Criminal Appeal No. 4 of 1997
28th June, 1999
The Hon. Kenneth George, P.
The Hon. Nicholas J.0. Liverpool, J.A.
The Hon. Elliott D. Mottley, J.A.
Sampson, S.C. for Appellant.
Mrs. Marilyn Williams, Crown Counsel for the Respondent.
Law - Murder - self-defence - Provocation - Burden and Standard
of Proof (No specific formular necessary) - Proper directions
to the jury as to the possible verdicts on a charge of murder
- Directions to the jury how to deal with the unsworn statement
of the accused.
U D G M E N T
Cleon Smith was indicted for the murder of Ainsworth Wagner
which occurred on 27th day of July 1996. He was convicted
on 3rd of April 1997 and sentenced to death.
of July between approximately 7:30 p.m. ? 8:10 p.m. the Appellant
? also known as "Tush" went to Mayflower Street.
One of the witnesses called by the prosecution Sandra Cutter,
who knew the appellant for 15 years, saw him walking by the
Gateway beside which she was sitting. Sandra is the aunt of
the deceased. She saw something shiny in his hands. This shiny
object appeared to her to be a gun. He walked to the back
of the building where the deceased lived. Later he was seen
coming out of the yard and spoke to three boys and pointed
the gun in their direction.
stopped on Mayflower Street. Shortly after this, Ainsworth
Wagner, the deceased, who was also known as "Pie"
came on to Mayflower Street riding his bicycle. His brother
was walking three feet behind him.
deceased was about two feet away from the appellant, the appellant
said something to the deceased. The deceased got off of his
bicycle and stood in front of the appellant. They appeared
to be exchanging words. At this time the deceased was holding
his bicycle in his right hand between the appellant and himself.
stated that she heard a gun shot whereupon she saw the deceased
'ducking.' After 'ducking' the deceased made about two or
three steps toward the direction of the appellant.
pointed the gun in the direction of the chest of the deceased.
A second shot was fired and shortly afterwards the appellant
was seen running into Vernon Street. After this second shot
the deceased walked, stumbled and was caught by Germaine Zuniga
before he fell.
the witness said that after the deceased got off the bicycle
the appellant approached him and said to him "I am going
to shoot your
replied "Shoot boy duh mi what yuh haf fu duh if you
put the gun to the left side of the head of the deceased and
fired a shot. The deceased 'ducked' from the shot. The witness
Heather Foreman said that Smith then put the gun on the left
side of Pie's chest and shot him. The witness said that Smith
also fired a shot at Delroy Wagner the brother of the deceased.
afterwards the deceased was taken to the Karl Heusner Memorial
Hospital where he was pronounced dead.
Estradabran who performed the postmortem stated that there
was an injury, which entered through lateral area of the chest
and went through the heart and through the lung. This was
the fatal injury.
that the parties were at close range when the shot was fired.
Itza stated that on 26th September 1996 he went to the Philip
Goldson International Airport where he met the appellant Smith.
Smith had been deported by the United States Government. At
the C.I.D. Office the appellant was cautioned and he elected
to give a statement which was recorded in writing.
which he gave the Police was admitted into evidence without
any objection by Counsel for the defendant. The statement
Thursday, 25th day of July, 1996 between 1:00 and 2:00 p.m.,
whilst at home at the above mentioned address, one Mark
Mossiah alias "Pantyman" arrive at my house. Mark
then told me that Ainsworth Wagner, alias "Pie"
say if I can't send something for he, Pie and Cat would
come for it at my house. Cat is the nickname of Stephen
Requena who is Ainsworth Wagner brother?in?law. On the day
26th day of July, 1996, at about 7:00 a.m., I was riding
my bicycle accompany by Pantyman on Vernon Street. Upon
reaching Brads Store on Vernon Street, I met Pie who punched
after me with his left hand. He then said to me pussy if
you no give me something, I will kill you like how they
kill Saragosa. I told Ainsworth Wagner, Pie, what I have
is for me and my children ...
home at my house on Sibun Street at about 12:00 midday on
27th day of July 1996 ... I then rode up Vernon Street and
passed Mayflower Street where I saw Ainsworth Wagner alias
Pie standing corner of Vernon and Mayflower Streets playing
with a ball ...
