Wilson v R

JurisdictionBahamas
CourtCourt of Appeal
JudgeHogan, J.A.
Judgment Date15 Nov 1973
Neutral CitationBS 1973 CA 7
Docket NumberNo 19 of 1973

Court of Appeal

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

No 19 of 1973

Wilson
and
R
Appearances:

Mr. N Zervos for the appellant.

Mrs. Bostwick for the Crown.

Criminal Law - Trial

Hogan, J.A.
1

The appellant was charged with the murder of Kenneth Brown. The broad outline of the story disclosed by the prosecution witnesses, whose individual accounts, as is not uncommon, differed in some particulars, showed that on the evening of 22 April 1973 the appellant with a girl companion drove to the Lovers Holiday Club where he got into an altercation with the deceased and others, initially over the parking of his car; bad language threats and blows were exchanged, culminating in the discharge by the appellant of six shots from a revolver, two of which hit the deceased and led to his death shortly afterwards. The evidence indicated that at one stage in the quarrel the deceased had taken from the boot of his own car a jack wrapped in a towel so as to look like a gun and pointed it at the appellant, whilst running through the quarrel was a measure of animosity by the small attendant crowd towards the appellant as a Jamaican. The deceased and one of the prosecution witnesses, Randolph Davis, apparently took the lead in voicing this animosity and threatening the appellant. There was also evidence that the appellant tried more than once to get away and that the deceased was foremost in preventing him.

2

The appellant gave evidence of his peaceful approach to the club and of being accosted by Davis with a request for money which he refused, where Davis tried to take from him some beer he had purchased; this led on to a quarrel with the deceased who accused the appellant of dirtying his car and uttered threats; an exchange of blows followed and, according to the appellant, the deceased forcibly prevented the appellant from moving his car, whilst the crowd were cursing and threatening to kill him. He had in the car he said, a revolver belonging to a friend; at this stage he took it out and put it in his pocket; the quarrel continued and, seeing the deceased with what he thought was a ‘shot gun’, he pulled the revolver from his pocket and said ‘Leave me alone’: he got back to his car but the abuse and threats went on as did the efforts to prevent him getting away; eventually he was half pulled from the car and, whilst he was wrestling with others, the deceased, he said, cried out ‘Leave him to me’. At this point, according to the appellant, the deceased still had what the appellant thought was a shot gun but this was taken away by Davis. His testimony continued:

‘I tried to run and one caught me by my coat and pulled me back and then the buttons broke off. He swung me into Kenneth Brown. When Kenneth came to me most people ran into the club. They were trying to get the gun from me. I did not press the trigger intentionally. The gun went off several times. The bullets were going into the ground … I am terribly sorry. I know he is a father of children.’

3

A defence witness, Melbourne Capron who was present at the fracas, gave evidence broadly supporting that of the appellant, who, by a majority of 9-3, was found guilty of manslaughter with an unanimous recommendation from the jury for mercy.

4

Against that conviction he has appealed and we have had the benefit of a very meticulous and thoroughly prepared argument by his counsel, Mr. Zervos, who put forward as his principal ground the alleged failure of the Chief justice, who presided at the trial, to deal or deal adequately, in his summing up, with certain evidence material to the defence.

5

This complaint fell into two parts: first the failure of the Chief justice to mention the threats to the life of the accused uttered by the deceased and others and second the insufficient weight given in the summing up to the steps taken, or believed by the appellant to have been taken, by the deceased to carry out that threat, particularly the action of the deceased in pointing at the appellant an object which the latter said he thought...

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