Adrian Nicholas Appellant v The Queen Respondent [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | BISHOP C.J. |
| Judgment Date | 17 November 1986 |
| Judgment citation (vLex) | [1986] ECSC J1117-3 |
| Court | Court of Appeal (Antigua and Barbuda) |
| Docket Number | CRIMINAL APPEAL NO. 1 of 1986 |
| Date | 17 November 1986 |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Bishop—Chief Justice (Acting)
The Honourable Mr. Justice Moe
The Honourable Mr. Justice Williams (Acting)
CRIMINAL APPEAL NO. 1 of 1986
Mr. C. Watt for Appellant
Director of Public Prosecutions and G. Collins for Respondent.
BISHOP C.J. (Acting) delivered the Judgment of the Court
At 12.05 p.m. on the 22nd April 1985 Elton Browne, also known as Ladoo, was pronounced dead.
On the 23rd April, 1985, the Government Pathologist performed a post mortem examination on the body and he concluded that Elton Browne died as a result of haemorhage and shock from the traumatic injuries suffered. In the light of the Crown's case and of the defence put forward by Adrian Nicholas, who was charged with the murder of Elton Browne, it is helpful to recall the evidence of the pathologist, insofar as it concerned the wounds suffered by the deceased.
"There were signs and effects of trauma:
1. On the forearm there was a 1.2 cm by 1 cm penetrating entry wound at 6 cm below the right elbow and 5 cm lateral to the anterior midline of the forearm. There was also a 1.3 cm by 1 cm exit wound at 5.5 cm below the right elbow in the anterior midline.
2. On the posterior there was a 0.9 by 0.8 cm entry wound in the posterior midline located 18 cm above the termination of the lumbar vertebra above where the spine ends. This wound led towards a bullet stuck in the fourth lumbar vertebra-bones in the spine…… This bullet was removed. This bullet was deeply embedded in the vertebra itself."
Dr. Simon formed the opinion that the latter wound was the result of "a direct straight hit." Then he continued with the evidence of wounds thus:
3. The hip—there was a 2 cm by 1.3 cm exit wound at 4 cm below the right anterior superior iliac spine that is about 1 cm medial to the lateral line. This wound led to a fragment of metal. Also there was an entry wound at 11 cm below the midline and 1 cm below the right iliac crest in the area of the superior aspects of the right buttock ………
The bullet that went through the elbow made the entry through the hip.
There was 1.5 by 1 cm entry wound over the posterior aspect of the right iliac crest at 15 cm from the posterior midline of the body. This wound penetrated the right hip bone injuring the pelvic blood vessels. A bullet was found lying free in the pelvis. I removed that bullet."
Two spent bullets and fragments of metal removed from the body were produced at the trial, and Dr. Simon said that the wounds he found were consistent with having been caused by gunshots. It was never disputed that Adrian Nicholas shot Elton Browne, using a .38 revolver that he had in his possession, at least from March 1985.
On the 7th February 1986 Adrian Nicholas was convicted of murder and sentenced according to the law. He has appealed against his conviction.
At the hearing of the appeal on the 2nd June, 1986, learned Counsel applied to this Court for an order that Dave Jackson a police constable, attend Court to be examined on behalf of the appellant. The reasons
stated in the application were that the witness was not examined at the trial because he was out of the island on vacation leave until the end of March 1986. Then there was the following:—
"I wish this witness to be examined on a statement made to him by the deceased Elton Browne immediately before the incident and his reaction and feelings as a result of the statement.
The witness was dispatched on duty to the Point area by Senior Sergeant Corbert to warn Elton Browne after a report to the St. John's Police Station by Cathleen Phillip. Having found him I am informed that the deceased told the Constable that he intended to kill me. The Constable duly reported this threat to the said Sergeant Smith."
After hearing learned Counsel for the appellant and for the respondent the application was refused because there were no good or sufficient reasons advanced to justify granting it. The Court stated then that it would set out its decision fully, in writing, at a later date. That we now do.
Mr. Watt submitted that—(i) this Court ought not to be influenced against granting the application simply because there was no request made at the trial to call Dave Jackson as a witness; (ii) good cause for examining the witness had to be shown in this Court and not in the Court below; (iii) the evidence which the witness would give to this count was relevant, since it would establish that the deceased demonstrated hostility towards the appellant and used threats to the witness concerning the appellant, earlier the same day that he was shot.
