Court of Appeal
Criminal Appeal No. 4 of 1997
28th June, 1999
The Hon. Kenneth George, P.
The Hon. Nicholas J.0. Liverpool, J.A.
The Hon. Elliott D. Mottley, J.A.

Mr. Simeon Sampson, S.C. for Appellant.
Mrs. Marilyn Williams, Crown Counsel for the Respondent.

Criminal Law - Murder - self-defence - Provocation - Burden and Standard of Proof (No specific formular necessary) - Proper directions to the jury as to the possible verdicts on a charge of murder - Directions to the jury how to deal with the unsworn statement of the accused.

J U D G M E N T

The Appellant Cleon Smith was indicted for the murder of Ainsworth Wagner which occurred on 27th day of July 1996. He was convicted on 3rd of April 1997 and sentenced to death.

On 27th of July between approximately 7:30 p.m. ? 8:10 p.m. the Appellant ? also known as "Tush" went to Mayflower Street. One of the witnesses called by the prosecution Sandra Cutter, who knew the appellant for 15 years, saw him walking by the Gateway beside which she was sitting. Sandra is the aunt of the deceased. She saw something shiny in his hands. This shiny object appeared to her to be a gun. He walked to the back of the building where the deceased lived. Later he was seen coming out of the yard and spoke to three boys and pointed the gun in their direction.

The Appellant stopped on Mayflower Street. Shortly after this, Ainsworth Wagner, the deceased, who was also known as "Pie" came on to Mayflower Street riding his bicycle. His brother was walking three feet behind him.

When the deceased was about two feet away from the appellant, the appellant said something to the deceased. The deceased got off of his bicycle and stood in front of the appellant. They appeared to be exchanging words. At this time the deceased was holding his bicycle in his right hand between the appellant and himself.

This witness stated that she heard a gun shot whereupon she saw the deceased 'ducking.' After 'ducking' the deceased made about two or three steps toward the direction of the appellant.

The appellant pointed the gun in the direction of the chest of the deceased. A second shot was fired and shortly afterwards the appellant was seen running into Vernon Street. After this second shot the deceased walked, stumbled and was caught by Germaine Zuniga before he fell.

One of the witness said that after the deceased got off the bicycle the appellant approached him and said to him "I am going to shoot your ……"

The deceased replied "Shoot boy duh mi what yuh haf fu duh if you want".

The appellant put the gun to the left side of the head of the deceased and fired a shot. The deceased 'ducked' from the shot. The witness Heather Foreman said that Smith then put the gun on the left side of Pie's chest and shot him. The witness said that Smith also fired a shot at Delroy Wagner the brother of the deceased.

Shortly afterwards the deceased was taken to the Karl Heusner Memorial Hospital where he was pronounced dead.

Dr. Mario Estradabran who performed the postmortem stated that there was an injury, which entered through lateral area of the chest and went through the heart and through the lung. This was the fatal injury.

He said that the parties were at close range when the shot was fired.

Inspector Itza stated that on 26th September 1996 he went to the Philip Goldson International Airport where he met the appellant Smith. Smith had been deported by the United States Government. At the C.I.D. Office the appellant was cautioned and he elected to give a statement which was recorded in writing.

The statement which he gave the Police was admitted into evidence without any objection by Counsel for the defendant. The statement read:

"On Thursday, 25th day of July, 1996 between 1:00 and 2:00 p.m., whilst at home at the above mentioned address, one Mark Mossiah alias "Pantyman" arrive at my house. Mark then told me that Ainsworth Wagner, alias "Pie" say if I can't send something for he, Pie and Cat would come for it at my house. Cat is the nickname of Stephen Requena who is Ainsworth Wagner brother?in?law. On the day 26th day of July, 1996, at about 7:00 a.m., I was riding my bicycle accompany by Pantyman on Vernon Street. Upon reaching Brads Store on Vernon Street, I met Pie who punched after me with his left hand. He then said to me pussy if you no give me something, I will kill you like how they kill Saragosa. I told Ainsworth Wagner, Pie, what I have is for me and my children ...

I went home at my house on Sibun Street at about 12:00 midday on 27th day of July 1996 ... I then rode up Vernon Street and passed Mayflower Street where I saw Ainsworth Wagner alias Pie standing corner of Vernon and Mayflower Streets playing with a ball ...