rode up Vernon Street towards Mayflower Street. Upon reaching
the junction at Mayflower and Vernon Street, I saw Ainsworth
Wagner alias Pie still standing there but this time he was
with his brother, name unknown to me. I then decided to
go right from Vernon Street into Ebony Street. Ainsworth
Wagner and his brother passed me on his bicycle and Ainsworth
Wagner had a knife which looked like a butcher knife in
his right hand. Ainsworth Wagner was riding his bicycle
a beach cruiser, blue in colour and his brother was seated
on the handle of the bicycle. When he chased after me he
was holding the knife in his hand which was against the
handle of the bicycle which he was holding. When Ainsworth
saw that he cannot catch up with me he shouted to me saying
that he will get me like how he got Saragosa. I believed
that Ainsworth Wagner wanted me to give him money hence
the reason he chased me and threatened me. I then decided
to get hold of a firearm to protect myself as I believed
that Wagner was getting serious. After Wagner chased me
on Ebony Street, I went home and hold of my .380 pistol
and?went to look for my girlfriend. I did not find my girlfriend
Just before reaching the junction of Mayflower
and Vernon Street, Ainsworth Wagner came up on a bicycle
from Vernon Street into Mayflower Street. As Ainsworth see
me he jumped off his bicycle and said to me that he wanted
to see me run like how I ran earlier in the evening. I saw
Ainsworth Wagner come walking towards me and pull out a
knife from his pants side. I then made two steps backwards
and pulled out my pistol and told him I do not want to shoot
as we are friends. Ainsworth Wagner then told me that I
am not his friend and that he will fock me up pussy boy.
He was still advancing towards me with his knife. I then
fired a shot on the ground and told Wagner, Pie, I really
do not want to shoot you.
then told me well you will have to shoot me. He then advanced
towards me with a knife in a stabbing position. I then left
up my pistol and squeezed the trigger and I saw him fell
to the ground. I then saw his brother who is nearby, ran
towards where he fell and picked up the knife and said to
me you dead pussy boy. I then ran down Vernon Street and
went on Banak Street where I met my girlfriend along with
Rosita. I then told my girlfriend that I had just shot Pie.
My girlfriend then told me that Pie brother told her that
he and Pie had chased me earlier. I then went to hide at
a hotel until Sunday 28th July 1996 and went across the
trial the appellant elected to make an unsworn statement from
the dock. In this Statement he said:
25th of last year I was at my home with my kids so he called
me and I came outside to him. Outside of my yard I come
outside to talk to him and then he explained to me that
"Pie" Wagner and "Cat" tell him to tell
me if I don't send something for them they will come for
it. Themself at my house. He explained to me that "Pie"
Wagner and "Cat" Requena tell him to tell me if
I don't send something for them they will come for it at
my house. And after that I just explain to Mark and thing
right, like this money that I have is for my kids and Mark
gone home ...
Then we end up meeting in front of Brad's Store and thing
and he fired a punch after me with his right hand.
Wagner then when he fired punch after me I just, ducked
it and then he say pussy if you don't give a money, when
he done tell that I tell him that the money I have is for
me and my pickney and I just ride off after that and I went
down Vernon Street
Wagner was still at the corner but this time with his brother.
When I reached corner of the lane like Vernon Street and
Lake View. Vernon Street and Mayflower he was standing with
his brother saying to me.
said "no pass back here pussy because you will get
what you are asking for" when he said that to me I
hit next side of Mayflower Street to hit Ebony Street and
then he and his brother chase me ...
that he was on then he and his brother chase after me. He
was on his bike and his brother on the handle so when he
come I just look back I see them coming so I just change
my bicycle gear and they see they can't catch me so they
say they will catch me like how they catch Saragosa the
slip. . .
that they have a thing with already that they killed, hey
they will catch me just like how they catch Saragosa.
that I just ride gone. When I gone I see that the way they
talk and thing they were serious because I don't hang with
them we are in the same crowd and I just gone home and hold
onto my pistol ...
reaching corner of Mayflower and Vernon Street I see Ainsworth
Wagner coming around the lane with a bicycle so like when
he come around the lane on Vernon Street and I going towards
Vernon Street he sight me ad thing and he jump off the bicycle.
