Jaganath v The Queen

• Jurisdiction: St Lucia
• Judge: Lewis, C.J.
• Judgment Date: 16 March 1968
• Neutral Citation: LC 1968 CA 1
• Date: 16 March 1968
• Court: Court of Appeal (Saint Lucia)
• Docket Number: Criminal Appeal No. 1 of 1967

West Indies Associated States Supreme Court. (Court of Appeal)

Lewis, C.J., Gordon, J.A., Lewis, J.A.

Criminal Appeal No. 1 of 1967

Jaganath

and

The Queen

Appearances:

K. Foster for appellant.

J.D.B. Renwick (Attorney General) for the Crown.

Criminal law - Appeal against conviction — Murder — The main ground of appeal was that the trial judge failed to leave an alternative defence of accidental death to the jury on the ground that the accused did not intend to kill but merely to wound the deceased — The trial judge misdirected the jury on this issue since he conveyed to the jury the impression that under section 170 of the Criminal Code the intention about which they must be satisfied was an intention on the part of the appellant to cause bodily hurt or permanent bodily hurt. Section 170 enacts that the accused must have intentionally caused death, thus making the intention the principal ingredient of the offence. There was a serious misdirection in view of the fact that the appellant had stated that he intended to inflict slight damage to the deceased's ability to use his arm. The verdict could not stand. A verdict of guilty of manslaughter would be substituted since the jury had rejected self defence. A sentence of 7 years imprisonment would be imposed.

Lewis, C.J.

1 The appellant was convicted on the 8 ^th November 1967, of the murder of Kenneth Ghirawoo and sentenced to death. He appeals, by leave of the court, against his conviction.

2 The relevant facts may be shortly stated.

3 The appellant is married to the deceased's aunt, Flora Jaganath, and on the night of the 6 ^th of August 1967, they were at a house at Marc belonging to Flora's brother Baptiste Ghirawoo, and occupied by Kenneth's sister Theresa Ghirawoo and her boyfriend Leroy Ghoully. Kenneth, Theresa and another brother named Peter, Ghoully and Theresa's two small children were also present. Before going to Theresa's home the appellant and other members of the family had been drinking at another house occupied by Baptiste Ghirawoo. At some time after his arrival at Theresa's home the appellant borrowed $10 form Peter, and asked him to go out and buy him a bottle of gin. There was some discussion and eventually Peter, Theresa and Flora Jaganath went out together to buy the gin. It was the case for the prosecution, that the appellant said that he did not which his wife to go out alone with Peter because she was “living with” Kenneth and he would be sending her in search of men.

4 According to Ghoully, after the others had left, appellant accused the deceased of living with his wife. The deceased refuted this, and, on the appellant insisting, ordered him to leave the house. This was a small two-roomed house. The appellant refused to leave and Kenneth got up front a bed on which he was lying and approached him to put him out. The appellant chucked Kenneth and they started to fight. They fell to the ground, the appellant on top. Each held the other at the throat and they were striking each other. At that stage, Ghoully says he left the room to carry a baby whom he had been feeding into the other room, and on his return he found the deceased lying on the ground holding the appellant by the shirt, and the appellant standing up trying to get out of his shirt. The deceased said that appellant had wounded him. There was a scuffle between Ghoully and the appellant during which the appellant dropped a knife which he had in his hand, but appellant managed to escape and ran away.

5 The deceased, who was bleeding from wounds to his right shoulder and side was taken to the Victoria Hospital at Castries, where he died on the following day. The knife had penetrated through the diaphragm and the liver and the cause of death was hemorrhage from the ruptured liver.

6 The appellant did not give evidence but made a statement from the dock. He said that after the others had left to buy the gin there was an argument as to whether Ghoully was supporting his children which got Ghoully annoyed. This was followed by an argument in which the appellant threatened to seize a pig of the deceased if it entered his garden. Then, he said, the deceased chucked him, he fell to the ground, the deceased covered him on the ground, and Ghoully hit him on the shoulder with a piece of wood. He called for help. The deceased held him by the neck shocking him. He told the court:

“When I see I was being choked I was face upwards on the ground. I removed the knife from my hip pocket with my left hand as I was face upward. When I saw I was being choked I couldn't breathe I stuck him with my left hand to sprain his hand to save my life. When I felt he held on to me even more firmly I stuck him again on his arm but my hand missed. All that time he was on top of me on the ground. If I wanted to stab him in another fashion I would have made a thrust. When I was trying to get from under him he made an effort to sit down and at the same time he grapple at my shirt and the shirt remained in his hand.”

7 The learned tried judge in his summing up dealt with the intention necessary to constitute murder, and also with provocation and self-defence. In the course of some three hours he touched on nearly every aspect of the law relating to murder and manslaughter some of which indeed did not arise on the evidence. To cite only one example, this was a case in which the wounds were inflicted in the course of a sudden fight arising out of an argument, yet the learned judge in dealing with provocation gave the jury directions on the question of cooling time. We would say on this that directions on aspects of the law which do not arise on the facts...