La Roche v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Weekes, J.A. |
| Judgment Date | 20 April 2011 |
| Neutral Citation | TT 2011 CA 8 |
| Docket Number | Criminal Appeal No. 32 of 2009 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 20 April 2011 |
Court of Appeal
Weekes, J.A.; York Soo-Hon, J.A.; Narine, J.A.
Criminal Appeal No. 32 of 2009
Mr. J. Singh and Mr. L. Lalla for the appellant
Mrs. J. Honore - Paul for the respondent
Criminal practice and procedure - Directions to jury — Appellant found guilty of murder and sentenced to hang — Whether trial judge properly directed jury on issue of self defence — Whether jury properly directed on issue of provocation — Whether jury properly directed on issue of lies told to the police by the appellant.
The appellant Fabien La Roche was convicted of murder at the Port of Spain Assizes on 15th October 2009. He was sentenced to death by hanging and has appealed his conviction.
The Prosecution Case
The prosecution's case was founded principally on the appellant's caution statement of 31st July 2003 and the post mortem examination report dated 25th July 2003.
In the early morning hours of 25th July 2003, the appellant was at a yard in Temple Street Arima selling marijuana. While there, he was approached by the deceased, Gary Irish, otherwise called “Scarra”, who had continually robbed and bullied the appellant over a period of years. The deceased demanded money from the appellant and when he was refused, quarrelled with him. After this encounter, the deceased left the appellant alone.
Later, while the appellant was checking his parcels of marijuana, the deceased returned, snatched them and refused to return them to the appellant. The deceased then drew the attention of some men nearby, inciting them to run the appellant out of the yard they were all occupying. The men in the yard armed themselves with pieces of wood, rocks and bottles, and the appellant did likewise. However, when the deceased was in an unguarded moment, the appellant caught him “unawares” and stabbed him four to five times in the back.
After stabbing the deceased, the appellant walked away from the scene. No injuries were inflicted on the appellant by the deceased or the other men. Anslem Rojas, a Temple Street resident, discovered the body of the deceased later that morning and, with the help of a neighbor, transported the body to the Arima Hospital. A post mortem examination determined that the deceased died from multiple stab wounds.
On 27th July 2003, police officers were conducting enquiries at Temple Street and there discovered the appellant staggering along the street. He appeared to be bleeding and the officers were unable to interview him in that condition. He was taken to the Arima Health Facility were he was treated and transferred to the Port of Spain General Hospital.
The following day, the appellant was interviewed at the Port of Spain General Hospital by the investigating officers. They identified themselves and told the appellant that they were investigating the stabbing of Gary Irish. They informed him that it was alleged that he had stabbed the deceased. After being cautioned, the appellant's replied “I never stab nobody”.
Investigations continued and on 3151 July 2003 the appellant was arrested and taken to the Arima Police Station. At the station the appellant recanted his earlier statement to the police. He told the investigating officer “I will give all yuh a statement, ah go write it for myself ah does do poetry”. In his statement he admitted that he had stabbed the deceased four to five times in the back in the circumstances outlined above.
The appellant did not give evidence nor call any witnesses. As can be gleaned from the cross-examination of prosecution witnesses, the defence asserted that the appellant perceived he was in imminent danger from the deceased and other men in the yard, and this is why he armed himself and in a pre-emptive strike he stabbed the deceased in the back.
The trial judge left the issues of self-defence and provocation to the jury.
The appellant appeals against conviction on three grounds each of which will be considered in turn.
The learned trial judge erred in law when he failed to properly direct the jury on the issue of self-defence.
Mr. Singh, for the appellant, complained that the judge effectively directed that the plea of self-defence would not succeed where there was an intention to kill. He submitted that there was a clear danger that the jury would have been left with the impression that an intent to kill would negative self-defence. The judge directed the jury in the following terms:–
“The State is also relying on the Caution Statement given by the accused in which he, the accused, outlines his history between himself and the deceased, where he says that the deceased effectively menaced him for a number of years, and the State is saying to you, effectively, that when you interpret that in the context of what the accused said he did, that is indicative of a man who intended to kill, and there was no lawful self-defence.” [Emphasis ours]
It is the highlighted words that are the nub of the appellant's complaint.
