R v Johnson
| Jurisdiction | Jamaica |
| Judge | Zacca, P.,Kerr, J.A.,Robotham, J.A. |
| Judgment Date | 14 April 1978 |
| Neutral Citation | JM 1978 CA 27 |
| Date | 14 April 1978 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | Criminal Appeal No. 266 of 1977 |
Court of Appeal
Zacca, P.(Ag); Kerr, J.A.; Robotham, J.A.
Criminal Appeal No. 266 of 1977
Mr. B., Macaulay, Q. C., and Mr. T. Ballantine for appellant.
Mrs. V. Hylton-Gayle (Ag. Dep. Director of Public Prosecutions) for the Crown
Practice and procedure - Evidence — Whether trial judge dealt adequately with the evidence in terms of manslaughter or murder.
On February 23, 1978, we dismissed the appeal and indicated then we would put our reasons in writing. This we now set out herein.
On October 5, 1977, the appellant was convicted in the Home Circuit Court before Chambers J. and a jury for the murder of Peter Neil and sentenced to death.
On the night of January 15, 19'6, in a room occupied by one Deserine Stephens at No. 74 Spanish Town Road, Kingston, were Deserine, the deceased and one Vincent Mattis. According to Mattis, on whose testimony the case for the prosecution rested, (Deserine Stephens not being able to give evidence) he and the deceased were looking at a Race Programme, the deceased sitting on a bed while he sat on a chair. Lying on the bed was a baby, the child of the accused and one Angela Singh who occasionally slept there.
At about 8.00 p.m. Mattis said he saw the appellant chasing his girlfriend Angela around the house. Shortly after the appellant came into the room where the deceased and Mattis were and said, “all you deh with me woman”, and as he said this he pushed a knife into the chest of the deceased who got up off the chair and holding his chest said “him stab me into my heart.” Assisted by Deserine, the deceased was put into a taxicab and taken to the Kingston Public Hospital where he died that same day. Mattis when cross-examined denied the suggestion that it was the deceased who has the knife and was fatally injured in a struggle with the appellant.
Dr. Mariappa Ramu who performed the post-mortem examination found an incised stab wound half inch by quarter inch on the left side of chest in the fourth intercostals space passing through the pericardium, the right side of the heart, the liver and making a cut on the outside of stomach. The direction of the wound was downwards and backwards. The cause of death was due to shock and haemorrhage as a result of the stab wound to the heart. A lightweight sharp instrument such as a ratchet knife used with moderate force could have caused those injuries.
The doctor was cross-examined as to the relative positions of accused and deceased. Demonstrations by the witness Mattis and the doctor and doctor's opinion on the various positions as put to him were made and given before the jury. The doctor was of the opinion that Mattis, demonstration was not consistent with the direction of the wound as he saw it.
The appellant gave evidence on oath and his account of the incident differed substantially from Mattis' on every important detail. According to him he had gone to Deserine to visit Angela. In the room he saw the witness Mattis and the deceased. The deceased spoke to him and after he told him he was Angela's baby father the deceased said “a long time me hear bout you.” The appellant took up the baby and then seeing the deceased with a knife he put down the baby and as the deceased approached and stabbed at him, he held the deceased, they wrestled and fell on the verandah and then to the ground outside still wrestling, the appellant trying to get the knife from the deceased. A friend of the deceased came and took away the knife and he left the scene. He had not the slightest idea that the knife had cut the deceased. The following day he heard of the death of the deceased.
Angela Singh called by the defence gave evidence to the effect when the appellant came to the room the deceased was lying across the bed. The appellant took up the baby and the deceased said, “Is long time I hearing about you” - rushed for his pocket, and then the wrestling started between the appellant and the deceased. They wrestled on to the verandah and fell on the ground. During the wrestling she saw the deceased with a knife. She did not know how the wrestling ended. Although the appellant said Mattis was in the room Angela said he was not present.
Three grounds of appeal - two original and one supplementary - were carefully argued.
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Ground 1. The summing-up was not fair and in fact unbalanced in that the judge devoted most of his examination of the evidence to all alleged weaknesses and discrepancies in the evidence for the defence and the strength of the evidence for the prosecution in particular, he failed to point out to the jury that the medical and expert evidence for the prosecution could have affected materially the credibility of the sole eye-witness for the prosecution.
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Ground 2. The verdict was unreasonable and having regard to the evidence, could not be supported.
On the prosecution's case as portrayed in the evidence of Mattis it was clearly a case of murder. On the other hand, the defence as conducted and presented by the evidence for and on behalf of the defence was diametrically opposed to that of the prosecution and on its acceptance or on it's raising a reasonable doubt, the appellant would be entitled to an acquittal.
As regards the evidence of Mattis as to how the stabbing took place and the opinion of Doctor Ramu based on the direction of the wound the jury had the benefit of the demonstrations. The direction of a wound depends upon the relative position of victim and assailant, the direction of the thrust, any last minute shift in position by either assailant or victim, indeed so many variables and the difficulty of any witness accurately describing the action having regard to the often kaleidoscopic nature of such action, that it is essentially a question of fact for the jury and in this case the matter was properly left as an open issue for their consideration. We found no merit in Grounds 1 and 2.
We however, gave careful consideration to the supplementary ground which was amended at the end of the appellant's attorney's arguments in keeping with the submissions which he eventually made and which ground in the end reads: –
“The learned trial judge's directions on (a) self-defence and (b) provocation were unnecessary, and may well have led the jury into confusion, when such defence did not arise on the evidence.”
RE: (a) Self-defence: –
Mr. Macula contended that the issue specifically raised was accident and that by leaving self-defence to the jury there was an implied rejection of accident, since self-defence involves intentional conduct and accident negatives or is incompatible with intentional conduct and its consequences. With due respect to the attractive presentation of the argument, the distinction is more specious than practical, more illusory than real. A person in defending himself may kill his attacker either intentionally or unintentionally. In either case if in the moment of crisis he used no more force then was reasonable necessary, the plea of self-defence would be open to him. A summing-up is to a great extent conditioned by the nature and conduct of the case and, the issues raised by the evidence as tendered by the prosecution and the defence. Issues may overlap; one issue may incidentally involve another; the lines of demarcation between one issue and another may wittingly or unwittingly be blurred by the evidence as presented by the defence and/or raised in cross-examination; or there may be the rare occasion where defences apparently incompatible have been raised.
In the instant case on the account given by the appellant and his witness, it is conceivable that the jury may be of the view that the appellant in the emergency of the moment deliberately turned the hand of the deceased against him. It would not only be fair but of advantage to the appellant that the jury should be made aware than even in such circumstances the complete exculpatory plea of self-defence would be available to him. This the learned trial judge did in the following manner: –
Page 63: –
“Members of the jury, the accused having...
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