1
COMMONWEALTH OF DOMINICA
IN THE COURT OF APPEAL
CRIMINAL APPEAL NO.10 OF 2002
DON PROSPER
Appellant
and
THE STATE
Respondent
Before:
The Hon. Sir Dennis Byron Chief Justice
The Hon. Mr. Albert Redhead Justice of Appeal
The Hon. Mr. Ephraim Georges Justice of Appeal [Ag.]
Appearances:
Mr. Julien Prevost for the Appellant

Mr. Roger Pinfold, DPP with Ms. S. Ali for the Respondent

2003: March 24; 25;

November 13.

JUDGMENT
[1] BYRON, C.J.: Don Prosper has appealed against his conviction for manslaughter
in the stabbing death of Wadico Bunche. He was sentenced to 4 years
imprisonment after an extensive sentencing hearing.
[2] The appellant and the deceased were both students at the St. Andrew’s High
School and about 16 years of age. The evidence revealed disagreements between
them, and the Appellant receiving beatings from the deceased who was much
bigger and stronger than him. The deceased made other threats to beat the
Appellant who reported these incidents to the police as well as the principal of the
school. The deceased was suspended from school for these incidents and he
confronted and threatened to shoot the Appellant. On the morning of the 16th April 2
2002 the Appellant went to school with a serrated knife. He said he carried the
knife because he was afraid of the deceased.
[3] After he had arrived at school that morning, he indicated to a classmate that he
was prepared to kill the deceased if he came after him. Soon afterwards the
deceased walked into the classroom, approached the Appellant pushed him at his
throat and then held him in a chokehold. Evidence was adduced from two fellow
students that the Appellant took his knife and inflicted fatal stab wounds to the
deceased’s chest. The Appellant in his defence said that he was using the knife to
keep off the deceased without intending to injure him but the deceased held his
hand and was wrestling for the knife when they fell onto a desk. On rising he saw
blood.
[4] The Appellant left the classroom and threw the knife into a nearby river. The police
never retrieved the knife. Soon afterwards two students and a teacher
apprehended him. He had been indicted for murder.
The Grounds for Appeal
[5] The Appellant has advanced grounds of appeal on accident, self-defence and
provocation. I think that I should dispose of the ground on provocation at once.
There are two reasons. In the first case the jury convicted of manslaughter
indicating that the defence of provocation was successful. It is illogical to appeal
against a conviction for manslaughter on that basis. In any event the particular
point on which the Appellant had relied did not have a factual basis. He was
contending that the Judge failed to direct the jury that an intention to kill was not
inconsistent with the defence of provocation. On the contrary the Judge
specifically told the jury that they should not consider the defence of provocation
unless they accepted that all the ingredients of murder, including the intent to kill
or to cause grievous harm had been proved.3
[6] It is therefore unnecessary to consider provocation as a ground of appeal. This
leave three areas of appeal, accident, self-defence and an allegation that the
Judge failed to direct the jury properly on the Appellant’s complaint of collusion
between the prosecution witnesses.
Accident
[7] The Appellant raised three main issues under this heading. He criticised the
Judge for:
[a] not explaining the legal meaning of accident to the jury;,
[b] not identifying to the jury all the evidence that could have supported the
case for accident; and
[c] not directing them that the burden of proof was on the prosecution to
negative accident.
The Definition of Accident
[8] Did the trial Judge explain the legal meaning of accident to the jury? Counsel
suggested that the Judge was obliged to explain the meaning of accident in much
the same terms as in R v Bailey (1991), unreported, as quoted approvingly in R v
Muir 48 WIR at page 268. It stated:
“But with all respect to the trial judge, it is too clear for words that self
defence arose on the appellant’s unsworn testimony. But having identified
the defence as accident, he was in our judgment bound to explain the
meaning of accident. No directions in that regard were given to the jury.
He would have had to tell the jury that a killing, which occurs in the course
of a lawful act without negligence, is accident, which they had to have in
mind. It plainly was not the jury’s laymen’s view of accident which
mattered.”
[9] The test, which the Judge left to the jury was far more beneficial to the Appellant
than that to which Counsel referred. The Appellant was saying that he did not
voluntarily inflict the fatal wound. He gave a description of the circumstances
under which the wound was inflicted. The Judge addressed the legal issues by 4
telling the jury in unequivocal terms that the evidence adduced was capable of
amounting to accident. In my view this was an appropriate technique of directing
the jury on the law. The Judge did not discuss the question of whether the act that
the Appellant was performing was lawful, or whether the Appellant was negligent.
He did not invite the jury to consider these questions in determining the
applicability of the defence of accident. It is trite that the law draws a distinction
between death resulting from a lawful act and an unlawful act. The Appellant in my
view received the benefit a direction, which opened the defence of accident
without any assessment of whether what the Appellant was doing was lawful or
not. The effect of the Judge’s direction was that if the jury believed him or was in
doubt he should be acquitted. In my view the Judge did give directions on the law
in a manner that was favourable to the Appellant. This could be easily appreciated
by reviewing a section of the summation.
