Court of Appeal
Criminal Appeal No. 7 of 1991
24th September, 1991
KENNETH ST. L. HENRY, P.
NICHOIAS J. 0. LIVERPOOL, J. A.
SIR JAMES A. SMITH, J. A.

Mr. Sampson, for the Appellant.
Mr. Gonzalez, Ag. Director of Public Prosecutions, for the Respondent.

Criminal Appeal against conviction for murder - Appellant alleging that he was acting in self-defence - Whether trial judge misdirected jury on burden of proof on specific issue of self-defence and the law of self-defence - Whether trial judge correctly identified possible alternative verdicts open to jury based on the defence of self-defence - Defence of provocation - Burden of proof - Onus is on the accused and standard of proof is on a balance of probabilities - Whether trial judge correctly addressed the law of provocation in summing up.

J U D G M E N T

On September 17, 1991 we dismissed this appeal and affirmed the conviction for murder, for reasons which we promised to put in writing. We now give those reasons.

The Appellant and the deceased, Shimay Jordon, were living together as man and wife up to August 12, 1990 when Shimay left him and went to live with a friend, one Shirland Sanker. Some time between 2 and 3 o'clock in the morning of August 16 the Appellant in an apparent attempt to effect a reconciliation went to the home where Shimay was then living and sought admission. When this was refused he became boisterous and eventually forced his way into the house where according to the prosecution witnesses he stabbed Shimay and dragged her out to the street. She died from multiple stab wounds to the face, back and anterior regions of the chest which caused hypovolemic shock.

In an unsworn statement the Appellant indicated that he instinctively reacted to an attempt by the deceased to stab him with a knife which she took from her bosom.

The first three grounds of appeal, which were argued together, are as follows:

"The Learned Trial Judge erred in law in that -

1. he misdirected the jury on the burden of proof on the specific issue of self defence;

11. he failed adequately and properly to direct the jury on the law of self defence;

111. he failed at the end of a confusing and misleading summing?up on self defence to tell the jury when indicating the various verdicts open to them, that if they were in doubt as to whether the accused acted in self-defence, they ought also to acquit him."

In support of these grounds counsel referred to the following passages in the learned trial judge's summing up which, he submitted, may have misled the jury into believing that there was some burden on the accused to establish self defence.

At page 58:

"You might ask was he acting in excess of what was necessary to defend himself if in fact he was defending himself? If you accept his story. You might ask, if you accept this evidence of Miss Sanker and Mrs. Armstrong, why did he drag her outside?"

At page 59:

"If you are left in reasonable doubt by reason of this accused's explanation or otherwise as to whether this accused was acting in self defence that doubt should be resolved in his favour and you should acquit him of course."

At page 61:

"As I said earlier the accused having raised the issue of self defence in his dock statement it is for the prosecution from the evidence tendered to support its case, to negative that self defence beyond a reasonable doubt."

At Page 61:

"If he does not retreat when he has that opportunity or if in retreating he would be losing the protection of what he ought to be protecting then of course you cannot fault him for that but if he has an opportunity and here you have to look at the evidence, the room, he went into that room when, if you accept his explanation, when Shimay pulled out a knife, if she did, if you find that she did, was this accused in a position since Shimay, according to the evidence, both from Sherlan, Wilma and perhaps you may so find from the explanation, Shimay was behind the door, was the accused in a position instead of defending himself, was he not in a position to come back out of the room?"

We do not consider that these passages in the summing up could have had the effect on the minds of the jury suggested by counsel for the Appellant. In our view they merely reflected the factual situation that the issue of self defence was raised only by the unsworn statement of the accused and there was no evidence whatever from the prosecution witnesses from which the jury could find that the accused acted in self defence. It is true that at one point in his summing up the learned trial judge referred to the "defence" of self defence, but as counsel for the Appellant quite properly conceded, the learned trial judge repeatedly and correctly directed the jury on the burden of proof both generally and in relation to the issue of self defence. Viewing the summing up as a whole we do not consider that those directions were vitiated by the passages complained of.

Counsel also referred to the omission by the learned trial judge at the very end of his summing up reminding the jury of the several verdicts open to them to tell them that if they were in doubt as to whether the accused acted in self defence they ought to acquit him. Such an omission was described by the court in John Dawson v The Queen Criminal Appeal 5/89 as compounding another error by the learned trial judge in that case. We do not however think that the omission by the learned trial judge in this case can by itself constitute a good reason for setting aside the conviction. In his summing up the learned trial judge had more than once (including the passage complained of at page 54) told the jury that if they were in doubt as to self defence they ought to acquit the accused. We do not consider that his omission to do so at the end of the summing up is fatal to the conviction.

The fourth ground of appeal is as follows:

"The learned trial judge erred in law in that he misdirected the jury on the law of provocation by placing before them matters in the evidence which the accused was not in fact asking the jury for consideration in proving "extreme provocation" and "loss of self control" and he failed to direct the jury that if they were in doubt about any of the above, their verdict should be manslaughter."

In relation to this ground counsel submitted that, the burden of proving provocation being on the accused, the learned trial judge ought to have directed the jury's attention only to the statement of the accused and so much of the prosecution's evidence as supported a finding of provocation when he was dealing with the defence of provocation. We can see no justification for this. It is the duty of a trial judge to present to the jury both the case for the prosecution and the case for the defence. Whether he does so by dealing separately with the evidence overall or by dealing with the evidence in so far as relates to each individual issue is a matter of style for the individual preference of each judge. But it is probably more helpful to a jury if they are reminded of the evidence in relation to each issue when that issue is dealt with.

Counsel also submitted that the learned trial judge ought to have directed the jury that if they were in doubt in relation to the issue of provocation they ought to resolve that doubt in favour of the accused and convict of manslaughter. We do not consider that such a direction was required. The concept of reasonable doubt and the consequent necessity for such a direction only apply in relation to the prosecution's case where the standard of proof is proof beyond reasonable doubt. It does not apply in relation to provocation where the onus of proof is on the accused and the standard of proof is proof on a balance of probabilities. This ground of appeal therefore also fails.

It is for these reasons that we dismissed the appeal.

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