When he jump off the bicycle he drop it on the ground then
he walk around toward me he say he wanted to see how I run
like how I run this evening from him.
then come toward me and see I run like how I run this evening
him like me and you are friend ?I don't want to go through
nothing with you and I just haul out my gun and at that
time same time
want to have to shot you and I haul out my gun and he tell
me I will have to shot him tonight then he come towards
me so I bust the first shot on the ground because I tell
him I don't want to shot you because we are friend but he
insist he come my way.
ground then when I burst the first shot he told me that
I have to shot him and he come in stabbing position.
me I will have to shot him with stabbing position toward
me and I make to step backward and I lift up the gun and
I shot him.
when I step back way ?
he told me that I will have to shot him. I step back way
and I shot him.
I shot I see him drop on the ground and when he dropped
on the ground when I see him drop on the ground his brother
was in a little distance away from him so I just lift up
my head and watch him and I run gone that way and he run
to his brother and pick up the knife.
to his brother and, pick up the butcher knife and said you
brother grabbed the knife and holler after me and say I
dead pussy and I gone down that way.
down Vernon Street and head up back on Banak Street . ..
summation to the jury the learned trial judge dealt with the
issue of Burden of Proof and Standard of Proof in this way.
Foreman and members of the jury, at this stage I must give
you further general directions as I am bound in law to do.
These directions which I will you is in respect to the burden
and standard of proof expected of the Crown or of the Prosecution
to establish the guilt of the accused Cleon Smith. Some
of you who may have followed the Simpson case may have heard
the expression and standard of proof. In this jurisdiction
we also have the burden and standard of proof concept, because,
naturally, both jurisdictions take their source of law from
England so we also have the same system of law. Now it is
the law, Mr. Foreman and members of the jury, that all time
it is the duty or the burden of the Prosecution or Crown
to prove the guilt of the accused. It is the Prosecution
or the Crown who indicted or charged the accused Cleon Smith
for the crime of murder and so it is for them to prove that
the accused is guilty of murder. You see, members of the
jury, you may be familiar with the expression he who alleges
must prove and this is so true in this case and in all cases,
criminal cases. Here the Prosecution is alleging that the
accused Smith committed the crime of murder and so they
must prove that he is guilty of the offence. This burden
of proof in the case against the accused, Mr. Foreman and
members of the Jury, remains with the Prosecution throughout
the trial. The burden never shifts to the accused Cleon
Smith and later on when I deal with the defence I will tell
you more about the accused not having any burden to prove
anything. Now, the accused not having any burden which the
Prosecution bears throughout this trial, this trial of Cleon
Smith, has a standard which the Prosecution must attain
in proving their case. The Prosecution has the duty to prove
the case against the accused beyond reasonable doubt or
to a degree that you all, the 12 of you, feel sure of the
guilt of the accused, Cleon Smith. This is what we call
the standard of proof. Now, if you are to ask me what does
the expression reasonable doubt mean? I would tell you,
Mr. Foreman, and members of the Jury, that it does not mean
a flimsy or fanciful doubt. Reasonable doubt is that sort
of doubt which affects the minds of a person in dealing
with matters of importance in his or her own affairs so
that is what I mean by reasonable doubt. So, if when you
retire to deliberate upon your verdict you find that you
have any reasonable doubt in your mind as to the guilt of
the accused then you will resolve that doubt in favour of
the accused, that is the law. So, members of the jury, let
me tell you that before you can convict that accused Cleon
Smith. You must feel sure of his guilt based on the testimony
or on the evidence which you heard here in this court. Again,
in considering the facts of this case if you do not feel
sure of a fact then you will decide that act in favour of
the accused. As we say you give him, that is the accused,
the benefit of doubt. So you will deal with the facts. You
will consider then until you reach to a situation where
you can say that you feel sure of the guilt of the accused
because if you are unable to say that then you will resolve
that doubt in favour of the accused.
said all this, members of the jury let me recap on the burden
and standard of proof. The burden and standard of proof
is on the Prosecution at all times. It is the duty of the
Prosecution or the Crown to establish or to prove the guilt
of the accused Cleon Smith. And before you convict him you
must be satisfied to the extent that you feel sure or you
are satisfied beyond reasonable doubt of the guilt of the
accused, Cleon Smith alias "Tush". I want you
clearly to understand this members of the jury, when you
retire to deliberate upon the verdict. I want you to understand
that and clearly remember that when you retire to consider
in his summation the learned trial judge told the jury:?
these are the ingredients which the Prosecution must prove
to your satisfaction so that you feel sure of the guilt
of the accused. Mr. Foreman and members of the jury, the
Prosecution must prove each and every one of these ingredients.
