De Freitas v R

• Jurisdiction: Caribbean States
• Judge: Marnan, J.,Dixon, C.J.,Menzies, J.
• Judgment Date: 21 November 1960
• Court: Federal Supreme Court (West Indies)
• Date: 21 November 1960

Federal Supreme Court

Hallinan, C.J.;

Rennie, J.;

Marnan, J.

De Freitas

and

R

J. O. F. Haynes, Q.C., and P. N. Singh for the appellant.

G. L. B. Persaud, Acting Solicitor-General, for the Crown.

Criminal law - Murder — Defence of provocation — Whether available where there was an intention to kill — Sell — defence established save for excessive force — Whether this operates to reduce offence to manslaughter.

1 Marnan, J., delivered the judgment of the court: The appellant was convicted of the murder of Flavio DaSilva and appealed to this court on several distinct grounds. His appeal was dismissed on September 12, 1960, after argument by counsel on both sides had been heard, and the court then intimated that having regard to those arguments and the authorities cited, reasons for the decision of the court would be given at a later date.

2 The original notice of appeal was supplemented by two further sets of grounds, which were filed by leave of the court on August 9 and September 6, 1960, respectively. The first ground argued was that the learned trial judge was wrong in refusing an application for an adjournment of the trial made by junior counsel for the defence, Mr. P. N. Singly before a jury was empanelled. Mr. J. O. F. Haynes, who appeared with Mr. P. N. Singh at the hearing of the appeal, conceded that he could find no case where a conviction had been quashed upon such a ground simpliciter. The question whether or not to grant an adjournment of a trial which has not begun is a matter entirely within the discretion of the trial judge, and the judge's refusal in that respect is not a ground of appeal, unless it can be contended that such refusal led to a miscarriage of justice. In R. v. Malvisi (1909), 73 J.P. 392, the appellant was arrested, committed for trial, and convicted on three successive days. His conviction was quashed after hearing the evidence of witnesses whom the appellant had been unable to call at his trial for lack of time to get in touch with them. It does not appear that the appellant was represented by counsel at trial or that any application for an adjournment was made, but had such an application been made and refused, the refusal would, in our view, have amounted to a miscarriage of justice in the circumstances of that case. In the present case, however, the appellant was charged with murder in August, 1959. He came up for trial in February, 1960, when the indictment was quashed on a technical ground. On that occasion, he was represented by Mr. Haynes. He was re-committed for trial in March, 1960, and the effective trial opened on May 16, immediately after Mr. Singh's application for an adjournment had been refused. Mr. Singh was assigned by the court to defend the appellant on May 12, and had an opportunity of reading the depositions, but the appellant declined Mr Singh's services giving it as his reason that his relatives were arranging to brief Mr. Haynes. On the morning of May 6 however, he told Mr Singh that his father, which presumably meant the necessary funds, had not turned up, and that he would like Mr. Singh to defend him. Mr. Singh having failed in his application for an adjournment, conducted the defence with an ability which shows that he swiftly overtook the disadvantages under which he started in all respects except one, namely, that he had no opportunity to consult a doctor with a view to testing the effect of the medical evidence for the Crown. This court granted an adjournment of the appeal on June 21, 1960, to enable the defence to seek a medical opinion on this aspect of the case, and to apply to call additional evidence if so advised. However, no such application was made on the hearing of the appeal, and having regard to the competent manner in which Mr. Singh conducted the appellant's case at trial, we are unable to take the view that the refusal of his application for an adjournment led to any miscarriage of justice. Moreover, while we sympathise with Mr. Singh personally with regard to his difficulties in undertaking the defence, and commend him for the manner in which he overcame them, there is no question of the appellant himself having been pressed for time. Counsel had, in fact, appeared for him when he was first arraigned for trial in February, and if he was not in a financial position to instruct counsel of his own choosing in June, he was foolish to decline the assistance of counsel assigned to him by the court. The only disturbing feature of the matter is that up to the morning of the trial the appellant appears to have been under the impression that Mr. Haynes was going to defend him. We have had no explanation as to why he did not do so, or alternatively, as to why the appellant was not disabused in good time of a false impression. In the absence of any such explanation we do not seek to censure anyone concerned, but we think it right to comment that it is most unusual and unsatisfactory that counsel, having undertaken the defence of a man charged with murder, and appeared for him at one stage, should not appear for him when he stands his trial, and nevertheless, subsequently appear on appeal to urge that the appellant only instructed other counsel on the morning of trial.