I then rode up Vernon Street towards Mayflower Street. Upon reaching the junction at Mayflower and Vernon Street, I saw Ainsworth Wagner alias Pie still standing there but this time he was with his brother, name unknown to me. I then decided to go right from Vernon Street into Ebony Street. Ainsworth Wagner and his brother passed me on his bicycle and Ainsworth Wagner had a knife which looked like a butcher knife in his right hand. Ainsworth Wagner was riding his bicycle a beach cruiser, blue in colour and his brother was seated on the handle of the bicycle. When he chased after me he was holding the knife in his hand which was against the handle of the bicycle which he was holding. When Ainsworth saw that he cannot catch up with me he shouted to me saying that he will get me like how he got Saragosa. I believed that Ainsworth Wagner wanted me to give him money hence the reason he chased me and threatened me. I then decided to get hold of a firearm to protect myself as I believed that Wagner was getting serious. After Wagner chased me on Ebony Street, I went home and hold of my .380 pistol and?went to look for my girlfriend. I did not find my girlfriend …… Just before reaching the junction of Mayflower and Vernon Street, Ainsworth Wagner came up on a bicycle from Vernon Street into Mayflower Street. As Ainsworth see me he jumped off his bicycle and said to me that he wanted to see me run like how I ran earlier in the evening. I saw Ainsworth Wagner come walking towards me and pull out a knife from his pants side. I then made two steps backwards and pulled out my pistol and told him I do not want to shoot as we are friends. Ainsworth Wagner then told me that I am not his friend and that he will fock me up pussy boy. He was still advancing towards me with his knife. I then fired a shot on the ground and told Wagner, Pie, I really do not want to shoot you.

Wagner then told me well you will have to shoot me. He then advanced towards me with a knife in a stabbing position. I then left up my pistol and squeezed the trigger and I saw him fell to the ground. I then saw his brother who is nearby, ran towards where he fell and picked up the knife and said to me you dead pussy boy. I then ran down Vernon Street and went on Banak Street where I met my girlfriend along with Rosita. I then told my girlfriend that I had just shot Pie. My girlfriend then told me that Pie brother told her that he and Pie had chased me earlier. I then went to hide at a hotel until Sunday 28th July 1996 and went across the border."

At this trial the appellant elected to make an unsworn statement from the dock. In this Statement he said:

"The 25th of last year I was at my home with my kids so he called me and I came outside to him. Outside of my yard I come outside to talk to him and then he explained to me that "Pie" Wagner and "Cat" tell him to tell me if I don't send something for them they will come for it. Themself at my house. He explained to me that "Pie" Wagner and "Cat" Requena tell him to tell me if I don't send something for them they will come for it at my house. And after that I just explain to Mark and thing right, like this money that I have is for my kids and Mark gone home ...

Yes. Then we end up meeting in front of Brad's Store and thing and he fired a punch after me with his right hand.

Ainsworth Wagner then when he fired punch after me I just, ducked it and then he say pussy if you don't give a money, when he done tell that I tell him that the money I have is for me and my pickney and I just ride off after that and I went down Vernon Street …

Ainsworth Wagner was still at the corner but this time with his brother. When I reached corner of the lane like Vernon Street and Lake View. Vernon Street and Mayflower he was standing with his brother saying to me.

Ainsworth said "no pass back here pussy because you will get what you are asking for" when he said that to me I hit next side of Mayflower Street to hit Ebony Street and then he and his brother chase me ...

Opposite that he was on then he and his brother chase after me. He was on his bike and his brother on the handle so when he come I just look back I see them coming so I just change my bicycle gear and they see they can't catch me so they say they will catch me like how they catch Saragosa the slip. . .

A guy that they have a thing with already that they killed, hey they will catch me just like how they catch Saragosa.

After that I just ride gone. When I gone I see that the way they talk and thing they were serious because I don't hang with them we are in the same crowd and I just gone home and hold onto my pistol ...

Before reaching corner of Mayflower and Vernon Street I see Ainsworth Wagner coming around the lane with a bicycle so like when he come around the lane on Vernon Street and I going towards Vernon Street he sight me ad thing and he jump off the bicycle. When he jump off the bicycle he drop it on the ground then he walk around toward me he say he wanted to see how I run like how I run this evening from him.

And then come toward me and see I run like how I run this evening pussy ...