They cannot prove some and not others, they must prove these
beyond a reasonable doubt or to an extent that you feel
sure that the accused has committed the offense."
with the burden of proof in relation to justification the
judge directed the jury as follows:?
law is that once the accused person raises any justification
be it provocation, self defence, accident or any other justification.
It becomes the duty or the burden of the prosecution to
negative that justification raised beyond reasonable doubt.
This accused person, Cleon Smith, does not have to prove
anything. The accused Cleon Smith could have sat in the
dock and say nothing at all. The Crown or the Prosecution
in the circumstances has the duty to prove the case against
him. The Prosecution brought this accused and so it is for
the Prosecution to prove the case against him".
dealing with the specific issue of self-defence he said:-
members of the Jury, the general directions which I have
given you earlier in relation to the onus or to the burden
and standard of proof has a particular operation in the
circumstances of the present case. Where the accused has
raised the issue that he acted in self?defence a person
who acts in reasonable self?defence commits no unlawful
act. By his plea of self?defence the accused is raising
a special plea of not guilty. Since it is for the Crown
or the Prosecution to show that the plea of not guilty is
unacceptable the Crown must convince you beyond reasonable
doubt that self?defence has no basis in this present case.
Put it another way. Because the Prosecution must prove the
guilt of the accused, it is for the Prosecution to make
you feel sure that the accused was not acting in self?defence.
If you conclude that he was or that he may have been acting
in self?defence then you must acquit him. That is the Law".
to provocation he reminded the jury of their duty when he
Mr. Foreman and members of the Jury, because the Prosecution
or the Crown must prove the guilt of the accused. It is
not for the accused to prove that he was not provoked. The
Prosecution must make you feel sure that the accused was
not so provoked before you can convict him of murder. If
you are sure or satisfied that he was so provoked or if
you think that he may have been provoked then you can only
convict him of manslaughter not murder."
leaving the matter to the jury he said?
before I ask you to retire and consider your verdict let
me tell you the possible verdicts you can return. If on
the evidence you are sure of the guilt of the accused in
respect to the charge of murder you will return a verdict
of guilty. However, if you are not so sure or if you have
any reasonable doubt then you will return a verdict of not
guilty of murder. You will then go on to consider the alternative
verdict of manslaughter. Now, if you find on the evidence
that at the time Cleon Smith shot the deceased Ainsworth
Wagner, his intention was not to kill but only or cause
him harm. But Wagner, nevertheless, died, then provided
you are sure of his guilt in this regard, according to evidence
you will return a verdict of guilty of manslaughter. If
you are not so sure or if you have any reasonable doubt
as to his guilt you will return a verdict of not guilty.
Now if having decided that he is not guilty of murder not
guilty of manslaughter because of the lack of intention
to kill you will then go on to consider the alternative
verdict of manslaughter which arises from the accused Defence
that he was provoked. If you find on the facts that the
accused was provoked and you are sure of his guilt in this
regard you will return a verdict of guilt of manslaughter.
If you are not so sure or you have any reasonable doubt
you will return a verdict of not guilty".
filed one Ground of Appeal, that "the learned trial judge
erred in that he omitted adequately and fully to direct the
jury on the burden and standard of proving self?defence (and
the subjective test required).
hearing of the appeal trial Counsel for the Appellant sought
and obtained permission to amend the grounds of Appeal by
adding two further Grounds of Appeal. In his Second Ground
of Appeal he alleged that the learned trial judge had misdirected
the jury on the issue of provocation by using the words. "sure"
and "satisfied" disjunctively in the standard of
further alleged that immediately before the jury retired he
repeated similar misdirection on the standard of proof and
burden of proof in relation to the totality of the evidence
in considering their verdict. Counsel criticized the trial
Judge for using the words "if you find or if you are
Ground of Appeal was that the learned trial judge erred in
that he failed to give to the jury a proper direction as regard
the Appellant's unsworn statement from the dock.
be useful to dispose of ground three first.
v WALKER (1974) 21 WLR 406 at page 411 Lord Salmon in
delivering the opinion of the Privy Council said ?
jury should always be told that it is exclusively for them
to make up their minds whether the unsworn statement has
any value, and, if so, what weight should be attached to
it; that it is for them to decide whether the evidence for
the prosecution has satisfied them of the accused's guilt
beyond doubt, and that in considering their verdict, they
should give the accused's unsworn statement only such weight
as they may think it deserves"
trial judge directed the jury as follows:
before I deal with the caution statement, let me very quickly
tell you what is the value of his dock statement. Members
of the Jury, the accused has a legal right to make a dock
statement. You will not hold that against him, but I must
tell you also that a dock statement has less weight and
cogency than sworn evidence given from the witness box.