3 It is necessary to deal with two of the other grounds of appeal argued, but before doing so it will be convenient to summarise the facts. The case for the Crown was that the appellant and the deceased went out together in a 27-foot boat on the Essequibo River to shoot ducks. The only weapon they took was a sixteen-bore single barrel shotgun belonging to the deceased. A few days previously, the appellant, who lived with, and worked for, the deceased, had disclosed to the deceased and his wife that he was in love with their daughter, Gwendoline, and wished to marry her. The appellant being over forty years of age, and Gwendoline only fourteen, the proposal led to a heated discussion, which was left unresolved. The seeds of a quarrel had thus been sown when the appellant and the deceased set out at three o'clock on the morning of August 21, 1959, alone in the small boat.

4 Later the same day the appellant returned on foot with a story to the effect that the deceased had fallen overboard and been drowned. He made a similar statement to the police. The boat was found moored in the river, but its anchor and a length of rope were missing. On August 22, the body of the deceased was discovered, washed up on the riverbank by the tide. There were wounds on the head, a gunshot wound in the chest, and a piece of rope was tied tightly round the neck. The medical evidence was that death was due to the gunshot wound and strangulation. In the doctor's opinion the gun-shot wound was the first injury inflicted, then the head wounds, which were consistent with blows from the gun barrel, and the deceased was still alive when the rope was tied round his neck, but dead before he was put into water. The gunshot wound would eventually have caused death if not attended to, but the head wounds alone would not have been fatal.

5 The appellant made further statements to the police on August 23 and 25. In the former he repeated his story that the deceased had fallen overboard by accident. In the latter statement, which was made under caution, he told an entirely new story, upon which he relied at trial as constituting his defence. He did not give evidence or call witnesses, but made an unsworn statement from the dock, which was as follows:

“I made a statement to the police already, Exhibit N. I have said everything I have to say. I had no intention of doing anything. I am really sorry for what has happened. I have nothing more to say.”

6 In his summing-up, the trial judge told the jury:

“In this case the defence is contained in a statement … which the accused made to the police and in his statement from the dock at trial. In these statements you have interwined four defences-the defence of insanity, with which you can couple automatism, the defence of self-defence, the defence of accident, and the defence of provocation.”

7 The effect of the appellant's statement, Exhibit N, was that while out in the boat the deceased told him, the appellant, that he was going to dismiss him and turn him out. The appellant replied that the deceased might regret that step because he would make Gwendoline follow him. The deceased then threatened to shoot the appellant, picked up his gun, and loaded it. The appellant, who had been sitting in the stern, steering, jumped up, caught hold of the gun in the deceased's hands, and began to wrestle for it. The deceased fell down, and the gun went off whilst the appellant was standing over him trying to take away the gun. The deceased was holding the barrel, but the appellant got the gun away from him. The appellant then “got mad or something” and remembered hitting the deceased on his head with the gun. The appellant then threw the gun overboard. The deceased said twice, “Gwendoline my daughter, you is the cause of this.” The deceased looked as if he were dying and said to the appellant, “Sonny throw me overboard.” The appellant then tied a piece of rope, which he cut from the main sheet, around the deceased's neck, but could not remember why he did so. He then threw the deceased and his baboon-skin cartridge bag into the river, took down the sail, stopped the engine and dropped the anchor. Later, when he came to himself, he found that the anchor, which had been attached to a chain, was gone. He hoisted the sail and went ashore.

8 At the hearing of the appeal, counsel for the appellant criticized the judge's summing-up in two main respects. We shall deal first with the point relating to the defence of provocation.

9 At page 75 of the record the judge, in distinguishing between murder and manslaughter, told the jury that in...