Don Prosper Appellant v The State Respondent [ECSC]

• Jurisdiction: Dominica
• Judge: BYRON, C.J.,Chief Justice,Sir Dennis Byron,Albert Redhead,Justice of Appeal,Ephraim Georges,Justice of Appeal [Ag.]
• Judgment Date: 13 November 2003
• Judgment citation (vLex): [2003] ECSC J1113-1
• Docket Number: CRIMINAL APPEAL NO.10 OF 2002
• Court: Court of Appeal (Dominica)
• Date: 13 November 2003

[2003] ECSC J1113-1

IN THE COURT OF APPEAL

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.]

CRIMINAL APPEAL NO.10 OF 2002

Don Prosper

Appellant

and

The State

Respondent

Appearances:

Mr. Julien Prevost for the Appellant

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

BYRON, C.J.

1 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 16^th April 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.

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 inR 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 bytelling 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.

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 eye-witnesses 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 cross-examination Counsel for the Appellant extracted answers from the two eye-witnesses 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...