This is also members of the Jury because the dock statement
of the accused Tush, or Cleon Smith, was not sworn to or
was not tested in cross examination as the evidence of the
Prosecution witnesses. However, you are entitled to attach
to it such weight as you think it deserves in considering
whether the Prosecution have made out their case against
the accused. So it is in that light that you will treat
the accused dock statement in which he raises his defence.
Now, let me also tell you Mr. Foreman and members of the
Jury, that because the accused gave a dock statement in
which he gave his version of events which occurred the 27th
of July 1996, it does not mean that he has a duty to prove
anything. I think I told you this before."
told the Jury that it was the right of the accused to make
an unsworn statement from the dock. He pointed out to them
that it could have less weight and cogency than sworn evidence
because the statement was not subject to cross?examination.
He reminded them that they could assign such weight as they
thought it deserved. This direction was in keeping with what
was said by Lord Diplock in Walker's Case. In the circumstances
there is no merit in this ground.
dealing with Grounds 2 and 3 of the Appeal the Court desires
to comment on two portions of the summation. Firstly the judge
directed the Jury in relation to the standard of proof in
the following terms:
if you are to ask me what does the expression reasonable
doubt mean, I would tell you, Mr. Foreman, and members of
the Jury, that it does not mean flimsy or fanciful doubt.
Reasonable doubt is that sort of doubt which affects the
minds of a person in dealing with matters of importance
in his or her own affairs. So that is what I mean by reasonable
does not in any way assist the jury since it does not refer
to any accepted standard. What affects one person in his own
affairs may not affect another person. The Court have said
from time to time that it is undesirable to attempt to give
the jury any definition of what is meant by the phrase reasonable
is made of this passage of the summation by the Appellant
but the Court considers that it is a non direction which does
not in any way assist the jury in considering the guilt of
the Appellant. Had this been the only direction on the question
of the standard of proof by which the prosecution is to establish
the guilt of the Appellant the Court would have been obliged
to quash the conviction. However a careful analysis of the
summation shows that the judge in dealing with various ingredients
of the charge of murder correctly stated that the onus of
proving the guilt of the Appellant was on the Prosecution
and that the jury could only convict the Appellant if they
were satisfied beyond reasonable doubt so that they felt sure
of the guilt of the Appellant. The Court will return to this
matter below when dealing with the specific grounds of appeal
relating to the standard of proof on the whole of the fact
of the case.
in leaving to the jury the possible verdicts they could return
he properly directed them on the question of murder. In leaving
manslaughter to them the judge said:
will then go on to consider the alternative verdict of manslaughter.
Now, if you find on the evidence that at the time Cleon
Smith shot the deceased Ainsworth Wagner, his intention
was not to kill him but only to cause him harm. But Wagner,
nevertheless, died, then provided you are sure of his guilt
in this regard, according to evidence you will return a
verdict of manslaughter. If you are not so sure or if you
have any reasonable doubt as to his guilt you will return
a verdict of not guilty."
no issue may be properly taken with the direction of the judge.
However the judge continued:
if having decided that he is not guilty for murder not guilty
of manslaughter because of the lack of intention to kill,
you will then go on to consider the alternative verdict
of manslaughter which arises from the accused Defence that
he was provoked."
clearly a misdirection. If the jury came to the conclusion
that the appellant did not intend to kill Wagner or were left
in reasonable doubt as to whether he intended to kill him
they must return a verdict of not guilty or murder. The jury
could only convict of murder if they were satisfied so that
they felt sure of the guilt of the appellant.
should have been told that if they had reasonable doubt as
to whether the appellant intended to kill the deceased they
had to go on to consider whether the appellant intended to
cause any harm to the deceased. If they found beyond reasonable
doubt that he intended to harm the deceased the jury should
return a verdict of not guilty of murder but guilty of manslaughter.
