Denis Alphonse Appellant v The Queen Respondent [ECSC]

• Jurisdiction: St Lucia
• Judge: SATROHAN SINGH,Justice of Appeal,SIR VINCENT FLOISSAC,Chief Justice
• Judgment Date: 31 January 1996
• Judgment citation (vLex): [1996] ECSC J0131-1
• Court: Court of Appeal (Saint Lucia)
• Docket Number: CRIMINAL APPEAL NO. 1 OF 1995
• Date: 31 January 1996

[1996] ECSC J0131-1

IN THE COURT OF APPEAL

Before:

The Rt. Hon. Sir Vincent Floissac Chief Justice

The Hon. Mr. C.M. Dennis Byron Justice of Appeal

The Hon. Mr. Satrohan Singh Justice of Appeal

CRIMINAL APPEAL NO. 1 OF 1995

Between:

Denis Alphonse

Appellant

and

The Queen

Respondent

Appearances:

Mr. Albertine Richelieu for the Appellant

Mr. Errol D. Walker, D.P.P. for the Respondent

1 SATROHAN SINGH, JA

2 On May 8 ^th, 1992 at about 10 p.m., Wayne Cox alias Weng Weng, died from a knife wound that penetrated about 7 inches into his back, puncturing his lung and entering his heart. On February 20 ^th, 1995, a jury before MATTHEW J convicted the appellant of the Murder of Wayne Cox contrary to SECTION 170 OF THE CRIMINAL CODE OF ST. LUCIA. MATTHEW J sentenced him to be "hung by neck until he was dead". He was jointly charged with two co-accused Vincent Polius and Bernard Andrew. They were acquitted by the Jury. The appellant appeals from his conviction.

3 The case for the prosecution rested on the evidence of certain eyewitnesses but primarily on statements made by the appellant to the police. The eye-witnesses saw an attack on the deceased (who was without weapon) by the appellant (who had a stick) and the other two co-accused. They gave no evidence of a knife or of the infliction of the fatal wound.

4 From the several statements given to the Police by the appellant under caution, it appears that there was an incident between the appellant and the deceased on May 3, 1992 where the appellant was hit by a bottle thrown at him by the deceased. On May 8, 1992, having heard that the deceased was at a disco, the appellant got his two friends (the two co-accused) to go there with him. There the appellant told the deceased he was ready for him and he struck the deceased with a stick. The deceased ran through the gate. The appellant rushed after him. A struggle ensued between them. The appellant pulled a knife nine inches long from his waist and cut the deceased with it. The appellant then secreted the knife under a wooden cabinet at his home. He took the police there, gave them the knife and told them that was the knife with which he cut the deceased. In one of the statements the appellant said: "I did not go to kill him I go to give him a cut and had I know he would die I would never use the knife on him I know I am guilty for using the knife on him and I only know the law might forgive me. I hope the next time that will not happen to me again".

5 These statements form the real evidence in support of the case for the prosecution. Their admissibility, though unsuccessfully challenged in the Court below, was not challenged on appeal. The contention of the appellant before this Court, is that their contents do not disclose enough material for a jury properly directed to convict of the offence of Murder but disclose enough that may justify a conviction of the offence of Manslaughter.

6 In his evidence before the jury, the appellant denied stabbing the deceased. His evidence was that he asked the deceased why he had previously hit him with a bottle. The deceased spat in his face and told him to get away from him. He lashed the deceased with a stick, they had a struggle and nothing more. He said his co-accused Vincent subsequently gave him the knife for him to give it to the other co-accused Bernard. He did so and later that night Vincent brought the knife again to him, asked him to keep it and he placed it under a cupboard.

7 From this evidence looked at as a whole, the options that were left open to the Jury were (1) a complete acquittal of the appellant if his evidence in Court was accepted by them (2) a conviction of Manslaughter if they accepted his statements under caution that he had no intention to kill the deceased (3) a conviction of Murder if they rejected that he had no such intention and if they rested their deliberations on the appellant using a knife nine inches long and inflicting with it a wound seven inches deep in the back of the deceased in the area of his lung (4) a conviction of Manslaughter if they found that he had an intention to kill but that such intention was caused as a result of provocation from the deceased. These issues required full and comprehensive directions from the Judge on the concepts of provocation and intent. The points argued in this appeal concern non-directions and/or misdirections on these two concepts. There was also a further argument on the issue of the mischief of excessive directions being given to the jury.

PROVOCATION

8 On the issue of Provocation, learned Counsel for the Appellant challenged different aspects of the learned trial Judge's Summing up. The evidence relied on by the appellant as the provocative act, was his own evidence that when he approached the deceased, the deceased spat in his face. In Saint Lucia, the law on provocation is contained in sections 171 to 175 of the Criminal Code.

9 The learned trial Judge, in his summation to the jury, recited these provisions of the code without relating or accurately relating them to the facts of the case. The criticism levelled by Counsel for the appellant against this approach of the trial Judge, was that he ought to have assisted the jury by relating this law to the facts. In my view this is a justified criticism. In summing up a case to the jury, a Judge should not engage himself in only a theoretical discourse of the law. He should adequately explain how the jury should apply that law to the contesting versions of the facts that had emerged during the case. In Baldeo Dihal v. R. (1960) 2 WIR 282 it was held by our then Federal Supreme Court that "on a trial of a person charged with murder the Judge should relate the law to the facts in the case". [See also Julian v. R. (1969) 13 WIR 66 and Junior Vidal et al v The Queen, Criminal AppealNo. 4 to 10 of 1992 St. Lucia in a judgment delivered by this Court on March 20, 1995] There is therefore merit in this submission. No assistance was given to the jury by relating the evidence on provocation to the law. Without such assistance there was the possibility of some confusion being caused in the minds of the jury.

10 Specific reference was made by Mr. Richelieu to the learned Judge's directions on S172(a) of the Code: S172(a) reads as follows:

"The following matters may amount to extreme provocation to one person to cause the death of another person; namely an unlawful assault and battery committed upon the Accused person by the other person, either in an unlawful fight or otherwise, which is of such a kind, either in respect of its violence or by reason of accompanying words, gestures or other circumstance of insult or aggravation, as to be likely to deprive a person being of ordinary character and being in the circumstances in which the Accused person was of the power of self control".

11 Learned Counsel submitted that at no stage in the summing up did the Judge explain to the jury the import of the words "a person being of ordinary character and being in the circumstances in which the accused person was". I agree. The law as I understand it, is that it is essential for a Judge in giving directions to the jury on the law of provocation, to explain to them the meaning of these words. He should first state what the question is, using the very term of the section. This was done by the learned Judge. He should then direct the jury that in relating the facts of the provocation to this law, they should first apply the objective test and determine, whether such acts, were capable of causing a person, having the power of self-control to be expected of an ordinary person of the sex and age of the appellant, but in other respects sharing such of the appellant's characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but would also react to the provocation as the appellant did. Having done that, he should then go on to direct them on the subjective test whether those acts did in fact cause the...