R v Hugh Anderson

• Jurisdiction: Jamaica
• Judge: HARRISON. J.A.
• Judgment Date: 20 December 2001
• Neutral Citation: JM 2001 CA 76
• Judgment citation (vLex): [2001] 12 JJC 2005
• Court: Court of Appeal (Jamaica)
• Date: 20 December 2001

IN THE COURT OF APPEAL

BEFORE:

THE HON MR. JUSTICE DOWNER, J.A THE HON MR. JUSTICE HARRISON, J.A THE HON MR. JUSTICE COOKE, J.A. (Ag.)

REGINA

v

HUGH ANDERSON

CRIMINAL LAW - Murder - Defence of accident - Whether accidental discharge of bullet

HARRISON. J.A.

1 This appellant was convicted at the Circuit Court Division of the Gun Court on March 11, 1999, of the offence of murder of one Everton Nembhard on March 28, 1997. He was sentenced to imprisonment for life and it was ordered that he be not eligible for parole before he had served thirteen (13) years.

2 The facts are that Donovan Williams o/c Cat, the principal witness for the prosecution was at a dance at Paradise Road in the parish of St Andrew, on March 28, 1997, when at about 11:45 p.m. the appellant also known as Carey called him. Going towards the appellant, he was 4 feet away when the appellant said to him "Cat, you and Baby Don calling mi name." The deceased, called Baby Don, was then about 15 yards away, also on the dance premises. The appellant then pulled a gun from his pocket and said that he was going to kill him the witness, and Baby Don. The witness Williams said "What you a do," whereupon the appellant shot him in his left chest and he fell to the ground. The appellant then went to where the deceased, Baby Don was and fired 3 shots shooting him, the deceased, who fell to the ground. The witness was taken to the Kingston Public Hospital where he was admitted and remained for about one week. He made a report while there. Cross-examined, the witness said that when he was shot Baby Don was not behind him, nor was anyone else. He denied that the deceased was shot "... as the gun went off."

3 Dr. Ere Sesaiah, a forensic pathologist performed a postmortem examination on the body of Edward Nembhard o/c Baby Don and found a gunshot entry wound without gunpowder markings, to the right occipital area of the head i.e. the right back. The bullet travelled through the bone and into the brain, causing fracture and damage and lodged at the base of the brain. The cause of death was due to that gunshot wound.

4 Det. Cpl. Lenworth Mellis received a report on 28 ^th March, 1997 and went to Paradise Road district, was told something and went thereafter to the Kingston Public Hospital. He saw the witness Williams, bleeding from a gunshot wound to his chest. He attended the post mortem examination performed on Nembhard by Dr. Sesaiah from whom he received the bullet removed from the body. He prepared warrants, and subsequently arrested the appellant for the murder of Everton Nembhard o/c Baby Don. When cautioned the appellant said, "Boss, do anything you want do, mi already talk to mi lawyer." Cautioned further the appellant said:

"Mi want fi si a who can give the evidence against me."

5 The appellant gave evidence in his defence. He said that at the dance he was called by the witness Donovan Williams and he went to him. He, the appellant then had a piece of chicken in his left hand and two bottles of Guinness drink in his right hand. Donovan Williams pulled a firearm from his pocket and holding the barrel he stretched the firearm towards the appellant. The handle was pointing toward the appellant and the muzzle towards the witness Williams. The appellant touched the said handle with some of the fingers of his right hand and the firearm was discharged. He heard an explosion, Donovan Williams fell and the appellant ran. The appellant denied that he threatened to shoot the witness Williams, and the deceased. He said that he did not shoot Williams nor the deceased. He did not have a gun that night nor did he fire a gun. He denied that he used the words, which he was alleged to have used to the police on arrest. In cross-examination the appellant denied, at first that he touched the firearm and then he admitted that he touched the handle. He said he did not grip the gun and then said he touched it with his fingers, but was unaware of how many. He said he did not know who pulled the trigger and then said that the trigger could have been pulled by him but it would have been by accident.

6 Two witnesses were called for the defence. The witness Junior Brown stated that he was at the dance and saw the witness Donovan Williams, Cat, firing a gun "up in the air" while the music was playing and then he heard Cat say that he got shot. He did not see the deceased. He said that he left the dance at about 11.00 o'clock. The shooting of Donovan Williams and the deceased is alleged to have occurred at about...