Director of Public Prosecutions v Nasralla
| Jurisdiction | Jamaica |
| Judge | Small, J.,Duffus, P.,Lewis, J.A.,Henriques, J.A. |
| Judgment Date | 11 June 1965 |
| Neutral Citation | JM 1965 CA 65 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | C.L. 668 of 1963.; Civil Appeal No. 13 of 1963 |
| Date | 11 June 1965 |
Court of Appeal
Small, J.; Duffus, P.; Lewis, J.A.; Henriques, J.A.
C.L. 668 of 1963.; Civil Appeal No. 13 of 1963
Robotham and Barnett for the Crown.
Blake, Q.C. and Coore, Q.C. for the accused.
Vivian Blake, Q.C. and David Coore, Q.C. for applicant
William Swaby, D.P.P. and L. Robotham for Respondent
V.B. Grant, Q.C. Attorney General,
( E. Watkins with him), as amicus curiae
For the appellant Coore, Q,.C, with him Mahfood
For the respondent Swaby, D.P.P, with him L.G. Barnett and I. X. Forte
practice and procedure - Trial by jury - Jury at deadlock
The prosecution's case indicates a story involving the accused pursuing an escaping felon and shooting him fatally in the attempt to arrest him. For such an act simpliciter the only verdict the prosecution could expect against the accused is one of manslaughter.
In addition to the above the prosecution produced evidence which, if accepted, was likely to take the case as high as murder, and accordingly they presented an indictment charging murder. On such an indictment the jury are obliged to return a verdict one way or the other on the charge of murder while they may return one of manslaughter.
See Archbold 34 th Edition, para. 576: “Upon an indictment for murder if the prosecutor fails in proving malice aforethought, the prisoner may be convicted of manslaughter.” also R. v. Mackalley, 9 Co. Rep. 61b.
In the instant case the jury have returned a verdict not guilty in respect of murder and have failed to agree to the necessary majority in respect of a manslaughter verdict.
Accordingly, the court exercising the powers granted under sec. 45(1) of the Jury Law, Cap.186, discharged the jury.
The prosecution in the circumstances now invite the court to order a new trial on the issue of manslaughter and in support of this application they refer to sec. 45(3) which provides –
“Whenever a jury have been discharged the Judge may adjourn the case for trial at the same sitting of the Circuit court or at a future sitting of the Circuit court, and at the subsequent trial the case shall be tried before another array of Jurors and the Judge may in his discretion excuse from such array any juror who took part in the previous trial.”
The defence on the other hand have urged that a plea of autrefois acquit could not be successfully resisted at such a retrial and so they invite the court not to act in vain.
Exhaustive research and arguments have been indulged in by the learned counsel on both sides and the court records its gratitude to the gentlemen at the bar for the assistance afforded on a question that is so barren of recorded local authority.
Hale in his Pleas of the Crown, Vol. 2 at p. 246 has this to say:–
“If a man be acquit generally upon an indictment of murder autrefois acquit is a good plea to an indictment of manslaughter of the same person or a converso if he be indicted of manslaughter and be acquit, he shall not be indicted for the same death as murder for they differ only in degree and the fact is the same.”
In R. v. Barron, [1914] 2 K.B. 570 at p. 574 Lord Reading, C.J. (A.J. Lawrence and Lush. JJ. with him) in delivering judgment of the court is reported to have said:
“We are of the opinion that the plea of autrefois acquit was rightly rejected. The principle upon which this plea depends have often been stated. It is this, that the law does not permit a man to be twice in peril of being convicted of the same offence. If therefore he has been acquitted, i.e. found to be not guilty of the offence by a court competent to try him, such acquittal is a bar to a second indictment for the same offence. This rule applies not only to the offence actually charged in the first indictment, but to any offence of which he could have been properly convicted on the trial of the first indictment. Thus an acquittal on a charge of murder is a bar to a subsequent indictment for manslaughter as the jury could have convicted of manslaughter ………
The rule of law now affirmed by this court has never been doubted or qualified, though it has not always been found easy to apply the rule to the facts of particular cases under discussion.”