I tell him like me and you are friend ?I don't want to go through nothing with you and I just haul out my gun and at that time same time…

I don't want to have to shot you and I haul out my gun and he tell me I will have to shot him tonight then he come towards me so I bust the first shot on the ground because I tell him I don't want to shot you because we are friend but he insist he come my way.

On the ground then when I burst the first shot he told me that I have to shot him and he come in stabbing position.

He told me I will have to shot him with stabbing position toward me and I make to step backward and I lift up the gun and I shot him.

Yes when I step back way ?

He said he told me that I will have to shot him. I step back way and I shot him.

When I shot I see him drop on the ground and when he dropped on the ground when I see him drop on the ground his brother was in a little distance away from him so I just lift up my head and watch him and I run gone that way and he run to his brother and pick up the knife.

He run to his brother and, pick up the butcher knife and said you dead pussy.

His brother grabbed the knife and holler after me and say I dead pussy and I gone down that way.

I run down Vernon Street and head up back on Banak Street . .. "

SUMMATION

In his summation to the jury the learned trial judge dealt with the issue of Burden of Proof and Standard of Proof in this way.

"Mr. Foreman and members of the jury, at this stage I must give you further general directions as I am bound in law to do. These directions which I will you is in respect to the burden and standard of proof expected of the Crown or of the Prosecution to establish the guilt of the accused Cleon Smith. Some of you who may have followed the Simpson case may have heard the expression and standard of proof. In this jurisdiction we also have the burden and standard of proof concept, because, naturally, both jurisdictions take their source of law from England so we also have the same system of law. Now it is the law, Mr. Foreman and members of the jury, that all time it is the duty or the burden of the Prosecution or Crown to prove the guilt of the accused. It is the Prosecution or the Crown who indicted or charged the accused Cleon Smith for the crime of murder and so it is for them to prove that the accused is guilty of murder. You see, members of the jury, you may be familiar with the expression he who alleges must prove and this is so true in this case and in all cases, criminal cases. Here the Prosecution is alleging that the accused Smith committed the crime of murder and so they must prove that he is guilty of the offence. This burden of proof in the case against the accused, Mr. Foreman and members of the Jury, remains with the Prosecution throughout the trial. The burden never shifts to the accused Cleon Smith and later on when I deal with the defence I will tell you more about the accused not having any burden to prove anything. Now, the accused not having any burden which the Prosecution bears throughout this trial, this trial of Cleon Smith, has a standard which the Prosecution must attain in proving their case. The Prosecution has the duty to prove the case against the accused beyond reasonable doubt or to a degree that you all, the 12 of you, feel sure of the guilt of the accused, Cleon Smith. This is what we call the standard of proof. Now, if you are to ask me what does the expression reasonable doubt mean? I would tell you, Mr. Foreman, and members of the Jury, that it does not mean a flimsy or fanciful doubt. Reasonable doubt is that sort of doubt which affects the minds of a person in dealing with matters of importance in his or her own affairs so that is what I mean by reasonable doubt. So, if when you retire to deliberate upon your verdict you find that you have any reasonable doubt in your mind as to the guilt of the accused then you will resolve that doubt in favour of the accused, that is the law. So, members of the jury, let me tell you that before you can convict that accused Cleon Smith. You must feel sure of his guilt based on the testimony or on the evidence which you heard here in this court. Again, in considering the facts of this case if you do not feel sure of a fact then you will decide that act in favour of the accused. As we say you give him, that is the accused, the benefit of doubt. So you will deal with the facts. You will consider then until you reach to a situation where you can say that you feel sure of the guilt of the accused because if you are unable to say that then you will resolve that doubt in favour of the accused.

So having said all this, members of the jury let me recap on the burden and standard of proof. The burden and standard of proof is on the Prosecution at all times. It is the duty of the Prosecution or the Crown to establish or to prove the guilt of the accused Cleon Smith. And before you convict him you must be satisfied to the extent that you feel sure or you are satisfied beyond reasonable doubt of the guilt of the accused, Cleon Smith alias "Tush". I want you clearly to understand this members of the jury, when you retire to deliberate upon the verdict. I want you to understand that and clearly remember that when you retire to consider your verdict."

Further in his summation the learned trial judge told the jury:?