[10] After the learned trial Judge related the evidence adduced on behalf of the
Appellant, he continued:
“The summary now of the accused’s defence; he did not stab Wadico. It
was not his voluntary act. Wadico attacked him by jacking him, then
Wadico let go of him, his throat. Wadico went back a little and was coming
forward towards him again, he Don took the knife from the desk and
swung it between both of them to keep Wadico away and without any
intention of injuring him. Wadico then held his hand with the knife, that is
Don’s hand, the accused’s hand with the knife, they wrestled for the knife,
Wadico lost his balance, fell on a desk and Wadico pulled him, Don on
him, he did not stab Wadico. Wadico injuries must have been caused
when they fell on the desk because when Wadico pushed him off, he Don
say blood…
From these facts as related by the accused he is inviting you to find that
the act which caused Wadico’s death was not his voluntary act, it was an
accident. Well, if you accept that evidence or even if you are of the view
that Wadico’s death may have been caused in that manner then the
accused is not guilty of any offence and you must acquit him because it
was not his voluntary act.”
In my view the first leg of the submission must fail.5
The Facts
[11] Counsel complained that the Judge did not point out to the jury that the pathologist
noted that the fatal wound moved upward and inward, while the prosecution eyewitnesses
testified that the Appellant held the knife with the point facing downward
and thrusted downward. He contended that this was evidence, which bolstered
the defence of accident and damaged the credibility of the prosecution’s star
witnesses.
[12] The prosecution’s eye witnesses, Hydie Gordon and Marvin George said that the
deceased entered the classroom walked up to the Appellant and jammed or
jacked him under the throat. The Appellant then pulled out a knife from his left side
and stabbed the deceased. Marvin George said one blow, Hydie Gordon said the
Appellant made two blows at the deceased with a knife. The Appellant said that he
and the deceased were wrestling for the knife, and the deceased fell and pulled
him down onto him he saw blood and it was then he realized that the deceased
was injured. These were the competing versions of the facts. During crossexamination
Counsel for the Appellant extracted answers from the two eyewitnesses
which he said indicated that the Appellant held the knife with the point
facing downward and thrusted downward. The pathologist testified that during the
post-mortem examination he found a gaping stab wound with a double tail below
the nipple of the right breast. The wound penetrated inwards and upwards
damaging parts of the lung air passages and the soft tissue around the spine. The
doctor attributed death to that wound. In cross-examination he said that if a knife
was held with its point facing downward the natural tendency is for the wound to
go downward, and he conceded that it was possible for the wound to have been
inflicted during the course of a struggle and one person falling on the other.
[13] The Judge did relate the concessions of the pathologist to the jury. He did not say
that the concession was a point to be used in support of the defence. I do not think
that his failure to do so interfered with the fairness of the trial in any way. The 6
evidence was there, Counsel had addressed and the Judge referred to it in his
summation. It was open to the jury to make appropriate findings. This was not a
complicated matter and it was well within the province of the jury to make findings
on that aspect of the testimony.
The Burden of Proof Relating to Accident
[14] Counsel submitted that the trial Judge failed to give a specific direction on the
burden of proof on accident and he failed to say the onus was on the state to
negative accident1.
[15] I also reject this argument. Throughout his summation the Judge referred to the
duty of the prosecution to prove its case against the accused, and he addressed
the jury on the presumption of innocence. With regard to the defence of accident,
he referred to those propositions in a manner that I think would have been
intelligible to the jury, when he told them:
“Well, if you accept that evidence or even if your are of the view that
Wadico’s death may have been caused in that manner then the accused
is not guilty of any offence and you must acquit him.”
[16] In my view the learned trial Judge adequately assisted the jury in relation to the
defence of accident.
Self-Defence
Counsel for the Appellant submitted that:
[a] The Judge failed to direct the jury that having an intention to kill is not
inconsistent with the defence of self-defence; and
[b] The Judge did not direct the jury on the components of subjectivity and
honest belief as they relate to self defence.
1 The State v Simmons 24 WIR 149 and Baptitse v The State 34 WIR 2537
Intent to Kill
[17] Counsel for the Appellant submitted that the Judge had failed to direct the jury that
an intention to kill was not inconsistent with a plea of self defence. He relied upon
the cases of Krishendath Sinanau et al v The State2 and Baptitse v The State3
“Another important direction that a judge must give to a jury in appropriate
cases is that an intention to kill is not inconsistent with the establishment
of the plea of self defence… Expression was given to that principle as far
back as 1965 by Lewis JA in R v Bunting 8 WIR 276 at 278:
in support of his submissions. In the latter case the Appellant raised the defences
of self-defence, accident and provocation in answer to his indictment for murder.
