Nixon v R

JurisdictionBahamas
CourtCourt of Appeal
JudgeBourke, P.
Judgment Date15 Nov 1973
Neutral CitationBS 1973 CA 6
Docket NumberNo 14 of 1973

Court of Appeal

Bourke, P.; Archer, J.A.; Hogan, J.A.

No 14 of 1973

Nixon
and
R
Appearances:

Mr. Cyril SS Fountain for the appellant.

Mrs. Bostwick for the Crown.

Criminal Law - Summing up

Bourke, P.
1

The appellant, Arnold Nixon, was tried upon information alleging two offences. Under the first count he was charged with manslaughter contrary to s 339 of the Penal Code, in that on 31 July 1972, at New Providence he did unlawfully cause the death of Alexander Pratt. By the second count it was alleged that he had committed the offence of attempted murder contrary to s 338 of the Penal Code, the particulars being that on 31 July 1.972, at New Providence he did attempt to murder Eric Bethel.

2

The jury returned a verdict of guilty on the charge of manslaughter and on the charge of attempted murder found the appellant guilty of the lesser offence of intentionally and unlawfully causing dangerous harm contrary to s 298 of the Penal Code. The appellant was sentenced to seven and four years' imprisonment for the respective offences, such terms to run concurrently.

3

Briefly, the case for the prosecution was that the appellant used a pistol to shoot Pratt, who died from his injury, and on the same occasion, with little interval of time, turned the firearm on Bethel and shot him, inflicting a wound from which it appears he was fortunate to recover. In his defence the appellant elected neither to give evidence nor to make an unsworn statement from the dock: his counsel was heard to say that the appellant stood by a short written statement that he had made to Police Sgt Gibson after caution on 15 August 1973. He called no witnesses.

4

In that statement, which the trial judge was at pains to leave to the consideration of the jury as affording possible lines of defence, the appellant admitted he had a gun on the occasion in question but denied it was the weapon produced by the prosecution as that which was used to shoot both Pratt and Bethel. He said that about five men, whom he did not know, and did not attempt to identify, began to beat him; he was stabbed; he fell to the ground; he did not remember firing the gun.

5

The only grounds of appeal that have given us cause for concern are those contained in paras 3 and 4 of the notice, which were taken together. That there was misdirection concerning the offence of manslaughter as charged is quite evident and this is conceded for the Crown, but it is submitted that this is a clear case for the application of the proviso under s 12 (1) of the Court of Appeal Act on the ground that no substantial miscarriage of justice has actually occurred.

6

It is necessary therefore to examine the passage complained of to ascertain whether in the circumstances of the case the jury was likely to be so misled and confused as to the ingredients of the offences laid that its verdicts ought not to be allowed to stand, with the effect that there should be an order for a new trial.

7

It is plain that in the course of along and exhaustive summing up, the trial judge was, very properly, concerned to put forward for the deliberation of the jury every possible aspect that he considered might be said to militate in favour of the case for the defence, such as it was on the evidence including the very scanty material afforded by the appellant's statement to Police Sgt Gibson; and again he stressed, quite correctly, the law as to the burden and standard of proof. But it was when the nature of the offence of manslaughter was being explained that a misconception arose, which appears to have been contributed to by the prosecution. It was conveyed to the jury in certain passages that an intention to kill was an ingredient of the offence of manslaughter as charged. Counsel for the respondent submits that in thus putting the...

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