"Now, these are the ingredients which the Prosecution must prove to your satisfaction so that you feel sure of the guilt of the accused. Mr. Foreman and members of the jury, the Prosecution must prove each and every one of these ingredients. They cannot prove some and not others, they must prove these beyond a reasonable doubt or to an extent that you feel sure that the accused has committed the offense."

In dealing with the burden of proof in relation to justification the judge directed the jury as follows:?

"The law is that once the accused person raises any justification be it provocation, self defence, accident or any other justification. It becomes the duty or the burden of the prosecution to negative that justification raised beyond reasonable doubt. This accused person, Cleon Smith, does not have to prove anything. The accused Cleon Smith could have sat in the dock and say nothing at all. The Crown or the Prosecution in the circumstances has the duty to prove the case against him. The Prosecution brought this accused and so it is for the Prosecution to prove the case against him".

Again dealing with the specific issue of self-defence he said:-

"Now members of the Jury, the general directions which I have given you earlier in relation to the onus or to the burden and standard of proof has a particular operation in the circumstances of the present case. Where the accused has raised the issue that he acted in self?defence a person who acts in reasonable self?defence commits no unlawful act. By his plea of self?defence the accused is raising a special plea of not guilty. Since it is for the Crown or the Prosecution to show that the plea of not guilty is unacceptable the Crown must convince you beyond reasonable doubt that self?defence has no basis in this present case. Put it another way. Because the Prosecution must prove the guilt of the accused, it is for the Prosecution to make you feel sure that the accused was not acting in self?defence. If you conclude that he was or that he may have been acting in self?defence then you must acquit him. That is the Law".

In relation to provocation he reminded the jury of their duty when he said??

"Now Mr. Foreman and members of the Jury, because the Prosecution or the Crown must prove the guilt of the accused. It is not for the accused to prove that he was not provoked. The Prosecution must make you feel sure that the accused was not so provoked before you can convict him of murder. If you are sure or satisfied that he was so provoked or if you think that he may have been provoked then you can only convict him of manslaughter not murder."

In finally leaving the matter to the jury he said?

"Now before I ask you to retire and consider your verdict let me tell you the possible verdicts you can return. If on the evidence you are sure of the guilt of the accused in respect to the charge of murder you will return a verdict of guilty. However, if you are not so sure or if you have any reasonable doubt then you will return a verdict of not guilty of murder. You will then go on to consider the alternative verdict of manslaughter. Now, if you find on the evidence that at the time Cleon Smith shot the deceased Ainsworth Wagner, his intention was not to kill but only or cause him harm. But Wagner, nevertheless, died, then provided you are sure of his guilt in this regard, according to evidence you will return a verdict of guilty of manslaughter. If you are not so sure or if you have any reasonable doubt as to his guilt you will return a verdict of not guilty. Now if having decided that he is not guilty of murder not guilty of manslaughter because of the lack of intention to kill you will then go on to consider the alternative verdict of manslaughter which arises from the accused Defence that he was provoked. If you find on the facts that the accused was provoked and you are sure of his guilt in this regard you will return a verdict of guilt of manslaughter. If you are not so sure or you have any reasonable doubt you will return a verdict of not guilty".

The appellant filed one Ground of Appeal, that "the learned trial judge erred in that he omitted adequately and fully to direct the jury on the burden and standard of proving self?defence (and the subjective test required).

At the hearing of the appeal trial Counsel for the Appellant sought and obtained permission to amend the grounds of Appeal by adding two further Grounds of Appeal. In his Second Ground of Appeal he alleged that the learned trial judge had misdirected the jury on the issue of provocation by using the words. "sure" and "satisfied" disjunctively in the standard of proof.

It was further alleged that immediately before the jury retired he repeated similar misdirection on the standard of proof and burden of proof in relation to the totality of the evidence in considering their verdict. Counsel criticized the trial Judge for using the words "if you find or if you are sure."

The third Ground of Appeal was that the learned trial judge erred in that he failed to give to the jury a proper direction as regard the Appellant's unsworn statement from the dock.

It may be useful to dispose of ground three first.

In D.P.P. v WALKER (1974) 21 WLR 406 at page 411 Lord Salmon in delivering the opinion of the Privy Council said ?

