Dihal v R

• Jurisdiction: Caribbean States
• Judge: Rennie, J.
• Judgment Date: 15 June 1960
• Court: Federal Supreme Court (West Indies)
• Date: 15 June 1960

Federal Supreme Court

Rennie, J.;

Archer, J.;

Wylie, J.

Dihal

and

R.

S. D. S. Hardyal for the appellant.

G. L. B. Persaud, Solicitor-General (ag.), for the Crown.

Criminal law - Murder-Directions on law as to issues not arising on evidence-Directions on law not related to facts Confusing — Evidence that accused was choked and stifled not put to jury-Whether directions adequate.

1 Rennie, J., delivered the judgment of the court: At the close of the argument, we allowed the appeal, quashed the conviction, set aside the sentence, and ordered a new trial. We also said that we would, at a later date, give our reasons for so doing. This we now do.

2 The grounds of appeal are numerous and somewhat wide in scope, but, with the exception of the ground of misdirection, we saw no merit in any of them, and, for that reason, refrain from making reference to any ground other than misdirection.

3 Exception was taken to the form of the directions when dealing with the questions of self-defence and provocation. It was submitted to us that the law was laid down in one compartment, so to speak, and the facts were referred to in another, and no attempt was made to relate the one to the other. The directions do seem to deserve this criticism. The law of self-defence was meticulously explained as a lecturer might well explain it to a class of students, but nowhere in the directions are the jury told what facts they should take into account when considering this aspect of the case. The nearest they got to having the facts related to self-defence is the statement that, when considering self-defence, it would be relevant for them to compare the wounds on the body of the deceased with the injuries on the appellant. This statement, however, deals with only one factor of self-defence-whether there was the necessity to use such force. About this factor of self-defence and the direction concerning it, we shall have more to say at a later stage of these reasons, but now return to the matter under consideration. The jury were told;

“If in all the circumstances as a reasonable man, he feels that he in danger-serious danger-he is entitled to take steps to defend himself, if necessary to the extent of killing, but though he can do that, it is his duty to retreat if he can reasonably do so in all the circumstances. You may think that it is not a very manly thing to do to run away if a person is attacking you or threatening to attack you but it is the law”.

4 Nowhere in the directions were they told what facts they should into account in determining whether or not to retreat was reasonable. The evidence, if accepted, would seem to suggest that retreat was not possible and it must be confusing to a jury in such circumstances to be, told that, although it may be considered not manly to retreat, the law, nonetheless requires it if the person attacked can reasonably do so.

5 As in the case of self-defence, so in the case of provocation; no assistance was given to the jury by relating the evidence to the law. We can see a possibility of...