Ivor Josiah Appellant v The Queen Respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: PETERKIN J.A.,CHIEF JUSTICE
• Judgment Date: 26 July 1976
• Judgment citation (vLex): [1976] ECSC J0726-2
• Docket Number: CRIMINAL APPEAL NO. 2 of 1976
• Date: 26 July 1976

[1976] ECSC J0726-2

IN THE COURT OF APPEAL

Before:

The Honourable the Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Peterkin

CRIMINAL APPEAL NO. 2 of 1976

Between:

Ivor Josiah

Appellant

and

The Queen

Respondent

Appearances:

J.L. Simon for Appellant

c. Kennard, Director of Public Prosecution for Respondent With him R. Davy

1 PETERKIN J.A. delivered the Judgment of the Court:

2 The Appellant was on the 13th February, 1976, convicted on an indictment containing two counts for the murder of Charles Jones and Gwendolyn Joseph respectively, and sentenced to death by hanging. He has appealed against his conviction on both counts.

3 The grounds of appeal stated are as follows:

The learned trial Judge erred in that he failed to direct or he misdirected the Jury on the following matters:—

• 1 (a)provocation, as an ingredient in determining the presence or absence of malice.

• (b) SELF DEFENCE: that this defence was available to the accused even if it was found that he first attacked the deceased or either of them if his subsequent action was made to avoid destruction.

• That the burden of negativing self defence was on the prosecution and if they were left in any doubt as to whether the accused was acting in necessary self defence, they should acquit.

• (c)MANSLAUGHTER: that this verdict was still open to hire on the first count if they rejected the defence of self defence because a greater degree of force than was necessary in the circumstances was used.

2

The verdicts are unsafe, unsatisfactory and unreasonable and cannot be supported having regard to the weight of the evidence.

4 The facts and circumstances surrounding the deaths of Charles Jones and Gwendolyn Joseph are to be found in the statement of the Appellant admitted to evidence in the trial as Exhibit A.G.2. The medical testimony was that they had both died of shock and haemorrhage from a ruptured liver as the result of a stab wound inflicted by a sharp cutting instrument.

5 From the outset it was made plain to the Jury that the Crown's case rested entirely on the statement of the Appellant. The defence challenged the admissibility of the statement on the ground that it was not a voluntary statement, but once it was admitted into evidence by the trial Judge, Counsel for the Appellant asked the Jury to accept that the statement was a correct explanation of what happened. This, he said, was the contention of the Defence. The statement is as follows:—

"He buy me rum and give Crabb to sell, me tell him, the profit he would take and me get back me standard money. Everytime he run out me buy more and give him. Me also give him cigarette and matches for sell. He never give me back any money. Me go by his place all the while, me does buy me ginger beer or malt, me ask him for me money and he always put me off. Last night Thursday 17th April, 1975 me go by Crabb place at Sutherlands, me meet Crabb, Gwendolyn and Hascoll he say me must wait until morning, I asked him if he have anything to drink, he said yes. He buy me drink of ginger beer, me drink it. He then tell me make are a we go make a raid on some fowl. I tell him no me nar tek up nobody fowl. He tell me to follow him. He, me and Hascoll went to a yard. He hold one fowl and Hascoll hold one. Me tell them toleave people fuck hole something. They took the fowls hack to the tavern. They strip the fowls and cook them. I told them I don't want any. Crabb say, you nar left yah tonight. I told him I am going away. He and Gwen start to beat me. Crabb call his picnie and tell him to bring a cutlass. The boy hand the cutlass and he started to beat me with it. I got a blow with it on my foot. He had a knife in one of his hand. Gwendolyn hold me in shirt stomach and Crabb start beating me again. He push the knife at me, me knock it out of his hand, me bend down to take up the knife and Crabb hit me hard against me head, me pick up the knife and me push it at him. He get it in his stomach. Gwendolyn was still holding me and me could not get away me...