"The jury should always be told that it is exclusively for them to make up their minds whether the unsworn statement has any value, and, if so, what weight should be attached to it; that it is for them to decide whether the evidence for the prosecution has satisfied them of the accused's guilt beyond doubt, and that in considering their verdict, they should give the accused's unsworn statement only such weight as they may think it deserves"

The learned trial judge directed the jury as follows:

"Now before I deal with the caution statement, let me very quickly tell you what is the value of his dock statement. Members of the Jury, the accused has a legal right to make a dock statement. You will not hold that against him, but I must tell you also that a dock statement has less weight and cogency than sworn evidence given from the witness box. This is also members of the Jury because the dock statement of the accused Tush, or Cleon Smith, was not sworn to or was not tested in cross examination as the evidence of the Prosecution witnesses. However, you are entitled to attach to it such weight as you think it deserves in considering whether the Prosecution have made out their case against the accused. So it is in that light that you will treat the accused dock statement in which he raises his defence. Now, let me also tell you Mr. Foreman and members of the Jury, that because the accused gave a dock statement in which he gave his version of events which occurred the 27th of July 1996, it does not mean that he has a duty to prove anything. I think I told you this before."

The Judge told the Jury that it was the right of the accused to make an unsworn statement from the dock. He pointed out to them that it could have less weight and cogency than sworn evidence because the statement was not subject to cross?examination. He reminded them that they could assign such weight as they thought it deserved. This direction was in keeping with what was said by Lord Diplock in Walker's Case. In the circumstances there is no merit in this ground.

Before dealing with Grounds 2 and 3 of the Appeal the Court desires to comment on two portions of the summation. Firstly the judge directed the Jury in relation to the standard of proof in the following terms:

"Now, if you are to ask me what does the expression reasonable doubt mean, I would tell you, Mr. Foreman, and members of the Jury, that it does not mean flimsy or fanciful doubt. Reasonable doubt is that sort of doubt which affects the minds of a person in dealing with matters of importance in his or her own affairs. So that is what I mean by reasonable doubt".

This direction does not in any way assist the jury since it does not refer to any accepted standard. What affects one person in his own affairs may not affect another person. The Court have said from time to time that it is undesirable to attempt to give the jury any definition of what is meant by the phrase reasonable doubt.

No complaint is made of this passage of the summation by the Appellant but the Court considers that it is a non direction which does not in any way assist the jury in considering the guilt of the Appellant. Had this been the only direction on the question of the standard of proof by which the prosecution is to establish the guilt of the Appellant the Court would have been obliged to quash the conviction. However a careful analysis of the summation shows that the judge in dealing with various ingredients of the charge of murder correctly stated that the onus of proving the guilt of the Appellant was on the Prosecution and that the jury could only convict the Appellant if they were satisfied beyond reasonable doubt so that they felt sure of the guilt of the Appellant. The Court will return to this matter below when dealing with the specific grounds of appeal relating to the standard of proof on the whole of the fact of the case.

Secondly in leaving to the jury the possible verdicts they could return he properly directed them on the question of murder. In leaving manslaughter to them the judge said:

"You will then go on to consider the alternative verdict of manslaughter. Now, if you find on the evidence that at the time Cleon Smith shot the deceased Ainsworth Wagner, his intention was not to kill him but only to cause him harm. But Wagner, nevertheless, died, then provided you are sure of his guilt in this regard, according to evidence you will return a verdict of manslaughter. If you are not so sure or if you have any reasonable doubt as to his guilt you will return a verdict of not guilty."

So far no issue may be properly taken with the direction of the judge. However the judge continued:

"Now, if having decided that he is not guilty for murder not guilty of manslaughter because of the lack of intention to kill, you will then go on to consider the alternative verdict of manslaughter which arises from the accused Defence that he was provoked."

This is clearly a misdirection. If the jury came to the conclusion that the appellant did not intend to kill Wagner or were left in reasonable doubt as to whether he intended to kill him they must return a verdict of not guilty or murder. The jury could only convict of murder if they were satisfied so that they felt sure of the guilt of the appellant.

The jury should have been told that if they had reasonable doubt as to whether the appellant intended to kill the deceased they had to go on to consider whether the appellant intended to cause any harm to the deceased. If they found beyond reasonable doubt that he intended to harm the deceased the jury should return a verdict of not guilty of murder but guilty of manslaughter. If the jury had reasonable doubt as to whether the appellant intended to harm the deceased the jury should acquit. It was a misdirection to tell them that they should then go on to consider the defence of provocation. The direction that if they found that he was not guilty of manslaughter because he lacked the intention to harm the deceased the jury should go on to consider the alternative verdict of manslaughter which arises from the accused Defence that he was provoked was wrong. In these circumstance provocation would be irrelevant. Provocation would arise if they found that the appellant intended to kill the deceased but this intention arose because he was provoke by the conduct of the deceased.

