Patrick Davis v The Queen [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: DAVIS. C.J.,CHIEF JUSTICE
• Judgment Date: 26 July 1976
• Judgment citation (vLex): [1976] ECSC J0726-1
• Docket Number: MAGISTERIAL APPEAL: CRIMINAL NO. 1 of 1976
• Date: 26 July 1976
• Court: Court of Appeal (Antigua and Barbuda)

[1976] ECSC J0726-1

IN THE COURT OF APPEAL

Before:

The Honourable the Chief Justice,

The Honourable Mr. Justice St. Bernard,

The Honourable Mr. Justice Peterkin

MAGISTERIAL APPEAL: CRIMINAL NO. 1 of 1976

Between:

Patrick Davis

and

The Queen

Appearances:

Claude Francis for appellant

C. Kennard, D.P.P. and Roger Davey for respondent.

DAVIS. C.J.

1 delivered the Judgment of the Court:

2 The appellant was convicted on the 31st January, 1976, for the murder of Wilmouth Benjamin and was sentenced to death by hanging.

3 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.

• (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 crossexamination, 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 sayit 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 Clarke then it is clear that the killing was unlawful." Page 154 Line 16-Page 155 Line 6 of the Record of Appeal.

  • (iv) "If you believe that Patrick Davis went to the gas station to rob and that as an intruder with that intention carried a loaded gun with him and used it then there can be no question of accident or self defence." Page 153 Line 20 — Page 154 Line 2 of the Record of Appeal.

  • (v) "There is no dispute in this case that the gun was a firearm." Page 226 Lines 16—17 of the Record of Appeal.

The grounds of appeal are —

4 The brief facts are that on the 17th May, 1975, at about 10.45 p.m. the deceased, Wilmouth Benjamin, was at his service station at the junction of Queen Elizabeth Highway and Camacho Avenue when a car drove up to the station. Charlesworth Francis, an attendant at the station, saw Benjamin sell gasoline to one Dorsett, the driver of the car, and after the sale Benjamin and Dorsett remained near to the pump speaking. At that stage someone dressed in a gown with a mask over his head ran up with a gun pointing it towards Benjamin and Dorsett. He heard the explosion of a gun shot and saw Benjamin 'back away' and hold his stomach. The man then ran in the direction from which he came. Benjamin was taken to the hospital where he died on the following day from injuries of a gun shot wound.

5 There...