Osborne v R

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Bishop, J.A.
• Judgment Date: 31 October 1984
• Neutral Citation: MS 1984 CA 2
• Docket Number: Criminal Appeal No. 5 of 1984
• Date: 31 October 1984

Osborne

and

R

Robotham, C.J. Bishop, J.A. Williams (Acting), J.A.

Criminal Appeal No. 5 of 1984

Court of Appeal

Criminal Law - Appeal against conviction — Murder

Held: That there was no misdirection by the trial judge, nor was the finding of guilt unsafe or unsatisfactory or against the weight of the evidence. Appeal dismissed.

Facts: The appellant was convicted of murder. He appealed against conviction on several grounds of misdirection by the trial judge and on the ground that the finding of guilt was unsafe and unsatisfactory and against the weight of the evidence.

Bishop, J.A.

1 At the February Assizes, William Stafford Osborne was tried for the offence that he, on the 15th December 1983 at Brim's Ghaut, murdered John Osborne. He was convicted and sentenced to death by hanging.

2 He has appealed against the conviction on the grounds of misdirection by the trial judge, and that the finding of guilt was accordingly unsafe and unsatisfactory and is against the weight of the evidence. He abandoned the other ground, namely, that the trial was not conducted fairly or was conducted in such a way as to lead to prejudice in the minds of the jury.

3 William Stafford Osborne and John Osborne were brothers and at the time of the incident that resulted in the latter's death, they had enjoyed a relationship which their 15 year old sister Henrietta regarded as good. The former lived at a place known as Gerald's (or Gerald's Bottom) with his mother Louisa Osborne, his father Daniel Tuitt and his sister Henrietta Osborne. John Osborne lived at St. Peters.

4 About 1 ¹/₂ to 2 miles away from Gerald's there was a pasture at Brim's Ghaut part of which was used by Louisa Osborne and her two sons, to pasture their sheep, goat and cattle and to provide firewood. William Stafford and his mother used an area which was fenced and John used an adjoining area which was also fenced, though entry could be gained from one fenced area to the other, without difficulty. Sometimes the animals strayed from one area to the other and became mixed, giving rise - occasionally - to quarrels. It would seem also that John Osborne did not approve of his brother entering and cutting firewood from the area used exclusively by John Osborne.

5 On Thursday 15th December 1983, near mid-day, John and William Stafford were in the vicinity of the fenced areas and a quarrel developed between them. The eventual sequel to the quarrel was the death of John.

6 The witnesses called by the Crown testified about the events before and after - as no one saw when - the injuries were inflicted upon John. Two persons - the accused and the deceased - were involved. One of them was dead, killed by the hand of the other. There was no dispute whatever that some of the injuries inflicted upon John Osborne were severe or that they extended over parts of his body other than his right arm. The evidence of Doctor Cooper showed injuries to the left ear lobe, the throat, the left shoulder, the abdomen (in the region of the umbilicus) the scalp, and the right arm. So far as the last mentioned was concerned there were on the upper part, three large incised wounds each about three inches wide. Two were on the inner aspect and one on the outer aspect. There was a complete fracture of the humerus; there were numerous torn muscles, several median and ulna nerves and partially severed brachial artery; the biceps muscles were cut, as were the cephalic vein and radial nerve.