This direction would have had the effect of depriving the appellant of a not guilty verdict if the jury came to the conclusion that the appellant did not intend to harm the deceased or were left in reasonable doubt as to whether he so intended. However in this case the jury by their verdict of guilty of murder must have rejected the defence of self defence and provocation and thereby must have accepted that the appellant intended to kill the deceased.

I now turn to Grounds 2 and 3 of the Grounds of Appeal. I propose to deal with these together.

Complaint is also made that the trial Judge immediately before the end of this summation said:

"Now, before I ask you to return and consider your verdict let me tell you the possible verdicts you can return. If on the evidence you are sure of the guilt of the accused in respect of the charge of murder you will return a verdict of guilt. However if you are sure or if you have any reasonable doubt then you will return a verdict of not guilty of murder.

Further in his summation the Judge told the Jury:?

" . . . then provided you are sure of his guilt in this regard according to the evidence you will return a verdict of manslaughter".

Counsel for the appellant submits that this is too low a standard. The Judge at this stage did not use the accepted formula of telling the Jury that they must be satisfied so that they feel sure. However the Judge had told the Jury that the Prosecution had a duty to prove the case against the accused beyond reasonable doubt or to a degree that they all, the 12 of them feel sure of the accused guilt. Later he reminded the Jury that, before they could convict the accused, they had to be satisfied to the extent that they felt sure or were satisfied beyond reasonable doubt of the guilt of the accused.

He pointed out to the jury that the Prosecution must prove all the ingredient of the charge of murder and that they must prove these ingredients beyond a reasonable doubt or to an extent that the accused had committed the offence.

In dealing with the issue of self?defence, the Judge indicated that the Crown must convince them beyond reasonable doubt that self defence has no basis in the present case.

In WALTERS v THE QUEEN (1969) 2 AC 26 the issue before the Privy Council was the correctness of the direction given to the Jury upon the burden of proof of which lies in the prosecution in a Criminal Case. Lord Diplock in rendering the opinion of the Privy Council said at page 30 -

"In their Lordships' view the correctness or otherwise of a direction to a jury on the onus of proof cannot depend upon such fine semantic distinctions. No jury, whether in the West Indies or England, as it listens to an oral summing?up by the judge is capable of appreciating them. As Lord Goddard C.J. said in REX v KRITZ (1950) 1 K.B. 82 at p. 89 ?

"It is not the particular formula that matters: it is the effect of the summing up. If the Jury are made to understand that they have to be satisfied and must not return a verdict against a defendant unless they feel sure, and that the onus is all the time on the prosecution and not on the defence, then whether the judge uses one form of language or another is neither here nor there.

Further in his opinion Lord Diplock after pointing out that, by the time a Judge comes to sum up a trial, he would have an opportunity of observing the jury, concluded

"In their Lordships' view it is best left to his discretion to choose the most appropriate set of words in which to make that jury understand that they must not return a verdict against the defendant unless they are sure of his guilt".

The Privy Council in FERGUSON v THE QUEEN (1979) 1 All ER 877 Lord Scarman, when dealing with the adequacy of the words used by the trial judge, had this to say at page 882

"It is generally sufficient and safe to direct a jury that they must be satisfied beyond reasonable doubt so that they feet sure of the defendant's guilt. Nevertheless, other words will suffice, so long as the message is clear. In the present case, the jury could have been under no illusion. The importance of being sure was repeatedly emphasised".

In RAMESH RAMDAT v THE STATE (1991) 46 W1R. 205 one of the issues with which the Court of Appeal of Guyana had to deal was direction given by the trial judge to the Jury as to the standard of proof. The judge had used the expression "satisfied so that you feel sure" and "proof beyond reasonable doubt.

In delivering the judgement of the Court of Appeal George, C. at page 205, referred to a portion of the summing up of the learned trial judge where she said:

"The onus is on the State to satisfy you as the guilt of the accused. It is your duty to regard the evidence and before you decide to convict the accused you must see that the evidence satisfied you so that you feel sure that the prosecution has established the guilt of the accused. If you are not so satisfied then the prosecution will have failed to discharge the duty cast upon them and you must acquit the accused. If you are not so satisfied then the prosecution will have failed to discharge the duty cast upon them and you must acquit the accused".

