Thelermont v R (SCA 23 of 1993) [1994] SCCA 26 (25 March 1994)

IN THE SUPREME COURT OF SEYCHELLES PAUL THELERMONT V APPELLANT THE REPUBLIC RESPONDENT Criminal Appeal No. 23 of 1993 Mr. A. Derjacques for the appellant Mr. A. Fernando State Counsel for the Republic JUDGMENT OF THE COURT DELIVERED BY ADAM JA The appellant was convicted of murder and sentenced to life imprisonment in accordance with the provisions of the Penal Code. In his Notice of Appeal of 7th December 1993 he appealed to this Court against his conviction and sentence. In the Memorandum of Appeal filed on his behalf with the leave of this Court, Mr. Derjacques decided to pursue six of the grounds lodged. The particulars of the offence alleged were that on the the appellant murdered 27th May 1993 at Machabee, Mahe Astovio Beaudouin. The appellant's first ground of appeal is that the trial Judge erred in principle in not properly addressing the jury on self-defence. Mr. Derjacques criticised the example given to the jury of a police officer who in attempting to apprehend a dangerous criminal is fired at and a return shot fired from the police officer's gun kills the dangerous criminal. Mr. Derjacques asserted that this type of an example was favourable to the prosecution. The second ground of appeal concerned the trial judge's direction that the same weight may be given to an out of court statement produced in court as against a statement made on oath from the witness box. Mr. Derjacques maintained that the trial judge was in error. In his summing-up, after indicating to them that the appellant had elected to give evidence, that he had also made a statement to the police on 8th June 1993 and that the police who had recorded it had been cross-examined on it, the trial judge informed the jury, therefore, they must place the same weight on it as on the evidence of any witness that they had heard from the witness He further elaborated that the correct position in law box. was that once a statement made to the police has been admitted without objection from the appellant, the jury must consider it as evidence in the case and accept the whole of it or reject it because such a statement to the it, part of is evidence which they must consider together with all police the evidence. His third ground of appeal is that the trial judge erred directly and expressly speculating and therefore in law in a finding by the jury, mid-way in his summing up, pre-empting the jury that he thought they had already found by telling the ingredients of murder established against the appellant. the explanations required by them on the terms Having given and death then he which caused "malice aforethought" and "premeditation", the jury returned subsequently sought clarification and definition of "provocation", "what is a reasonable person" and "reasonable doubt". At this stage the trial judge indicated that what was understood in common parlance of provocation, may be quite different in law. The trial judge pointed out that if they accepted that a person had been provoked to commit the act could not be convicted of murder and that if the defence of provocation was successful it reduced murder to manslaughter. He continued that before they considered the defence of provocation they must have been satisfied in their minds that all the essential elements of beyond a reasonable doubt. He indicated that he took it that for them asking about provocation they must have been satisfied that all the elements constituting murder had been proved beyond a reasonable doubt. Mr. Derjacques maintained that the trial judge had pre-empted the jury by this remark. The trial judge then went on and once again explained to the jury what in law constituted He concluded by providing them with the explanations about "reasonable person" and "reasonable doubt". explained by him had been proved provocation. murder time of complainant at placed The appellant's next grounds of appeal are that the trial in law by directing the jury not to consider the judge erred repeated actions, conduct and character of the deceased and the the the incident and that the a too high an onus on the appellant when trial judge addressing In his subsequent judge repeated to them that the law clarification not accept the notion of what was termed "cumulative did as an example a wife nagging for ten provocation" them that it was what transpired at the years and reminded material time and not past conduct that should have caused the Mr. Derjacques criticised this and referred to D. P. P. v. Camplin (1978) 67 Cr. App. R.14. self-control. provocation. on trial and gave loss of them the App. is unsafe The appellant's final ground of appeal is that in all the and the case the conviction circumstances of Mr. Derjacques relied on R. v. Turnbull unsatisfactory. (1976) Cr. 132 which stated that before the jury R. could convict they had to be satisfied of both the honesty the and correctness of the identification only made of accused by Mr. Derjacques argued that Gonsagues Beaudouin was an interested party in that he gave the harpoon to the appellant, that he swept his yard where the incident happened and threw the harpoon on top of the chicken roof. Mr. it was unsafe to rely on Derjacques Gonsagues' evidence without corroboration and the trial judge should have directed the jury accordingly. the principal witness for the prosecution. maintained Therefore, that Mr. that Gonsagues