Ollivierre v R

• Jurisdiction: St Vincent and the Grenadines
• Judge: Berridge, J.A.
• Judgment Date: 25 July 1983
• Neutral Citation: VC 1983 CA 6
• Docket Number: Criminal Appeal No. 1 of 1983
• Court: Court of Appeal (Saint Vincent)
• Date: 25 July 1983

Court of Appeal.

Peterkin, C.J.; Berridge, J.A.; Robotham, J.A

Criminal Appeal No. 1 of 1983

Ollivierre

and

R.

Appearances:

C. Dougan for the appellant

F. Cox, Director of Public Prosecutions for the respondent

Criminal law - Appeal against conviction — Murder

The appellant was convicted of murder. The grounds of appeal concerned whether the trial judge misdirected the jury in that having told them of the possibility of a verdict of manslaughter, he omitted to direct them on the law of manslaughter and the relevant facts and circumstances that could reduce the crime of murder to manslaughter and whether the trial judge misdirected the jury by omitting to direct them in the law of provocation as it related to a charge of murder there being sufficient evidence to raise the issue of provocation.

Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence on which such a verdict can be given. It was therefore incumbent on t he trial judge to put the issue of provocation to the jury. The jury should have been told that if they rejected self-defence they should consider the same evidence used in that behalf to ascertain whether provocation existed, in which case the verdict would be one of manslaughter only. It was the same verdict if they had been properly directed. Without either allowing or dismissing the appeal, the court would substitute for the verdict of guilty of murder one of guilty of manslaughter. The appellant would serve a term of imprisonment of ten years.

Appeal against conviction - Murder.

Berridge, J.A.

1 The appellant was on the 28 ^th February, 1983 convicted of the murder of Dunniston Charles and sentenced to death in the manner prescribed by law.

2 He has appealed against his conviction and sentence initially on four grounds to which four further grounds were added by leave of the Court but the plinth of his case is contained in the first two grounds which are set out hereunder:

1

The learned trial Judge misdirected the fury in that having told them that if the force was unreasonable in the circumstances it did not necessarily mean it is murder but may be manslaughter, he omitted to direct them on the law of manslaughter, and the relevant facts and circumstances that may reduce the crime of Murder to Manslaughter. 2. The learned trial judge misdirected the jury by omitting to direct them on the Law of provocation as it relates to a charge of murder, there being sufficient evidence to raise the issue of provocation e.g. An Argument.

3 The facts and circumstances of the case are that following a series of skirmishes among a number of men, including the appellant and the deceased, which took them through a churchyard and (in the case of one of them into the sea and which also involved the use of a harpoon and the unsuccessful attempt to discharge a loaded gun eventually the appellant and the deceased confronted each other in an alley. At this stage the former was armed with a gun, while the latter carried a cutlass and what took place next is best described in the words of the appellant in his statement from the dock:

“While he coming down I looking back because I watching those behind me pelting stone (Accused says this while pointing hand forward). The other Rastas and them telling him its an old gun its an old gun its a blank. He just run come to me and as he raise ‘up he hand with the cutlass, I did so and I pull the trigger. After the bullet pelt out he say “Oh Jah” and he start to turn out and walk out the alley. We were about 2 ft. apart.”

4 The evidence of the two prosecution eye witnesses Jasmond Charles and Joycelyn John is, however, at variance with this account. Jasmond Charles had this to say:

“The deceased left me and went in the direction of the accused. To me it was as if they had an argument because the crowd started to give them space. I heard the accused told Charles “move in front of me, move”. I saw the accused pull a revolver from his waist band. The gun was pointing in the direction of the deceased and it went off. It caught deceased somewhere in his chest. In a split action accused duck thru an alley and a second shot was fired. I went towards the deceased. I saw he was almost dead.”

5 Joycelyn John stated that the appellant having asked the deceased where he was going with the cutlass threatened three times to shoot him. She went on further to say:

“He had his right hand behind his back stooping so in an alley. He take his hand from behind his back. When I look I see a gun in his hand. After he bring his hand in front he straighten up. He had his hand pointing at Dunniston. I heard an explosion and I saw something like a little thing come out of the gun and hit him in his chest and he come over like this. The cutlass drop out he hand on the ground. I tried to hold him up. Me and he went on the ground. I looking and I see accused run straight back down through the alley.”

6 In regard to ground 1 which embraces to some extent the next succeeding ground of appeal the offending passage of the summing up appears at page 40 of the record where the trial judge said:

“So if a person uses more force than is necessary to repel an attack and consequently he cannot rely on self-defense that still doesn't mean that he is guilty of murder. There are circumstances in those cases where he can be guilty of manslaughter.”

7 A circumstance in point in which an accused may be guilty of manslaughter is to be found in the judgment of Salmon L.J. in...