Mcintosh v R
| Jurisdiction | Guyana |
| Judge | Kennard, J. A.,Fung-a-Fatt, J. A.,Massiah, C.,Kennard, J.A. |
| Judgment Date | 29 November 1985 |
| Neutral Citation | GY 1985 CA 11 |
| Docket Number | No. 54 of 1983 |
| Court | Court of Appeal (Guyana) |
| Date | 29 November 1985 |
Court of Appeal
Massiah, C.; Fung-a-Fatt, J.A.; Kennard, J.A.
No. 54 of 1983
B. C. De Santos for the appellant.
L. Haynes for the State.
Criminal law - Defenses — Self—defense — Appeal against conviction for murder and sentence of death — Whether the trail judge had misdirected the jury when he told them that the issue of self defense and manslaughter did not arise — Use of knife by appellant as defensive action to meet the actual or apprehended danger of the use of a weapon by the deceased — No basis for the defense as the acts of the deceased could not justify the use of the knife by the appellant — Provocation — R v. Duffy (1949) 1 All ER 932 applied — Appellant acted out of revenge and it cannot be said that provocation arose in this matter.
The appellant was convicted at the Demerara assizes on 1 st December, 1983, for the murder of one Howard Bowman allegedly committed on the 27th day of December, 1981, and for this he was sentenced to death by the trial judge.
The prosecution's case against the appellant depended on the evidence of Oliver Hill; a brother of the deceased; and on the statement of the appellant, which he gave to the police on 28th. December, 1981. This statement undoubtedly has extreme probative value and could, by itself, have resulted in the conviction of the appellant for murder.
Mr. De Santos, on behalf of the appellant, argued several grounds of appeal but without, in any way, meaning disrespect to counsel we feel there are only two grounds of appeal which merit our consideration and these are:
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(1) Whether the learned trial judge misdirected the jury when he told them that the issues of (a) self-defence and (b) manslaughter did not arise.
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(2) Whether the learned trial judge erred when he failed to rule on the admissibility of the statement of the appellant to the police.
In his statement to the police the appellant stated inter alia:
“About 8 p.m. on Friday, 25th December, 1981, me and Howard Bowman was gambling. Howard robbed me of forty dollars ($40.00)… He refused to give me the money. He run and go home. About 9 p.m. the same night I went to Compton Shop…Howard hid two bricks and a bottle in his hand and he tell me if I keep molesting him for any money he gone put the bricks them in me head. I went away and I returned at Compton Shop and meet Howard. This was about 10.30 p.m. the same night. I asked him far my money and he refused to give me and he tell me to do what I like. I notice like he was going to his waist for something, and before he do me anything I bore he with a knife that I had in my pocket.”
The defence of the appellant, as can be gleaned from his statement from the dock, is that the statement which was produced at the trial by the prosecution and which, was admitted in evidence as Exhibit ‘B’, was not the statement he had given to the police.
Even though the appellant was saying that, it is clearly settled law that a trial judge must leave with the jury for their consideration such issues as properly arise frown the evidence; whether or not they are raised by the defence. An omission to do so may result in grave miscarriage of justice. See Massiah, J.A., as he then was at p. 391 of The State v. Cyril Dennan; (1977) 26 W.I.R.384., R. v. Hopper (1916) 11 C.A.R.136, The State v. Robert Lewis (1976) 23 W.I.R. 26, R. v. Bullard (1957) 42 C.A.R.1, Palmer v. Reg. [1971] 1 All E.R.1077, at p. 1084, Julian v. Julian. (1971) 16 W.I.R.395, at p. 398, Francis v. Francis. (1967) 12 W.I.R.375, at p. 376, R. v. Porritt (1961) 45 C.A.R.348).
