Samuel Greenaway Appellant v The Queen Respondent [ECSC]

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: DAVIS. C.J.,CHIEF JUSTICE
• Judgment Date: 13 October 1978
• Judgment citation (vLex): [1978] ECSC J1013-1
• Docket Number: CRIMINAL APPEAL NO. 6 of 1978
• Date: 13 October 1978

Between:

Samuel Greenaway

Appellant

and

The Queen

Respondent

[1978] ECSC J1013-1

Before:

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

The Honourable Mr. Justice Peterkin

The Honourable Mr. Justice Berridge (Acting)

CRIMINAL APPEAL NO. 6 of 1978

IN THE COURT OF APPEAL

Appearances:

J. Kelsick for Appellant, D. Brandt with him.

Attorney-General for the Crown, K. Allen with him.

DAVIS. C.J.

1 delivered the Judgment of the Court:

2 The appellant, Samuel Greenaway was on the 8th March 1978, convicted of the murder of William Henry Greer and sentenced to death by hanging. He now appeals against his conviction on the following grounds:—

"1. The Learned Trial Judge misdirected the Jury by failing to give adequate directions as to the Prosecution's burden of proof on the question of provocation having regard to the evidence.

2. The Learned Trial Judge misdirected the Jury by failing to direct them at all or to direct them in clear and unambiguous terms that they were entitled to conclude upon a consideration of all the evidence adduced by the prosecution that the act which caused the death of the deceased person was provoked even if they rejected the statement made by the accused."

3 The facts are briefly that one Dorothy Greenaway, a school teacher, who lives at Fogarty in the island of Montserrat uses a path which leads from the main road to get to her home.

4 On Thursday 9th June, 1977, when she tried to drive her car along the path to her home she found that the road was blocked.

5 It would appear that she solicited the help of Jack Hogan and William Henry Greer to clear the road for her. Accordingly, on the 11th June, Jack Hogan and the deceased, William Henry Greer, went to the area about 6 a.m. and began clearing the road using a hoe and a shovel.

6 While they were clearing the road the appellant came up and said "Good morning." They replied "Good morning" and he then asked who sent you all to move these stuff. They replied that teacher Dorothy had asked them to do so because she could not get to her place.

7 The witness Jack Hogan then went on to state as follows:

"He said you all know this land is mine. I asked him how the land is yours and the Govt. make the road. He said the land was his and we have no right to to be there. Vernon explained that the road would come in useful for him and others so he can drive straight in with a box to his house.

I continued working while accused and Vernon were talking. The accused began moving backwards and forwards as if he was getting roused. Vernon was still throwing away the stuff. I told Vernonto watch him. Vernon said don't worry with that—he don't mean anything. Accused could have heard. Then a few seconds after I heard Vernon say "O God, O God" and then I saw blood spouting after accused pulled out the knife. At that time Vernon was bending over moving the stone.

The knife was about 6 in. long and it had a cross piece by the handle. It looked like a jack-knife. The centre part is thick and both sides have an edge. After he pulled out the knife accused trotted away to his home. I have never seen the knife again. I never saw it before that day. I did not see it on accused when he greeted us.

Vernon had no other conversation with the accused apart from saying about the usefulness of the road. Apart from that, Vernon had no argument with accused. Vernon did nothing at all to the accused on that day.

When accused ran off, I took up a stone, a good sized one, and fired it at him. I threw 2 stones. Accused went past his house to the bushes. He disappeared from my view."

8 The deceased was taken to the Glendon Hospital where he died next day. Dr. Kothari who performed an emergency operation soon after his arrival at hospital stated,

"At about 9.15 a.m. his pulse and blood pressure improved when we decided to take him to the theatre and see what had happened in the abdomen.

At about 9.30 a.m. he was anaesthetised with a transfer incision across the abdomen. The first thing noticed was bright red blood coming out of the cut in the interior surface of the liver. That cut was about 1cm long. This bleeding was stopped by putting a suture of cat-gut with a gauze over the cut.

On further inspection, the cut had gone through the liver so there was a cut on the other side, which was closed with another cat-gut suture.

Further inspection showed that there was a cut on the upper surface of the upper border of the pancreas and a large haematoma on the upper surface of the pancreas and on the lesser curvature of the stomach. All the blood vessels on the upper border of the pancreas and the lesser curvature of the stomach were sutured and the bleeding was controlled."

"It was a single wound that had gone through. The instrument used must have been a sharp knife with a blade about 1cm side. The depth of penetration must have been about 6–8 cm."

Concerning the wound the doctors evidence was,

9 The patient never recovered. He died next day about 11.55 a.m. A post mortem examination was performed on the 12th June by Doctor Wooding and Dr. Kothari.

10 Dr. Kothari stated as his opinion that death was due to shock and anuria due to extensive haemorrhage from a stab wound involving the liver and the pancreas.

11 Linda Fergus, aged 15 years, stated that on the 11th June at about 6.30 a.m. while coming from the Post Office walking along the main street towards Fogarty she saw the appellant who asked her to go and phone for his sister. She did so and on returning to his yard she met the appellant who told her that he was waiting for the police because he had stabbed Vernon and he knew they were going to lock him up. The deceased was also known as Vernon. She went on to say that when the appellants sister arrived he said to his sister that Vernon and Jack came to move the stones and he asked them what they were doing and he and Vernon were fighting and then he stabbed him. He also said to his sister that Jack Hogan hit him on his leg with a stone.

12 At the trial the appellant elected to remain silent and called no witnesses but on 11th...