Brathwaite v R
| Jurisdiction | Caribbean States |
| Judge | Hallinan, C.J.,Rennie, J.A.,Archer, J.A. |
| Judgment Date | 14 May 1959 |
| Court | Federal Supreme Court (West Indies) |
| Docket Number | Criminal Appeal No. 3 of 1959 |
| Date | 14 May 1959 |
Federal Supreme Court
Hallinan, C.J.; Rennie, J.A.; Archer, J.A.
Criminal Appeal No. 3 of 1959
Criminal law - Manslaughter — Where evidence of criminal negligence verdict should be manslaughter.
Criminal law - Murder — Defence — Provocation.
Verdella Callender was killed on 27th December; 1958, at about 8.30 p.m. by a shot fired from a revolver held by the appellant. The Crown alleged that the shooting was deliberate and the defence is that it was an accident, The learned Chief Justice who presided at the trial of the appellant upon a charge of murder told the jury that if they had a reasonable doubt about the shooting being deliberate they should acquit. The jury found the appellant guilty of murder.
The appellant had lived with Verdella for five years and had had two children by her. They separated about September, 1958, and she had acquired another young man, Malcolm, Callender, about three weeks before she was killed. There was evidence that the appellant was upset at Verdella's departure. Carlton Goddard said that the appellant told him that Verdella had left him and that he could not eat or sleep at night. He saw him polishing a revolver and the appellant was in possession of six shots. The appellant while admitting possessing the revolver says he was keeping it lest he was attacked by some ruffians called “heart men.” Malcolm Callender stated that in the week preceding Verdella's death the appellant had twice uttered threats in his hearing; once to Verdella and once to Callender.
On the evening of 27th November, Callender was out in the road with Verdella; sometimes they walked and sometimes he was carrying her on his bicycle. The appellant came along on a motor-cycle and according to Callender stopped near them three times: at Oistins, then near a. Mr. Goddard's residence and finally on Callender Hill. The appellant admits stopping at Oistins and at Callender Hill but said this was due to the chain slipping off his motor-cycle. For the Crown it was suggested that the appellant was deliberately following Callender and Verdella and the witness Holmes testifies that where the killing occurred was a lonely part of the road.
The killing on Callender Hill is described by Callender as follows:
“When I got to the top of the hill, the accused came from the right side of road (going to Seawell) with his left hand covering his right. I did not see the autocycle. He said you want to fight now and I heard a report. I jumped off the bicycle. The report was as if a revolver was fired. I felt a heat pass by my left ear. On looking back I saw Mr. Robinson close to me. Verdella cried out ‘Mr. Robinson Mr. Robinson.’ The accused replied ‘Mr. Robinson Mr. Robinson God blind you’ and I heard a second shot fired off. The accused then backed to the grass. Verdella turned around, ran about 4 paces and fell, I ran too. Towards Oistins. I saw Mr. Robinson disappear towards Seawell. When I got a little way off I looked back. I saw the accused about 30 yards from me running after me. I heard 2 more shots. I ran further. When I got about 100 yards from where the incident took place I met one Weekes and his girl friend. I spoke to them. I then lay in the grass behind Weekes.”
Callender added that when the first shot was fired the appellant was about twelve feet from him and when the second shot was fired he was about fifteen feet away.
The appellant in his evidence said that on reaching Callender Hill the chain slipped off and he parked his motor-cycle off the road and was looking for a stone. He heard a man's voice say “Hold this for me.” The appellant's evidence continues:
“I looked up to see who it was and I saw Malcolm Callender almost over me. I noticed Verdella Callender hear him about a foot away holding a bicycle in his hand. Verdella was in the middle of road about a foot from him. I asked Malcolm Callender what happened. I said so because he had walked up to me and said hold this for him. I saw a bicycle light coming. When he came up to me I looked away from him and said you going to fight? That was when I realised it was Malcolm Callender. I then saw a bicycle light coming from Oistins side. Before the bicycle light reached, me Malcolm made another step to me. At that stage I took out the gun and held it in my hand. The person riding light turned out to be Mr. Robinson. I took out gun with intent to scare him but not to hurt him. When Malcolm made the effort to come to me I got nervous and the first shot event off. I do not realise pulling the trigger. I was not aiming at any person. At that stage Verdella must have been behind Malcolm as I could not see her. At that stage I called for Mr. Robinson. I said ‘Mr: Robinson Mr. Robinson.’ That was after the first shot went off. I wanted to draw his attention to the fact that Callender was corning to me and I wanted to avoid a fight. I heard Verdella call for Mr. Robinson. After I heard her call Mr. Robinson, Malcolm repeated what Verdella said and then snatched at my hand. I tugged my hand away and the gun went off. Robinson was then about 3 feet away. He had just passed. I never said ‘God blind you.’ I did not aim at any person.”