The first question the court must ask itself is whether there was evidence which was sufficient in law to support the plea of self-defence or raise a reasonable doubt about it. If it was not, then it could be no misdirection or non-direction at all to omit to relate any of the evidence to that defence or to fail to leave the issue to the jury. [See Director of Public Prosecutions v. Walker [1974] 1 W.L.R.1090]; and then; even if there was a wrong direction in law no miscarriage of justice could result [see Chan Kau v. Queen [1955] 2 W.L.R.192 (P.C.)]. If it was sufficient, then any such defect in the summing-up might have deprived the appellant of a fair chance of an acquittal and this court must allow the appeal and either discharge the appellant or order a new trial. [See Dihal v. Reg. (1960) L.R.B.G.195]
For evidence to be “sufficient” it need not (if believed) prove self-defence conclusively or even as a reasonable probability; it is sufficient if a finding on the issues is reasonably possible, and once this is so then the issue must be left to the jury. [See Haynes, C. in The State v. Robert Lewis (1976) 23, W.I.R. at p. 233]
It must be borne in mind that there is a practical difference between the approach of a trial judge and that of an appellate court. A judge is naturally very reluctant to withdraw from a jury any issue that should properly be left to them and he is therefore likely to tilt the balance in favour of the defence but an appellate court must apply the test of reasonable possibility with as much exactitude as the circumstances permit. In other words, while a judge might, on a certain quantity of material in evidence; wisely or cautiously leave an issue of self-defence [or of provocation] to the jury, an appellate court might hold rightly that there was not in law sufficient evidence on the issue to go, to the jury, and so conclude that any misdirection or non-direction upon the evidence or the relevant law could have caused no miscarriage of justice. [See Lee Chun-Chuen v. The Queen [1963] 1 All E.R.73 (P.C.) and The State v. Robert Lewis (supra).]
In weighing the probative value of the evidence to decide if there was, at least, the reasonable possibility that, the appellant acted or may have acted in, self-defence the, trial judge must have regard to the degree of force used. For if, plainly, it exceeded that which might conceivably have been thought reasonably necessary for defensive action, in the particular circumstances, then he would be justified in withdrawing the issue of self-defence from the jury.
[See Director of Public Prosecutions v. Walker (supra), The State v. Robert Lewis (supra).]
In Lashley v. The Queen, (1959) L.R.B.G.290, it was held that the trial judge was quite right when he did not leave the issue of self-defence to the jury as the accused had used excessive force on the deceased by inflicting several injuries on him. R. v. Deana (1902) 2 C.A.R.75 is clearly distinguishable from the instant case. In that case the appellant's story was that the prosecutor had put his hands in the appellant's pocket and ridiculed his appearance, the appellant being an Italian. The appellant resenting this treatment, the prosecutor aimed a blow at him which did not actually reach him, whereupon the appellant struck the prosecutor on his jaw, which was broken in two places. Held the issue of self-defence should have been left to the jury.
In Director of Public Prosecutions v. Walker (supra) the accused had killed his wife by stabbing her eleven times. It was held that the trial judge had not erred when he failed to leave the issue of self-defence to the jury as the amount of force used by the appellant was far greater than would have been necessary for him to defend himself.
The real and substantial case of self-defence relied on here was the use of a knife by the appellant as defensive action to meet the alleged actual or apprehended danger of the use of a weapon by the deceased. The crucial question is: Was there sufficient evidence in law to raise the issue of self-defence, that is to say, was there evidence on which a reasonable jury might have found self-defence or which might have raised a reasonable doubt about the matter?
The evidence on which it is relied that the issue of self-defence arose is this:
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(a) Deceased had robbed appellant of his money.
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(b) Deceased had threatened to strike the appellant with bricks.
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(c)It appeared to the appellant as if the deceased was going to his waist (not that he went to his waist) for something.
It must be borne in mind that these three acts of the deceased took place at different points of time, namely, at 8 p.m., 9 p.m., and 10.30 p.m. respectively.
Can it be truly said that on any view of the facts most favourable to the appellant, any reasonable jury considering the evidence sensibly and anxious to do their duty would have acquitted the appellant on the basis of self-defence by the use of a knife in such circumstances? [Per Haynes, C in The State v. Robert Lewis (supra) at p. 235.]
The acts of the deceased either singly or cumulatively, would not, in my view, justify the use of a knife by the appellant, having regard to the circumstances.
As I said earlier, it must be borne in mind that an appellate court must apply the test (as to whether there was a case on the issue to go to the jury) with as much exactitude as the circumstances permit. There is nothing in the evidence to suggest that the deceased even attempted to strike the appellant or that the deceased had any weapon on him which would have induced fear in the mind of the appellant that he was in danger of being struck by the deceased and which would have required the use of a knife by the accused in order to defend himself. [See Chan Kau v. Reg. (supra).]
I would hold that on any view of the facts most favourable to the appellant, no reasonable jury considering the evidence sensibly and anxious to do their duty would have acquitted the appellant on the basis of self-defence. In this case the failure of the trial judge to leave the issue of self-defence to the jury occasioned no miscarriage of justices, as there was not sufficient evidence from which it could be inferred that the...
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