R v Bunting

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Lewis, J.A.
• Judgment Date: 08 April 1965
• Neutral Citation: JM 1965 CA 55
• Docket Number: Criminal Appeal No. 191 of 1964
• Date: 08 April 1965

Court of Appeal

Duffus, P.; Lewis, J.A.; Henriques J.A.

Criminal Appeal No. 191 of 1964

R.

and

Bunting

Appearances:

Mr. G. Ramsay for applicant.

Mr. F. G. Smith for the Crown.

Practice and procedure - Trial by jury — Directions to jury — Provocation

Lewis, J.A.

1 The applicant was convicted at the St. Thomas Circuit Court on December 4, 1964 of the murder of Dervan Cunningham and sentenced to death. He applies for leave to appeal against his conviction.

2 The case for the prosecution was as follows: At about 10 o'clock on the morning of the 26th of August, 1964 Enid Smart's little son Carlton left her home at Norris in St. Thomas. At about 11.30 she received a report and went to a field nearby where she found the applicant, the deceased Carlton and others. The deceased complained to her that Carlton had interfered with his charcoal kiln, and the applicant, taking Carlton's part said that the kiln belonged to Carlton and not to the deceased. There was an argument about this. Smart, Carlton and the applicant then went to the shop of one Francis to await the coming of a policeman.

3 Shortly after, they were joined in the roadway outside the shop by the deceased, his wife Rebecca, his sister Carmen, and his mother. The argument about the coal kiln was reopened, and both the applicant and the deceased lost their tempers. There was evidence that as the applicant was walking away the deceased called him a “thief” and accused him of having stolen a goat and banana., the applicant turned back, challenged the deceased to prove it and asked if he hadn't stolen too. They advanced towards each other to fight, The deceased's wife held him and took him to the road bank. The applicant ran up to the deceased and stabbed him in the chest with a sharp pointed instrument and ran off. Deceased fell to the ground. he was taken to hospital and died on the following day. There was a conflict of evidence between Smart and the other prosecution witnesses as to whether deceased's sister Carmen had a stick; Smart said that Carmen was striking the ground with a stick saying that nobody would beat her brother; the other witnesses denied this.

4 Although the witnesses all spoke of only one blow, two punctured wounds were found on the deceased, one in his chest, the other at the pit of his stomach. That in his chest had perforated the pulmonary artery causing haemorrhage into the pericardial sac. According to the medical evidence it was this, and not the abdominal wound, which was the cause of death.

5 The applicant gave evidence, he denied having struck the deceased in his chest. he told of the quarrel near Francis' shop and the arrival of the deceased's wife, sister and mother. he was about to leave when the deceased called him a thief. He told the Court that he had previously been fined for stealing goat meat and had paid the fine. The deceased, he said, approached him threatening to kick him down. Carmen and the deceased's mother held the deceased, but he “wrung away” from them and went to the side of the road. Carmen stuck him with a stick and someone else struck him with a stone, he took the stick from Carmen and “flashed” it across herself, Rebecca and the deceased. He was going for the stone which had struck him when Rebecca held him by the shoulder and struck at him from behind. He ducked and she bounced on her husband (the deceased). He (applicant) received another blow from Carmen and ran away.

6 Although the main defence was that it was not the applicant who had struck the blow which caused the death of the deceased, the defence of provocation clearly arose upon the evidence and the learned trial judge properly left it to the jury.

7 The principal ground of appeal, and the only one with which this Court thinks it necessary to deal, is that the learned judge did not direct the jury that the defence of provocation may succeed where the accused at the time he struck the blow which caused death intended to kill or to do grievous bodily harm to the deceased, but his intention so to do arose from sudden passion involving loss of self-control by reason of provocation.

8 In his summing up the learned judge defined murder as the unprovoked killing of a human being without lawful excuse and with the intention either to kill or to cause such injury that is likely to result in death or from which death results. He then referred to the main defence, that the blow which caused death was not struck by the accused,...