R v Green

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Fox, P.,Graham-Perkins, J,Grannum, J.
• Judgment Date: 18 June 1973
• Neutral Citation: JM 1973 CA 54
• Docket Number: Criminal Appeal No. 114 of 1972
• Date: 18 June 1973

Court of Appeal

Fox, P., Graham-Perkins, J; Grannum, J.(Ag)

Criminal Appeal No. 114 of 1972

R.

and

Green

Appearances:

Martin Wright, Q.C., for the crown

Roy Taylor for the applicant

Criminal Law - Appeal against conviction — Murder

Practice and procedure - Trial by jury — Directions to jury on provocation and self — defence

JUDGMENT OF THE COURT:

1 On the night of 1st January, 1972, a dance for which a fee was demanded at the gate was being held at James Hill in Clarendon. At about 8 p.m. a man called ‘Fine’ tried to force his way into the dance. He was barred at the gate by the gateman and other persons at the dance including the deceased. The accused was in the road. He came up to the gate, and stretching over the heads of other persons, he cut at the deceased and another person with a long knife. When this happened, a witness said that he called to the accused and asked him why he had cut the deceased when the deceased had not troubled him. The accused did not answer this question. He looked at the witness, walked back into the road, and at some stage commenced to dance in the road. After the altercation at the gate had subsided, the deceased left the dance and went some little distance down the road where he spoke with his brother. Having done this he was returning towards the dance. He came up to where the accuse was, stopped and spoke with the accused. One witness heard the deceased ask the accused “why you cut after me with the knife,” All the witnesses for the prosecution agreed that at this stage the deceased hands were at his sides and that they heard him say nothing and saw him do nothing amounting to aggressive conduct towards the accused, or from which the accused could have apprehended any threatened violence to him. The accused reached into his back pocket, drew out a knife plunged it into the breast of the deceased and ran away. The deceased received a fatal stab wound. He died on the spot.

2 The applicant's reply to the Crown's case was by a statement from the dock in which no specific reference to the incident at the gate was made. It was left to be implied that the testimony of the witnesses for the prosecution of this incident was false. The applicant said that he was dancing in the road “paying attention to no one because I know that I trouble no one.” The deceased passed him and went down the road. On his returns the deceased suddenly spun around grabbed him and said ‘Rass you, why cut after me with the knife’. Putting his hand in his back pocket and ‘coming up’ the deceased said further that he “going shoot out my blood cloth.” The applicant continued: “I go for my knife into my pocket and I juck him and I run …. why I gots to run is because I thought he was going to shoot me.”

3 On the evidence for the prosecution, the jury could have had very little difficulty in coming to the conclusion that the deceased died as the result of an act which was unprovoked and must have been intended to kill. Somewhat faintly it was argued that the verdict of guilty of murder was unreasonable having regard to the evidence. It is sufficient to dispose of this argument by according it mention. The main contention on appeal before us was that as a result of confused and misleading directions in general, and on the issues of self-defence and provocation in particular, a proper consideration of the case by the jury had been so gravely prejudiced as to require the conviction to be quashed.

4 The complaint on the issue of provocation

5 In telling the jury early in the summing-up that to amount to murder the killing must be by act which was intended to kill or to inflict really serious bodily injury, the learned judge said:

“You must bear in mind that it is not every, deliberate and intentional killing which amounts to murder. A deliberate and intentional killing done as a result of legal provocation is not murder but manslaughter.”

6 It was contended that these entirely correct directions were nullified by further statements which sought to describe the burden upon the crown to prove the intention necessary to constitute murder, and to explain the consequence in terms of manslaughter of a failure to discharge that...