Mr. Cenac submitted that—(i) the principles by which this Court ought to be guided were contained in the case— R v PARKS 46 Cr. App. R. 29; (ii) the evidence referred to by Counsel for the appellant was neither relevant nor credible.
Learned Counsel pointed out the sequence of events on the morning of the 22nd April and asked the Court to find as a fact, that the deceased could not have made a statement to Dave Jackson immediately before the incident in which he was shot. The evidence showed that the deceased was already shot when Carleen Phillip reported to the police station at 10.10 a.m., and that she knew, when she went to the police station, that the deceased had been shot already. So that when Sergeant Smith despatched P.C. Jackson to the Point Area following Carleen Phillip's report at the station, Jackson could not have been told anything by Elton Browne because he had been shot by Adrian Nicholas and was in no condition to demonstrate hostility or to utter threats—if he was in the Point Area when Jackson reached there.
Mr. Watt raised no objection to the sequence as told by the Director of Public Prosecutions and indeed there was no evidence to the contrary.
The application which was filed in this Court on the 18th February 1986 was not accompanied by a statement from Dave Jackson of the facts to which he was expected and willing to testify. So that this Court was not in a position to analyse fully any proferred facts from the witness in order to evaluate their relevance or weight in the light of the Crown's case and of the appellant's defence.
Even assuming that Elton Browne made a statement to P.C. Dave Jackson, the reaction and feelings of Jackson to what Browne said could not be evidence pertinent to the real issues in the case.
Further, the facts provided in the application and in the address of learned Counsel for the appellant were not well capable of belief in the light of the unchallenged sequence of events.
The final reason for exercising our discretion as we did was that there would not have been a reasonable doubt raised in the minds of the Jury on the guilt of Adrian Nicholas if the facts which were brought to our notice had been added to those actually brought for the consideration of the Jury at his trial.
This Court therefore denied the appellant the order which he sought. Now to the relevant facts of the case.
About three years before April 1985, Elton Browne and Carleen Phillip lived together as man and wife. He was the father of one of her children. Their intimate relationship ceased in 1982, although they remained friends. From some time in 1983 Adrian Nicholas took the plea of Elton Browne in that he and Carleen Phillip enjoyed the relationship of man and wife; and she bore him a child, who, at the time of the incidents in April, 1985, was about nine months old.
As might be expected, there was no love lost—there was bad blood—between Elton Browne and Adrian Nicholas. The evidence which was led—some generously admitted in cross-examination and without objection—dealt in detail and at length with incidents that occurred in June 1984, at Carnival 1984, in January and February 1985. They included threats allegedly uttered by Browne to Phillip or Nicholas or to both of them. There was alleged damage to property belonging to Phillip and to Nicholas.
There was a fight between the two men that led to a criminal charge against Nicholas which was never decided by the Court.
On the 22nd April, 1985 around 2.00 a.m. Carleen Phillip saw Elton Browne throw part of a cement block through her bedroom window. It broke the glass but it did not hit anybody. Phillip and Nicholas reported this incident to the police who took steps to warn Browne.
Shortly before 9.00 a.m. Carleen Phillip was in her yard, about to go to the stand pipe, when Elton Browne walked past her gate, in a westerly direction. While passing he said something to her. Within five minutes he walked past the gate in the opposite direction. Again he spoke to her. Whatever it was that he said to her, Carleen Phillip did not go to the stand pipe. She remained at home.
Around 9.00 a.m. Adrian Nicholas came home and Carleen Phillip reported to him that Elton Browne had uttered threats to her to the effect that he would kill them.
Ten minutes or so later, Nicholas was in the yard repairing a clothes line. He had a hammer and a pair of pliers. Phillip was also in the yard. She was sweeping. Browne walked past and as he had done earlier, he made remarks that included a threat to kill all of them.
The events that occurred subsequently were described in a version from Carleen Phillip, who did not see the whole incident, and in versions from Adrian Nicholas, given at different times. As stated at the trial the third member of the triangle could never give his version.
She said this:
"The accused put down the hammer and pliers, went outside in a westward direction on St. George Street. This was in the same direction the deceased had gone. I heard something like one shot fire. I stood up at the gate. I looked east, then west....
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