If the jury had reasonable doubt as to whether the appellant
intended to harm the deceased the jury should acquit. It was
a misdirection to tell them that they should then go on to
consider the defence of provocation. The direction that if
they found that he was not guilty of manslaughter because
he lacked the intention to harm the deceased the jury should
go on to consider the alternative verdict of manslaughter
which arises from the accused Defence that he was provoked
was wrong. In these circumstance provocation would be irrelevant.
Provocation would arise if they found that the appellant intended
to kill the deceased but this intention arose because he was
provoke by the conduct of the deceased.
would have had the effect of depriving the appellant of a
not guilty verdict if the jury came to the conclusion that
the appellant did not intend to harm the deceased or were
left in reasonable doubt as to whether he so intended. However
in this case the jury by their verdict of guilty of murder
must have rejected the defence of self defence and provocation
and thereby must have accepted that the appellant intended
to kill the deceased.
turn to Grounds 2 and 3 of the Grounds of Appeal. I propose
to deal with these together.
is also made that the trial Judge immediately before the end
of this summation said:
before I ask you to return and consider your verdict let
me tell you the possible verdicts you can return. If on
the evidence you are sure of the guilt of the accused in
respect of the charge of murder you will return a verdict
of guilt. However if you are sure or if you have any reasonable
doubt then you will return a verdict of not guilty of murder.
in his summation the Judge told the Jury:?
. . . then provided you are sure of his guilt in this regard
according to the evidence you will return a verdict of manslaughter".
for the appellant submits that this is too low a standard.
The Judge at this stage did not use the accepted formula of
telling the Jury that they must be satisfied so that they
feel sure. However the Judge had told the Jury that the Prosecution
had a duty to prove the case against the accused beyond reasonable
doubt or to a degree that they all, the 12 of them feel sure
of the accused guilt. Later he reminded the Jury that, before
they could convict the accused, they had to be satisfied to
the extent that they felt sure or were satisfied beyond reasonable
doubt of the guilt of the accused.
out to the jury that the Prosecution must prove all the ingredient
of the charge of murder and that they must prove these ingredients
beyond a reasonable doubt or to an extent that the accused
had committed the offence.
with the issue of self?defence, the Judge indicated that the
Crown must convince them beyond reasonable doubt that self
defence has no basis in the present case.
v THE QUEEN (1969) 2 AC 26 the issue before the Privy
Council was the correctness of the direction given to the
Jury upon the burden of proof of which lies in the prosecution
in a Criminal Case. Lord Diplock in rendering the opinion
of the Privy Council said at page 30 -
their Lordships' view the correctness or otherwise of a
direction to a jury on the onus of proof cannot depend upon
such fine semantic distinctions. No jury, whether in the
West Indies or England, as it listens to an oral summing?up
by the judge is capable of appreciating them. As Lord Goddard
C.J. said in REX v KRITZ (1950) 1 K.B. 82 at p. 89
is not the particular formula that matters: it is the effect
of the summing up. If the Jury are made to understand that
they have to be satisfied and must not return a verdict
against a defendant unless they feel sure, and that the
onus is all the time on the prosecution and not on the defence,
then whether the judge uses one form of language or another
is neither here nor there.
in his opinion Lord Diplock after pointing out that, by the
time a Judge comes to sum up a trial, he would have an opportunity
of observing the jury, concluded
their Lordships' view it is best left to his discretion
to choose the most appropriate set of words in which to
make that jury understand that they must not return a verdict
against the defendant unless they are sure of his guilt".
Council in FERGUSON v THE QUEEN (1979) 1 All ER 877
Lord Scarman, when dealing with the adequacy of the words
used by the trial judge, had this to say at page 882
is generally sufficient and safe to direct a jury that they
must be satisfied beyond reasonable doubt so that they feet
sure of the defendant's guilt. Nevertheless, other words
will suffice, so long as the message is clear. In the present
case, the jury could have been under no illusion. The importance
of being sure was repeatedly emphasised".
RAMDAT v THE STATE (1991) 46 W1R. 205 one of the issues
with which the Court of Appeal of Guyana had to deal was direction
given by the trial judge to the Jury as to the standard of
proof. The judge had used the expression "satisfied so
that you feel sure" and "proof beyond reasonable
the judgement of the Court of Appeal George, C. at page 205,
referred to a portion of the summing up of the learned trial
judge where she said:
onus is on the State to satisfy you as the guilt of the
accused. It is your duty to regard the evidence and before
you decide to convict the accused you must see that the
evidence satisfied you so that you feel sure that the prosecution
has established the guilt of the accused. If you are not
so satisfied then the prosecution will have failed to discharge
the duty cast upon them and you must acquit the accused.
