both stated it was “borderline murder”. How much more serious can manslaughter be? So why did Crane-Scott not sentence Persaud to the maximum allowable for manslaughter: life in prison?

    Am I the only person in Barbados who wants answers to these questions? If there is some legal or logical explanation, then please, let’s hear it.


  42. For what its worth I don’t think that there is some vast conspiracy in this matter because the Judge, DPP and the accused share the same country of origin. The sentence falls within the guidelines for the charges , but the family wanted a capital murder charge and it seems that they were on solid ground. If anything the scrutiny should be on the office of the DPP for a less than overwhelming investigation and presentation of facts.

    Given the circumstances and the evidence it shouldn’t have been difficult to bring a case of murder but Prosecutors make these mistakes and when they do it should cost them their job and we know that won’t happen in Barbados.

    There is a very prominent individual in Barbados who lost his “pick” as a Prosecutor in a neighbouring Caribbean country because of Prosecutorial error, it’s Xmas so I won’t rehash the details.


  43. @Amy

    Join many who have been asking questions of our judiciary for years. The challenge you will have asking/expecting traditional media to comment on a case before the court has to do with sub judice. The challenge for many Editors is that they are a slave to this requirement and do not find creative ways to publish information in the public interest.

  44. Caswell Franklyn Avatar

    From all that I have read from Amy, and if I am to believe her and I do, this seem like a massive miscarriage of justice. Amy, the family’s first step would be to set out your complaint to the Prime Minister in writing. If the PM is persuaded, he would advise the Governor-General to set up a panel to investigate the conduct of the Director of Public Prosecutions. Failing that, you should be able to complain to one or more of the international bodies that would be able to put pressure on the Government to do the right thing.

    I am sorry that I raised this matter at this time to spoil your Christmas but when I read the article in the newspaper, I felt a sense of outrage and I did not consider your feelings at the time. I am really sorry that I am causing you to relive this horror now.

    Sent from my iPad

  45. Jeff Cumberbatch Avatar

    @ Caswell

    Under what authority would you suggest that the PM advise the GG to investigate the conduct of the DPP? The DPP’s decision may be subject to judicial review and then only in the most egregious circumstances. Any intervention by the PM would seem to me to violate the separation of powers doctrine.

    See Marshall v DPP [2007] UKPC 4

    This case concerned an appeal against the refusal of an application for judicial review of a decision of the DPP not to bring any prosecution in respect of the appellants son, who had been shot by police officers. The DPPs decision not to prosecute the officers was based on his view that there was insufficient evidence on which to base a charge. The appellant contended that the DPP had given insufficient reasons for his decision and that therefore the courts task in evaluating that decision was impossible.

    The Privy Council held that the DPP was not required to explain his reasoning further, as it was not apparent that he had misapprehended or left out of account an important piece of evidence, nor had his decision been inexplicable and aberrant. The issue was whether the DPP could sensibly have decided as he did on the evidence. In this case, the court held that he could. The appeal was therefore unsuccessful.


  46. Jeff

    The same authority that he assumed when he intervened in the Alexandra matter. Really though, the PM would have to refer the matter to the Judicial & Legal Service Commission who would in turn could advise the GG to set up the panel under section 105 of the Constitution if they are of the view that the DPP misbehaved.

    I suggested writing to the PM because, from my experience, writing to the commissions directly would be useless. Much of my correspondence is intercepted at the level of the Personnel Administration Division.


  47. Interesting case Jeff (Marshall v. DPP)

    Seems that the action of the DPP is neither illegal nor outside the boundaries of precedent. The question we all have is, was he correct in not pursuing a murder charge. That’s a question that unfortunately we will be unable to answer conclusively.

    As in another thread where paper proving right to property can be trumped by time and process, we have a case where the law can be used to subjugate itself if desired by those with the knowledge adn strings to do so. “life in the tropics.”

    Observing.


  48. What evidence was there in this case that was not gleaned from the statements of the accused? How likely would a conviction have been if they had not cooperated?


  49. @Caswell
    Is it a fact that the GG and the DPP once worked together in the same office?If this is so,would it not be a rehashing of your original bone of contention that justice must not only be done but appear to be done?Look!! this place too damned small for democracy to work.

Leave a Reply to pieceuhderockyeahrightCancel reply

Trending

Discover more from Barbados Underground

Subscribe now to keep reading and get access to the full archive.

Continue reading