Ball v R

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: Peterkin, C.J.,Berridge, J.A.,Joseph, J.A.
• Judgment Date: 25 July 1983
• Neutral Citation: VG 1983 CA 1
• Docket Number: Criminal Appeal No. 1 of 1982
• Date: 25 July 1983

Court of Appeal

Peterkin, C.J.; Berridge, J.A.; Joseph, J.A. (Actg.)

Criminal Appeal No. 1 of 1982

Ball

and

R

Appearances:-

F. Smith, Q.C. for the appellant.

L. Hunte, Attorney-General, for the Crown.

Miss A. Henry with him.

Criminal Law - Appeal against conviction — Murder

Criminal Law - Defences — Provocation

Facts: Appellant convicted of murder. Deceased died from asphyxia due to drowning. Alleged by Crown that this resulted from deceased having been thrown or kicked into the sea by appellant in the course of an altercation between them on a dock. Evidence of appellant that deceased had grabbed his girlfriend, released her and then grabbed at appellant after which there was a tassle between them. Evidence of witness for Crown that both men argued angrily and swore before scuffle ensued. Trial judge failed to put defence of provocation to jury.

Facts: Appellant convicted of murder. Deceased died from asphyxia due to drowning. Alleged by Crown that this resulted from deceased having been thrown or kicked into the sea by the appellant in the course of an altercation between them on a dock. Evidence of appellant that deceased had grabbed his girlfriend, released her and then grabbed at appellant after which there was a tassle between them. Evidence of witness for Crown that both men argued angrily and swore before scuffle ensued. Trial judge failed to put defence of provocation to jury.

Held: Judge's failure amounted to misdirection. Verdict of manslaughter substituted.

Held: Judge's failure amounted to misdirection. Verdict of manslaughter substituted.

JUDGEMENT OF THE COURT:

1 On October 13, 1982, the appellant was convicted in the High Court of the British Virgin Islands held in Tortola for the murder of Justin Williams on August 12, 1982.

2 The deceased who was 27 years of age was a seaman, and a native of Tortola. The cause of his death was given by two doctors as asphyxia due to drowning. It was brought about as the Crown alleges by his having been thrown or kicked into the sea by the appellant, in the course of an altercation between them on the dock at Nanny Cay.

3 The appellant is an American, and hails from Fortworth, Texas. He had arrived in Tortola in a party of six en route from the U. S, Virgin Island of St. Thomas, at about 4.30 P.m. on the same day of the incident. When this incident took place therefore at about 7.30 p.m. he had been in Tortola a mere matter of three hours. Among the party of six was a lady friend by the name of Pat Taylor, and when one examines the appellant's statement from the dock, it would appear that the grabbing of this lady on the dock by the deceased was the culminating point of what transpired between the deceased and the appellant on that fatal evening.

4 The case was brought with racial overtones, which it was virtually impossible to ignore during the course of the trial. However, when that evidence (which to a large extent is not in dispute is examined against the back-drop of these overtones, it makes it incumbent on this court to scrutinize even more closely the verdict of guilty of murder, especially as it entertains some degree of apprehension about it.

5 The evidence discloses that at about 7-00 P.m. on August 12, Carlton Leonard went to Bolo's Bar at Nanny Cay and there he heard an argument going on between “Justin (deceased) and a white guy (the appellant). Kathleen Knight the bartender served the deceased a beer. The appellant was also drinking. The deceased and the appellant were about 2 to 3 feet apart, with the former standing and the latter sitting on a stool. Knight heard the deceased talking to himself. He said “why a black man have to work so hard. We scrub the white man deck, clean his toilet bowl, and he still don't love us.” Having got his beer the deceased left the bar, followed about 2 minutes later by the appellant and a lady.

6 Shortly after the deceased and appellant left, Knight got a report from Susan McKay and at about 8.30 p.m. she went down to the dock. She saw the appellant being escorted to a police jeep, and she heard him say,(I just kick a fucking nigger over board.”

7 Susan McKay testified that she was locking up her bar at about 7.30 p.m. when she saw the deceased on the dock by the bow of her boat swearing. The appellant and his girl friend walked up to the dock in Justin's direction and an argument ensued between them in which there was swearing and the use of obscene language. She then heard a scuffle. Though she did not actually see the scuffle, it was followed by a splash in the water. She got off her boat and went to Danny Saunders for help as she saw someone in the water. After she returned with Saunders, she saw nothing in the water. She saw the appellant urinating on the dock in the presence of his lady friend, and then she heard him use words to the effect that he had either pushed or thrown a nigger into the water. She could not remember whether the word used was ‘pushed (or ‘thrown).

8 In cross-examination she said there was a fight between deceased and appellant but she did not know who started it. It lasted a few seconds and was followed by the splash. The two men she said were (very angry with one another (during the argument, and were close to each other.

9 When Saunders was summoned by Susan Mckay, he went down to the water by the docks and he said he saw something or someone thrashing in the water. He made a closer examination in order to see what was in the water, but the movements had by then ceased. There was evidence from Carlton Leonard that the deceased was a good swimmer. Saunders went to the deceased(s boat to see if he was there. He was not, but he saw the appellant and his lady friend standing at the head of the dock, and he heard the appellant say “I just threw a nigger in the water.”

10 Police Constable Ivor Henry arrived on the scene at about 8.23 p.m. in uniform and saw the appellant in the Peg Leg restaurant. He spoke to him, cautioned him, and asked him if he had seen one Justin William. The appellant's reply was “I kick the shit out of him overboard. The nigger came shouting in my face; nobody does that to me and gets away.” The appellant he said had been drinking and “could have been drunk”. This was said in cross-examination.

11 At about 7.00 a.m. the following day Sergeant Piaxwell Smith saw the appellant at the station where he had been detained overnight. Under caution the appellant told the Sergeant that he and his girl friend...