Mason v R

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: Peterkin J.A
• Judgment Date: 15 July 1975
• Neutral Citation: AG 1975 CA 1
• Docket Number: Criminal Appeal No. 4 of 1974
• Date: 15 July 1975

Court of Appeal

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

Criminal Appeal No. 4 of 1974

Mason

and

R.

Criminal law - Appeal against conviction for murder — Appellant set deceased alight during a pantomine — Whether the trial judge should have directed the jury on manslaughter since it was not clear that the appellant acted with malice aforethought — Conviction for murder and sentence of death set aside — Conviction of manslaughter and 10 years hard labour substituted.

Peterkin J.A

1 delivered the judgment of the Court:

2 The appellant was convicted on 5th October 1974 of the murder of Jeremiah Joseph and sentenced to death by hanging. He now appeals against conviction.

3 The facts and circumstances may be stated quite briefly to be as follows On Christmas Day 1973 Jeremiah Joseph also called Miah vas playing “John Bull” along with Zachariah Joseph also known as Zachie. It took the form of pantomime, and to play his role as John Bull Miah was dressed in plantain leaves tied around his waist. He also had a crocus bag filled with grass on the upper part of his body and horns on his head. Zachie played the role of his driver and carried a stick with a rope tied to it which he used to drive the John Bull. Miah and Zachie left the yard of one Leena Joseph, ran as far as the school fence and then returned to her yard, where the accused was seen to approach Miah at his back, sprinkle some liquid from a bottle on to the plantain leaves and set them alight. Miah fell to the ground ablaze. Leena then threw some water on him and put out the fire. She then put flour on his burns and he was taken to the Holberton Hospital by the accused where he died on 13th January 1974. The cause of death was stated by Dr. Jayasuri to be septicaemia, the direct and consequential result of the second degree burns which he received.

4 At the trial the Crown called four eye witnesses to the incident who all testified that they had seen the accused set fire to the plantain leaves in which the deceased was dressed. Two of these witnesses were children of 12 years of age. They both gave evidence on oath. The third witness was a schoolgirl of 15 years who attended the Jennings Secondary School. She too testified on oath. The fourth witness was Zachariah Joseph.

5 In his defence at the trial the accused denied that he had set the deceased on fire. He stated from the dock that he was at Leena Joseph's house, heard a shout looked out of the window and saw the deceased ablaze on the ground.

6 The first issue for the determination of the jury was a simple one namely, whether or not the Crown had proved to them to the extent that they were quite sure that the accused was the person who set fire to the deceased. They indicated by their verdict that the Crown had done so.

7 Learned counsel for the appellant in the course of his arguments referred to the discrepancies in the evidence of the Crown witnesses. He also referred to the fact that Zachariah Joseph had made statements at the trial which were inconsistent with the statement which he had given to the Police. He then submitted that the trial judge had not given the jury an adequate warning in regard to the evidence of the two Crown witnesses who were 12 years of age and so could be regarded as being children of tender years. He also submitted that the trial judge had failed to direct the jury on hour they should evaluate the evidence of Zachariah Joseph having regard to his inconsistent statements.

8 Reference to the record shows that the learned trial judge did exhort the jury in dealing with the evidence of the children to examine it with care.

9 As to Zachariah Joseph's evidence, even if it were regarded as...