The learned trial Judge omitted to direct the jury that the Appellant may have
availed himself of the pleas of self-defence or provocation even though he formed
the requisite mens rea for murder. The Court of Appeal of Trinidad and Tobago in
allowing his appeal stated at page 262 of its judgment:
‘In a case where provocation arises as a defence to a charge of
murder it is proper and indeed necessary to for the trial judge to
tell the jury that murder is not established unless an intention to
kill or to cause grievous bodily harm is proved; but the converse
proposition, namely that the accused is guilty of murder if such an
intention is proved, is not necessarily correct’…”
[18] These cases supported the proposition that in appropriate cases a Judge must
direct the jury that an intent to kill is not inconsistent with pleas of provocation and
or self-defence. It is clearly the law that an intention to kill is not inconsistent with
the defences of self-defence and provocation. There is no requirement however
that the summing up must follow any special format, nor use special words. In my
view the Judge made it abundantly clear to the jury that the defences of selfdefence
and provocation were open even if the Appellant had an intention to kill.
He put it in his own words on a number of occasions during the summation. I will
refer to one passage as he was concluding his directions on self-defence. He
stated:
2 1992 44 WIR 383 at 394-5 3 1983 34 WIR 2538
“In discharging the burden of proof the prosecution is inviting you to
consider, 1. the weapon that was used;2 the depth of the wound; 3 the
fact that the deceased Wadico Bunch was unarmed at the time. They are
asking you to look into the mind of the accused, Don Prosper, his
intention, what he intended. They said his intention was expressed on that
very morning to Kimisha Thomas, if Wadico attack me I will kill him. If
members of the jury, you conclude that he was, that is the accused was,
or that he may have been acting honestly in necessary self defence then
you must acquit him, return a verdict of not guilty. If, on the other hand,
you are sure that the accused was not acting honestly in self defence
when he caused the death of the deceased, Wadico Bunch, then and only
then will you consider the alternative defence of provocation which is
available to the accused on the evidence.”
Honest Belief and Subjectivity
[19] Counsel for the Appellant submitted that the learned trial Judge failed to direct the
jury on the relevant aspects of the Appellant’s subjective characteristics that were
material to determining the honesty of his belief that he acted in self-defence. He
asserted that the trial Judge in his summation ignored the Appellant’s
characteristics such as his age as well as the emotional strain he laboured under
at the time. He relied upon the cases of Beckford v R4, James Russel Shannon
v R5 and Harley Alfred v R6
“if therefore the accused did no more than what he honestly and
instinctively thought was necessary that is very strong evidence, that the
amount of force was reasonable and necessary.”
in support of his submission. In my view the Judge
was just as clear and proper in his directions on the issues of subjectivity and
honest belief. I do not think that I need do more than refer to the final sentence in
his directions on those issues;
I would reject the grounds of appeal relating to self-defence.
[20] Counsel in his third ground for appeal contended that the learned trial Judge erred
when he gave the jury the following direction on certain suggestions that were
4 1988 AC 130
5 (1980) 71 Cr App R 192 at 194
6 44 WIR 155 at 1589
made by Counsel for the accused after he had reminded them of the relevant
sessions when these matters arose during the trial.
“What remains therefore, is a suggestion which was made, which was
denied by the witnesses and which is unsupported by evidence. There is
no evidence in this case, that the principal of the school held a meeting on
the 6th of July 2002 and told the students what to say. Disregard
completely all what Mr Prevost has told you on that subject.”
[21] Learned Counsel submitted that the learned trial ought to have left this issue to the
jurors who were the arbiters of fact and to warn them of the dangers of collusion
and believing possibly tainted evidence. He relied on excerpts from Blackstones
Criminal Practice 19957 and the cases of R v Ryder8 and Douglas v The State9
[a] In the former case, the Appellant was convicted of eight offences including
rape and attempted rape against five prostitutes. At his trial the learned
trial Judge directed the jury upon the possibility of collusion among the
prostitutes because evidence of such had become apparent to him in the
course of the trial. The Court of Appeal in dismissing this aspect of the
appeal was of the opinion that as the possibility of collusion in that case
was more than merely fanciful, the learned trial Judge was correct in
directing the jury on how to approach it. Lord Taylor CJ in examining the
possibilities that were available to the trial Judge in the circumstances said
the following:
“Finally, even if the judge himself is of the view there is no real
possibility of collusion, but the matter has been argued, he should
leave the issue to the jury. That view of the law is in accord with
the judgment of another division in R v Anantharanayanan
[1994] 2 All ER 847.”
.
[22] The record revealed that Counsel for the Appellant cross-examined those
prosecution witnesses who were school children and the school’s principal on a
suggestion that the latter had called a meeting at the school to tell the students
what to say to the Court. Every one denied that any such meeting took place or
7 Page 1993 at Paragraph F.12:14
8 [1994] 2 All ER 859 9 (1988) 40 WIR 396-710
that any such thing was said. Counsel for the Appellant, nonetheless waxed
eloquent on this issue during his address to the jury. What the Judge did, was
quite simply and clearly to tell the jury that there was no evidence of the alleged
meeting and they should disregard what Counsel had said about the meeting. The
Judge was factually correct in that no evidence was adduced on the subject at all.
In my view the Judge was obliged to warn the jury that they could not act on the
speculative remarks of Counsel that were not supported by the evidence.
[23] This appeal should be dismissed. The conviction and sentence are confirmed.
Sir Dennis Byron
Chief Justice
I concur. Albert Redhead
Justice of Appeal
[Sgd.]
I concur. Ephraim Georges
Justice of Appeal [Ag.]