Mitchell v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Hyatali, C.J. |
| Judgment Date | 23 November 1977 |
| Neutral Citation | TT 1977 CA 47 |
| Docket Number | Criminal Appeal No. 45 of 1976 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 23 November 1977 |
Court of Appeal
Hyatali, C.J.; Corbin, J.A.; Scott, J.A.
Criminal Appeal No. 45 of 1976
V. de Lima and S. Moonan - for the appellant
H. Koylass, Director of Public Prosecutions and B. Dolsingh - for the State.
Criminal Law - Appeal against conviction (Murder).
The appellant George Mitchell was convicted on an indictment which charged him for the murder of Tindale George (the deceased) on 9 May 1975. The case for the state was supported by the sworn testimony of four eye-witnesses. Two of them, Elfreda Flemming and Daniel Mark were his social companions at the relevant time and the other two, Angela Spence and Monica Abraham, were employed as waitresses at the Honeycomb Snackette (the snackette) at 3 Prince Street, Port-of-Spain where the deceased met his death.
Their evidence disclosed that at about 8.00 p.m. on 9 May 1975, the appellant entered the snackette, placed a dirty plate on a table at which the deceased and his companions Flemming and Mark were seated partaking of drinks and fried chicken, and told them to put their chicken bones in the plate for him. The deceased objected to this intrusion upon them and requested him to remove the plate. The appellant however ignored the request, whereupon the deceased pushed off the dirty plate from the table on to the floor.
The appellant reacted to what the deceased did by pulling out a knife from his pocket. On seeing this, Flemming exclaimed that the appellant had a knife in his hand. The deceased got up from the chair on which he was seated and as he did so, the appellant stabbed the deceased with the knife one inch below the left nipple of his chest.
The appellant made an effort to stab the deceased a second time, but Mark and Flemming frustrated it. Mark held the appellant's hand with the knife, forced it behind his back and tried to wrest the knife from his hand. While Mark was engaged in doing so, Flemming struck the appellant on his head with a chair. The knife thereupon fell on the floor and as Mark proceeded to take up the knife, the appellant hurried away from the snackette.
The deceased in the meanwhile had fallen on his face and breathed his last. The wound inflicted on him pierced the anterior surface of his heart and caused his death.
At 9.34 on the same evening, Cpl. Patrick Bernard saw the appellant near his home at Piston Road, Laventilie and took him to the Besson Street Police Station where A.S.P. Kerr told him of a report of murder that was being investigated and cautioned him. The appellant responded by making a voluntary statement in writing in which he said “I know me and a man was fighting in Honeycomb Snackette tonight. He fall and I fall. That is all.”
In answer to the prosecution's case, the appellant at his election made an unsworn statement from the dock. He alleged, inter alia, that he went to the snackette, saw the deceased and two other persons seated at a table having drinks and eating chicken. He requested them for their chicken bones for his dogs. Angela Silence told him he could have them, whereupon he took a bowl from his bag and placed it on their table. The deceased requested him to remove the bowl and he said alright; but before he was able to do so, the deceased grabbed him and locked his neck. He struggled with the deceased to release himself and in the course of so doing they fell to the ground with the deceased on top of him. The deceased continued to lock his neck while on the ground and in order to free himself, he stabbed the deceased with a knife. While on the ground someone dealt him a blow on his head.
That story not only contained material additions to, but was not in accord with what the appellant said in his written statement to A. S. P. Kerr. Moreover, counsel for the appellant at the trial, put to witnesses for the prosecution (and one must necessarily assume that he did so on instructions from the appellant) suggestions which were at odds with the appellant's story aforesaid. One notable example was that counsel put to the witnesses Flemming, Mark and Spence (which they denied), that Flemming, Mark and the deceased had beaten up the appellant mercilessly on the night in question. If this had taken place, it is remarkable that the appellant made no mention of it whatever, in his unsworn statement. But having said his piece from the haven of the dock, he could not be cross-examined, nor asked to explain the additions and omissions referred to.
However that may be, the appellant attempted by his unsworn statement to raise the issues of self-defence, or alternatively manslaughter, and in the process to controvert the sworn testimony of witnesses which, if believed, strongly supported the case for the state that he had unlawfully killed the deceased with malice aforethought. The appellant's attempt to do so, raises questions about the true status and value of the unsworn statement from the dock which, in resent times, has not only been the subject of much debate in Commonwealth countries, but has become a popular method of answering cases founded upon sworn and tested evidence from the witness box.
