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Barbados Supreme Court |
] [Hide Context] [Unreported]
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
Criminal Appeal No. 33 of 1999
BETWEEN:
DELANO K. R. SCANTLEBURY
(Appellant)
AND
THE QUEEN
(Respondent)
Before: The Honourable Errol DaCosta Chase, Chief Justice (Acting), The Honourable Colin A. Williams, Justice of Appeal, and The Honourable Maurice A. King, Justice of Appeal (Acting).
2000: 27th June
2002: 31st July
Mr N. Keith Simmons for the Appellant, with Mr Michael Lashley, Mr Branford Taitt Jr. and Mr Albert Sealy.
Mr Douglas Fredericks for the Respondent.
DECISION
[1] On 1 November 1999 the appellant was convicted of murdering Darnley Carmichael (hereinafter “Carmichael”) and sentenced to hang.
GROUNDS OF APPEAL
[2] The appellant has appealed against his conviction on the following grounds:
“(1) That the learned Trial Judge direction on provocation was inadequate.
(2) That the learned Trial Judge failed to adequately put the defence to the jury.
(3) That the learned Trial Judge did not relate the law to the facts of the case.
(4) That the learned Trial Judge failed to direct the jury as how to treat oral statements. [1]
1. Verdict unsafe and unsatisfactory.”
THE FACTS
[3] The facts are that on 29 November 1998 at Gunsite Road, Brittons Hill, in the parish of Saint Michael, an altercation took place between the appellant and Carmichael over a cow. Carmichael wanted the appellant to tie his cow and the appellant refused to do so. The appellant made a report to the Hastings Police Station, as a result of which Sergeant Straughn and Special Constable Springer (both in uniform) went to Gunsite Road, Brittons Hill.
[4] On arrival there they met the appellant and Carmichael. Sgt Straughn told Carmichael that the appellant had made a report to Hastings Police Station that he Carmichael had threatened to shoot the appellant. Carmichael said that he did not know the appellant, that he did not have a gun, and he denied that he threatened to shoot the appellant. In the presence of the Police officers Carmichael told the appellant "I would bust ya face and you got a number of little men frighten for you”. Sgt. Straughn warned Carmichael against threatening to bust the face of the appellant and against threatening to shoot him. The Sergeant also warned Carmichael of the seriousness of the threat and against putting it into execution. Sgt. Straughn advised both the appellant and Carmichael to keep the peace and be of good behaviour. The Police Officers left the area shortly thereafter.
[5] It appears that both the appellant and Carmichael left the scene as well but returned very shortly afterwards. Further exchanges took place between the appellant and Carmichael culminating in the appellant stabbing Carmichael with a knife. Carmichael died as a result.
GROUND NO. 1
[6] The appellant at the trial appears not to have raised the defence of provocation. The learned trial judge however quite properly put to the jury both the defences [2] of self-defence and of provocation. This is consistent with the comments of Lord Tucker in Bullard v The Queen [1957] AC 635 @ 642 where he said:
“It has long been settled law that if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, and whether or not this issue has been specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked.”
[7] Provocation at common law, as defined by Devlin J. in R v. Duffy [1949] 1 All ER 932 and approved by the Court of Criminal Appeal in the same case, is
“...some act or series of acts done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”
[8] The learned trial judge's directions on provocation appear at page 2 (line 27) to page 3 (line 5), page 5 (line 10) to page 6 (line 6), and page 26 (line 26) to page 27 (line 3) of the Record. It is relevant to quote from the second passage:-
“I will tell you again that in law provocation has a special meaning - Provocation is some act or series of acts done or words spoken which would cause any reasonable person, and actually causes the accused a sudden and temporary loss of self-control rendering the accused so subject to passion as to make him for the moment not master of his mind.
“There are, therefore, two elements in provocation - The first is the question whether the accused was actually provoked to act as he did. The second is whether a reasonable and sober person would have been provoked into acting as he did.
“A reasonable person simply means a person who has that degree of self-control which is to be expected of the ordinary citizen who is sober, or you are satisfied that what was done and said to the accused would not have caused an ordinary sober adult man to behave as he did, the Prosecution will have disproved provocation (emphasis added)....., provided you are satisfied with the ingredients of murder then your verdict will be guilty of murder. If on the other hand the Prosecution does not disprove provocation, your verdict will be not guilty of murder, but guilty of manslaughter.” [3]
[9] The common law definition of manslaughter has been modified by section 5 of the Offences Against the Person Act Cap 141 which provides that
“Where on a charge of murder there is evidence on which the jury can find that the accused was provoked, whether by things done or by things said or by both together, to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury and in determining that question, the jury shall take into account everything both done and said according to the effect which, in their opinion it would have on a reasonable man.”
