Berthill Fox Appellant v The Queen Respondent [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Judge: SATROHAN SINGH JA,SATROHAN SINGH,Justice of Appeal,ALBERT REDHEAD,ALBERT MATTHEW
• Judgment Date: 10 May 1999
• Judgment citation (vLex): [1999] ECSC J0510-5
• Docket Number: HIGH COURT CRIMINAL APPEAL NO 4 OF 1998
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 10 May 1999

[1999] ECSC J0510-5

IN THE EASTERN CARIBBEAN COURT OF APPEAL

Before:

The Honourable Mr. Satrohan Singh Justice of Appeal

The Honourable Mr. Albert Redhead Justice Of Appeal

The Honourable Mr. Albert Matthew Justice Of Appeal (Ag)

HIGH COURT CRIMINAL APPEAL NO 4 OF 1998

Between:

Berthill Fox

Appellant

and

The Queen

Respondent

APPEARANCES:

Dr. Henry Browne for the Appellant

Mr. Theodore Guerra Q.C., Mr Dennis Merchant with him for the Respondent

JUDGEMENT:

SATROHAN SINGH JA

1 On May 22, 1998, the Appellant was convicted by a mixed jury of nine before Neville Smith J. of the murders of his 20 year old fiancee Leyoca Browne and her mother 36 year old Violet Browne [Babs] at the latter=s place of business in St. Kitts on September 30, 1997 around 10:15am. He was given two death sentences. Leyoca Browne died from a gun shot injury to her chest and abdomen. Violet Browne died from a gun shot injury to her head.

2 The appellant=s case was that having returned from an overseas trip, he went to retrieve his gun and pouch from his fiancé who was at her mother=s place of business. His fiancee gave him a friendly greeting. Her mother however did not follow suit. Instead she appeared in a hostile manner with his gun in her hand in the air. In his attempt at retrieving his gun from her, a struggle ensued and the gun wentoff once injuring his fiancee. A further struggle ensued. The gun went off a second time, injuring Violet Browne. He panicked, took the gun, ran out of the shop, went to his friend Edmund Tross and told him that Leyoca and Violet Browne were shot. He handed over the gun to Tross. Tross took him to the Police. His defence before the jury was that at all times when the gun went off, it did so in the hands of Violet Browne and that at no time did he cause the gun to go off. In effect he was placing causation squarely on the shoulders of Violet Browne.

3 The case for the Prosecution was that the appellant, having just returned from his overseas trip, discovered that his fiancé might have been unfaithful to him. He sought her out at her mother=s shop and cold bloodedly murdered both of them. They led evidence from Edmund Tross to show that what the appellant told him was that he (the appellant) Ajust shot Leyoca and Babs@ (Violet Browne) and not that he said that ALeyoca and Violet got shot.@ This witness also testified that the appellant told him he Acaught Leyoca and a guy.@ Prosecution witness Leroy Isaac also testified that the appellant told him he Ajust shot two people.@

4 After the appellant made his statement from the Dock, the prosecution succeeded in an application before the trial judge to lead rebuttal evidence which purported to give the lie to the appellant=s statement that when he went in the shop, Violet Browne had the gun. The witness Edmund Tross and Julsica Wallace testified in rebuttal that at the appellant=s gym at around 10am on Saturday September 27, 1997 and 8:30pm on Monday September 29^th, 1997 they saw the appellant in possession of his gun. The alleged murder weapon was a double action blue steel snub nosed .38 special calibre revolver.

5 The appellant has appealed from his convictions and filed ten grounds of appeal. However, at the hearing of the appeal Dr. Browne only challenged thesumming-up of the trial judge on:—(1) His directions to the jury on the issue of self defence. (2) His failure to direct the jury on provocation and manslaughter, and (3) his directions to the jury on accident. The grounds of appeal that addressed the issues of automatism, rebuttal evidence, and the constitutional validity of the death penalty were not argued or pursued by learned counsel for the appellant despite their presence in his skeleton arguments. He described the summing up of the trial judge as being Aincurably bad and beyond the pale of redemption.@ I propose firstly to address the issue of self defence.

SELF DEFENCE

6 Dr. Browne submitted that the issue of self defence arose from the statement made by the appellant from the Dock. In that statement the appellant said that upon his return from England, he discovered his gun and pouch missing. He immediately went to the scene of the incident for the purpose of recovering his gun and pouch from his fiancee. There he saw Violet Browne with his gun in her hand upraised and saying >these you want.@ His fiancee got between himself and Violet. He made a grab for his gun and it went off twice, killing both his fiancee and her mother. The bottom line to his statement was that he did not fire the bullets that killed these two people, that causation was not his, but Violet=s. Mr. Guerra submitted that on these facts self defence did not arise and the trial judge was not obliged to direct the jury on this concept. It was accepted before us, that except for the trial judge dealing with the issue of self defence, that issue was not addressed by either side at the trial.

7 Although a trial judge in his summing up must deal with and direct the jury on any defence warranted by the evidence adduced at the trial, even if it is not relied on by the defence, the judge is not under a duty to give a direction and should not do soin relation to a defence, on which the defence has not relied, and which is not warranted on the evidence. [Pinto v The State (1986) 40 WIR 342]. If an accused person does not admit causation but seeks to place it somewhere else, the question of self defence would not arise. There must be an admission of the authorship of the death of a victim before an accused person can seek the benefit of self defence or for that matter provocation.

8 On the statement of the appellant upon which Counsel sought to latch self defence, the appellant has denied causation and sought to place same in the hands of Violet Browne. In my opinion, given that circumstance, the question of self defence could not arise. Also, a careful reading of that statement would show that the appellant=s sole purpose for his action was to retrieve his gun and pouch.

9 In my judgement therefore, the trial judge was quite wrong in leaving self defence for the...