Dennis Edwin Appellant v The Queen Respondent

CourtEastern Caribbean Supreme Court
Docket NumberCriminal Appeal No. 1 of 1972
JudgeActing Chief Justice
Judgment Date05 Mar 1973
JurisdictionCaribbean States
Neutral Citation[1973] ECSC J0305-1
[1973] ECSC J0305-1

IN THE COURT OF APPEAL

Before:

The Honourable the Acting Chief Justice

The Honourable Mr. Justice St.Bernard

The Honourable Mr. Justice Louisy (Ag.)

Criminal Appeal No. 1 of 1972

Between:
Dennis Edwin
Appellant
and
The Queen
Respondent

McW. Todman for appellant

Miss P. F. Beaubrun (Attorney General) and E.A.C. Hewlett (Legal Assistant) for respondent

1

The judgment of the Court was delivered by -

2

CECIL LEWIS, C.J. (Ag.)

3

This is an appeal by the appellant from his conviction by the High Court at the Assizes held on October 12, 1972 at Road Town, Tortola of the murder on March 16, 1972 of Lennox Carlyle Durante also called Lennox Mathias.

4

On March 16, 1972, about 9 a.m. Judith deCastro, a State Registered Nurse, was called by her husband Lambert deCastro from their home which was about 90 feet away from the Liquid Petroleum Gas Plant at West End. The gas plant is operated by a firm trading under the name of Carlton deCastro & Sons Ltd. When Mrs. deCastro got to the plant she saw the man Mathias on the ground with a spear in the left side of his chest and he was bleeding profusely. She decided that the only thing to do was to get him to hospital as soon as she could and with the assistance of Leslie McMasters he was placed in a van and driven by him to the hospital. One Hugh Duplessis went with them. Mrs. deCastro sat at the head of the injured man and held it to make sure he could breathe properly while Duplessis held the spear so that it could not move. This was done in order to prevent further injury to the wounded man who was taken to the casualty department of the Road Town Hospital where he was seen by a surgeon Mr. Tattersall and also by Dr. Thomas. Mr. Tattersall observed that the shaft of a fish spear was protruding from the front of his chest and that it was moving at the same rate as the beating of the heart, so it was obvious that the spear had entered the heart. They performed an operation but unfortunately this was not successful and the man died. According to the surgeon's evidence, the cause of death "was hypovolaemic shock, which in easy terms means loss of blood volume, as a result of penetrating wounds of the heart caused by the spear".

5

The appellant, the deceased, Leslie McMasters, Donald Supersuade, Wilson Supersuade, Lambert deCastro and Hugh Duplessis were employees of the firm of deCastro & Sons Ltd, McMasters and Duplessis were salesmen. Lambert deCastro was the plant manager and Leslie deCastro appeared to be the owner of the firm. All these people were witnesses for the Crown. McMasters' evidence was to the effect that on the 16th March last year there was a jeep at the plant which had a flat tyre and the deceased asked the appellant to change the tyre and replace it by a spare. When the appellant was doing this the deceased went and pushed him aside remarking as he did so that the appellant was taking too long to put on the tyre. The deceased pushed the appellant in turn; the appellant again pushed the deceased who returned the push, then the deceased picked up a jack handle and the appellant a stone and each attempted to hit the other but neither did so. Lambert deCastro came between the men and attempted to get the jack handle from the deceased and the stone from the appellant but he was not able to get away either weapon and the appellant ran off in the direction of the road. Then he threw the stone which he had in his hand at the deceased. Deceased dropped the jack handle and he in turn picked up a stone which he threw at the appellant. It did not strike the appellant. The appellant told the deceased that he could duck stones but he had something else inside which he (the deceased) could not duck and as he said this he went into an office at a distance of about thirty feet away and came back with a fish gun in his hand which McMasters said he was "trying to get loaded with a spear by pulling some rubbers." Lambert deCastro tried to intervene and take away the fish gun from the appellant but the appellant avoided him and ran towards Durante. Durante said "Lord look what going to happen to me now" and as he said that the appellant told Durante "Take that" and shot him in his chest with the fish gun.

