Petty v The Queen

• Jurisdiction: Anguilla
• Court: Court of Appeal (Anguilla)
• Judge: Satrohan Singh, J.A.
• Judgment Date: 03 October 1994
• Neutral Citation: AI 1994 CA 1
• Docket Number: Criminal Appeal No. 10 of 1992
• Date: 03 October 1994

Court of Appeal

Byron, C.J. (A.g.) Singh, J. A.Joseph, J. A. (Ag.)

Criminal Appeal No. 10 of 1992

Petty

and

The Queen

Appearances:

Mr Fitzroy Bryant for the appellant

Mr Kurt De Freitas, Attorney General

Mr Patrick Patterson with him for the respondent

Criminal Law - No case submission — Whether there was merit in the submission of no case to answer — Murder — Conflicts in evidence as to the details of the incident — Witness' reliability determined by the jury — Appeal fails.

Criminal Law - Defences — Self-defence and provocation — Whether the trial judge erred in his summing up in dealing with the issues of self-defence and provocation — The deceased told the appellant that he was wrong about Ritz and held on to the appellant's neck after he was attacked by the appellant — The appellant's reaction was to save himself — There was no loss of temper — No evidence of provocation — Misdirection did not have the effect of a miscarriage of justice — Proviso to s. 37(1) of the Eastern Caribbean Supreme Court (Anguilla) Ordinance, 1982 — Appeal dismissed.

Satrohan Singh, J.A.

1 On September 18 ^th, 1992 around ll p.m. the appellant, who was at the Round Rock Bar at Shoal Bay, Anguilla in possession of his golf club, was involved in an argument with one Ritz. He hit Ritz on his shoulder with the club. The deceased Alex Richardson called Sammy Joe intervened by asking the appellant to stop troubling Ritz. The appellant reacted by hitting the deceased on his forehead, in the region of his temple, a two handed blow with the said club. The club broke. The club was made of metal. The appellant then inflicted among other injuries, three severe injuries on the deceased with the broken club. One of the injuries was a hole that admitted of a finger that went right through the deceased chest. The other two serious injuries were two gaping holes penetrating the deceased abdomen. The deceased died from these injuries. The post mortem examination revealed that the deceased had alcohol and marijuana in his system.

2 On February 10 ^th, 1993, a jury before Roberts J. rejected the appellant'spleas of provocation and/or self-defence and convicted the appellant of the common law offence of murder. Roberts J. sentenced him to imprisonment for life.

3 The evidence of the appellant was that the deceased, who appeared to be drunk, came up to him cursing and swearing. The appellant thought the deceased was about to hit him as the deceased was in a rage. The deceased grabbed hold of him around his neck and was choking the appellant. The appellant holding the golf stick with both hands began hitting the deceased with the golf stick as he felt he was choking with not enough air to breathe. He said he was not trying to kill him or wound him, he was “digging him to let me go and stop from choking me”.

4 Six eye-witnesses testified on behalf of the Crown. They each gave their own version of what they said they saw. These versions differ in certain particulars. At the close of the case for the prosecution, there was evidence which was capable of showing an intent in the appellant to kill or cause grievous bodily harm to the deceased. There was also some evidence that lent some support to appellant'stestimony that he was being choked when he inflicted the wounds on the deceased. The prosecution relied on evidence that tended to show that after. the deceased intervened in the argument between the appellant and Ritz, the appellant told the deceased “Stay to fuck out of this because you going to be the first fellow to fall” and the deceased having then told the appellant that the appellant could not hit him, the appellant then hit him with the golf stick causing it to break. The deceased was then facing the appellant with his two hands on the appellant'sshoulder when the appellant inflicted the fatal injuries on him by continuously digging the deceased in his belly with the broken golf stick. At the close of the case for the prosecution the learned trial judge rejected a submission on behalf of the appellant of no case to answer with respect to the offence of murder.

5 This appeal is from the murder conviction. The issues to be determined are:

1

Whether there was merit in the submission of no case to answer.

2

Whether the trial judge erred in his summing up in dealing with the issues of self-defence and provocation. 3. Whether the verdict of the jury was unsafe and unsatisfactory.

