Court of Appeal
Criminal Appeal No. 15 of 1981
5th March, 1982
SIR JAMES SMITH, P.
H. L. da COSTA, J.A.
A. L. STAINE, J.A.

Criminal Appeal against conviction and sentence for manslaughter - Self-defence, justifiable use of force and accident - Sections 28 (f), 29 and 33(4) and (d) of the Criminal Code - Whether there is a defence of self-defence.

J U D G M E N T

The Appellant was charged with the murder of Ann Logan on 27th December 1980. He was convicted of manslaughter and sentenced to 12 years imprisonment. He has appealed against both conviction and sentence.

On the evening of Boxing Day, 26th December, Albert Rosales had a party at his house which began about 8 p.m. and ended after midnight. Ann Logan and Eugene Thompson came to the party and entertained the other guests, playing their guitars and singing. About 9 p.m. the Appellant, Francisco Gonzales also known as Chico, came there. Eugene Thompson took exception to his presence and told Rosales either Ann Logan and he left and Chico stayed or Chico left and they stayed. The Appellant volunteered to leave and after taking a drink departed.

It was after 2 a.m. before Ann Logan and Eugene Thompson left the party. They lived together. On the way home they were accompanied by Idolly Logan until she turned to her home which was near Thompson's house. It was a moonlight night. Near their house Ann Logan and Thompson encountered the Appellant and in the incident that followed Ann Logan was killed and Eugene Thompson was severely wounded. The Appellant had no injuries. About 3:20 a.m. Eugene Thompson reported to the police station. He was taken to the hospital by P.C. Ramirez and there examined by Dr. Rao who observed Thompson had a four inch wound on the left side of his chest, a two inch wound on the left side of the neck and also two minor wounds one on the left shoulder, the other on his right toe.

About 11:30 a.m. the same day the Appellant reported to the police station accompanied by his sister. He admitted he killed Ann Logan and in his voluntary statement to the police alleged that it happened during an attack upon him by Thompson with a machete.

Thompson's evidence was that he was not armed and was attacked by the Appellant with a machete.

Thompson was the principal witness for the prosecution. His story was that as he and Ann Logan neared their house the Appellant jumped out from the side of the road swinging a machete. Thompson pushed Ann Logan behind him. He received a cut from the machete on his neck and another cut on his shoulder. He asked the Appellant "Why are you doing this, what have I done". The Appellant replied "I will kill your ass". The Appellant continued to chop at him with the machete while Thompson tried to dodge the blows. He received he said "two chops on the side". He fell down into a small ditch and the Appellant "chopped" him on his right toe. Thompson said that after he fell the Appellant attacked Ann and he "grabbed her and tripped her down". Both the Appellant and Ann fell. Thompson left to get his gun from his house. He returned to the scene with his neighbour Emmanuel. They found the body of Ann Logan on the side of the road. She was dead.

According to Dr. Osorio who conducted the post mortem, Ann Logan had two deep wounds on her right side under her chest and her left hand was completely severed from the wrist. Her lung and pleura had collapsed. In the Doctor's opinion the wounds could have been caused by a sharp edged instrument such as a machete.

There was also some evidence by Inesito Duran and Idolly Logan to support Thompson's statement that he did not have a machete. Idolly Logan also mentioned that when she had reached her home after leaving Ann Logan and Thompson on their way home, she (Idolly) heard Thompson's voice saying "Ann, Ann" and then Ann's voice saying "Chico, Chico what you do me this for". This piece of evidence was commented on by the trial judge in his summing up, and is the subject of the third ground of appeal.

The Appellant's voluntary confession to the police reads:-

"When I was coming out of my sister house that was this morning 27/12/80 about 2:00 a.m. to 3:00 a.m. This was at Mile 4 Stann Creek Valley Road. That was in the road where the Emmanuel family lives. I met Eugene Thompson and his lady was going home. I think lady name is Miss Ann. I don't know her correct name. When Eugene Thompson attacked me with a machete and his lady hug me up I was trying to get away from her because I didn't want Thompson to hurt me. Then I had a knife on me and I stab her with it. I think it was in her chest. Then Thompson went home for his gun, then I had to get away from there. I was not injured. I don't know if Thompson got injured or what. When I stab the lady she fell down on the side of the road. Both of them had a guitar each. I don't have anything more to say only that I did not have any quarrel with them and I don't know why the man attacked me with the machete. It was not when I was coming from my sister's house but when I was going to my sister's house. I threw the knife away when I crossed the Stann Creek River because it was not useful to me again."

At the trial, in his statement from the dock he said:-

"…about 2 to 3 o'clock the morning I got up, going about 5 miles the same highway. When I passed Thompson house about 5 to 50 yard I heard a noise. I did to know who they were. When I get close to them it was Thompson and the woman. He approached me with the machete. I had a pruning knife with me for the purpose to go and work for my boss. When he started to fire chop with this machete this woman comes between the two of us and I took out my knife, the pruning knife, and started to make cuts after him. Eventually accidentally woman got chopped and I ran away, because I was afraid of the man, and there was where I left my shoes. I did not take interest of looking for shoes. When I reached sister's house I got my tea there. When I heard that woman dead by four miles then sister told me might as well go and deliver myself and she accompanied me.

When I reached there I met two Policemen, an Inspector and another police. They ask me what I want. I told them I heard that I was accused death of woman. When I reached Station I had no blood on me.

It may be observed that Thompson's evidence considered with the evidence of Dr. Osorio, if, believed, disclosed prima facie that Ann Logan was murdered by the Appellant. In his statement to the police the Appellant's admission that he stabbed Logan and was not himself injured, indicated an admission of murder. However the Appellant, in his statement from the dock, cointended that Ann Logan's death was an accident. Thus on the facts alleged it was open to the jury to find the Appellant guilty as charged or if they believed the death was accidental to return a verdict of not guilty in which case he would be acquitted. It is somewhat difficult to understand how on the evidence, a jury could come to a verdict the Appellant was guilty of manslaughter.

