Marshall Phillips v The King
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Price-Findlay JA |
| Judgment Date | 29 February 2024 |
| Neutral Citation | VC 2024 CA 1 |
| Docket Number | SVGHCRAP2016/0005 |
| Court | Court of Appeal (Saint Vincent) |
The Hon. Mde. Margaret Price-Findlay Justice of Appeal
The Hon. Mr. Trevor Ward Justice of Appeal
The Hon. Mr. Gerard St. C. Farara Justice of Appeal [Ag.]
SVGHCRAP2016/0005
THE EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
Criminal appeal against conviction — Murder — Self-defence — Whether the judge failed to properly direct the jury on the issue of pre-emptive strike as it relates to self-defence — Provocation — Whether the trial judge failed to properly direct the jury on the issue of provocation
On 17 th December 2015, the appellant was convicted of the murder of Mr. Terrance John also known as ‘Hot Skull’ (“the deceased”). The incident leading to the murder took place on 30 th September 2013. On 16 th March 2016, the appellant was sentenced to 19 years imprisonment.
The prosecution's case was based on the evidence of three main witnesses. Ms. Hyacinth Matthews testified that she heard the appellant and the deceased arguing. She heard the deceased say to the appellant that he could not buy gas and the appellant then stabbed the deceased in his back. She saw the deceased's brother approaching, went inside her home and shortly thereafter, she observed the deceased bleeding on her porch. Ms. Eleno Thomas testified that she heard someone bawling. She observed the appellant and asked him what had happened. The appellant responded, “bawl for murder, bawl for murder, go up and see wha' me do Hot Skull.” Mr. Romario Rawlins testified that he ran to the area where the deceased (his brother) and the appellant were. The appellant looked in his direction, said, “oh two alyuh” and then stabbed the deceased in his neck.
The appellant's case was that he had left his home that morning and was angry after a disagreement with his uncle. He passed the deceased man, he had an argument with him, and the deceased taunted him by telling him he does bull for money. The deceased man also threw two stones at him. He had a pair of scissors in his hand and he stated that his hand collided with the deceased and he received the fatal wound to his neck.
Being dissatisfied with his conviction, the appellant appealed on the grounds that the learned trial judge erred in failing to properly direct the jury on (1) the issue of pre-emptive strike as it relates to self-defence, and (2) the issue of provocation.
Held: dismissing the appeal against conviction and affirming the appellant's conviction and sentence, that:
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1. A trial judge is duty bound to provide a direction on self-defence and leave that issue for the jury to consider as long as that defence arises from any evidence or material during a trial. It does not matter whether it emerges from the evidence or material adduced by the defence or by the prosecution. A trial judge, applying common sense to the evidence in the particular case, makes the determination as to whether or not the evidence is sufficient to raise self-defence. There are no prescribed words to convey to the jury the concepts of self-defence or pre-emptive strike. All that is needed is a clear exposition, in relation to the facts of the case. In this case, the judge clearly appreciated that the appellant was alleging, among other things, that he was acting in self-defence and left that defence to the jury. She clearly set before the jury the meaning of self-defence and directed the jury to the appellant's evidence that he was fending off an attack by the deceased and his brother, as evidenced by the transcript. When the learned trial judge made reference to a “threatened attack” in the context of her direction on self-defence, the jury were made aware that the appellant could act in self-defence prior to the actual attack. That is the essence of a pre-emptive strike. The jury hearing this direction would have been left in no doubt that the appellant could have struck before he was attacked if he reasonably believed that an attack was imminent. The trial judge therefore did not err in her direction on the issue of pre-emptive strike as it relates to self-defence and the first ground of appeal failed.
Ewart Bacchus v The Queen SVGHCRAP2008/006 (delivered 29th April 2011, unreported) followed; R v Bonnick [1977] 66 Cr App R 266 applied; Palmer v R [1971] AC 814 applied.
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2. Where a summation is criticised on the ground that it lacks fairness and balance one has to consider the criticisms in the context of the summation as a whole and the several issues which arose for decision. An appellate court is enjoined to look at the thrust of the directions and consider whether they have adequately put the several issues before the jury and given them a proper explanation of their task in relation to those which they have to decide.