It is particularly interesting to follow the thoughts of Lord Goddard, C.J. (Hilbury and Omerod, JJ. with him) as he delivered the judgment of the court in re Shipton, [1957] 1 All E.R. p. 206. A good deal of it is obiter but there is authority to support a lot of what is said:
“In this case the jury have found the accused not guilty of manslaughter and have not agreed on a verdict of dangerous driving. There was no separate count for dangerous driving. I think with all respect to the learned judged, the recorder at Bournemouth took a proper view. He had no jurisdiction to try an indictment which was an indictment for manslaughter. It might be desirable if this matter was cleared up in some way by legislation. The learned judge more than once when an application was made to allow a voluntary bill for dangerous driving to be preferred, referred to the case of wounding with intent. We all know that on the charge of wounding with intent it is open to the jury to return a verdict of malicious wounding.
In the opinion of the court exactly the same position arises there as it does here. If a jury find a man not guilty of the offence charged in the indictment and do not go on to say ‘but we find him guilty of malicious wounding’ there is an end of the matter. Perhaps it is a pity that the learned judge did not give leave to prefer a voluntary bill. If a voluntary bill had been preferred, whether the accused would have been able to plead autrefois acquit or not I do not know.”
A contrary view expressed in the Australian Law Journal, Vol. 26 1952-53 at p. 587 was brought to the attention of the court. There the learned editor had this to say –
“ R. v. Quinn 1952-53, S.R. N.S.W. is one of a number of cases exhibiting the tendency to confine the plea of autrefois acquit within narrow limits. A jury acquitted the defendant of a charge of murder and then had been unable to agree whether he should be convicted of manslaughter. The jury was discharged and upon presentment before another jury on a charge of manslaughter, the defence of autrefois acquit was raised. The defendant had been in peril of a conviction of manslaughter on his first trial and the argument was that the acquittal on the charge of murder supported a plea of autrefois acquit to a subsequent charge of manslaughter.
The argument is fallacious. Where there are a number of different crimes containing common features acquittal on the charge A.B.C. does not necessarily import that A.B. do not exist. The matter has been complicated by the provision for alternative verdicts so that the verdict need not follow the indictment.
A general acquittal on the charge A.B.C. does import that A.B. does not exist but a mere acquittal does not. A general acquittal is an acquittal on the charge of all alternative verdicts. In this case however there was no general acquittal but only an acquittal on one of the possible charges of which the accused might be convicted.
In order to support a plea of autrefois acquit there must be a legal verdict, and where for any reason there is no legal verdict the plea is not available.
Where the jury cannot agree there is no verdict.”
It is unfortunate the report of this case is not available. It is unfortunate also that the learned editor does not attempt to support any of his reasoning with any judicial decision from any quarter whatsoever. Yet his “general acquittal” and his “mere acquittal” seem to correspond to Archbold's “general verdict” and “partial verdict”. See Archbold, 34 th Edition paras. 572, 575-6. Be it observed that Hale in his enunciation of the law above referred to, speaks specifically of a “general acquittal” while Kenney at para. 754 speaks of a “general verdict” as distinct from a “special verdict” and does not seem to address his mind to Archbold's “partial verdict”.
It appears quite clear that Lord Reading in delivering the judgment of the court in R. v. Barron (supra) was there referring to a ‘“general acquittal” without considering a “partial acquittal”. In the dicta of Lord Goddard in the ‘Shipton case the question of a “partial verdict” came up for consideration although the learned Lord Chief Justice did not refer to it as such. He there made the pronouncement:
“If a jury find a man not guilty of the offence charged in the indictment and do not go on to say, ‘but we find him guilty of malicious wounding’ there is an end of the matter.”
Clearly he did not intend to make any categoric statement of the law as it stood because almost in the same breath he went on to express his uncertainty as to whether a plea of autrefois acquit could successfully be made in the circumstances.
Attention is drawn to the manner in which the various authorities have tried to define manslaughter.
“It is an unfortunate fact that on the authorities as they now stand it is impossible to formulate a clear definition of the crime of manslaughter. The definitions offered in the text books are of a negative character.”
Russell
“Manslaughter is the unlawful and felonious killing of another without any malice expressed or implied.”
Archbold
“The offence of manslaughter includes all felonious homicides not amounting to murder.”
Harris
“Manslaughter consists in killing another person unlawfully yet under conditions not so heinous as to render the act a murder.”
Kenney
“Up to the 19 th century it was discussed as a residuary category of homicide into which fell all killings which were not justified, excusable or murder.”
Kenney
So therefore on an indictment for murder if there is a mere acquittal of...
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