The first two grounds of appeal relied on by Mr. Elrington for the Appellant were in effect that the trial judge misdirected the jury on the law of self defence and particularly as to the burden of proof on the issue of self-defence, justifiable use of force as a partial defence and accident. The part of the summing up of which the Appellant complains read:-

"Apart from that - from the general defense of justification-there are two defences in the case of murder, and only in the case of murder, because they do not apply to any other crime. And the two defences apart from justification are the defence of self-defence and provocation. And if you are satisfied that either one or both of these defences have been made then the other of murder would reduce to manslaughter and your verdict would be guilty of manslaughter. Now for that defence to be made out it is necessary either to prove extreme provocation or that harm, in excess of what he just justified in using, he used but that he acted in terror and lost the power of self-control. Now here again, although I'll still leave the defence of provocation to you, that defence has not been put forward by the Defence in this case."

Earlier in his summing up the learned judge dealt with the law relating to justification having in mind as appears from his quotation, Sec. 28 (f) of the Criminal Code which permits the use of force or causing harm in circumstances where it is necessary to prevent a crime or to defend oneself against a person committing a crime, and Section 29 which limits the justifiable use of force to that which is necessary in the circumstances of a particular situation. He went on to explain Sec 33(4) (c) and (d) without specifically referring to this section which permits force or harm in case of extreme necessity even to killing for the prevention or defence of oneself or any other person in retaliation in cases of murder or manslaughter.

This outline of the law was accurate but unnecessary in the circumstances because the question of justification did not arise on the facts alleged in the instant case. The learned judge himself said in outlining that aspect of the law, he was not referring to the instant case. The Appellant on his own admission did not suffer any injuries and he was the person who attacked Ann Logan. In those circumstances there was no need to mention justification as a situation in which to apply that aspect of the law did not arise.

In the passage quoted above from the summing up the learned judge went on to consider the law as to "the defence of self-defence and provocation". Provocation did not arise and counsel for the Appellant has not sought to argue that question.

But Counsel objected to the expression "defence of self-defence" as misleading the jury to think that where self-defence arose the burden of proving it rested on the Apellant and Counsel relied on the following passage in R v. Wheeler cited in Reg. v. Abraham (1973) 1 W.L.R. 1270 C.A.

"It is indeed quite essential that the jury should understand and the matter should be so put before them that there is no danger of their failing to understand, that none of those issues of justification are properly to be regarded as defences. Unfortunately there is sometimes a regrettable habit of referring to them as for example, the defence of self-defence. In particular whether a judge does slip into the error or quasi error of referring to such explanations as defences, it is particularly important that he should use language which suffices to make clear to the jury that they are not defences in respect of which an onus rests upon the accused, but are matters which the prosecution must disprove as an essential part of the prosecution case before a verdict of guilty is justified."

Although the learned judge made the slip of referring to a "defence of self-defence" he nevertheless made it clear in the earlier part of his summing up that it was for the prosecution to prove the killing was not justified.
Here the learned judge erred in saying:

"….the two defences apart from justification are the defence of self-defence or provocation. And if you are satisfied that either one or both of these defences have been made then the offence of murder would be reduced to manslaughter and your verdict would be guilty of manslaughter."

If on the evidence it was a true case of self-defence then the verdict would be not guilty followed by an acquittal and not manslaughter. But this error in the light of the alleged facts in the instant case did not give rise to a possible miscarriage of justice because on those facts the question of the self-defence of the Appellant in relation to Ann Logan did not arise. Ann Logan did not attack the Appellant. She was not armed. It was the Appellant who attacked and stabbed her. He was armed. He was not injured.

In the remaining ground of appeal the complaint was that the learned judge misdirected the jury in regard to the following statement made by Estella (otherwise Idolly) Logan in cross-examination:-

"I heard Ann say, Chico,Chico what you do me this for".

As to which the learned judge commented in his summing up:-

"Now this came out in cross examination and because it came out in cross examination it has a particular value because she did not offer it. She was pressed to say it. She never said it in the court below; she didn't say it to Counsel for the prosecution and it only came out because Counsel pressed her to say more. And therefore when it comes out in this way it is always dangerous evidence against the prisoner but it doesn't make it less good. It is still good evidence because it comes out through force of cross examination. But you have to weigh that evidence in relation to all the other."

Counsel for the Appellant urged that this comment amounted to a misdirection because the learned judge failed to draw attention to the relationship of Idolly Logan and Ann Logan and her possible bias arising from this relationship.

Idolly Logan said in cross examination "Ann was my cousin. Grew up together. Brought up like sisters". The learned judge might well have drawn attention to this relationship to be weighed by the jury against the other piece of evidence which emerged. The learned judge appeared to over?emphasise that this evidence as to what Ann said came out in cross examination. But nevertheless it is not unusual for an important piece of evidence to emerge in over?zealous questioning in cross examination and that appears to be what happened here. We do not think that any great harm was done by the judge's failure at that stage in his summing up to draw attention to the relationship between the two women. The jury would have remembered that Idolly Logan had described that relationship in cross examination immediately before she said she heard Ann's voice saying "Chico, Chico, why you do me this for"; and the learned judge did remind the jury to weigh that evidence in relation to all the others.

Finally, Counsel for the Appellant submitted the sentence was excessive. The sentence of 12 years imprisonment was severe but it was not excessive having regard to the evidence.

For these reasons the appeal against conviction is dismissed and leave to appeal against sentence is refused.

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