Bardoo v R; Cockburn v R

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: Peterkin, C.J.,Berridge, J.A.,Robotham, J.A
• Judgment Date: 01 May 1981
• Neutral Citation: VG 1981 CA 3
• Docket Number: Criminal Appeals Nos. 1 and 2 of 1980
• Date: 01 May 1981

Court of Appeal

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

Criminal Appeals Nos. 1 and 2 of 1980

Bardoo

and

R

Cockburn

and

R

Appearances:-

E.A.C. Hewlett for appellant Bardoo.

McW. Todman for appellant Cockburn, P. Webster with him

Criminal Law - Appeal against conviction — Murder

Facts: Appellants charged jointly with murder. Both convicted. Deceased made report at police station concerning B. On same afternoon B's car was seen several times with C driving. Deceased seen entering car between 6:30 and 7.00 p.m. This was last time deceased was seen alive. Evidence that car was seen returning from direction of Beef Island around 8 p.m. driven by C with B sitting in back. Three days later deceased's body discovered at Beef Island. B said he had rented car to C on that day and was never with him at any time after. C claimed that B short deceased and that he had no knowledge that deceased would have been killed. Trial judge failed to direct jury on common design.

Held: Appeals allowed. New trial ordered.

JUDGEMENT OF THE COURT:

1 At the conclusion of the hearing of these appeals on May 1st, 1981, the court allowed both appeals, quashed the convictions, and set aside the sentences. The court also ordered that in the cases of both appellants there should, in the interests of justice, be a new trial upon a fresh indictment. The court indicated then that its reasons for doing so would be given in writing at a later date. This the court now does.

2 The two appellants were jointly charged on one indictment with the murder of Alexander Purcell between 13th and 17th February, 1980 and were on 28th October, 1980, both convicted of his murder.

3 A number of grounds of appeal were argued on behalf of each appellants and, appear on the record. One ground common to both was that the learned trial judge failed to) direct the jury on the law relating to common design. Having regard to the order made for a new trial the court does not wish to dwell at length on the facts of the case, but a short summary is in our view necessary.

4 The deceased left home in St. Thomas at 6 a.m. on the morning of 14th February, 19809 and was next seen in Tortola by the Immigration Officer at 9.30 a.m. At around 3.30 p.m. he made a report to the Road Town Police Station concerning the appellant Bardoo. This report concerned some spiritual activity performed by Bardoo upon him previously in St. Thomas during the course of which he caught fire and was severely burnt necessitating his being hospitalised. There is evidence that when he attempted to recover the hospital expenses from Bardoo in January, 1980, Bardoo is alleged to have said that Purcell had built himself a nice coffin for 1980. A spate of activity occurred during the course of that afternoon. Bardoo's car was seen several times with the appellant Cockburn driving. On two occasions the deceased was seen in the car. Between 6.30 and 7 p.m. the deceased was last seen by one Gladstone Fahie entering the car near Pickering's shoe in the area known as Baughers Bay where Bardoo lived. The car drove east in the direction of Beef Island. This is the last time the deceased was seen alive. Around 8 p.m. the car was seen returning from the direction of Beef Island. According to the witness Alston Charles, the car was...