Sylvester Gaston Appellant v The Queen Respondent

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: DAVIS C. J.
• Judgment Date: 16 January 1977
• Neutral Citation: VG 1977 CA 1,[1977] ECSC J0116-1
• Docket Number: CRIMINAL APPEAL NO. 1 of 1977
• Date: 16 January 1977

[1977] ECSC J0116-1

IN THE COURT OF APPEAL

Before:

The Hon. Sir Maurice Davis, Q.C.-Chief Justice

The Honourable Mr. Justice Peterkin

The Honourable Mr. Justice Berridge (Acting)

CRIMINAL APPEAL NO. 1 of 1977

Between:

Sylvester Gaston

Appellant

and

The Queen

Respondent

Appearances:

Mr. K. Foster for appellant Mr. E.A.C. Hewlett with him.

Mr. J.S. Archibald for respondent Mr. G. Farara with him.

DAVIS C. J. delivered the Judgment of the Court :

The appellant Sylvester Gaston was, on the 11th day of October, 1977, convicted of the murder of Evelyn Rabsatt and sentenced to death by hanging. He has appealed against his conviction on the following grounds : -

1 That the learned trial judge in error failed properly to appreciate and/or to consider

• (a) That the Territory of Tortola does not have a Common Law for itself in its Criminal Jurisdiction and therefore the Indictment was bad in Law and should be quashed, there being no definition in Law of what constitutes the offence of Murder.

• (b) That the Common law Definition of Murder cannot in this Territory unless Legislated for by imperial or local enactments: There being no such enactments, the appellant was wrongly convicted in violation of the Rules of Natural Justice.

2 As is regards the Defences of Insanity, Automatism, Diminished Responsibility, the learned trial judge fell into error and wrongfully usurped the function of the jury by making materi l findings of fact on the Mental Condition of the Accused, as follows to wit :-

In effect, the learned trial judge had wrongfully withdrawn from the jury defences of Insanity, Automatism, and Diminished Responsibility, whereby the accused suffered a serious and grave miscarriage of Justice.

• (a) "That the accused is no idiot."

• (b) "The accused is a reasonable man."

3 As regards the defences of Insanity and Automatism the learned trial judge erred in Law in directing the jury that the proof required to estabish the defence of Insanity is the same as is required to establish the defence of Automatism.

4 That the Committal proceedings by the Learned Magistrate were a nullity and therefore void, in that

• (a) The said proceedings were not held in Open Court. Section 41 of the Cap. 45 Vol.1 of page 406 has a cassus omissus, leaving the Learned Magistrate no alternative but to apply Section 5 of Cap.45

• (b) The accused was not informed of his right to call witnesses in the manner required by law. It is respectfully submitted that the said Preliminary Proceedings were therefore incomplete, the said Committal Proceedings and the said Trial were all null and void, contrary to the auditer alteram partem Rule.

5 That the learned trial judge in error,

• (a) Failed properly and/or adequately and/or correctly to direct the Jury on the Burden of Proof required for the Defence of Automatism, and did further erroneously refer to the said Defences of Insanity and Automatism, as one and the same …………… Page 115. L. 26, to page 116. L. 1–2.

• (b) P. 113-Line 31 to P. 114, Line 1 to 26 That again in error, the Jury were confused by the said directions on Automatism and Insanity by equating the Burden of Proof for Insanity as the same Burden and standard required for Automatism, whereby the Appellant suffered a grave and serious Miscarriage of Justice. P. 114, Line 27, to P. 115, Line 1 to Line 25.

6 That the Learned Trial Judge failed properly and/or correctly

to put the case of the Defence to the jury in that,

• (i) No directions were given as to what verdict should be returned on a finding of

  • (a) Automatism; or

  • (b) Insanity; or

  • (c) Diminished Responsibility; or

  • (d) If in doubt on provocation;

• (ii) On provocation, in the light of (a) the force used in the circumstances of the case, (b) the question of cooling off time, in relation to the facts.

• (iii) For the reasons above at 5(c)

7 That the verdict was unreasonable and unsafe and cannot be supported by the evidence, in that

The appellant, aged 28, a native of Saint Lucia, arrived in Tortola in September, 1976, and stayed at the premises of his sister, Julietta Gaston, at Major Eay, Bast End.

The deceased, Evelyn Rabsatt, age 67, lived near to the home of the appellant's sister on premises near to a grocery shop which she owned and which comprised a pool room and a kitchen on the bottom floor. The appellant was in the habit of going to the shop to look at television and to play pool and the deceased kept her money in a wooden safe on her premises.