Mr. Singh referred the Court to the oft-cited dicta of Morris L.J. in Palmer v. The Queen [1971] A.C. 814 at 831 - 832, which we do not find it necessary to rehearse here. He submitted that the direction given by Morris, L.J. was not exhaustive and that a line of cases had developed in the Caribbean that dictated that trial judges must direct the jury that the special plea of self-defence was not inconsistent with an accused forming an intention to kill. Mr. Singh referred to two of this Court's earlier decisions, Baptiste v The State 34 WIR 253 and Sinanan and Others v. The State 44 W.I.R. 383.
In Baptiste v. The State, the issues of self-defence, accident, and provocation were left to the jury. The trial judge did not make it clear to the jury that a plea of self-defence or provocation might succeed even if the appellant had formed an intention to kill or to inflict grievous bodily harm. The Court held that in cases where accident, self-defence and provocation are pleaded, a trial judge must direct the jury that while an intention to kill negated a plea of accident; a plea of self-defence or provocation might succeed even though the accused had formed an intention to kill. Affirming this principle a few years later in Sinanan and others v The State, this Court held that a miscarriage of justice occurred where a trial judge failed to direct that an intention to kill is not inconsistent with self-defence or provocation.
Counsel for the State in reply submitted that although the judge did not specifically state that self-defence was not inconsistent with an intention to kill, the summation as a whole would have conveyed this proposition to the jury. She referred the Court to pg 19 of the judge's summation, lines 31 - 40:–
“The second element is that the killing must have been unlawful. The term “unlawful” means without legal justification or excuse, for example, self-defence. The burden is on the State to prove that the killing was unlawful.”
Counsel also referred to the judge's summation from pg 21 line 45:–
“So is counsel asking you to believe that the only time he armed himself was when he perceived these other persons were arming themselves, if you accept that there was, in fact, an attack or an impending attack. He maintains, therefore, that at the time in question he only stabbed the deceased because he perceived the deceased and the other men had armed themselves to, in his words “run me.” His counsel further argued that when the accused said that he “caught him unawares” what he means or what he meant was that in the heat of the moment he caught the deceased off guard, and thus was lucky enough to get in the first strike. Therefore when he reacted like that he was acting in lawful self-defence. It is a matter for you, Mr. Foreman, Ladies and Gentlemen of the jury what you make of those arguments based on the evidence.”
Counsel relied on the learning in Palmer v. The Queen that no set words or formula need be employed in order to direct a jury on self-defence.
The classic exposition of the law of self-defence is contained in the dictum of Morris, L.J. in Palmer v. The Queen. This Court in Stephen Robinson A/C Psycho A/C Tony v. The State Cr. App. No 12 of 2009, synthesized the essential principles to be extracted from Palmer. They are as follows:–
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“1. A person who is attacked is entitled to defend himself.
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2. In defending himself he is entitled to do what is reasonably necessary.
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3. The defensive action must not be out of proportion to the attack.
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4. In a moment of crisis a person may not be able to weigh to a nicety the exact measure of his necessary defensive action.
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5. In a moment of anguish a person may do what he honestly and instinctively thought was necessary
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6. If there has been no attack then the issue of self-defence does not arise.
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18. Lord Morris in Palmer approved the trial judge's self-defence direction at pg 823:–
“In the course of his direction the judge said:–
‘A man who is attacked in circumstances where he reasonably believes his life to be in danger or that he is in danger of serious bodily harm, may use such force as on reasonable grounds he believes is necessary to prevent and resist the attack and if in using such force he kills his assailant he is not guilty of any crime even if the killing was intentional, and in deciding in a particular case whether it was reasonably necessary to have used such force as in fact was used regard must be had to all the circumstances of the case including the possibility of retreating without danger or yielding anything that he is entitled to protect.’ [Emphasis ours]
It is noteworthy that while Palmer is not advanced as authority for the proposition that in...
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