In the course of the arguments we drew the attention of the Director of Public Prosecutions and counsel for the appellant to the recent decision in R v. Coughlan (1977) 64 Cr. App. R. 11 and the earlier case of R v. Frost and Hale (1964) 48 Cr. App. R. 284 and invited them to make submissions on the question raised, as we thought it desirable that this Court should make some pronouncement thereon. We do so later in this judgment.
The learned judge treated the appellant's statement from the dock, as evidence which raised the issues of self-defence and provocation, and accordingly directed them on the law applicable thereto in the course of his summing-up. Counsel for the appellant contended however, that the learned judge made two errors in doing so. He omitted, it was said, (1) “to direct the jury that the defence of manslaughter might succeed if they believed, in the circumstances of the case, the appellant did not intend to kill or cause grievous bodily harm”; and (2) “to direct the jury that a defence of provocation was available to the appellant even if they believed he intended to kill or cause grievous bodily harm.” The second proposition is inconsistent with the first. Indeed, it is the antithesis of the first, but for present purposes it is of no moment.
In his summing-up, the learned judge directed the jury, inter alia, that if they were satisfied that the appellant had not acted in necessary self-defence against an attack made on him by the deceased it was still open to them to consider a verdict of manslaughter if (a) they considered that the alleged attack upon him was an act of provocation sufficient to deprive a reasonable man of his self-control; or (b) they accepted that the act of the deceased in knocking off the appellant's bowl from the table, as deposed to by witnesses for the state, was a like act of provocation; and in either case that the appellant was in fact provoked and retaliated in a manner that was reasonable. Counsel did not challenge these directions. His complaint was that the learned judge wrongly omitted to direct the jury that a verdict of manslaughter was also returnable if the appellant had no intention to cause death or serious bodily injury to the deceased.
In support of his submission, counsel relied an the unreported decision of Anthony Williams v. Reg. No. 59 of 1972 dated 27 May 1974, in which this Court stated as follows:
“Nevertheless the facts in support of self-defence upon which an accused unsuccessfully relies may amount to provocation such as to deprive a reasonable man of his self-control or negative the intention to do grievous bodily harm in which case the crime of murder is reduced to manslaughter. The latter point is succinctly made in the judgment of Salmon, L.J” in Cascoe v. R (1970) 54 Cr. App. R. 401 and we respectfully adopt it for present purpose. He said at p. 403:
‘No doubt, there are cases where self-defence is raised and negatived by the jury in which it would be possible for the jury to return a verdict of not guilty of murder, but guilty or manslaughter: for example, if a man who is attacked draws a gun and fires it in the direction of his attacker not intending to shoot him, but only to frighten him, that is to says intending to miss him, but nevertheless kills him. The jury could in such a case conclude that self-defence was negatived; that it was unreasonable to draw a gun to resist the kind of attack in ‘question. The jury might be satisfied that it was criminally dangerous or negligent to fire the gun, but not satisfied that there was any intention to do grievous bodily harm, let alone to kill. Therefore, although self-defence would be negatived, the accused would be guilty not of murder, but only of manslaughter’.”
We are unable however, to accept counsel's submission because firstly, there was nothing in the evidence which raised any issue that the appellant was guilty of criminal negligence in using the knife on the deceased, or that he intended to frighten the deceased with the knife; and secondly, the decision of the House of Lords in D.P.P. v. Smith [1960] 3 All E.R. 61 on the test to ascertain intention remains the law in our jurisdiction, since no legislation similar to the Criminal Justice Act, 1967 (U.K.), has been enacted in this country to overrule that test. See in this connexion Johnson v. R, [1966] 10 W.I.R. 402, 415, per Wooding, C. J.
In aid of his second submission counsel referred us to Powell v. R [1963] 5 W.l.R. 557; Lee.Chun-Chuen v. R [1963] 1 All E.R. 73; R v. Plinton [1965] 9 W.I.R. 44; R v. Bunting [1965] 8 W.I.R. 276; and Antonie and Bass v. R [1968] 13 W.I.R. 289.
In Holmes v. D.P.P. [1946] 2 All E.R. 124, 127, Viscount Simon...
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