On 19th January, 1977, at about 7.10 a.m. the witnesses Edward Wheatley and Ethleen Thomas saw the appellant and the deceased speaking to each other; at the time he was on the main road and she was in her garden.

The appellant was seen to return in the direction of his sister's home. Wheatley heard the deceased ask the appellant "Is there anything I can help you with my dear?" to which he replied "No thanks". At about 8.15 a.m. Betty Adams saw the appellant running from the main road towards his home. He was wearing a blue short sleeved shirt brown pants.

At about 8.35 a.m. Ethleen Thomas entered her mother's shop by the pool room whore she noticed two fresh drops of blood by the door. She rushed into the grocery where she heard someone groaning. She then looked into the kitchen where she saw her mother sitting on the floor with blood all over her. There was a bit of string tied through her mouth at the back of the neck and her tongue was hanging out.

At about 9.30 a.m. she was seen by Dr. Smith. There wore several outs over her body and she was dead. The body was removed to the hospital and on the 20th January, 1977 Dr. Smith performed a post mortem examination on the body of the deceased. He stated that in his opinion death was due to acute blood loss from the wounds.

The doctor observed the following injuries: -

He gave as his opinion the time of death to be 9.15 a.m. In the opinion of the doctor the deceased was attacked from behind and a fair amount of force had to be used in causing the injuries which were all clean cut and caused by a sharp instrument.

At the shop of the deceased there was blood on the floor and papers were strewn on it, the wooden safe was ramsacked and there were coins in the hat of the deceased which was on the floor. A bottle of stout and dentures belonging to the deceased were found under the kitchen window outside.

Later that day a blue jersey and brown trousers which the appellant had been seen wearing earlier were found behind the latrine of one Allan Brown, a neighbour of Julietta Gaston. A kitchen knife was found in one of the trouser pockets.

The police went in search of the appellant whom it was known had previously attempted to board a Prinair aircraft without baggage at about 10.15 a.m.

At about 4 p.m. he was found by the Police hiding in a tree at Beef Island and escorted to the Police Station.

On the following day he made a voluntary statement in writing to the Police.

In his statement to the Police, he said inter alia –

"I am now saying that it was on Thursday, the day after we had looked at television, that she asked me who was the last person I saw went into the shop, and not the 17th January, 1977 as I stated above. She told me that she had served someone and gave the same person change from the bag that had the missing money, before I had reached to watch television. She said the only person she believed took the money was me and I told her I was not crazy enough to do such a thing. On Monday 17th January, 1977, I Was again watching a game of Basket Ball at the Major Bay Primary School and Miss EVELYN was standing at her gate leading to her shop. She called me and I went. She told me in a loud voice that the money was a mystery to disappear. She also said that if I had the money I must gave it to her because she worked hard on the peanuts for that money. I told her that I did not take her money and I did not have it. She then told me that she was going to put obeah on me and then put me in the hands of police. I told her to go ahead and I returned to watch my game, and she went home. Other people told me that if I had Miss EVELYN'S money I must gave it to her. I do not know the names of the people who told me so. I was annoyed that she was saying that I had taken her money. It was on Tuesday 18th January, 1977 that an old man, name unknown, told me that I must gave Miss EVELYN her money, if I took it. I told the old man that I did not know why Miss EVELYN has to be scandalizing my name like that.

At about 9.00 a.m. on 19.1.77 I took up my sister's kitchen knife which is a folding steel knife and I put it in my RIGHT FRONT pants pocket with the intention to go down to Miss EVELYN shop to to buy a stout and then to go up the hill to cut a bush broom. I took a piece of white rope from my clothes line in the house to tie the broom. I used my sister's knife to cut the piece of rope from my clothes line in my room. I walked down to the shop. I did not meet anyone on my way. I met Miss EVELYN in the shop at the back room. I took a stout from the frigerator in the pool room as I normally do and I stayed at the door facing the room that she was in. I stretched out my hand and gave her a dollar for thes tout and I told her to keep the change and that I would return for another drink. Her stout cost 70¢. She then asked me if I had brought back her money and I asked her what money she was talking about. I asked her if she saw rae took her money and she said NO, and I then asked her how she was expecting me to bring it back. She then said that she did not see me take it but she believed that I took it and that she was going to put obeah on me and then the Policeman. I then told her that she was determined to do me wrong things when I did not take up her money. She was then standing in the same room I met her in with my dollar in her hand and I was standing in the same bar-room that I was in all...