Edwin v R

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: Cecil Lewis, C.J.
• Judgment Date: 07 March 1973
• Neutral Citation: VG 1973 CA 1
• Docket Number: Criminal Appeal No. 1 of 1972
• Date: 07 March 1973

Court of Appeal

Lewis, C.J., St Bernard, J.A., Louisy, J. (Actg.)

Criminal Appeal No. 1 of 1972

Edwin

and

Regina

Appearances:-

McW. Todman for appellant

Miss P.F. Beaubrun (Attorney General) and E.A.C. Hewlett (Legal Assistant) for respondent

Criminal law - Appeal against conviction — Defences of insanity and accident not accepted — Appeal dismissed.

1 Cecil Lewis, C.J. (A.g.) This is an appeal by the appellant from his conviction from a court held in 1972 at the Assizes held at Road Town, Tortola of the murder on March 16 1972 of Lennox Carlyle Durante also called Lennox Mathias.

2 On March 16, 1972 about 9 a.m. Judith deCastro, State Registered Nurse, was called by her husband Lembert deCastro from their home which was about 90 feet away from the Liquid Petroleum Gas Plant at West End. This gas plant is operated by a firm trading under the name of Carlton deCastro & Sons Ltd. When Mrs. deCastro got to the plant she saw the man Mathias on the ground with a spear in the left side of his chest and he was bleeding profusely. She decided that the only thing possible was to get him to hospital as soon as she could and with the assistance of Leslie McMasters, who drove the van, he was placed into a van and driven to the hospital. One Hugh Duplessis went with them, At the time, she was sitting at the head of the injured man holding it making sure he could breathe properly and Duplessis was holding the spear so that it could not move. This was an attempt to prevent further injury. He was taken to the casualty department of the Road Town Hospital where he was seen by a surgeon Dr. Tattersall and also Dr. Thomas. Dr. Tattersall observed that the shaft of a fish spear was protruding from the front of the chest and that the spear was moving at the same manner as the beating of the heart, so it was clear that the spear had entered the heart. They performed an operation but unfortunately this was not successful as it was unlikely to be and the man died. The cause of death was hyponovlaemic shock which in easy terms means loss of blood volume as a result of penetrating wounds of the heart caused by the spear.

3 The appellants the deceased, Leslie McMasters, Donald Supersuade, Wilson Supersuade, Lambert deCastro and Hugh Duplessis were employees of the firm of deCastro & Sons Ltd. McMasters and Duplessis were salesmen. Lambert deCastro was the plant manager and Leslie deCastro appeared to be the owner of the firm. All these people were witnesses for the Crown. McMasters' evidence was to the effect that on the 16th March last year there was a jeep at the plant which had a flat tyre and the deceased asked appellant to change the tyre and replace it by a spare. When the appellant was doing this the deceased went and pushed him aside remarking as he did so that the appellant was taking too long to put on the tyre. The deceased pushed the appellant in turn, the appellant again pushed the deceased who returned the push, then the deceased picked up a jack handle and the appellant a stone and each attempted to hit the other but neither did so. Lambert deCastro came between the men and attempted to get the jack handle from the deceased and the stone from the appellant, but he was not able to get away either and the appellant ran off in the direction of the road. Then he threw a stone which he had in his hand at the deceased. Deceased dropped the jack handle and he in turn picked up a stone which he threw at the appellant. It did not strike the appellant. The appellant told the deceased that he could duck stone but he had something else which he (Durante) could not duck and after he said this he went inside an office some distance of about thirty feet away and came back from the office with a fish gun in his hand, which he was loading by pulling some rubbers. There was a spear in the fish gun. Lambert deCastro tried to intervene and take away the fish gun from the appellant but the appellant avoided him, ran towards Durante and Durante said “Lord look what's going to happen to me now” and as he said that the appellant told Durante “Take that” and shot him in his chest with the fish gun.