[10] This section is similar to section 3 of the Homicide
Act 1957 of the United Kingdom. The English section was analyzed
by Lord Diplock
in R v. Camplin [
1978] AC 705 @ 716 as follows:-
“...this section was intended to mitigate in some degree the harshness of the common law of provocation as it had been developed by recent decisions in this House. It recognizes and retains the dual test: the provocation must not only have caused the accused to lose his self-control but must also be such as might cause a reasonable man to react to it as the accused did. Nevertheless it brings about two important changes in the law. The first is: it abolishes all previous rules of law as to what can or cannot amount to provocation and in particular the rule of law that, save in the two exceptional cases I have mentioned, words unaccompanied by violence could not do so. Secondly it makes it clear that if there was any evidence that the accused himself at the time of the act which caused the death in fact lost his self-control in consequence of some provocation however slight it might appear to the judge, he was bound to leave to the jury the question, which is one of opinion not of law: whether a reasonable man might have reacted to that provocation as the accused did.
“I agree with my noble and learned friend Lord Simon of Glaisdale that since this question is one for the opinion of the jury the evidence of witnesses as to how they think a reasonable man would react to the provocation is not admissible.
“The public policy that underlay the adoption of the “reasonable man” test in the common law doctrine of provocation was to reduce the incidence of fatal violence by preventing a person relying upon his own exceptional pugnacity or excitability as an excuse for loss of self-control. The rationale of the test may not be easy to reconcile in logic with more universal propositions as to the mental element in crime. Nevertheless it has been preserved by the Act of 1957 but falls to be applied now in the context of a law of provocation that is significantly different from what it was before the Act was passed.
“Although it is now for the jury to apply the “reasonable man” test, it still remains for the judge to direct them what, in the new context of the section, is the meaning of this apparently inapt expression, [4] since powers of ratiocination bear no obvious relationship to powers of self-control. Apart from this the judge is entitled, if he thinks it helpful, to suggest considerations which may influence the jury in forming their own opinion as to whether the test is satisfied; but he should make it clear that these are not instructions which they are required to follow; it is for them and no one else to decide what weight, if any, ought to be given to them.”
[11] At page 718 letters E & F Lord Diplock added
“In my opinion a proper direction to a jury on the question left to their exclusive determination by section 3 of the Act of 1957 would be on the following lines. The judge should state what the question is using the very terms of the section. He should then explain to them that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did” (emphasis added).
[12] In the instant case the learned trial judge did not state the question on provocation by using the very terms of section 5 of the Offences Against the Person Act or terms similar thereto. Moreover, it is clear from the above citations from Camplin that a proper direction on provocation should not refer to some purely hypothetical person but should make reference to the accused’s age, sex and other relevant characteristics. Instead, the Trial Judge in this case gave the jury a definition of the reasonable person as an imaginary adult with certain characteristics, as is shown by the highlighted portion of his direction on provocation which has been quoted early in this decision. He thereby directed the jury to use a more rigid and inflexible standard than they ought to have done in assessing the conduct of the accused. In the Court’s view, this was a very material misdirection which could have weighed heavily against the accused in the jury’s deliberations. [5]
Ground No. 2
[13] We do not see any merit in this ground. The Trial Judge dealt with self-defence at length from page 3 (line 6) to page 5 (line 9). His directions were detailed to the point of being repetitive and no fault can be found with them.
[14] In addition, as already stated, even though the question of provocation was not raised by the defence, nevertheless the Trial Judge did draw it to the jury’s attention and give them directions (though flawed) in relation thereto.
Ground No. 3
[15] The evidence in this trial was not complicated. So it did not call for any or any deep analysis to enable the jury to understand the issues of fact involved. In the course of explaining the elements of the offence to the jury, the Trial Judge made it clear to them what the prosecution had to prove before they could find the accused guilty; and the Trial Judge later reviewed the evidence and identified the discrepancies therein. There is therefore no merit in this ground.
Ground No. 4
[16] There is merit in this ground: there is certainly no direction to the jury on how to treat orals. It is the Court’s view, however, that the facts are so simple that this non-direction did not disadvantage the accused.
CONCLUSION
[17] Having reviewed the submissions of Counsel for the appellant and the Respondent, the Court is satisfied that, although there may be some substance in the appellant’s arguments on ground 4, on the whole of the evidence and with the usual directions on orals, the only reasonable and proper conclusion a jury would have reached is that the appellant was guilty of unlawful homicide. In R v. Stoddard 2 Cr. App. Rep 217 @ 245-246 Lord Alverston CJ made the following observations
“Every summing up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. This Court does not [6] sit to consider whether this or that phrase was the best that might have been chosen or whether a direction which has been attacked might have been further or more conveniently expressed... The Court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice.”
[18] Against the background of the Trial Judge’s flawed directions on provocation, the Court is satisfied that in all the circumstances a conviction of murder is unsafe. Pursuant to the provisions of the Criminal Appeal Act Cap 113A, the Court quashes the conviction of murder and sets aside the sentence of death, substitutes a conviction of manslaughter and a sentence of 20 years’ imprisonment. [7]
Chief Justice (Acting)
Justice of Appeal Justice of Appeal (ag.)
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