Potter v The Queen

• Jurisdiction: Antigua and Barbuda
• Judge: Alleyne, J.A.
• Judgment Date: 16 February 2004
• Neutral Citation: AG 2004 CA 7
• Date: 16 February 2004
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: Criminal Appeal No.2 of 2003

Court of Appeal

Redhead, J.A.; Saunders, J.A.; Alleyne, J.A.

Criminal Appeal No.2 of 2003

Potter

and

The Queen

Appearances:

Mr. Sydney Christian, QC for the appellant.

Mr. Cosbert Cumberbatch, Director of Public Prosecutions for the respondent.

Criminal law - Conviction of murder and sentence to 20 years' imprisonment — Numerous misdirections and non — directions on issues favourable to the appellant — Order for a retrial.

Alleyne, J.A.

1 The Appellant Dion Danny Potter was convicted on 14 ^th February 2003 before a Judge and jury of the offence of murder and sentenced to 20 years imprisonment. The Appellant appealed against conviction on a number of grounds, in summary;

1

The trial Judge wrongly admitted the post mortem report into evidence by virtue of sections 23, 24 and 27 of the Criminal Justice Act of the United Kingdom and section 12 of the Evidence Act Cap. 155. [2] The trial Judge misdirected the jury on the issue of self-defence in that he failed to assist the jury as to what evidence gave rise to or was capable of giving rise to the defence, and that he directed that the onus of proof was on the accused and the burden of proof was beyond reasonable doubt, and that the jury had to find as a fact that self-defence was warranted. [3] The trial Judge misdirected the jury on the issue of provocation in that he failed to identify what evidence was capable of constituting provocation; failed to assist the jury adequately or at all on the evidence on that issue; failed to direct the jury that the provocation was not inconsistent with an intention to kill; and misdirected the jury that the deceased's conduct must be such as to cause a reasonable person to lose his self control. [4] Notwithstanding that unlawful act manslaughter was canvassed before the jury, no adequate direction as to its ingredients within the context of the evidence adduced was given. [5] Notwithstanding the Appellant's version of events, which raised the possibility of accident, no directions were given on that issue. [6] That the trial Judge failed to adequately put the Appellant's defence. [7] That no reasonable jury properly directed would inevitably have returned a verdict of guilty. [8] The trial Judge failed to adequately give any proper direction on lies.

The Facts

2 On 14 ^th November 1998 a car driven by the deceased Clinton “Buck” Simon struck some grocery packages being carried by a 14 year old niece of the Appellant, and knocked those packages out of her hand, scattering them on the ground. The Appellant witnessed this occurrence, and went in search of the driver of the car, whom he had not identified. Shortly after this, he met George Quinland, the owner of the car, enquired as to the driver as he wished to “deal with” the man, and was informed that the deceased was the driver of the car. George Quinland advised the Appellant to go to Quinland's father, who would reimburse him for whatever he had lost. At that point, the Appellant saw the deceased some distance away, and ran towards him. The deceased was in the car, and the Appellant came up to him at the window of the car. There was an exchange of words, and the Appellant's evidence is that the deceased attempted to drive the car away. He reached into the car and switched it off. There followed a struggle between the deceased, who remained seated in the car, and the Appellant, who was standing outside the car by the driver's door. Witnesses gave evidence that they saw the Appellant making stabbing motions towards the deceased, and there is evidence that he had an ice pick in his hand. The Appellant for his part said that he tried to free himself from the grip of the deceased, who was holding on to his shirt at the neck. The deceased bit him, and he punched the deceased. The deceased pulled what resembled a screwdriver and stabbed the Appellant on his arm. They struggled, the Appellant said he held the deceased's arm because he did not want to be stabbed any more. He managed to free himself, and the deceased came out of the car and ran after him, but soon fell down. The deceased was taken to hospital. He died.

3 An autopsy was performed by Dr. Duvvuri, a Pathologist, who died before the trial. He, however, prepared and signed a post mortem examination report in which he said that he had performed the examination some 72 hours after death. He found a stab wound ¹/₂″ x ¹/₂″ on the left side root of the neck, 8″ deep, an incised wound ¹/₄″ x ¹/₄″ on the outer side of the left upper arm in the midline, and an incised wound 8″ long, 48″ from the heel.

4 On internal examination the Pathologist found that the trachea and bronchi were congested, the left pleural cavity contained 1500 cc of clotted blood, and the lower lobe of the left lung showed a penetrating wound 8” deep, directed downwards and inwards. His opinion was that “death was due to shock and haemorrhage resulting from stab wound to the root of neck on left side with a pointed weapon with a moderate degree of force.”

5 The Pathologist having died before trial, his report was admitted into evidence by the trial Judge over the objection of Counsel for the Appellant. The admission of this...