Supreme Court
6th November, 1978
Staine, J.

Murder - Submission by counsel that case be withdrawn from jury - Whether prosecution has failed to prove any essential element in the charge.

SUBMISSION ON WITHDRAWING CASE FROM JURY

In this case the accused in charged with the murder of Martin Chicken on the 11th day of February, 1978. At the conclusion of the case for the prosecution Counsel for the Defence, Mr. D.O. Barrow, moved the Court to direct and the jury to return a verdict of not guilty on the ground that there is no satisfactory evidence upon which to convict.

This submission follows the line to be adopted by a trial judge, suggested in R. v. Young (1964) C.A.R. 292 at p. 296. The dictum in Young's case is contained in the last few sentences, and was not a ratio decidendi as the Judgment was merely obiter dicta. Nevertheless, being dicta of the Court of Criminal Appeal, respect must be paid to it, having regard to its source. However, this being a trial upon a capital charge and before a jury of twelve, whose verdict upon the charge is required to be unanimous, I have considered it prudent to reserve my decision and reduce it to writing, giving the reasons I consider applicable.

At the close of the Prosecution's case, three witnesses had given evidence for the Prosecution. One Dr. Castillo Von Heinkel, can, for the purposes of this decision, be regarded as not having given evidence which is the subject of any controversy, particularly since he was not cross-examined by the Defence.

P.C. Zetina told the Court that on the evening of 11th February, 1978, the accused accompanied by one Frederick Swan had come to the Police Station at Columbia, and Swan had shouted that the accused had a report to make, whereupon the accused told P.C. Zetina that he killed his brother-in-law. P.C. Zetina said he asked the accused how he knew that his brother-in-law was dead; the accused said he had chopped his brother-in-law, Martin Chicken on the throat. He also noticed the accused was bleeding and had swellings.

According to P.C. Zetina, the accused had also told him that he, the accused, had been husking corn when Martin Chicken came and hit the accused on the head with a stick. The accused, thereupon, told his father to be careful of that man, and said he left running from Columbia through a short cut, carrying his machete, with the intention of going to report the matter to the police at Columbia. The deceased, he said, caught up with him in the short cut, began hitting him with the stick again, and the accused, unable to take any more, chopped the deceased with the machete, thus causing his death.

Thereafter, P.C. Zetina said he left together with Swan and the accused and went to Crique Trozo where the accused lived, and in a road referred to as a "picado" road, P.C. Zetina came upon the dead body of Martin Chicken, lying in the road, face upwards, with wounds on his neck, face and head.

P.C. Zetina then said he asked the accused where was the machete and he said the accused took him to where the machete was, and it was stuck in what he called the "taceda" of a thatched house. P.C. Zetina said he took possession of the machete and, taking the accused and his father with him, he left for Punta Gorda.

Arriving in Punta Gorda, he reported the matter to A.S.P. Lucas, who, along with the sergeant and a police constable, left with P.C. Zetina and Pedro Che for Crique Trozo. The accused was not taken a long.

They arrived in Crique Trozo and removed the body on a stretcher and took it to Pedro Che's house. Then Pedro Che handed P.C. Zetina a piece of stick he picked up from between the houses. P.C. Zetina said he had enquired about the stick the accused had told him about. P.C. Zetina then left for Punta Gorda, taking the dead body of Martin Chicken and the piece of stick.

The evidence of A.S.P. Lucas does not add materially to this evidence, except in so far as it describes the members of the Che family who lived in Crique Trozo, and some of whom were questioned in connection with the investigation. One other salient piece of evidence, which came from P.C. Zetina, was that Martin Chicken, in life, was a man given to violence, particularly when he was drinking.

Mr. Barrow has attacked this evidence. He said that P.C. Zetina's evidence disclosed that the accused admitted killing Martin Chicken. But he argued that the accused had given a reason for the killing: self defence. Further, the deceased was, by P.C. Zetina's evidence, a man of violence, particularly when he was drinking, and P.C. Zetina did see injuries on the accused which bear out the accused's contention that he had acted in self-defence. Moreover, argued Mr. Barrow, A.S.P. Lucas freely admitted that anyone could have removed the stick from beside the body, and there was no onus on the accused to explain how the stick disappeared. The Prosecution had not proved that the harm was unlawful. In fact the only evidence in the case was that the harm was lawful. That being so, no reasonable tribunal could properly convict the accused and the Court should direct a verdict of acquittal.

Such evidence as there is of the killing comes from the accused through the lips of P.C. Zetina. In other words, this is an admission, and the confirmatory evidence which the law requires, is the finding of the body on the road with injuries on the neck.

One fact must however be borne in mind. An unsworn statement voluntarily made by an accused person to the police always forms evidence in the case against him, but is not itself evidence of the truth of the facts stated. In so far as the statement amounts to an admission, that is an end of the matter, but if the accused gives and explanation the statement is not evidence of the truth stated therein. In this connection I would refer to the case of Storey and Anwar (1968) 52 C.A.R. 334. Mr. N. Dujon Counsel for the prosecution has referred the Court to R. v. Donaldson (1976) 64 C.A.R. 59 which is authority for the proposition that a distinction has clearly to be made between statements of truth and statements entirely of a self-serving nature. So the intent that the statement contains admissions, the jury may rely on the admissions as truth of the facts stated. But where the admission is coupled with qualifications then, if the statement is not on oath, it is for the jury to consider the qualifications favourable to the accused and determine the truth or otherwise.

In the present case, the admission would be the admission that the accused had killed Martin Chicken by chopping him. The qualification would be that he had done so with what might amount to justification and the statement not being on oath, it would be for the jury to determine the truth or otherwise of the qualifications. That being so, it is not for the Court to consider whether or not the harm was unlawful or lawful, since the admission contained in the accused's statement, may be considered as true by the Court. Therefore, I cannot say that Prosecution has failed to prove any essential element in the charge. If they had, it would be one feature which would enable me to withdraw this case from the jury. See the case of R. v. Barker (1975) to which I have been referred and a note of which is contained in November (1975) C.L.R. Note 305 and which is reported only in The Times (London) for November 13, 1975.

Apart from a strictly legal consideration, there are many matters of fact which Mr. Barrow has adduced in his submission and extrapolated as determined facts, but which, in my opinion requires the consideration of the jury. First, on the matter of the stick the jury might well want to ask if the accused had been hit by Martin Chicken, and if so, is the stick in Court really the stick used by Chicken? It was never shown to the accused, the Pedro Che has not given evidence. If a stick was never used, then arguments about its disappearance are premature.

Even if the accused's story about being beaten with a stick is true, the jury might have to consider whether this merely amounts to provocation, which is not a complete defence, or self defence, which is total answer to the charge of murder. If the doctor's evidence is accepted, it might be that the jury would have to ask whether the accused if he caused the five injuries the doctor described, was really acting in self defence or whether he had used excessive force. Further, the only evidence that the injuries which P.C. Zetina observed on the accused were that of P.C. Zetina, and the Court, even if it accepts they were caused by Martin Chicken, is unable to say that was reason for causing harm with justification. With the law as it is, and in the face of undetermined facts, I am unable to say that there is any reason for me to direct the jury to return a verdict of acquittal. To do so would be to usurp their functions.

For these reasons, I rule that the Court sees no reason for withdrawing this case from the jury.

----------OO-----------