If you are not so satisfied then the prosecution will have
failed to discharge the duty cast upon them and you must
acquit the accused".
out that Counsel had no quarrel with the above excerpt which
recited that formula that had gained currency since R v
SUMMERS (1952) 1 ALL.ER 1059 and later R v HEPWORTH
AND FEARNLEY (1955) 2 All ER 918. Counsel had referred
the Court to several subsequent passages in the summing?up
where the trial judge had used the words "you must be
satisfied" or some variant without adding the words "so
that you feel sure". The effect of Counsel's submission
was that on every occasion that the Judge used the word "satisfied"
it should have been accompanied by the words "so that
you feel sure". The Chancellor pointed out
a requirement has only to be stated to recognise its palpable
untenability, for besides being a most pedantic approach
it would introduce into the summing?up an undesirable formalism
and rigidity. What is important is that when viewed as a
whole the summing?up should leave the jury with no uncertainty
as regards the quantum of proof which must be discharged
by the prosecution".
the argument he indicated that there are other and later portions
of the summing?up to be taken into account in which the trial
judge not only repeated her direction on the presumption of
innocence but charged the jury that the burden was on the
State to rebut the presumption to the extent that they could
feel sure of the guilt of the prisoner on each of the two
counts of indictment.
in his judgment at page 206 the Chancellor George said
although this portion of the judge's direction is open to
criticism it did not, in my opinion, result in a miscarriage
of justice. In coming to this conclustion I adopt and apply
the dictum of Lord Goddard C.J. in R v KRITZ (1950) 1
KB 82 which was cited with approval in the case, WALTERS
V R (1968) 13 WIR 354 at page 355 where the Chief Justice
is not the particular formula that matters; it is the effect
of the summing?up. If the jury are made to understand that
they to be satisfied and must not return a verdict against
the defendant unless they feel sure, and that the onus is
all the time on the prosecution and not on the defence then
whether the judge uses one form of language or another is
neither here nor there".
have said the function of an appellate court is to examine
the summing?up as a whole and objectively to determine whether
what had been told to the jury leaves them with a clear
understanding and appreciation that the burden is on the
prosecution to prove its case to their satisfaction so that
they feel sure of the guilt of the person charged (see also
R v YAP CHYAN CHING (1976) 63 CR App REP 7). And
in the present case in determining the adequacy of the summing?up
on this issue, this court cannot be unmindful of the number
of occasions on which the trial judge had adequately instructed
the jury on the approved alternative direction, viz. that
they must be satisfied so that they feel sure of his guilt
before they can convict the accused on either count. In
my opinion therefore, looked at as a whole, the summing
up on this issue was adequate".
is made of the manner in which the learned trial Judge dealt
with the burden of proof in so far as it relates to provocation.
Having reminded the Jury that the Crown must prove the guilt
of the accused he told them that it was not for the accused
to prove that he was not provoked. He went on to tell the
Jury that the Prosecution must make them sure that the accused
was not provoked before they could convict the appellant of
murder. He went on to say:
you are sure or satisfied that he was so provoked or if
you think that he may have been provoked then you can only
convict him of manslaughter."
examination of the summing up as a whole indicates that the
issue in this case was whether the appellant was acting in
self defence or whether he had been provoked. It is clear
that the jury was left with the clear understanding and appreciation
that the burden of proof was on the prosecution and that they
must not convict unless they were satisfied beyond reasonable
doubt so that they feel sure of the guilt of the accused.
has come to the conclusion that there has been no substantial
miscarriage of justice and that the appeal should be dismissed
and conviction and sentence affirmed notwithstanding the defects
in the summing up as to the standard of proof.
of an application dated 17th May, 1999 by Senior Counsel Mr.
Simeon Sampson for leave to argue two supplementary grounds
of appeal, the application was set down for hearing for Tuesday
15th June, 1999 and Mr. Sampson was so notified.
day of the hearing the Court intimated to Counsel that it
was minded to grant leave to argue the new grounds, no objection
having been raised by the learned Director of Public Prosecutions
as to the court's jurisdiction. The Court invited Counsel
to present his arguments. At that stage the court was informed
by Counsel that he was unable to argue the supplementary grounds
as he had merely filed them on behalf of other Counsel.
circumstances the court dismissed the application for non