R v Burke

CourtCourt of Appeal (Jamaica)
JudgeRowe, P.
Judgment Date18 April 1988
Neutral CitationJM 1988 CA 66
Date18 April 1988
Docket NumberCriminal Appeal No. 112 of 1987

Court of Appeal

Rowe, P.; Carey, J.A.; Forte, J.A.

Criminal Appeal No. 112 of 1987


Delory Chuck for appellant.

Mrs. Joan Joyner for Crown.

Criminal law - Murder — Conviction — Death sentence — Appeal against conviction — Defence of self defence — Adequacy of directions to jury — Inconsistencies in evidence of three witnesses — Whether misdirection on meaning of intention — Confrontation between deceased and appellant about money owing to deceased — Deceased stabbed by appellant — Whether appellant honestly believed he was under attack — Whether issue should have been left for jury's consideration — Finding that trial judge erred in directions to jury — Appeal allowed — Verdict of acquittal entered.

Rowe, P.

At the invitation of the Court, Mr. Chuck accepted an assignment to represent this appellant and at the end of a week, filed and argued eight interesting Grounds of Appeal which eventually led the Court to allow the appeal, quash the conviction, set aside the sentence and order that a verdict of acquittal be entered. The appellant had been convicted of murder in the St. Mary Circuit Court and had been sentenced to death. Self-defence was the only live issue in the case and mast of the appellant's complaints centred around the directions to the jury on this issue.


Hampstead is a village in St. Mary. It is served by two intersecting roads and where they cross there are some shops. At 4 p.m. on August 26th, 1986 a number of persons were in the vicinity of the cross-road and of the shops. The appellant and Denzil Clarke (the deceased), approached the square, walking and talking. The deceased was asking the appellant for money and the appellant was denying that he had any money for the deceased. One witness for the Crown heard the deceased say: “Give me my things, man,” which drew the reply from the appellant: “It in my pocket, take it out.” Whereupon the deceased said: “No, I am not going in your pocket because the next thing I go in your pocket you going said I rip you off.” The other Crown witness gave more details of the talk between the two men. She described it thus:

“A: I saw George and Shorty arguing from the other shop coming towards over the other shop about some money.


I hear Shorty say to George ‘pay me me money, pay the … money man.’


George say ‘I don't have any money’ … and Sporty say to him, ‘me just a come from bush and I hungry now and the I want something to cook some food and you must pay me money mek me go cook.”


Then followed the invitation from the appellant that the deceased should search his pockets, which drew the quaint reply about rape.


The three eyewitnesses called by the prosecution had no connection with the appellant or the deceased or with each other. Their evidence varied in some of the details and so it is necessary to set out the accounts. The first witness saw the two men start to “shuffle” as if they wanted to fight. Then she saw the appellant reach for his pocket, take out something resembling a knife and make a stab at the deceased. At the prodding of counsel for the prosecution, the witness said that she saw the deceased reach for his pocket at the said time that the appellant reached for his pocket.


This series of questions and answers show how that evidence was elicited.

“Q: Was George the only one that draw from his pocket and make the stab?

A: Shortie.

Q: When you saw Shortie get stabbed was there anything in Shortie's hand?

A: No.

Q: You said you saw like two of them going to fight?

A: Yes.

Q: Did you see who reached what, what happened, who reached what first?

A: I say I see George.

HIS LORDSHIP: What did you see George do?

A: Pulled from his pocket.

Q: You said that you also saw Shortie like him reach?

A: Trying to … (witness demonstrates).

Q: When was this, was it after George reached for his pocket. Before or when?

A: At the said time.


Q: You said that when the deceased got stabbed Shortie did not have anything in his hand?

A: I never see it.

Q: You said also that you saw something, that you saw an old file?

A: Where the accident happened I saw an old file at the ground. When everything over everybody where the accident happened I saw an old file on the ground.”


These questions are more typical of cross-examination than of examination-in-chief, but obviously crown counsel was loading from the deposition. Cross-examination did not advance the defence except that the witness admitted that the appellant crossed the road during the talk with the deceased and that the deceased followed him and went and stood to front of the appellant.


Now for the other crown witness. To crown counsel she said that the first physical act between the parties was committed by the deceased, who when the appellant was about to turn away, pushed him back around and said: “The man no decide fe pay me me money man? The appellant told the deceased to move away from in front of him and was about to turn away, when again the deceased spun around the appellant and said: “The I noh decide fe pay the I me money mek me go cook some food?” The appellant then gestured with both hands as if to push away the deceased but did not in fact touch him. Then followed these important responses:

“A: And same time I saw George feel his back-pocket and Shorty feel his.

HIS LORDSHIP: Who felt his back-pocket?

A: George.

HIS LORDSHIP: George then felt his back-pocket and then what?

A: And then Shorty felt his own and come up with an old file.

Q: Now let's get this straight now. It was George who felt his back pocket first and then….

A: Shorty pull up.

Q: Shorty felt his back-pocket. What you say George do now?

A: Then after him, Shorty, come up with the file, him come up with the knife and stab it like this and drag it down and I see the blood come and I say Jesus Christ him dead in a him heart him get it.”


She described the struggle that followed, how the deceased was attempting to disarm the appellant, how the appellant cut the deceased on his hand and ran away, chased by the deceased. The file which the deceased drew from his pocket was an old file with a stick at one end.


Defence counsel went directly to the crucial point in the case as the following questions and answers show:

“Q: In terms of sequence, could you see if any, listen carefully. Did any of the two men come up first. Answer that question first?

A: Sir, I saw Shortie come up first with the file and hold it like this (indicating). The two of them come up first but him stab first and I see when the file drop from Shortie.

Q: Just a while ago you said that Shortie came up with the file.

A: The two of them go to them back-pocket same time but Shortie come up first.”


The cross-examination having been completed, the learned trial judge put a question to clear up what he perceived to be a contradiction.

“HIS LORDSHIP: Can you explain to us Miss S. which is true because at first you said George was the first person to reach for his pocket and then Shortie followed suit? … But then you told Mr. Malcolm that the both of them went to theft pockets at the same time. I do not want to put words to your mouth, but do you mean that George went first and then Shortie, but it happened so quickly that It looks like it Is the same time, or are you saying that they both went at the same time, to Mr. Malcolm. But to Crown Counsel you said George. Who went first?

A: George went first.

Q: Therefore when you told Mr. Malcolm that both went to their back-pockets at the same time that was a mistake?

A: Sir, I don't know how Shortie get to come up so fast. I don't know how Shortie get to draw his own so quick but I know George first, and Shortie come up sharp behind.”


A third prosecution witness said the appellant made two stabbing notions, the second of which caught the deceased. She did not see the old file at all and she did not see the deceased attack the appellant at any time that day.


In his unsworn statement, the appellant said that the deceased demanded money from him but he did not owe the deceased any money. He said the deceased grabbed him up, and “said time me sae him dip in a fe him pocket and come up with something …. Said time ma see him a come up back, but me don't know what him come up wid. Said time me did...

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