was not an Fernando He asserted that corroborative evidence interested party. was necessary of participants and those who had an axe to He argued that grind when called as prosecution witnesses. submitted the trial judge's direction on self-defence was proper. He stated that provocation was defined in section 198 of the Penal Code. He referred us to the appellant's answers given under cross-examination that the deceased told him "mwa bez ou" (I will beat you up), and in the course of all this that happened he did not get angry, that he did not lose his self-control that night and that he was not acting in the heat of passion. Mr. Fernando asserted that there was no provocation Therefore, he maintained that the trial judge did not err as stated in the grounds of appeal that he directly and expressly speculated and so pre-empted a finding by the He argued that even if there was such an error the proviso to Rule 41 of the Seychelles Court of Appeal Rules, 1978 permitted this Court "notwithstanding that it is of the opinion that the point or points raised in the appeal might be decided in favour of the appellant, no substantial miscarriage of justice occurred." jury mid-way in his summing up. dismiss the appeal if it considers that at all. As for the contention that the trial judge erred in the jury that the same weight may be given to an out statement tendered in court as against a statement Mr. Fernando cited R. v. Sharp (1988) 1 All ER65 He argued that the appellant's out of court statement telling of court on oath, (HL). under caution was a "mixed statement" and so the whole statement evidence in court under oath in determining the matter. be considered by the jury together with his must Now sections 197 and 198 of the Penal Code deals with provocation. Section 198 defines the term "provocation" "as any wrongful act or insult of such a nature as to be likely, when done to any ordinary person, or in the presence of an ordinary person to another person who is his immediate care ..., to deprive under of the power of self-control and to him to assault the person by whom induce him the act or insult is done or offered." From this certain acts are excluded by section 198 not relevant in this case and the expression "an ordinary person" means an ordinary person of the community to which the Section 197 provides that when a person belongs. accused "does the act which causes death in the heat of passion caused by sudden provocation ... and before there is time for his passion to cool, he is guilty of manslaughter only". In his summing up to the jury the trial judge instructed them on the essential elements of the crime of murder in terms of self-defence, the Penal Code, the burden of proof, accidental killing, provocation, intoxication and corroboration. It is clear to us that from the exhaustive circumspect summarised the evidence given by the witnesses. them the trial judge was most to the jury, having carefully address in his charge to Mr. Derjacques mentioned D. P. P. v. Camplin, supra, where Lord Diplock narrated the long history at common law of the evolution of the doctrine of provocation. out that He pointed as early as R. v. Lesbini (1914) 11 Cr. App. R. 7 the test was twofold in that the "conduct of the deceased to the accused must be such as (1) might cause in any reasonable or ordinary person and (2) actually causes in the accused a sudden and he commits the unlawful act that kills the deceased." to 1957, temporary loss of control as the result of which Prior before applying this dual test, according to him R. (1942) v. Mancini AC1 accused had to be of laid down that the conduct of the such a kind as was capable in law as constituting provocation and this was a question for the judge. provided that where The English Homicide Act 1957 altered this when it is evidence on which a jury can there the provoked, by things done or by find that things said or by both together, to lose his self-control, was enough to make a the question whether the provocation person was reasonable determine, must take into account everything both done and said according to the effect person do as he did must be left for the jury to and in deciding that the jury which, in person. their opinion, it would have on a reasonable Lord Diplock agreed with Lord Simon that since this question is for the opinion of the witnesses as to provocation not admissible. is how a reasonable person would react to the He went on and observed at jury the evidence of p. 20: that the law has been changed so as "But now permit of words as being treated as to provocation even though unaccompanied by any acts, the gravity of verbal provocation other particular may well characteristics of the insult is person To taunt a person of his race, addressed. his physical infirmities or some shameful his past may well be considered incident in to the more offensive by the jury to be upon circumstances whom the taunt or depend or the to person his temperament, if the facts on which the taunt is founded are true than it would be if they were not." Lord Diplock looked at the age of the accused in that case addressed, however equable before the House of only and regarded this as a characteristic which may have its effects on temperament as well as physique. Lords, which was 15 years Mr. Derjacques' criticism that the trial judge should have instructed the jury about the deceased's mental condition and his past