Court of Appeal
Criminal Appeal No. 6 of 1990
8th February, 1991
KENNETH ST. L. HENRY P.
SIR DENIS E.G. MALONE J.A.
DR. NICHOLAS J.O. LIVERPOOL J.A.

Appeal against conviction and sentence for murder-Provocation-Trial judge acted correctly in leaving issue of provocation to jury, however, he invited the jury to consider evidence on that issue which was not in fact the evidence that raised that issue-Appellant denied his entitlement to have his defence put fairly to jury and as accurately as possible-Self defence-Failure of judge to direct the jury on burden and standard of proof-Failure to direct jury that it was for the Prosecution to negative self defence beyond a reasonable doubt - View of Court that the issue of self defence may be raised in a statement from the dock - Appeal allowed - Conviction set aside - New trial ordered.

J U D G M E N T

The appellant was convicted on the 12th November, 1990 of the murder of Angela Pinnox, the sister of his common law wife. Against that conviction he appealed on the following grounds:

"1. The Learned Chief Justice erred in law in that:-

(a) he failed to put adequately and fully the Appellant's cardinal line of defence to the jury: i.e. Self Defence.

(b) failed to direct the jury specifically on the burden and standard of proof on the vital issue of Self Defence.

(c) failed to direct jury that, if on consideration of all the evidence, they found themselves in a state of reasonable doubt on Self Defence they should acquit;

P. 37 line 27 ... to p. 38 line 7
P. 39 lines 23 - 34 c/f lines 14 - 18 ibid
P. 45 lines 20 - 30
Ellis Taibo v. R BZ C.A. No. 2/1980
Rivas v. R BZ C.A. No. 2/1983
Baptiste v. The State 1983 WIR p. 253 at p. 258

2. The Learned C.J. erred in omitting to direct the Jury that if the appellant was in good faith mistaken as to the facts in the circumstances that he committed this offence, he ought to be judged according to his mistaken view of those facts.

R v. Williams 1987 3 AER p. 411
Beckford v. R 1987 3 AER p. 425

3. He misdirected the jury on the law of Intoxication in Section 26 of the Criminal Code. as particularly defined in Section 25 p. 44 lines 3 ... to p. 45 line 7.

4. He failed to direct jury adequately on the law of Provocation as the relevant evidence bears on the respective Sections 116 - 121 of the Criminal Code; and in particular:

(a) omitted to instruct the jury on the definition of Provocation in Section 117.

(b) misdirected jury in properly identifying possible evidential material as sources of extreme provocation.

(c) erred in law by directing jury that even if they find extreme provocation, the "appellant is still guilty of Murder.. .. but you reduce it to Manslaughter"-

(d) omitted to direct that if the jury were left in reasonable doubt on the issue of Manslaughter should be their verdict."

Grounds 2, 3 and 4 (d) were however, abandoned at the hearing of the appeal.

From the dock the appellant at his trial made a statement in which he explained that on the 24th December, 1988 he became drunk in the company of one Leonard Gongora and had drinks with him again on Christmas Day before returning to his home. His common law wife was not there and on the advice of Gongora he went to the home of the mother of his common law wife. At that time he was not on good terms with his common law wife. He described as follows what took place at the home of the mother of his common law wife after he got there.

"I went to her mother, who asked what was the matter. Joan (the common law wife) came out then ran inside and they must have thought that I wanted to injure Joan so they all came at me. I therefore took a knife off the table and swung it to defend myself from their attack. I did not know that anyone got injured. It's afterwards I heard that Angela was stabbed and was dead and Joan also stabbed. I had no intention to kill anyone and I ask for forgiveness".

That was the evidence adduced at the trial on which a defence of self defence could be based. Unfortunately at the trial self defence received a passing mention from the defence that suggested the case was not one of self defence. That evidence also was the sole evidence adduced at the trial to prove an act of provocation. Unfortunately the defence at the trial relied on other evidence to prove such an act.

Circumstances put by the defence and the learned trial judge to the jury as evidence which might lead them to find that the appellant acted under provocation were that:

"his common law wife, Joan, was leaving him taking along their baby and his shotgun (and) other property also, his tools of trade"

It is, however, clear from the appellant's statement from the dock that the impending departure of his common law wife was not of concern to him as his evidence is that he told Gongora that he:

"didn't care if she went"

As irrelevant to the issue of provocation was the recovery of his property. It was merely the reason he gave for going to the home of his mother-in-law. The act of provocation he relies on is that the inmates of the house were coming at him. As regards evidence of loss of self-control it can be found only in his response to the act of provocation and in the explanation he gave for that response. The evidence is that he responded by stabbing Angela deeply in the back and that he then stabbed Joan whilst she held the baby. His explanation for that behaviour is that he was defending himself. Coming as it does from him, the explanation prima facie negatives loss of self-control. On the other hand his behaviour involving, as it does Angela against whom there is no suggestion that he bore any animosity suggests there may have been a loss of self control. Admittedly the proof of loss of self-control lay upon the appellant and as we have said his explanation for his actions prima facie negatives such loss. His behaviour as a whole - both actions and words - must, however, be taken into account in determining whether there was proof of loss of self-control. In the circumstances of this case it seems to us that the learned trial judge acted correctly when he left the issue of provocation for the jury. Unfortunately the evidence which the judge invited the jury to consider on that issue was not the evidence that raised that issue. The error of the learned trial judge is, in the circumstances, fully understandable as he put to the jury the evidence that defence counsel had put before him. Nevertheless the error cannot be overlooked as the appellant was denied his entitlement to have his defence of provocation put fairly to the jury and put as accurately as possible.

Likewise the appellant was entitled to have his case of self defence put fairly to the jury and put as accurately as possible. That, too, was not done, for as Mr. Lumor acknowledged the learned trial judge failed to direct the jury on the burden and standard of proof. In that he failed to tell them that it was for the prosecution to negative self defence beyond a reasonable doubt. Indeed there is a passage in the summing up that suggests the burden of proving self defence rests on the defence. Mr. Lumor, however, submitted it would be contrary to public policy that where there was strong evidence of the aggressive behaviour of an accused he should not be permitted to take advantage of an error in putting the law of self defence to the jury. In support of that submission Mr. Lumor cited D.P.P. v. Walker (1974) 1 W.I.R. 1090. That case does not in our view apply as there was in that case no evidence to support an issue of self defence. In this case self defence was an issue on the evidence. The fact that that evidence was in the form of a statement from the dock cannot in this instance assist the respondent as in our view an issue of self defence may be raised in a statement from the dock.

For the foregoing reasons and as we do not consider that this is an appropriate case for the application of the proviso we are of the opinion that the appeal should be allowed on both grounds. We however consider it in the interest of justice that a re-trial be ordered. Accordingly the appeal is allowed, the conviction is set aside and a re-trial is ordered.

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