7 Henrietta Osborne said that while walking towards home in the company of her friend, she heard her brothers quarrelling. She enquired of Stafford what had happened and he explained that John had hit him on his shoulder with a stone and ordered him out of his (John's) fenced area. Stafford also said that he was going to tell his mother and that he was not going “to take the stone lick”. Then, according to Henrietta, the quarrel continued and when she reprimanded John for hitting Stafford with a stone, John took up a bigger stone and threw it at her. Stafford then reprimanded John and John threw another stone at Stafford who ducked and avoided it. It was Henrietta Osborne's testimony that while still walking on her way home in the company of her friend Helen Kirwan, she saw Stafford walking behind them and John walking behind him - all of them going in the same direction. Then Stafford stopped, sat on a stone and advised her and her friend to continue on their way. They did so, with the friend, Helen, walking quickly and Henrietta walking slowly behind her. After walking for some distance, Henrietta looked back but she did not see her brothers. She began to retrace her path towards the spot where she had left Stafford. She met him as he was walking towards her, carrying his cutlass which was blood stained. She asked him what had happened and he replied “go ahead and see”. She walked on a little further and she saw John lying in the pathway with “a lot of cuts”. She turned back and caught up with Helen and Stafford as they walked towards home. On getting near home, Helen asked Stafford what had he done to John? Did he kill him? Stafford said No, and they continued on their way. At home, Stafford told Henrietta to tell his father and let him go for John. Then the father enquired what happened and Stafford replied ‘let they get the police and go for John’.

8 Clearly the evidence given by Henrietta Osborne gave background and provided some indication of the mental attitude of her brother Stafford before and immediately after the incident, without assisting with the facts of the actual infliction of the injuries.

9 Helen Kirwan, 25 years old, admitted that she was the friend of John and of Stafford though she declined to say whether she was the latter's girlfriend or not. Her evidence supported substantially the description given by Henrietta Osborne and in some respects she was able to recall more detail than was Henrietta. When she told of the quarrel between the brothers she said that among the things said by Stafford to John was, that if he - John - was looking for trouble he'd better go home and that he - Stafford - was not looking for any trouble. The witness also said in evidence:

“I turned around and said to the accused let us go home. He said go ahead, he is coming. The accused went on a stonewall and sit down. I went down. When I went some distance I saw the accused running down a little track. I ran down and he stood up by the Ghaut …… When he stood up by the Ghaut I saw blood on his cutlass. Then we all went towards home. When we reach a little further I ask him if he kill John. I asked him so because I saw blood on his cutlass. He asked me if I am frighten. I heard him say he don't believe he is going to use his right hand again. The accused went around the road. I and Molly went up a hillside. I went by the accused home and when I went there he was there sitting down. I went home.”

10 Helen Kirwan's evidence assisted with the frame of mind of William Stafford and it showed what could have been his intention when he used the cutlass.

11 Further statements were attributed to William Stafford (herein also referred to as the appellant) by another sister of his and by a labourer who admitted that for a couple of years prior to the incident he and Stafford were not on speaking terms.

12 Rosanna Osborne explained that she went to Gerald's Bottom and at about 1.15 p.m. the appellant came there and said to her: “See blood on my cutlass, call the police”. She asked what had happened and he explained that “he chop John on his arm”. He also said that he was looking for wood and “John came and threw stone on him to knock him down”.

13 James Feton the labourer gave evidence that he overheard “the oldest sister” ask Stafford “what happen, you chop John?” To which he replied: “Wha' happen? You think me a stop there and let John chop me up?” and also: “All me know, me left one at Brimm's Ghaut and if all you want him go for he”.

14 Like the other statements attributed to the appellant these statements from the witnesses, if accepted, would have assisted the jury in deciding upon the facts and circumstances including the intention of the appellant.

15 John Douglas, Station Sergeant of Police described three separate occasions when statements were made to him by the appellant.

1. At Gerald's Bottom

16 The Sergeant went to the home of the appellant after the matter was reported and he had seen the body of John Osborne. He told the appellant that he was enquiring into a report that John Osborne had been wounded with a cutlass by him (i.e. the appellant) and that John. Osborne had died. Then the Sergeant cautioned the appellant who said: “He dead. He hit me with a stone and me chop him with me cutlass on his right hand to make sure he ain't use it again.”

17 Then they went in search of the cutlass at Brimm's Ghaut. The cutlass was recovered and they moved on a further 380 yards or so.

2. At Bull Hole.

18 Here, the appellant told Sergeant Douglas “I was down here cutting wood and… …. John Osborne come and said “go out! you think me gone home, you a do wha' you like”, and then the Sergeant said this:

“He said the deceased fired three stones at him and he ducked them out. The...