R v Shaw

JurisdictionJamaica
JudgeLewis, J.
Judgment Date23 September 1963
Neutral CitationJM 1963 CA 4
Docket NumberCriminal Appeal No.36 of 1963
CourtCourt of Appeal (Jamaica)
Date23 September 1963

Court of Appeal

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

Criminal Appeal No.36 of 1963

R.
and
Shaw
Appearances

Mr.Geoffrey Ramsay for the appellant

Mr.Lloyd Barnett for the Crown

Criminal Law - Sentence — Unlawful wounding —

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

Lewis, J.
1

At the conclusion of the hearing of this appeal on the 22 nd June, 1963, the court allowed the appeal, quashed the conviction and set aside the sentence. We now give our reasons for so doing.

2

The appellant was convicted in the Home Circuit Court on the 22 nd of February, 1963, on two counts of an indictment charging him with shooting with intent to cause grievous bodily harm and wounding with intent to cause grievous bodily harm. He was sentenced to three years imprisonment with hard labour on each count, the sentences to run concurrently.

3

The case for the prosecution was that at about 1.30 p.m.on the 17 th day of May, 1962, one Nash, a Rastafarian, was standing on the Spanish Town Road in the area of Back-o-wall when the appellant came to pick a quarrel with him and took up a large stone and with it; that Nash returned the blow with the same stone, the striking the appellant what proved to be a serious blow and which to the medical evidence fractured his left eleventh rib ad ruptured his spleen. There were discrepancies in the evidence of the prosecution witnesses as to the immediate effect of the blow upon the appellant and the exact sequence of events after he received this blow. The sum of their evidence was that the appellant appeared to be in pain; that Nash went behind a truck where there was rubbish and reappeared with a stone and a coconut husk, and that the appellant then took a gun out of his pocket and fixed it at him on the shin.

4

The appellant's story, which was denied by the prosecution witnesses, had been attacked by a hostile crowed of about twenty persons who accused him of being apolice informer and urged Nash to assault him, that Nash struck him with a stone causing him to bend over in severe pain; that on looking up he saw tree crowd advancing upon him threatening to kill him; that when they were about five yards away form him, believing that they were about to kill or injure him further, he took out his gun and fired a shot downwards with the intention of scaring them. He denied having struck rash with a stone or having wounded him with the intent charged in the indictment.

5

The defence was therefore one of self-defence and it is with respect to the judge's summing up on this part of the case that Is made in the grounds of appeal. The first ground is that the learned trial judge's directions were inadequate in that nowhere in his summing-up did he tell the jury that if on consideration evidence in the case they mere in doubt as to whether the appellant was acting in self-defence it was their duty to acquit him. It was urged that while at the commencement of his summing-up the learned judge gave the usual general directions as to burden of proof he did not either in relation to his directions on self-defence or when he came to deal with the appellant's evidence tell the jury that if they were left in doubt whether the appellant may not in self-defence they should acquit him.

6

In his general directions, the learned judge told the jury that if they accepted the appellant's story they should acquit him, but if they rejected it they should then consider whether the prosecution had satisfied them of his guilt beyond reasonable doubt. He also told them that before they could convict the appellant on either count they must be sure of his guilt.Later, in dealing with self-defence he said, -

“If the evidence indicates that there was room for self-defence then that would render the act of the accused justifiable and you would therefore to entitled to give your verdict of not guilty.”

7

and later -

“I have told you if self-defence is established then the accused man is entitled to your verdict of not guilty. Bear this else in mind, that the burden of proving self-defence does not lie on the defence, it is for the prosecution to present to you a case in which there is no room for self-defence that is to say, a case without self-defence.”

8

Mr. Barnett for the Crown submitted that taking the summing-up as a whole the jury could not have failed to understand that the burden of negativing self-defence lay upon the prosecution and that if they were in doubt whether self-defence was established they should acquit the appellant. We have no doubt that this is what the learned judge intended to convey, although, as Mr. Barnett conceded the phraseology which he used is open to some criticism in that it does not expressly cover the middle position of doubt.

9

There is no set formula for directing a jury on the onus of proof or the standard of proof and a trial judge, so lung as he deals adequately with these matters and does not misdirect the jury or in fact must be left to sum up a sass in his own way. We do not think that the jury was likely to be misled by the learned judge's directions on this point and we would not have interfered with the conviction on this ground alone. We think it desirable, however, to re-state the principle which has been laid down in a number of cases notably in Woolmington vs. D.P.P., [1935] A.C.462, namely, that there where an accused person gives an explanation consistent with innocence of how the act with which he is charged occurred, if the jury is either satisfied with his explanation or upon a review the evidence are left in reasonable doubt whether, even if, his explanation is not accepted, it may reasonably be true, the accused is entitled to be acquitted. In relation to the defence of self-defence, this means that if the jury on the whole of the evidence, taking into account the explanation given by the accused, are left in reasonable doubt as to whether the act may not have been done in necessary self-defence, they should find the accused not guilty. A convenient method of directing the jury in cases of self-defence was given in R. v. Lobell, 41 C.A.R.100. Failure to give a clear direction to the jury to this effect may amount to a misdirection and result in the conviction being quashed.

10

The...

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