Kenroy Hyman Appellant v The Commissioner of Police Respondent [ECSC]

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Belle JA [AG.]
• Judgment Date: 17 September 2012
• Judgment citation (vLex): [2012] ECSC J0917-6
• Docket Number: MCRAP 2011/002
• Date: 17 September 2012

[2012] ECSC J0917-6

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Chief Justice [ag.]

The Hon. Mr. Francis H. V. Belle Justice of Appeal [Ag.]

The Hon. Mr. Mario Michel Justice of Appeal [Ag.]

MCRAP 2011/002

Between:

Kenroy Hyman

Appellant

and

The Commissioner of Police

Respondent

Criminal appeal — Self-defence — Unlawful assault — Whether magistrate applied wrong principle on the issue of self-defence — Whether the burden of proof shifted from the prosecution to the defence when self-defence was raised by the appellant

On 5^th December 2010, there was a confrontation between the appellant, Kenroy Hyman, and Levon Ryan which became violent and led to Levon Ryan being injured by the appellant. The appellant was charged with assault and was subsequently convicted by the learned magistrate of that offence. The appellant appealed his conviction on the basis that the decision given cannot be supported having regard to the evidence and that the judgment was based on the wrong principle of law.

Held: dismissing the appeal and confirming the appellant's conviction, that:

• 1. A defendant, who has raised the defence of self-defence in a criminal case, does not bear the burden of proof and does not have to make out any case. It is the prosecution which must negative self-defence.

• 2. The test to be applied in self-defence is that a person may use such force as is reasonable in the circumstances if he honestly believes it to be in defence of himself or another. This principle was applied by the magistrate to the facts of the case. The magistrate considered evidence of the appellant's behaviour and demeanour before the incident and afterwards, thereafter she rejected the appellant's defence of self-defence. As the magistrate is the decider of both fact and law, she was entitled to reject the appellant's defence and render a verdict averse to the appellant.

  Solomon Beckford v The Queen 1988 AC 130 applied; Curvin Jeremiah Isaie v The Queen Saint Lucia HCRAP 2006/006 (delivered 14^th July 2008) followed.

• 3. The magistrate had the advantage of seeing and assessing the witnesses demeanour when they gave their testimony. From this, she determined that the evidence before her proved that the appellant was the aggressor which negatived his defence. The Court of Appeal would not disturb the magistrate's finding of fact, which resulted in the appellant's conviction, as there was ample evidence disproving the appellant's defence.

Belle JA [AG.]

1 This is a judgment of the Court. On 5^th December 2010, the appellant, Kenroy Hyman, went searching for Levon Ryan, the complainant, to confront him about assaulting his niece some days before. When Levon Ryan eventually saw Hyman he went up to him and told him he heard he was searching for him. There are conflicting stories about the exchange of words which occurred but the learned magistrate held as a fact that the complainant tried to obtain an explanation for the search from the appellant. This encounter turned violent when the appellant then assaulted and injured the complainant. This was the basis for the charge of assault against the appellant Kenroy Hyman and the subsequent finding of guilt and conviction for assault, by the learned magistrate.

2 The learned magistrate sentenced in the following terms:

• (1) Conditional discharge on entering into recognizance in the sum of $1,000.00 on surety, to be of good behaviour and to appear for sentencing when called any time during the period of one year.

• (2) The appellant was required to undergo counselling for self-control provided by the Health Department of Montserrat, with attendance at such session on a monthly basis.

• (3) Supervision of the appellant was to be conducted by the Probation Officer and a monthly report on attendance was to be provided by the court.

• (4) The appellant was also ordered to pay compensation in the sum of EC$500.00 to the complainant for pain suffering and the injury of the loss of hair and resulting sore, to be paid within two weeks or 1 week imprisonment in default.

3 The appellant subsequently filed this appeal against his conviction and sentence but at the hearing proceeded only against conviction. The appellant's grounds of appeal were:

"1. That the decision is unreasonable or cannot be supported having regard to the evidence;

2. That the decision was erroneous in point of law;

3. That evidence substantially affecting the merits of the appellant's case was rejected by the Court;

4. That the judgement...