Davis v R

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: Davis, C.J.
• Judgment Date: 26 July 1976
• Neutral Citation: AG 1976 CA 3
• Docket Number: Criminal Appeal No. 1 of 1976
• Date: 26 July 1976

Court of Appeal

Davis, C.J.; St. Bernard, J.A.; Peterkin, J.A.

Criminal Appeal No. 1 of 1976

Davis

and

R

Criminal practice and procedure - Indictment — Joinder of separate offences — Appellant charged with murder, Possession of Firearms without a licence and possession of ammunition without a licence on the same indictment — Appellant found guilty on all counts and given diverse sentences, including death by hanging for murder — Whether counts of murder, possession of unlicenced firearm and possession of ammunition without licence on same indictment make indictment bad in law — No objection taken at trial to joinder of counts — Necessity for care to be taken when joining offences to see that burden of proof in each offence is same so as to avoid confusion in the mind of the Jury and also to see that the Joinder does not lead to an absurd result as in this case — Court unable to say that indictment was bad — Appeal against conviction allowed

Criminal law - Murder — Appeal against conviction and sentence — Appellant sentenced to death by hanging for murder, to three years imprisonment for possession of unlicensed firearms and to three years imprisonment for possession of ammunition without a license — Whether verdict unsafe and unreasonable — Whether indictment bad in that appellant was charged thereon with offences other than murder — Finding that court unable to say indictment was bad — Finding that a misdirection of Jury on onus of proof rendered verdict unsafe — Appeal allowed — Retrial ordered on fresh indictment.

Davis, C.J.

1 The appellant was convicted on the 31st January, 1976, for the murder of Wilmouth Benjamin and was sentenced to death by hanging. On the same indictment he was also convicted on a second and third count for possession of firearms without a licence and possession of ammunition without a licence respectively. On each of these counts he was sentenced to three years imprisonment with hard labour to run concurrently.

2 The grounds of appeal are –

• (1) That the verdict is unreasonable and unsafe having regard to the evidence.

• (2) That the learned trial judge erred in law in that he directed the jury that the case was one were there were only two possible verdicts, that is to say, that the jury could either return a verdict of guilty of murder or not guilty of murder and thereby excluded the possibility of a verdict of manslaughter.

• (3) That the indictment upon which I have been arraigned and tried is bad in that I was charged thereon with offences other than that of murder.

• (4) That the accused is not guilty.

• At the hearing counsel sought and was granted leave to argue the following additional grounds

• (5) The learned trial judge misdirected the jury as to the burden of proof when he told them:–

• (i) “Now, although as I said there is no onus on the accused in law, the accused has put a statement of his own before you and he has put the testimony of witnesses and asked you to analyse them. If you find that when you analysed all that has been urged, the cross examination, the Prosecution's witnesses and the statement of the accused and in the testimony of his witnesses, if you find that he has raised a sufficient doubt in your mind about his guilt or he has establised his innocence, then the verdict would be not guilty.” Page 148 Lines 3 - 11 of the Record of Appeal.

• (ii) “But as I indicated she was not cross examined and you should have little difficulty with her evidence. In addition to that it would seem that if Patrick Davis did in fact have such a licence then he could have produced it or have accounted for not being able to produce it if you find that he used a gun that night. In his statement to you he did not specifically deal with whether or not he is the holder of a firearm user's licence.” Page 227 Line 20-228 Line 4 of the Record of Appeal.

• (iii) “If you can say you feel sure that Patrick Davis was involved the did he unlawfully kill Benjamin with malice aforethought. The Prosecution invites you to find as a fact that the killing of Benjamin was unlawful. You are asked to say that on the evidence which you heard here you can say you feel sure that the killing was unlawful, that is to say it was neither excusable nor justifiable and I think it must be clear to you from the manner in which the case was being conducted that there has been no dispute. And if you believe the facts and circumstances to be those related to you by Francis the gas attendant at the station by Dorsett the last customer at the station that Saturday night and Allen Clarks then it is Clear that the killing was unlawful.” Page 154 Line 16 - Page 155 Line 6 of the Record of...