Clarence Mactavious Appellant v The Queen Respondent

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: ROBOTHAM, C.J.
• Judgment Date: 13 January 1986
• Neutral Citation: VG 1986 CA 5
• Judgment citation (vLex): [1986] ECSC J0113-1
• Docket Number: CRIMINAL APPEAL NO. 1 of 1984
• Date: 13 January 1986

[1986] ECSC J0113-1

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Robotham-Chief Justice

The Honourable Mr. Justice Bishop

The Honourable Mr. Justice Byron

CRIMINAL APPEAL NO. 1 of 1984

Between:

Clarence Mactavious

Appellant

and

The Queen

Respondent

Appearances:

K. Foster for the Appellant

L.S. Hunte, Attorney General for the Crown

1 ROBOTHAM, C.J. delivered the Judgment of the Court:

2 On March 7, 1984, the appellant who is a Sergeant of Police was tried upon an indictment charging him with inflicting grievous bodily harm on his wife Verna Mactavious on July 21, 1985, contrary to section 19 of the Offences against Person Act Chapter 54. The Jury convicted him upon the lesser count of assault, a verdiot which was left open to them by the trial Judge in the course of her directions.

3 From this conviction there was an appeal, and upon the hearing of the appeal, the main thrust of the arguments presented by Counsel for the appellant was that the trial Judge erred in directing the Jury on the alternative verdict of assault there being no legal authority for such a verdict to be returned upon an indictment charging the misdemeanour of inflicting grievous bodily harm as charged under section 19 of cap.54. There were other grounds which will be dealt with in the course of the judgment.

4 The facts of the case as presented by the Crown were that on the day in question the appellant went to the apartment of his estranged wife where he asked her to sign and assume responsibility for payment of the light bill. In the course of her going about signing the bill, he enquired of her of some missing records. This led to a passage of words ending with the appellant grabbing his wife in her chest. She in turn grabbed him in his collar, and his chain which was around his neck broke. A button also flew off his shirt, but he refused her offer to sew it on.

5 Whilst looking for the pendant which was attached to the chain, he suddenly stopped and went to the sitting room where his wife was. There he hit her twice on her hand with his fist, demanding his pendant. She ran to the kitchen where he pursued her and continued striking her with his fist. The blows being inflicted she said, were hard blows and she saw a knife on the table which she picked up. As she stood there with the knife in her hand, he came behind her and held the hand with the knife telling her to drop it. She appealed to her children for help, whereupon the appellant stepped on her foot. At this time, she dropped the knife and he kicked it under the refrigerator. Her evidence continued:-

"Then he started wrestling with me. He started beating me. I kept bawling, he start firing licks all over me with his hand. Both of us wrestle and he get me on the floor. He was over me hitting me with his hand-his fist…. I said O.K. let me show you where the pendant is…… He said to me where. I said in the garbage. I was walking towards the garbage…. The door was open……. I make to run outside. Then he started beating me. He just kept firing licks allover… He kept licking me on the iron railing…. He kept beating no all over my hand Still beating it against the rail……… I felt a lash in my back…. As I make to run I felt a lash in my back…. As I make to run I felt this hand funny…. He carry me in the house….He still beating me saying it is his pendant he want. I see a foot rush to the door and when I look up I see Sgt. Glasgow a policeman….."

6 The Doctor's evidence was that she sustained a severe fracture of the right arm.

7 Her evidence was supported by Anselmo Porter who was passing in a taxi. He said he saw the appellant hold his wife and pulling her back inside the room. Support also came from her sister Vanessa McDowell who heard her bawling and saw the appellant holding her outside and "beating her on the iron railing". Sergeant Phillip Glasgow who was in his apartment said he heard Mrs. Mactavious screaming "murder, murder". He went upstairs to her apartment and saw the appellant holding her in her throat. He intervened and appellant pushed him off. He forced himself between them and got her away from the appellant. On seeing the obviously broken arm he took her off to the Hospital.

