Bradshaw v R

• Jurisdiction: Saint Kitts and Nevis
• Judge: Glasgow, J.
• Judgment Date: 28 April 1976
• Neutral Citation: KN 1976 CA 1
• Docket Number: No. 1 of 1979
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 28 April 1976

Court of Appeal

Lewis, C.J., St. Bernard, J.A.Peterkin, J.A.

No. 1 of 1979

Bradshaw

and

R.

Appearances:

D. Byron for plaintiff

C. F. Henville for defendant

Criminal law - Appeal against Conviction — Smuggling goods.

Facts: The appellant was charged with smuggling goods contrary to section 95 of the Trade and Revenue Ordinance, cap. 258. The appellant was caught by a policeman when he and the captain of the boat in question were about to land cargo after hours without permission from custom officers. Whether this action constituted an attempt to defraud the revenue.

Held: That the intention on the part of a person to defraud the revenue in these could not be easily proved, since the cargo was still in the bonded area when the policeman made his appearance. At most the circumstances amounted to suspicion. Appeal allowed.

Glasgow, J.

1 The plaintiff is an infant and sues by her mother as next friend. It is alleged in the Statement of Claim that on the 14 ^th January 1972 the plaintiff was walking on the sidewalk at Crab Hill, Sandy Point, when she was struck and knocked down by motor car P 1501 owned anal driven by the defendant. It was further alleged that the matters complained of were caused by the negligence of the defendant, and that by reason of the matters aforesaid the plaintiff suffered pain and injury, loss and damage. The plaintiff gave particulars of the alleged negligence and injuries.

2 The defendant's Statement of Defence reads as follows: –

• “1. As to paragraph 2 of the Statement of Claim the defendant admits that on the 14 ^th day of January 1972 the plaintiff was struck and knocked down by motor car P–1501 owned and driven by the defendant. The defendant denies that the plaintiff was walking on the sidewalk when she was knocked down. The defendant states that the Plaintiff was running across the road without making sure that the road was clear.

• 2. As to paragraph 3 of the statement of claims the defendant denies that the accident was caused by the alleged or any negligence of the defendant. It was caused or contributed to by the negligence of the Plaintiff.

  PARTICULARS OF NEGLIGENCE

  The Plaintiff ran across the road from behind a parked vehicle without making sure that the road was clear.”

3 There have been conflicting versions as to how the accident occurred. The plaintiff who was 14 years old or less on the 14 ^th January 1972, the date of the accident said in the course of her evidence in chief:–

“About 11 a.m. I left school and went by my mother at The Alley. When I left my mother I was going to the Market. I was at the side of the road near the drain. I was walking by myself. Stephanie Warner came out of her gate and spokes to me. A car was coming from down the road. The car start to sway coming down the road. I was standing right by the drain. The car came down and hit me.”

In cross-examination, the plaintiff said, among other things:–

“I never told my lawyer, that I was waking on the sidewalk when the car hit me. I was right in the drain walking going down. When I first saw the car it was by the Ground gate coming down. It was as from by the screen to where I am (74 feet). I did not move out of the way because I had nowhere else to go. I was facing the car when it struck me. Deny I was running across the road going to Stephanie with my left thigh facing the car when it struck me. I was facing Stephanie talking to her when the car struck me…I was not about to walk across the road. I see the car corning and I didn't move from where I was”.

4 Stephanie Warner, a cousin of the plaintiff, gave evidence on behalf of the plaintiff. Stephanie Walker, who lives at The Alley, Sandy Point, is old enough to be the plaintiff's mother. In examination in chief, Stephanie 1Warner said, among other things:–

“On 14 ^th January 1972 at about 11a.m. I came from my yard on the upper side of the Island main road at The Alley, Sandy Point. As I looked down I saw Arlene stepping in the drain on the lower side of the road the side opposite to me. I spoke to her: She continued walking in the drain going towards Sandy Point. I remained on the upper side of the road. When Arlene reached by the home of a girl named Gloria she bend over and pull up her shoe. She was still facing Sandy Point way. I saw Defendant's car coming from Sandy Point direction towards Basseterre. The car was not straight. It was going to the same spot that Arlene was going. Arlene was on her left hand side of the road going to Sandy Point. As I saw the car approaching her, as I went to call out the car hit her. The car didn't stop. It keep going. It stop a distance as from here to the outer part of the door outside. (80 feet). Arlene was on the sea side of the road. I was on the mountain side of the road”.

In cross examination, Stephanie Warner said, among other things:–

“Arlene did not stand up to speak to me: She kept walking. Arlene walked a distance as from where I am to the white post (58 feet) before the car hit her. Arlene was not facing me or talking to me when the car struck her. And I came out of my gate I started walking in the direction of Sandy Point. There was one car parked on the mountain side of the road and the accident occurred on the sea side of the road opposite Mr. Isaac's place. Defendant would have had to pass on the sea side of the road to miss the car that was parked near Isaac's place…When I say I remained on the upper side of the road I mean I was still walking on the upper side of the road. Arlene was not still bending over when the car struck her: She was walking.”

5 The “girl named Gloria” mentioned in Stephanie Warner's evidence, is none other than Gloria Da Costa, another witness for the plaintiff. In answer to questions asked her in examination in chief, Gloria Da Costa said, among other things:–

“I know Arlene Warner, On 14 ^th January, 1972 about 11a.m. I was at my window, standing. There were two houses between Arlene's house and mine. I saw Arlene Warner going to Sandy Point direction, walking. She was walking in the drain close to a side wall. As she going along I saw Defendant's car come towards her from in front. He lashed Arlene with the car. Arlene went up and came down on the front of the car — the bumper, then under Antonio's house, which was a neighbour to me. Arlene was on the sea side of the read. Antonio's house is on the sea side of the road. I came front my bedroom window into my front room. By the time I reach the drawing room I heard something hit on my drawing room door. It was Defendant's left car lamp. It got smashed. I saw piece of lamp on the step and piece in my yard. After the crowd gathered I went outside. I saw Defendant's car by Beulah Saunder's house. It was at a standstill. I did not go close to the car”.

In cross-examination, Gloria Da Costa said, among other things:–

“Antonio's house is about five feet (indicated) from where Arlene's mother lives. Arlene was found on the ground about five feet from where her mother lives. The car struck Arlene when she was from Antonio's house a distance as from that partition to the witness box (74 feet). I know where Stephanie Warner lives. She lives opposite Antonio's house. I saw the car strike Arlene. I don't remember which part the car hit Arlene”.

6 In answer to questions put to her by the Court, Gloria Da Costa said:–

“Before the accident at about five to eleven, I saw Stephanie Warner standing on the upper side of the road, opposite Antonio's house. She was speaking to Arlene. Arlene was on the side of the road standing. She had a shoe in her hand. Stephanie was not talking to Arlene when the car struck Arlene”.

7 The defendant's account of the accident differs from that of any of the plaintiff's witnesses. The defendant stated in the course...