Harley v The Queen

• Jurisdiction: Saint Kitts and Nevis
• Judge: Floissac, C.J.,Byron, J.,Liverpool, J.
• Judgment Date: 02 October 1992
• Neutral Citation: KN 1992 CA 11
• Docket Number: Criminal Appeal No. 5 of 1992
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 02 October 1992

Court of Appeal

Floissac, C.J., Byron, J. and Liverpool, J.

Criminal Appeal No. 5 of 1992

Harley

and

The Queen

Appearances:

Messrs N. Butler and H. Benjamin for the appellant

Mr. M. Holdip, D.P.P. for the respondent

Criminal law - Appeal against conviction — Appellant convicted of manslaughter — Sentenced to eighteen months imprisonment — Issue of self defence left to jury — Whether test to be applied is “reasonable belief” or “honest belief” — Whether proviso should be applied.

JUDGEMENT OF THE COURT:

1 The appellant was charged with the offence of manslaughter following the death of Ainsley Jeffers and sentenced to 18 months imprisonment.

2 The prosecution's case, which did not differ significantly from the evidence adduced on behalf of the appellant, was that about 8 p.m. on Monday, 8 ^th July 1991, Victor Henry and the appellant, who were both police constables at the time were standing at the corner of Church and Central Streets in Basseterre when the deceased came along Central Street, stood in front of the two officers and said “I must kill a young policeman, I must shoot a policeman someday”. Thereupon he lifted his shirt with his left hand and placed his right hand in the area of the waist of his trousers. On seeing this the appellant shouted “Henry” (referring to his fellow constable) held him in the area of his waist, pushed him against a wall, took the gun which his colleague Henry was carrying and shot the deceased in the head. The deceased then fell to the ground. He was taken to the J.N.F. Hospital where he was pronounced dead at approximately 9.45 p.m.

3 The appellant gave a statement to the police between 10.00 p.m. and 10.50 p.m. on the same evening. In that statement he said that on the night in question he saw a young man walking towards himself and Constable Henry along Central Street and he continued:–

“As the young man got very close to us I heard when he said ‘A must shoot a young Police’. He was about a foot or so away from me when he said that I moved back immediately as he said this. The young man again said: ‘A must shoot a young Police. A must shoot a young Police’. At the same time waving his arm in front of my face. I was stunned and frightened as he said this for I did not know who he was. I saw him before but I am not familiar with his name. I then saw him pushed his hand between his shirt and his pant as if he was pulling something from his waist. At the same time I shouted ‘Henry’ and at the same time I pulled the weapon from off his side and fixed at the young man. He staggered backwards and he fell to the ground. I dropped the weapon at the same time.”

4 He made a statement from the dock on which he relied and admitted the statement which he had given to the police. The following grounds of appeal were presented:–

• 1. The learned trial judge misdirected the jury when he told them that if they believed that the accused used more force than necessary in defending himself then he is guilty of the offence charged.

• 2. The learned trial judge erred in inviting the jury to speculate as to the use of excessive force of which there is no evidence and which cannot be reasonably inferred from the evidence.

• 3. The verdict of the jury is unsafe and unsatisfactory having regard to the evidence.

• 4. The verdict of the jury is unsafe and unsatisfactory having regard to the evidence.

• 5. The learned judge misdirected the jury on the issue of self-defence.

• 6. The learned judge erred in law in failing to specifically direct the Jury that the onus rested squarely on the Prosecution to negative beyond reasonable doubt self-defence and if the Prosecution failed to negative self-defence the Appellant will be entitled to be acquitted.

• 7. The learned Judge misdirected the Jury when he said: “If you accept that he acted reasonably, you let him go. If you are not sure whether what he did was reasonable you still let him go. For you to convict him you will have to find that he used more force than was necessary, that he was reckless or grossly negligent”.

5 Counsel for the appellant abandoned the third ground argued grounds 1 and 2 together, and consolidated grounds 5, 6 and 7.

6 Counsel for the appellant raised the defence of self-defence at the trial and after listening to the summing-up of the learned trial judge the jury returned a verdict of guilty.

7 At the heart of the matter both before the jury and on appeal to this Court lay the question of the sufficiency of the prosecution's evidence to prove that the appellant had not acted in self-defence and in...