6

The witness McMasters said that he saw when the spear went into the chest of the deceased man. The appellant then ran away and McMasters pursued him, struck him in his back once or twice with a mop handle or a stick. Then he held the appellant and threw him to the ground and he fell on his hack in the street. The appellant got up and ran into the sea. The witness McMasters was about to pursue him but did not do so as decastro called him back. When he got back to the jeep he saw Durante lying on his back with the spear sticking into his chest. There was no doubt at all in the mind of the witness McMasters' that the spear gun belonged to the appellant because he had seen him with it in the office, where he had kept it. He had brought it a few days before to the office where they were both working. McMasters said that when the appellant shot the spear into the deceased, he was about 14 feet from him in a space not bigger than the court room. In cross examination he said that he heard no abusive words being used by the deceased to the appellant. He did not see the deceased slap the appellant nor did he see him kick him. These facts are mentioned here because they were incidents which the appellant said took place and which, it has been submitted, amounted to provocation.

7

Lambert deCastro supports Leslie McMasters' statement that the deceased asked the appellant to change the tyre and he saw them both together. He said he was doing something and when he looked up he heard the deceased and the appellant arguing. At that time the deceased had a landrover jack handle in his right hand and was pushing the appellant with his left hand and waving the jack handle at him. They did not come to blows at that stage but the appellant told the deceased that he did not want to fight with him in the yard, and as he said that he ran out of the yard telling the deceased if he wanted to fight him to follow him into the street. The witness then made a strange statement. He said that the deceased "turned and cried" and he saw his tears. The deceased took a stone which he threw at the accused who was in the street some 80 feet from the deceased. The appellant "returned" two stones at the deceased but they missed him. However the stone which the deceased threw at the appellant struck him in the lower part of his body, he did not know exactly where. In regard to the incident with the fish gun, he said after a few seconds the appellant returned, ran to the office building of the plant and returned loading his fish gun. He went towards where the deceased was and he saw him return in the direction from which he had gone, but this time he was loading the second catapult in the fish gun. The witness moved towards the appellant with the intention of stopping him or taking the fish gun away from him but when he was fairly close to him the appellant told him do not touch him or get in his way. He then ran around the witness and went in the direction of the deceased who was still in the same position between two landrovers. The appellant, he said, was blocking his vision but when the appellant moved he saw that the spear was sticking in the deceased. It was then that he called his wife and the injured man was taken to the hospital. He says that when the incident took place the distance between the two men was about 10 feet. He also said that the stone which the deceased threw at the appellant was thrown with considerable force, but although it struck the appellant he did not fall.

8

The witness Wilson Supersuade was busily engaged with his meters and he did not see very much of what took place between the two men, but he did remember seeing the appellant take up a stone and throw it over by the trucks in the direction of three other men - Lambert, McMasters and Durante, the deceased. Then he saw when the appellant rushed down by the plant and came back with the fish gun and he also saw when Lambert decastro came running up to the appellant. He said that the appellant "just sheered off from Lambert" and he came nearer to him by the plant. He called out to the appellant and told him not to get himself into any trouble. The accused was going on his way towards the truck and he was holding the fish gun with both hands. The witness did not see when the appellant fired the spear from the fish gun into the deceased.

9

The deposition of the witness Hugh Duplessis was read at the trial with the consent of the defence. It was to the effect that he saw the appellant changing a tyre, and he referred to the fracas between the appellant and the deceased. He said that Mathias (that is the deceased) went to the appellant and said something to him - he did not know what he said, but he saw when the deceased pushed the appellant and heard when he told the appellant to let him take over the tyre which he was changing. The appellant pushed the deceased, then the deceased stood up. The appellant pushed him again, and they started pushing each other. The deceased then picked up a jack handle which was on the ground. He raised it up, then he lowered it. It was still in his hand. He raised it a second time and the appellant ran away from him. When the appellant ran away he picked up a stone which he threw at the deceased; the deceased in turn threw a stone at the appellant and the appellant threw a second one at the deceased. He next saw the appellant going in the direction of the office and he returned about 10 seconds afterwards with a fish gun which he said he was "setting up", that is to say loading it for use. The exact words in his deposition were these:

"….He was pulling the string. He had the piece of iron thing that he does fire, setting it up. The fish gun was blue. I don't...

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