The appellant denies riding after Callender or firing any more shots. In cross—-examination Callender said:
“After I heard the first shot fright had me and I stepped forward in direction of accused. Not true that just before the first shot I saw accused at side of road repairing his cycle. Not true I gave my cycle to Verdella. Not true I said to accused ‘Man what happen’ and he said ‘Man you want to fight’ and the first shot went off. When the first shot went off I was sure it was a revolver shot. When I stepped towards accused he went backwards. I never grabbed his hands and then the second shot went off.”
Callender also said that he could not say at whom the first and second shots were aimed.
Robinson describes what he saw as follows:
“As I reached top of Hill I mounted cycle and began to ride. About 40 yards off I could see 3 people in front of me. When I got to from witness box to entrance to Law Courts (60 Feet?) I heard a voice say ‘Mr. Robinson Mr. Robinson.’ Sounded like a man's voice. As I heard the voice I heard the report of a firearm. I then heard a woman's voice say Mr. Robinson and a man's voice in reply ‘Mr. Robinson Mr. Robinson’ and the report of a firearm again. I was then about 3 yards from them going in the direction of Seawell. The other people were on the left side of road going to Seawell anal I passed on their above or right side. I did not stop as I was afraid and I tried to get away. When I passed the people I saw they were two men and a woman. I saw no fight going on between the three people. No struggle taking place.”
Robinson did not hear anyone say “God blind you,” and he thought there was only two or three feet between the appellant on the one hand and Callender and Verdella. But the evidence of the ballistic expert Coppin supports Callender's statement that the distance between them was greater as Verdella's garments showed no singeing or burning with gunpowder.
Mr. Coppin describes the revolver as follows:
“The revolver has a safety device as well as a hinge double trigger. The safety device stops the functioning of the revolver completely. The trigger has a hinge and in order to fall the trigger that hinge has to be pulled down. To fire the revolver the safety device has to be opened and the hinge pulled down. The trigger action is light. It is an old revolver much the worse for wear…
Assuming a person held revolver in his hand and was engaged in a scuffle the safety catch could be removed. The trigger action does not require much pressure to fire revolver if the guard is down. I would say the safety trigger device is designed to obviate accidental trigger action. The safety device is loose and can easily be put into action. The double trigger is very loose. The double trigger device can be opened without a scuffle because it is loose. The barrel is not rolling evenly, it is loose. A bullet from this revolver is likely to be erratic. It is possible to miss the target being fired at or to hit something not aimed at.”
The appellant in his evidence indicated that he knew little or nothing about this revolver or how it should be handled.
After the appellant passed Callender in hiding behind Weekes, Callender got on Weekes' bicycle and later into Holmes' motor-car. He went to Seawell Airport and made a statement to a police. The appellant on the other hand crept home to his house at Gall Hill. According to the witness Padmore the appellant said to him on his return: “Paddy the cycle there in the backyard is yours. I just shoot Verdella.” This the appellant denies having said. Padmore admits that he and the appellant had not been good friends for about four months and Padmore's allegation that he had bought a motor-cycle from the appellant was denied by him.
After Malcolm Callender had made his statement at the police station, the police visited the appellant's home at Gall Hill. They knocked. A shot was fired inside the house and ten minutes later another shot. When the police entered they found the appellant wounded but conscious. He said “I have made a mistake, treat me as a human being.”
Many grounds of appeal were argued. The summing up was attacked for being inadequate and unfair to the appellant; that it contained misdirections of fact and law, and that it omitted to direct the jury on vital parts of the evidence. The most substantial ground of appeal was that the judge...
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