conduct as a characteristic. Diplock was concerned with verbal provocation and "the But Lord was particular characteristics of the taunt or insult and not that of the deceased. or circumstances" of the recipient In his summing up on provocation the trial judge said: in "In law provocation is some act or series of acts done or words spoken which would person and cause any in the accused, a sudden actually causes self-control, loss and subject to accused rendering to make him for the moment not passion as master of his mind." temporary the reasonable so of These words used by him were cited in R. v. Whitfield (1976) 63 Cr. App. R. 39 at p. 42 by Lord Goddard LCJ from Devlin J (as he then was) in R. v. Duffy 1949) 1 All ER 932 (CA). It should pointed out that the trial judge also emphasized to the jury that before they considered the issue be of provocation, the prosecution must have proved beyond reasonable doubt that all the essential elements of the In our view this summing up was not crime of murder. unfavourable to the appellant and the later explanation, found wanting by Mr. Derjacques, merely reinforced this. As for R. v. Turnbull, supra, which concerned a case that depended wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken and in which the judge should warn special need for caution and he should the jury of the direct them to examine closely circumstances in which the identification came to be made. Where the quality of the identification is the jury can safely be left to assess it, but where the quality is poor, there should be the evidence capable of supporting the identification before the jury can assess it good, Even if R. v Turnbull were applicable in this case, Mr. Derjacques shown that the quality of the evidence tendered by the prosecution as to the offence having been committed was not good. has not Mr. Fernando drew our attention to R. v. Sharp, supra, where Lord Havers approved the following formulation of Lord Lane C. J. in R. p.365: v. Duncan (1981) 73 Cr. App. R. 359 at both "mixed" statement, it seems to and, statement is under "Where a consideration by the jury in a case the defendant has not given where us that the evidence, simplest, therefore, the method most likely to produce a just result, is for the jury to be told that the whole the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the the something less than statements are evidence of the facts they state. where appropriate, as it Equally, the judge may, and usually will be, the that out should, incriminating parts are likely to be true say them?), whereas the excuses do not have the same weight." exculpatory parts of (otherwise point why It cannot be shown that the trial judge in any way failed to treat the out of court statement under caution (which can best be described as a "mixed" statement) in the manner laid down above by the learned Chief Justice. In our view that approach to the jury is most appropriate where a "mixed" statement is involved and where the accused does or does not testify in the proceedings. Looking at corroboration it is true that this Court in (1965-1976) S. C. A. R. 88 approved the speech of D. P. P. v. Kilbourne (1973) 1 All ER Pool v. R. Lord 440 at p.446 when he observed: Hailsham L. C. in the rule case. about number is necessary place there are a concerning corroboration "In my view there is no magic or artificiality of practice at all. In Scottish law, it seems some corroboration in every criminal In contrast, by the English common law, the evidence of one competent witness is enough to support This is still the general a verdict.. but rule, two main there are now classes of exception to it. In the first of statutory exceptions ... But side by side with the statutory exceptions the rule of practice now under discussion by which judges have in juries in certain classes of case that it is dangerous to found a conviction on the evidence of particular of witness unless evidence is corroborated particular implicating in or confirming disputed the ... I do not regard items in case the A judge is certainly wise to give a similar almost the evidence of any warning principal the Crown where the witness can reasonably be suggested to own to serve in giving false evidence ..." a material accused, the witness for or classes categories as closed. witnesses purpose of his warned about have some fact is In Tirant v. R. (1965-1976) S. C. A. R. 137 Lionel Brett where the evidence of the JA was prepared to principal witness was that the attack by the accused on that hold that witness was political, it would be proper for the jury to be warned about mentioned that in when summarising the for instant corroboration. It should be need the case the evidence of Gonsagues the trial judge did give an example of corroboration and left it to the jury to find corroboration. Further, the Privy in Council, Bereng v. R. (1949) AC 253 (PC) at p. 270 corroborative where there was no evidence, held that "circumstances may bear against an accused and assist in his conviction if there is other material sufficient to sustain a conviction against him." For the above reasons we are satisfied that there was no misdirection by the trial judge and that this appeal against conviction and sentence, therefore, must be dismissed. Dated this aS --day of March, 1994. .04 .... A. M. S. Silungwe Justice of Appeal E 0 Ayoola Justice of Appeal NU‘ /./.14. A. Adam. Justice of Appeal