8 The appellant's defence was that it was his wife who was the aggressor. She grabbed him first in his collar, and later he saw her coming at him with a knife. She made a stab at him and he held her hand and twisted it to avoid getting cut. After applying "a little pressure" the knife he said, fell on the floor close to the refrigerator. He took it up and threw it into the sink. His wife then ran towards the front door where she fell between the railing and the door. He picked her up whilst she was bawling for murder and Sergeant Glasgow came in and told his to leave her alone as it seems that her hand is broken. He then left the premises.

9 From the Crown's standpoint therefore, the appellant administered a severe beating to his wife in a prolonged and sustained attack. It lasted long enough for Anselma Porter to have witnessed a part of it as he drove by in his taxi, and for the cries of murder to have attracted the attention of Sergeant Glasgow who left his apartment downstairs to go upstairs to investigate only to see the appellant holding his wife in her throat.

10 On the otherhand, the defence essentially was one of self-defence. In effect the appellant was saying that his wife was the aggressor throughout, and that when she took up the knife he only did what was necessary to defend himself by twisting her arm. He said also he was not sure whether her arm broke when he twisted it, or when she fell by the iron railing. The wife on the other hand stated categorically in her evidence that she received the injury when the appellant kept text her on to the iron railing. The Doctor's evidence was that the injury could have been caused by a club or hand, or a piece of wood, or by falling against something. It was a severe fracture, and although possible, it would have been unusual, in his opinion, for such extensive damage to have occurred to the bone by someone twisting the arm.

11 On these two accounts of how the injury occurred, and viewed within the context of the Doctor's evidence the trial Judge told the jury that if they find that the Injury may have been sustained when she fell outside on the porch, it would be an accident and the accused in those circumstances would be not guilty. This direction could not be described as unfavourable to the accused.

12 On the issue of self-defence, the Judge told them that if they believed that the appellant's wife was the aggressor, and that he twisted her hand in order to get the knife away from her, in the course of which the arm got broken, and that the force used was reasonable and no more than was necessary, then they should return a verdict of not guilty.

13 Up to this point in time, the alternative verdict of assault had not been mentioned to the jury. It is only at the very end of the summing up that she directed them on the possibility of returning the alternative verdict, and despite Counsel for the appellant's submission before us to the contrary, she properly outlined the law on assault.

14 It is clear that the directions she had given previously touching on self-defence and which were correct would have been applicable not only to the charge as laid but to the alternative of assault. There can be no merit therefore in Counsel's submission that there was no direction as to what defence was available to the appellant in answer to the lesson charge of assault.

15 Whilst it is undesirable that one should speculate on the meaning of a jury's verdict, there is nothing wrong with interpreting that verdict. A lot of evidence was introduced into the case by the defence which could only have been calculated to evoke sympathy for the appellant. He told the Court of having accompanied his wife to Puerto Rico where she was hospitalized for 4 days, and of paying her medical expenses of $2,100. The jury were even provided with character evidence and evidence was elicited in cross-examination of the wife of attempts to compromise the case with her whilst the trial was proceeding. I say no more on this. The jury obviously on a global picture rejected the defences of the accused, negatived the aggregated circumstances of the assault, and found him guilty of the lesser offence.

16 It was a verdict which was open to them and on the facts of the case and the directions given, we are unable to say as Counsel has submitted that it was unreasonable, unsafe, and not supported by the evidence, always provided of course, it was indeed an alternative verdict which was capable of being returned on the indictment as it stood. This ground of appeal must now be considered. It alleged that the Judge erred in directing the jury on the alternative verdict of assault. The ground of appeal continued:-

"There being no legal authority in the case of a misdemeanor (distinct from felony) of inflicting grievous bodily harm as charged under section 19 of the Offences against the Person Act Cap. 54, it is respectfully submitted that section 30 of the Criminal Procedure Act Cap 20 was inapplicable which said provision applies only to those cases where an accused is charged with a felony coupled with an assault."

17 Section 30 of Cap. 20 reads:

"On the trial of any felony whatever, where the crime charged includes an assault against the person although an assault be not charged in terms, the jury may acquit of the felony and find a verdict of guilty of assault……… if the evidence warrants such a finding."

18 This clearly is of no application here because the offence with which the appellant was charged is a misdemeanour. Nowhere did the Judge give any indication that she was using this as her authority to direct them on the alternative verdict of assault. Section 19 of...