IN THE COURT OF APPEAL
CRIMINAL APPEAL NO. 1 OF 1992
Appearances: Mr. Lloyd Noel for the Appellant
Miss Velma Hylton Q.C., D.P.P. for the Respondent
1992: July B, 9;
SATROHAN SINGH, J.A.
In R. v GALBRAITH (1981) 2 All E.R. 1060 at page 1062, Lord
Lane, in giving guidelines to be followed by a trial judge on a submission of no case to answer, prescribed that where the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’ reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.
On an indictment for the offence of murder, the appellant was on March 11, 1992 convicted by a jury before st. Paul J. of the offence of manslaughter and on March 16, 1992 sentenced to imprisonment for four years. At the close of the case for the prosecution at the trial, because of the obvious unreliability of a prosecution witness, Glenroy Passee, a submission of no case to answer was made by Mr. Lloyd Noel on half of the appellant on the
The case for the prosecution rested mainly on two alleged eye witnesses, Glenroy Passee and Joseph Noel and to a lesser extent on a statement made by the appellant under caution. Glenroy Passee’s evidence was so discredited as a result of cross-examination that it became manifestly unreliable and if it stood alone, no reasonable tribunal could have safely convicted on it. This is conceded by the Director of Public Prosecutions Miss Hylton, Q.C. Joseph Noel’s evidence however, which was to some extent supported by the 8tatement of the appellant under caution, was evidence where, upon one possible view of the facts, a jury could have come to the conclusion that the appellant was guilty.
Counsel for the appellant argued that Joseph Noel’s evidence should have suffered the same fate as Glenroy Passee. I do not agree. I do not find unreliability in this witness’ testimony as contended by learned counsel. His evidence in examination-in-chief was not contradictory within that examination or with his evidence in cross-examination. What the cross-examination did was to elaborate on his evidence in examination-in-chief and establish facts upon which the defence of self-defence was grounded. The main thrust of his evidence throughout his testimony was that the deceased was killed as a result of knife wound inflicted on his throat by the appellant. His evidence introduced and left the issue of self-defence for the consideration of the Jury. I also do not agree with the submission of counsel that as a result of the taint on the Crown’s case because of the unreliability of Glenroy Passee’s evidence that the learned trial Judge should have withdrawn the case from the Jury. A jury in deliberating, can accept the evidence of one witness and reject that of another witness, it can also accept part of witness’ testimony and reject
In February, 1962 Lord Parker C.J. issued the following practice note  1 All E.R. 448: –
“A submission that there is no case to go to a jury may
properly be made and upheld:
(a) Where there has been no evidence to prove an essential element in the alleged offence.
(b) Where the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reason-able tribunal could safely convict on it.”
In 1977 Lord Widgery in R. v BARKER (1977) 65 CAR 287 at
p.288 said: –
“It cannot be too clearly stated that a judge’s obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is not the judge’s job to weigh the evidence, decide who is telling the truth and stop the case merely because he thinks the witness is lying. To do so is to usurp the functions of the jury.”
Putting aside the evidence of Glenroy Passee, the remaining evidence left with the Crown on the material issue, was the evidence of Joseph Noel and the caution statement of the accused. The jury thereby had the necessary “minimum” evidence sufficient to establish the facts of the crime and it cannot be said that this evidence was manifestly unreliable.
Applying the aforementioned principles enunciated by Lord Lane in R. v GALBRAITH to these circumstances, I find no merit in this argument and this ground of appeal must fail.
The fourth qround of appeal argued by learned Counsel was that the trial Judge failed to give any suff.icient direction to the jury on the issue of accident. I do not find any such direction necessary, the evidence not disclosing the existence of any such defence. The main thrust of the defence as can be gleaned from the evidence is one of self-·defence. As I understand Counsel’s argument, the accident to which he refers is the death of Kester Peters; the result of the appellant’s action in allegedly defending himself and nothing else. consequently, the determination of the issue of self-defence would determine whether or not the deceased was killed accidentally. In any event, the trial Judge, without elaborating, did leave the issue of accident for consideration of the jury. This ground fails.
Learned Counsel then argued that the trial Judge failed to direct the jury on the appellant’s defence of self-defence. A perusal of the learned trial Judge’s summing-up shows these directions to the jury on this issue:
“While on self-defence, I tell you it is an essential element of the offence of murder that the killing was done by unlawful harm and the accused person intended to cause the death of the deceased. And the law is: –
‘A person has the right to protect or defend himself from physical attack and if necessary he can inflict violence on his attacker in so doing, but he must use no more force than is necessary to defend himself from his attacker. If he uses no more force than is necessary in the circumstances,
I find these directions fair and adequate and this ground fails.
During his summing up to the Jury, the trial Judge gave these directions to the jury: –
“If you are left in reasonable doubt of the guilt of the Accused for the offence of murder, you must acquit them of murder. I repeat, if you are left in reasonable doubt of the guilt of the Accused for the offence of murder, you must acquit them of murder. If you are left in reasonable doubt of the guilt of the Accused for the offence of manslaughter, here again you must also acquit them of manslaughter. If you are left in reasonable doubt as to whether the offence was murder or manslaughter, you may convict of manslaughter ……. n
As regards the last two line:,, Counsel for the appellant contends that the Judge here directed the jury that they must convict for manslaughter. I do not agree. What the trial Judge was doing here was to direct the jury on the possible different verdicts they could return as their deliberations progressed in the event of their finding themselves in a reasonable doubt at different stages of their deliberations.
Having found no me.cit Ln these grounds of appeal, I can find nothing to support the final ground of appeal argued by learned Counsel for the appellant that the verdict was unsafe and unsatisfactory. This was a case of the deceased and the appellant
being involved in an altercation with the deceased being the aggressor attacking the appellant’s brother and breaking a bottle on his shoulder. The appellant’s defence was that he intervened to save his brother and in the conflict that ensued he was forced to use a knife he had in his possession to avoid being injured by the deceased who had the broken bottle with him. The doctor found death to be caused from a wound in the neck of the deceased and the evidence is pellucid that the wound was caused by the appellant with the said knife. As earlier stated, the learned trial Judge gave proper directions to the jury on all issues relevant to the offence of manslaughter of which the appellant was convicted, the jury had all the evidence for their consideration and they returned with a guilty verdict. I can see no legal or justifiable reason to interfere with the verdict.
For these reasons I would dismiss this appeal and affirm the conviction and the sentence, Counsel for the appellant not providing this Court with any material upon which interference with the sentence could be considered.
(Signed) S.SINGH SATROHAN SINGH
Justice of Appeal
I concur. (Signed)
SIR VINCENT FLOISSAC
I concur. (Signed) C.M.D.BYRON
p style=”text-align: right;”>C. M. D. BYRON Justice of Appeal