Julian v R

• Jurisdiction: St Lucia
• Judge: Lewis, C.J.
• Judgment Date: 24 March 1969
• Neutral Citation: LC 1969 CA 1
• Docket Number: Criminal Appeal No. 1 of 1969
• Court: Court of Appeal (Saint Lucia)
• Date: 24 March 1969

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

Judge(s): Lewis, C.J.; Lewis, J.A.; Gordan, J.A.

Criminal Appeal No. 1 of 1969

Julian

and

R.

Appearances

A. H. Foster for Appellant.

P. J. Husbands Crown Counsel for Respondent.

Criminal law - Appeal against conviction — Wounding — The issue of this case was whether the conviction should be quashed as result of improper directions by the trial judge to the jury.

Held: The appellant did not receive a proper trial because of the defects of summing up. This was a case in which a careful direction applying the law of self defence to the facts as put forward by both sides was necessary. It was not sufficient to give a theoretical discourse on the law of self defence. Appeal allowed and conviction and sentence set aside.

Lewis, C.J.

1 The appellant was convicted on 13th February, 1969 of two offences one using a cutlass with intent unlawfully to wound, and the other for wounding.

2 On the first count he was sentenced to three years hard labour and on the and to one year's imprisonment with hard labour both sentences to run concurrently. He now appeals against his conviction and sentence.

3 The case for the prosecution consisted of three different versions: One as the version of the virtual complainant Cleveland Celiac. He said that on the 19th April 1968 about 4.20 p.m. he went into the accused's shop to buy a packet of Diamond cigarettes. The appellant he said. refused to sell it to him. He protested and said he would stay in the shop until it was sold. He said that the appellant struck out at him with his hand and then stooped down under his counter, and as he Celiac turned to go he struck him on the back of his head with the cutlass, causing him to fall to the ground outside of the shop. He became unconscious and on regaining consciousness at Victoria Hospital he found that he had a number of cuts including one on the palm of the right hand, one on the left lower shoulder at the back, two on the back of his head, one on the top, one on the side near to his temple. According to his version, this attack was entirely unprovoked and also of course unjustified. He denied in cross-examination that he had seen a hatchet in the vicinity or that he had used a hatchet at any time.

4 The second version was that of the witness Rhoda Herbert, a woman who admittedly has what she referred to as a maternal interest in Cenac. She said that she was passing along the road and she went into the appellant's shop and heard Celiac asking for cigarettes. Then one Mondesir who was present took out twenty-five cents and gave it to Cenac to buy a pack of cigarettes for himself (that is for Cenac), that the cigarettes were put on the counter and that Celiac was going outside when the accused came from behind the counter with his cutlass and struck Celiac with it; and then she saw Cenac go outside of the shop take up the hatchet which was outside the shop, Mondesir took it away from him and Celiac did nothing with it. So that for the first time we have the hatchet being admitted as being at any rate in the hand of Cenac, but she said he did not use it at all, he was outside with it and in any event he only took it up after he had been cut by the appellant.

5 The third version was that of Gabriel Mondesir and George Thomas, two men who were admittedly present at the scene in the shop. Mondesir had been with the appellant shortly before but had gone in ahead of him to buy cigarettes when Cenac entered. He said that there was this dispute about the purchase of cigarettes, the complainant Cenac offering a $5 bill and the appellant refusing. Then Mondesir put down twenty-five cents and the cigarettes were handed to him but Cenac refused to take them. He referred to Rhoda Herbert coming into the shop and then he says that lie left the shop and he heard people telling Cenac to go outside and go home. Cenac then left the shop and took up a hatchet which was outside which apparently belonged to George Thomas, entered the shop with it and went behind the counter. on the selling side, raised the hatchet in the air. and he went and held Cenac's hand, wrestled with him, got him out from behind the counter and pushed him outside; then he said Cenac took up the hatchet again, re-entered the shop, and both himself and George had to go back after him. They took the hatchet away from him, then a little later he saw Celiac bathed in blood. He was fighting with the appellant both of them had blood on them. They left from the inside and went outside. Both the accused and. Celiac fell to the ground and then while Cenac was on the ground the appellant gave him three or four blows with the cutlass. These were three entirely different versions as to how the wounds were inflicted.

6 When the appellant was first contacted by the police which was immediately after the incident, by sergeant Drigo, he said to Drigo: “Cleveland entered my shop, sent a bottle after me, smashed my glass case, took a hatchet to chop me, so I defended myself with this cutlass”.

7 The allegation there that a bottle had been thrown at him was supported by another witness for the prosecution George Thomas who said that before the hatchet was used by Celiac: “there were about five bottles on the counter. He made a grab there. one bottle fell behind the counter and broke. I held Cenac. He said to the accused, you mean to say you do not sell the cigarettes to me? The accused gave no answer. Celiac rushed the bottle again for the second time. This time I held him and shoved him outside. Another bottle fell, and then the incident with the hatchet. So there can be no doubt, on the weight of the evidence for the prosecution. that the complinant Cenac was in a very aggressive mood that day, that people tried to hold him to dissuade him from attacking the appellant, that he used first a bottle, and then a hatchet, and it seems attempted to use the hatchet twice, after it had been taken away from him.

8 Dr. St. Rose was a witness for the prosecution at the preliminary inquiry. In opening the case for the prosecution the Attorney General said that he was not in the Island and that an application would be made to read his deposition. The learned judge's note reads as follows:

“Application to read Dr. St. Rose's deposition. No objection. Granted. Clerk reads deposition of witness Dr. St. Rose”.

9 Section 942 of the Criminal Code states what evidence must be...