Allen v R

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Robotham, C.J.
• Judgment Date: 04 November 1986
• Neutral Citation: MS 1986 CA 4
• Docket Number: Criminal Appeal No. 1 of 1986
• Date: 04 November 1986

Allen

and

R

Robotham, C.J. Bishop, J.A. Moe, J.A.

Criminal Appeal No. 1 of 1986

Court of Appeal

Criminal Law - Defence — Provocation

Criminal Law - Defences — Self defence

Held: The trial judge failed to sufficiently grasp the complex interrelationship that can develop between plea of self defence and provocation. Appeal dismissed. Verdict of manslaughter substituted for the verdict of murder.

Held: The trial judge had failed to grasp the complex inter-relationship that can develop between a plea of self defence and provocation. The verdict of manslaughter would be substitute for murder.

Facts: Appeal against conviction for murder made on ground that based on evidence accused at most was guilty of manslaughter. Whether evidence rejected in the area of self defence could be considered in setting issue of provocation.

Facts: This as an appeal against conviction on the ground that the conviction was based on evidence which at the most should have resulted in a manslaughter conviction. Another issue was whether evidence rejected in the plea of self defence could be considered in setting the issue of provocation

1 Robotham, C.J. delivered the Judgment of the Court

2 This is an appeal against a conviction for Murder and sentence of death passed on the appellant in the Montserrat Assize Court on 13th March, 1986.

3 On the night of 11th January, 1985, both the appellant and the deceased John Gerald (who is also known as John John) were in the shop of Fred White in the district of St. Johns. At about midnight, the deceased was at a table eating, when the appellant, according to the witness Peter Tuitt, attempted to “play around” with the deceased's food, as if he wanted to put his hand in it. The appellant said whilst he was in the act of doing this, “only one life a man has to live”.

4 The deceased told the appellant to leave him alone. The next thing that happened as told by the witness Peter Tuitt, was that the deceased got up, went into the kitchen. The appellant went and stood by the kitchen door. The deceased came out of the kitchen with a cutlass in his hand. This cutlass had earlier that night been placed in the said kitchen by the deceased himself.

5 The witness then said;

“As John John (deceased) came by the door Mercer the accused pull out his knife from his waist and bold John John's hand with the cutlass. Then I went outside. When accused held John John's hand with the cutlass, accused lifted up his hand with the knife to stab John John. I did not see where the hand with the knife went when the accused held John John's hand with the cutlass. Accused and John John were wrestling. When I went outside I see Mercer come outside. Accused had the knife in his hand down by his side….. The knife had blood….. When John John came to the door, with the cutlass John John did not do anything with the cutlass.”

6 In cross-examination, he agreed that the deceased and the accused were fighting, and he could not say how long “the fight” lasted.

7 This was the sum total of the eye-witness's evidence which the Crown was able to put forward in so far as the actual clash between the deceased and the accused went. What emerges from Tuitt's evidence is that he witnesssed the encounter right up to the point where deceased and accused became locked in combat so to speak, but he was unable to say in what manner, or under what conditions the three wounds were inflicted on the deceased by the appellant. There was no-one else able to give such evidence other than the accused himself. In the end result what the jury had to consider was Tuitt's account up to the point of the clash, the appellant's account thereafter, and the medical evidence as to the injuries received.

8 The medical evidence, which could have been lead at the trial with more particularity, showed that the deceased on being seen by. Dr. Lewis at the Hospital that same night was suffering from three stab wounds; (1) a wound on the right side of the cheek, extending into the mouth, wide enough for the Doctor to see inside the mouth; (2) a wound on the left side of the chest just below the mid point of the left clavicle, which penetrated through to the left lung thereby collapsing it; (3) a wound which extended down between the vertebrae at the base of the neck, and into the spinal canal, and which damaged the spinal cord. This damage to the spinal cord resulted in complete paralysis of the lower part of the body of the deceased.

9 The deceased remained in a critical condition in the Hospital until his death on 26th September, 1985, but prior thereto he developed complications including a severe urinary tract infection, and bed sores which deteriorated into ulcers.

10 On 27th September, Dr. Cooper performed a post mortem examination on the body and in his opinion death was due to septicemia as a result of the paralysis to the lower part of the body brought about by the stab wound inflicted to the vertabrae and spinal cord at the base of the neck.

11 It is to be noted that Dr. Cooper saw the deceased whilst he was in hospital and had conferances with Dr. Lewis on his condition, but neither of the two Doctors was asked any questions at the trial about the death or direction of the wounds, and more particularly about the degree of force required to inflict all or any of them.

12 Dr. Cooper saw and examined the appellant on the 12th January at about 11.45 a.m. and found him to have a two inch abrasion over the left aspect of the forehead. It could he said have been caused by being struck with the flat part of a cutlass, but not the sharp portion or the point. It could also have been caused by a fall to the floor. The injury was not serious.

13 In his first cautioned statement to the Police, the appellant said that the deceased took up the cutlass and chopped at his head and that is when he received the injury to the head. When deceased was about to “fire the second chop” he blocked it and the cutlass caught him lightly on the hand without cutting it. They then fell to wrestling on the ground, at which time the deceased got cut with the cutlass. He made no mention of the knife in this statement. Clearly the machette could not have caused any of the three stab wounds.

14 In his second cautioned statement he made a switch after the point where the wrestling started by saying that whilst they were wrestling, he was trying to get the cutlass from deceased without success; when he could not get the cutlass he saw a knife on the kitchen table “and I take it up and cut him with it a few times.”

15 In his sworn evidence at the trial which he said was the true version, he admitted for the first time having in his possession a knife when he arrived at the shop that night. It would seem that this is the more credible account of his possession of the knife as there were two witnesses, namely, Michael Farrell, and the appellant's own brother, John Allen who said in evidence that they saw the appellant with the knife in his waist hours before this unfortunate encounter took place.

16 His evidence at the trial taken up from the point where the witness Peter Tuitt left the shop, runs thus;—

“I was there sitting on the stool with my hand under my chin looking at the bartender. I heard a little hard talking in the kitchen and some movements. I did not pay that no mind. I believe was my friend talking. While there I heard one rush and I received a lash on my head. I got a black out……. when I come up and catch myself John John (deceased) was resting on me. He had the cutlass in his hand, like he go to fire the cutlass again. I give one grab and catch the same hand with the cutlass. We start to wrestle. After I find he was more than me I pulled my knife from my waist and cut him. I did not get the cutlass from him. We wrestle from the...