He pointed out that Counsel had no quarrel with the above excerpt which recited that formula that had gained currency since R v SUMMERS (1952) 1 ALL.ER 1059 and later R v HEPWORTH AND FEARNLEY (1955) 2 All ER 918. Counsel had referred the Court to several subsequent passages in the summing?up where the trial judge had used the words "you must be satisfied" or some variant without adding the words "so that you feel sure". The effect of Counsel's submission was that on every occasion that the Judge used the word "satisfied" it should have been accompanied by the words "so that you feel sure". The Chancellor pointed out

"Such a requirement has only to be stated to recognise its palpable untenability, for besides being a most pedantic approach it would introduce into the summing?up an undesirable formalism and rigidity. What is important is that when viewed as a whole the summing?up should leave the jury with no uncertainty as regards the quantum of proof which must be discharged by the prosecution".

In rejecting the argument he indicated that there are other and later portions of the summing?up to be taken into account in which the trial judge not only repeated her direction on the presumption of innocence but charged the jury that the burden was on the State to rebut the presumption to the extent that they could feel sure of the guilt of the prisoner on each of the two counts of indictment.

Later in his judgment at page 206 the Chancellor George said

"However, although this portion of the judge's direction is open to criticism it did not, in my opinion, result in a miscarriage of justice. In coming to this conclustion I adopt and apply the dictum of Lord Goddard C.J. in R v KRITZ (1950) 1 KB 82 which was cited with approval in the case, WALTERS V R (1968) 13 WIR 354 at page 355 where the Chief Justice said:

"It is not the particular formula that matters; it is the effect of the summing?up. If the jury are made to understand that they to be satisfied and must not return a verdict against the defendant unless they feel sure, and that the onus is all the time on the prosecution and not on the defence then whether the judge uses one form of language or another is neither here nor there".

As I have said the function of an appellate court is to examine the summing?up as a whole and objectively to determine whether what had been told to the jury leaves them with a clear understanding and appreciation that the burden is on the prosecution to prove its case to their satisfaction so that they feel sure of the guilt of the person charged (see also R v YAP CHYAN CHING (1976) 63 CR App REP 7). And in the present case in determining the adequacy of the summing?up on this issue, this court cannot be unmindful of the number of occasions on which the trial judge had adequately instructed the jury on the approved alternative direction, viz. that they must be satisfied so that they feel sure of his guilt before they can convict the accused on either count. In my opinion therefore, looked at as a whole, the summing up on this issue was adequate".

Complaint is made of the manner in which the learned trial Judge dealt with the burden of proof in so far as it relates to provocation. Having reminded the Jury that the Crown must prove the guilt of the accused he told them that it was not for the accused to prove that he was not provoked. He went on to tell the Jury that the Prosecution must make them sure that the accused was not provoked before they could convict the appellant of murder. He went on to say:

"if you are sure or satisfied that he was so provoked or if you think that he may have been provoked then you can only convict him of manslaughter."

An objective examination of the summing up as a whole indicates that the issue in this case was whether the appellant was acting in self defence or whether he had been provoked. It is clear that the jury was left with the clear understanding and appreciation that the burden of proof was on the prosecution and that they must not convict unless they were satisfied beyond reasonable doubt so that they feel sure of the guilt of the accused.

The Court has come to the conclusion that there has been no substantial miscarriage of justice and that the appeal should be dismissed and conviction and sentence affirmed notwithstanding the defects in the summing up as to the standard of proof.

On receipt of an application dated 17th May, 1999 by Senior Counsel Mr. Simeon Sampson for leave to argue two supplementary grounds of appeal, the application was set down for hearing for Tuesday 15th June, 1999 and Mr. Sampson was so notified.

On the day of the hearing the Court intimated to Counsel that it was minded to grant leave to argue the new grounds, no objection having been raised by the learned Director of Public Prosecutions as to the court's jurisdiction. The Court invited Counsel to present his arguments. At that stage the court was informed by Counsel that he was unable to argue the supplementary grounds as he had merely filed them on behalf of other Counsel.

In the circumstances the court dismissed the application for non prosecution.

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