Jones v The Queen
| Jurisdiction | Barbados |
| Judge | Simmons, C.J. |
| Judgment Date | 07 March 2003 |
| Neutral Citation | BB 2003 CA 20 |
| Docket Number | Criminal Appeal No. 3 of 2002 |
| Court | Court of Appeal (Barbados) |
| Date | 07 March 2003 |
Court of Appeal
Simmons, C.J.; Williams, J.A.; Waterman, J.A.
Criminal Appeal No. 3 of 2002
Mr. Andrew Pilgrim and Ms. Onika Stewart for the appellant.
Mr. D. Saddler for the respondent.
Criminal practice and procedure - Directions to jury on self defence — Whether adequate — Whether appellant should have been convicted of manslaughter and sentenced to 10 years' imprisonment — Possible that appellant would have been acquitted if the judge had not given a misdirection on self defence — Appeal allowed — Retrial ordered.
The appellant was charged with murdering his wife, Ruth, on July 19, 1999. At the January Assizes of 2002 he was convicted of manslaughter and sentenced to 10 years' imprisonment on February 11, 2002. His appeal is against the conviction and sentence and 9 grounds of appeal were filed on his behalf.
There were no eyewitnesses to the events which led to the death of the deceased and reliance therefore has to be placed upon the unchallenged oral and written statements given by the appellant to Sgt. Anthony Carter on the very date of the death.
On that date, July 19, 1999, St. Carter and S/Sgt. Maynard went to the appellant's house at Drax Hall Hope, St. George. According to Sgt. Carter, he saw the appellant sitting at the front of the house and he pointed out the body of a female sitting in a crouching position with blood across her face and stomach. The appellant pointed to injuries to his face and left eye.
The appellant made an oral statement to Sgt. Carter which he recorded in his official police notebook. This is what he said:– “My wife attack me with a piece of iron. She juck me in my left eye with her fingers and lash me across my face with the piece of iron. We struggle for it. I got it and lash her with it. She fell down like she dead.”
At 11.20 p.m. the appellant gave a written statement to whose admissibility no objection was taken. The written statement is as follows:
“Sometime around 3 o'clock Ruth Ifill Jones came to my house while I was in my room resting. I had my radio on listening to Afternoon Delight on it. I heard Ruth in my house talking to herself and I heard the refrigerator door open. I heard Ruth said that if somebody don't get you by fair means they will get you by foul means. I heard Ruth talking to someone on the phone telling them about a funeral at St. Judes she had attended. I heard Ruth walk towards the back room. I got up, came outside and went towards this room. While going there Ruth shouted out for Michael, “Jason gine kill me”, but Michael did not answer. I turned back and I felt a blow up against my left side of my mouth and I saw blood coming from it. As I was on my way to my bedroom I saw Ruth with a piece of iron in her hand. I went behind Ruth who ran into the room attempted to jump through a closed window there. We catch hold of each other, I took away the piece of iron from her and I lashed her with it. While we were scuffling Ruth had her finger in my left eye and she bite me on my upper left hand. When I hit Ruth she fell down in the same room near the window; she break this same window when she was trying to get outside. I dropped this iron in the same room. I got afraid after Ruth fell down and I telephoned the police at District ‘B’ where I tell them what happened. When the police got to me I showed them where everything happened. I showed them Ruth sitting in the room and I gave them the piece of iron I hit she with. This is all I could to say.”
At the trial the appellant made an unsworn statement from the dock in which he gave this version of the events.
“My name is Jason Anthony Jones. On the 19th July 1999, I was at home sleeping and there was a truck outside which I didn't know because the fumes —-
The Court: There was – what was outside?
ACCUSED: A truck was on and the fumes caused me to be awake. When I awake my spouse was on the phone. Then I heard her speaking, talking about a funeral at St. Judes. Then that's how I know that she was present. Then I heard she say if she can't get him by fair means she will get him by foul means. Then I hear a gentleman outside speaking which in we had a conversation the day before. When I went to speak to him, I butt up to Ruth in the room. I was startled. I was shocked. Then she said to me, “You Jason Jones want killing.” She say that twice. While I was there standing all the time she holler then, “Michael, Jason gine kill me.” That's when then she take up the object and struck me. That's all I know. That's my submission.”
Evidence of the forensic pathologist revealed that the deceased suffered multiple injuries including 5 lacerations about her face, a punctured wound on the back of her left forearm, subdural haemorrhage on the left half of the brain and a dislocated fracture between the third and fourth cervical vertebrae. Death was attributed to shock and haemorrhage as a result of the injuries and, in the expert opinion of the forensic pathologist, the fatal injuries were the subdural haemorrhage and the fracture between the cervical vertebrae.
The prosecution case was based upon the oral and written statements and counsel for the prosecution, in his opening speech, contended that there was an altercation between the parties as a result of which the deceased ran away from the appellant into a bedroom and tried to go through a closed window. Then, said the prosecution, the appellant pursued her and struck her with the piece of iron causing the fatal injuries.
The appellant's case was that he was acting in self-defence. Self-defence was a live issue at the trial and was dealt with at length by the trial judge in his summation.
Of the 9 grounds of appeal filed it is only necessary for us to deal with two. First, it is submitted by Mr. Andrew Pilgrim that the trial judge misdirected the jury on the issue of self-defence. Secondly, he pleaded that the defence of accident was not properly left to the jury. We consider the issue of self-defence first.
Early in his directions, the trial judge told the jury that “it is the duty of the prosecution to prove beyond reasonable doubt, or to put it another way, so that the jury is sure that the killing was not done in self-defence. Self-defence must be negatived by the prosecution. There is no duty on the accused man to prove that he was acting in his own necessary self-defence. If the jury is satisfied that the killing was done by the accused in defence of himself, the accused is entitled to be acquitted.”
The trial judge then went on to direct the jury that the force used by a defendant must be proportionate to the attack and he cited part of the well-known passage on self-defence given by Lord Morris of Borth-y-Gest in Palmer v. R 16 W.I.R. 499 at 510 where his Lordship had said, inter alia:
“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do but may only do what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous, others may not be. If there is some relatively minor attack it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score and may be pure aggression. There may be no longer any link with a necessity of defence. All these matters the good sense of the jury will be the arbiter.”
Notwithstanding his earlier directions, the trial judge then directed the jury in these terms at pages 87 and 88 of the record:
“And you must nevertheless consider the evidence to see if you are satisfied so that you are sure that the accused acted in self-defence. If you are sure he did, you must acquit him. If you are not sure you will look at all the evidence to see if you are satisfied so that you are sure what other defences might be open to the accused.
Now you may think also whether it's been shown on the evidence or not, the accused has at no time said that he honestly believed that his life was in danger from attack on him by the deceased. I believe he used the word shock but I will deal with that when I come to the statement. But it is not my recollection of the evidence that he at any time said that he honestly believed that his life was in danger from attack on him by the deceased. You must decide from the facts you find if you can...
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