Shonovia Thomas v The Queen BVIHCRAP2010/006 (delivered 27th August 2012, unreported) followed.
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3. On a charge of murder, where there is evidence on which the jury can find that the accused person was provoked, whether by things said or things done or by both and lost his self-control, the question whether the provocation was enough to make a reasonable man of the age and with the characteristics of the accused react as the accused did shall be left to the jury for determination. There are no precise words to give a direction on provocation, only a clear explanation to the jury of the legal principles to be applied and an indication of the evidence which is supportive of the legal principles is necessary.
Joseph Bullard v The Queen [1957] AC 635 applied; Che Gregory Spencer v The Director of Public Prosecutions SKBHCRAP2009/013A (delivered 10th February 2014, unreported) followed.
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4. On the facts, the issue of provocation arose as the appellant's evidence alleged that the deceased taunted him by throwing words at him. The judge rightfully explained what provocation was and directed the jury to the appellant's evidence of the provocative behaviour. She went even further and addressed the issue of provocation on the respondent's case. The judge directed the jury on the burden on the prosecution to disprove provocation, she properly told the jurors that provocation did not only have to come from the words or actions of the deceased, but also the words and actions of his brother Romario, and she also directed them that if they found the accused was indeed provoked, they were to go on to consider whether a reasonable man would have responded as the appellant did. She explained who the reasonable man was and properly directed the jury that if a reasonable man would have so acted, they were to return a verdict of manslaughter. Having considered the totality of the directions given by the learned judge, the summation was fair and balanced. There was no error on the judge's part and this ground of appeal also failed.
Mr. Stephen Williams for the Appellant
Ms. Tammika Da Silva-Mckenzie for the Respondent
Before the Court was an appeal by the appellant against his conviction after he had been found guilty of the murder of one Terrance John.
On 17 th December 2015, the appellant was convicted of the murder of Terrance John also known as ‘Hot Skull’ (“the deceased”). The incident leading to the murder took place on 30 th September 2013. On 16 th March 2016, the appellant was sentenced to 19 years imprisonment, from the date of conviction.
The prosecution's case was based on the evidence of three main witnesses. Hyacinth Matthews testified that she heard the appellant and the deceased arguing. She heard the deceased say to the appellant that he could not buy gas; those were the words she made out. The appellant then stabbed the deceased in his back. She saw the deceased's brother approaching, went inside her home and shortly thereafter, she observed the deceased bleeding on her porch.
Eleno Thomas testified that she heard someone bawling. She observed the appellant and asked him what had happened. The appellant responded, “bawl for murder, bawl for murder, go up and see wha' me do Hot Skull.”
Romario Rawlins testified that he ran to the area where the deceased (his brother) and the appellant were. The appellant looked in his direction, said, “oh two alyuh” and then stabbed the deceased in his neck.
The appellant's case was that he had left his home that morning and he was angry after a disagreement with his uncle.
He passed the deceased man, had an argument with him, and the deceased taunted him by telling him he does bull for money. The deceased man also threw two stones at him. He had a pair of scissors in his hand and his hand collided with the deceased and he received a fatal wound to his neck.
At the conclusion of the evidence for the prosecution and the defence, the jury found the appellant guilty of murder.
He appealed against his conviction on the grounds that the learned trial judge erred in failing to properly direct the jury on (1) the issue of pre-emptive strike as it relates to self-defence, and (2) the learned trial judge failed to properly direct the jury on the issue of provocation.
The appellant submitted that the learned trial judge misdirected the jury on the law relating to self-defence. In particular, the learned trial judge failed to direct the jury on the issue of a pre-emptive strike as it relates to self-defence.
The appellant posited to the Court that the failure of the learned trial judge to properly direct the jury or to properly address the issue of preemptive strike as it relates to self-defence resulted in the appellant's conviction being unsafe in the circumstances.
Further, had the jury been properly directed on the issue of a pre-emptive strike, they may have returned a verdict of not guilty of murder.
The respondent submitted that on the evidence before the court below, three defences were raised: accident, self-defence and...
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