4 The witness McMasters said that he saw when the spear went into the chest of the deceased man.. The appellant then ran away and McMasters pursued him, struck him in his back once or twice with a mop handle or something of the sort then he tackled the appellant and threw him down on the ground and he fell on his back in the street, then the appellant ran into the sea The witness McMasters was about to pursue him but did not do so as deCastro called him back, and when he got back to the jeep he saw Durante lying on his back with the spear sticking from his chest, There was no doubt at all in his mind, in the mind of the witness McMasters, that the spear gun belonged to the appellant because he had seen him with it in the office, he kept it there and he brought it a few days before to the office where they were working. He said that when the appellant shot the spear gun into the deceased, he was about 14 feet from him in a space not bigger than this room. Now in cross-examination he said that he heard no abusive words being used by the deceased to the appellant. He did not see the deceased slap the appellant nor did he see him kick him.

5 These facts are mentioned here because those were incidents which the appellant said took place and which, there has been submitted, amounted to provocation.

6 Lambert deCastro supports Leslie McMaster's statement that the deceased asked the appellant to change the tyre and he saw them both together. He said hr was doing something and when he looked up he saw the deceased and the appellant arguing. At that time the deceased had a landover jack handle in his right hand and was pushing the appellant with his left hand and waving the jack handle at him. They did not come to blows at that stage but the appellant told the deceased that he did not want to fight with him in the yard, and with that he ran out in the yard telling the deceased if he wanted to fight him following him to the street. The witness then made a strange statement, he said that the deceased turned around and started crying, that he saw tears. The deceased took a stone which he threw out at the accused who was in the street some 80 feet from the deceased. The appellant returned two stones at the deceased and they missed, they did not strike the deceased; but the stone which the deceased threw at the appellant struck him in the lower part of his body, he did not know exactly where. But in regard to the incident of the fish gun he said after a few seconds the appellant returned, ran to the office building of the plant and returned loading his fish gun. He went towards where the deceased was and he saw him return in the direction from which he had gone, but this time he was loading the second catapult in the fish gun. He moved (that is witness deCastro) towards the appellant with the intention of stopping him or taking, the fish gun away from him but when he was fairly close to him the appellant told him do not touch him or get into his way and he avoided the witness went in the direction of the deceased who was still in the position between two landrovers and there his vision (the witness' vision) was cut off but when the appellant moved he saw that the spear was sticking in the deceased. It was then that he called his wife (as I mentioned before) and the injured man was taken to the hospital, He says that the incident took place at a distance between the two men about 10 feet that is to say the appellant and the deceased were about 10 feet from each other. He also said that the stone which the deceased threw at the appellant was thrown with considerable force. Although the stone struck the appellant he did not fall.

7 Now Wilson Supersuade was a man who seemed busily engaged with his meters and things of that sort and he did not see very much as to what took place between the two men, but he did remember seeing the appellant take up a stone and throw it over by the trucks. He threw it in the direction of three other men Lambert, McMasters and Mathias. Then he saw when the appellant rushed down by the plant and came back with the fish gun and then when Lambert deCastro came running up to the appellant. He said that the appellant just sheered off from Lambert and he came nearer to him by the plant and told him not to get himself in any trouble. The accused was going his way towards the truck and he was holding the fish gun with both hands, he actually did not see when the appellant fired the fish gun shaft into the deceased

8 Now the deposition of the witness Hugh Duplessis was read at the trial with the consent of the defence, and he gave evidence as to seeing the appellant changing a tyre, and he referred to the fracas between the appellant and the deceased. He said that Mathias (that is the deceased) went to the appellant and said something to him — he did not know what he said but he saw the deceased push the appellant and told the appellant let him take over the tyre which he was changing. The appellant pushed the deceased, then the deceased stood up. The appellant pushed him again and they started pushing each other. Then the deceased picked up a jack handle which was on the ground, he raised it up, then he lowered it back down; it was still in his hand, then he raised it a second time and the appellant ran away from him. When the appellant ran away he picked up a stone which he threw at the deceased; then the deceased in turned threw a stone at the appellant and the appellant threw a second one at the deceased. He next saw the appellant going in the direction of the office and...