1. THE NO CASE SUBMISSION:

6 Mr. Bryant'ssubmission to this court is that at the close of the case for the Crown, the prosecution had failed by way of evidence to negative the pleas of provocation and self-defence, even though they must have been aware of those pleas from the statement given by the appellant to the police the very next day after the killing or Sammy Joe. Hence his submission of no case of Murder to answer.

7 It is not disputed that at the close of the case for the prosecution, the actus reus necessary for the offence of murder, that is, the killing of the victim by the appellant, was established. The mens rea required was an intention on the part of the appellant to kill or cause grievous bodily harm when he executed that actus reus. The evidence for the prosecution already set out in this judgment, shows material upon which, if accepted by the jury, after proper directions from a judge, a jury could have properly found the necessary or relevant mens rea. There was also evidence from one prosecution witness which tended to lend some support to the appellant'splea of self-defence. In those circumstances, following the now well-known and accepted guidance given in R v. Galbraith (1981) 73 Crim. App. Rep. 124, it is impossible for this Court to say that at the close of the case for the prosecution, there was no evidence that the crime alleged was committed by the appellant or that the evidence was such that taken at its highest, that a jury property directed could not have convicted on it. The jury had the evidence of the prosecution witnesses before them giving them the option of different verdicts.

8 It is accepted that there were conflicts in the evidence as to the details of the incident but the evidence cannot be said to be manifestly unreliable. This is therefore a case where the prosecution'sevidence was such that its strength or weakness depended upon the view to be taken of a witness’ reliability or other matters which are generally speaking within the province of the jury and, where on one possible view of the facts, there was evidence on which a jury could properly conclude that the appellant was guilty. This was therefore a matter eminently for the determination of a jury. This ground of appeal therefore must fail.

2. SELF DEFENCE AND PROVOCATION:

9 Learned counsel for the appellant then submitted that in giving directions to the jury on self-defence, the judge did not properly direct the jury as to the onus on the prosecution to prove that the appellant was not acting in self-defence. Counsel further submitted that the judge also did not properly direct the jury that self-defence depends on the subjective test. These submissions are without merit. In his summation to the jury, the learned trial judge explained the relevant onus thus:–

“A killing in lawful self-defence and that'sno offence at all members of the jury, some people call self-defence a defence it is a justification, and for that reason the burden of proof lies upon the prosecution throughout. If it were a defence it is the defendant who would have had to shift that burden, it is for the prosecution”.

“What is reasonable force depends on all the facts including the nature of the attack. The defendant said he was being choked some one who wanted to breath. What would you have done members of the jury? but you got to look at this subjectively look at the defendant. All the things that have been said, the way he behaved when he felt he was not able to breath”.

“If therefore you were to conclude that the defendant did what he instinctively, that adverb is powerful, instinctively thought was necessary you should regard that as very strong evidence. That the amount of force was reasonable and necessary. Because it is for the prosecution to prove the defendant'sguilt, it is for them to satisfy you so that you feel sure that the defendant was not acting in self-defence”.

10 These directions cannot be faulted and they amply withstand the criticism of learned counsel for the appellant.

11 However, counsel submitted further that on the issues of self-defence and provocation, the judge'sdirections were inadequate and incomplete and failed to meet the standards of the “special direction” laid down in Baptiste V. the State (1983) 34 W.I.R 253, R v. Bunting (1965) 8 W.I.R 276 and Howell v. R. (1994) Barbados C.A. reported in the “Week-end Nation” 31 March, 1994. Learned counsel'sargument is that the judge failed to give the jury a clear and proper direction as to the difference between the mens rea required for a conviction of Murder and the mens rea required for a conviction of Manslaughter.

12 The submission of counsel for the appellant as I understand it is this: The mens rea required for Murder is an intention to kill or cause grievous bodily harm. If the killing is done as a result of justifiable self-defence, the intention to kill or cause grievous bodily harm can still be present. Even though the definition of the offence of Manslaughter is an unlawful killing without the requisite murderous intent, if the killing is done under the stress of provocation thereby reducing the offence to Manslaughter, such a killing still could have been done with the intention to kill or cause grievous bodily harm. Counsel concludes from this position that in dealing with the pleas of self-defence and provocation it is a grave misdirection for a judge to tell a jury that (1) If the accused was acting In self-defence or...