Michaud v R

• Jurisdiction: Saint Kitts and Nevis
• Judge: Lewis, C.J.,Lewis C.J.
• Judgment Date: 07 March 1969
• Neutral Citation: KN 1969 CA 1
• Docket Number: Criminal Appeal No. 2 of 1969
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 07 March 1969

The West Indies Associated States in the Court of Appeal

Lewis, C.J.,

Gordon, J.A.

Lewis, J.A.,

Criminal Appeal No. 2 of 1969

Michaud

and

R.

Appearances:

C. M. D. Byron for appellant

H. M. Squires (D.P.P.) for the crown.

Criminal law - Appeal against conviction — Murder.

Facts: Whether the direction by the trial judge on self defence was inadequate on the basis of the fact that there was a felonious attack on the appellant by five persons. The trial judge found that there was no attack.

Held: Held that the trial judge ought to have directed the jury as a general principle on the law of self defence whether there was a felonious attack or a mere affray. That this omission constituted a misdirection and a substantial miscarriage of justice. Appeal allowed. New trial ordered.

Lewis, C.J.

1 This is an appeal against a conviction for murder on the 27 ^th January 1969, on an indictment, which charged the appellant with the murder of one Joannes Leonce, also called Isaac, on the 8 ^th June 1968.

2 The incident, which led up to the death of Joannes Leonce, took place at premises at Half Way Tree run by one Pansy Warner and generally known as Marsham's or Pansy's liquor shop and juke box. These premises consist of two buildings: one used partly as a dwelling house, the front of which is used as a liquor shop, to which access is gained by a flight of steps; the other is a large shed open on one side, in which a juke box is placed, and is used partly for storing motor car parts and partly as a dance hall.

3 On the 8 ^th June 1968, around 7.30 in the evening, there were a number of people in this shed, amongst them some St. Lucians, sugar cane workers; they had been there for some time apparently, dancing to the music of the juke box and paying occasional visits to the liquor shop.

4 The St. Lucians whose names are relevant to this appeal were the witnesses Joseph Alphonse, Julian George also called Harry, Anthony Augustine, Hoyden Evans, the appellant, and the deceased. There was also a girl, another witness in the case named Idalyn Phipps, whom the appellant claims to be his girl friend, although she denied that.

5 The incident commenced when Idalyn refused to dance with the appellant. He held her hand, pulled her up from her seat; she resisted; there was a slight struggle or tussle, in the course of which they moved outside of the dance hall into the yard. According to the witnesses for the prosecution, Julian George followed them outside and told the appellant to leave Idalyn alone, whereupon the appellant struck Julian in his face. A fight ensued between them, in the course of which they fell to the ground. The appellant was on top, and he drew a knife, with which he inflicted a slight wound on Julian. Julian then called to Hayden Evans for assistance. Hayden came and held the appellant by the hand, which had the knife, enabling Julian to get up and run away. Hayden then released the appellant and ran off. The appellant pursued him but gave up the chase and, returning in the direction of the shop, met the deceased who was, then on the steps leading up to the shop, “dug” him (as the witnesses said, or stuck him, in his belly with a knife and killed him.

6 The appellant's story, both in his statements to the police the same night and in his statement from the dock at his trial, was that during his dispute with Idalyn, first Julian and then Hayden assaulted him; the three of them began to fight, and they were joined by Alphonse, the deceased, and one Tyson. All these five persons set upon him; they threw him to the ground and were beating him and kicking him. He was unable to get away; he drew his knife and, if I may use his own words, he said, “I let go a chook and feel my hand butt up with one”. The person whom he stuck turned out to be the deceased, who called out that he had been cut and ran towards the steps. The others then left the appellant.

7 Quite clearly, if the jury accepted the story for the prosecution, this would be a plain case of murder.

8 In his summing up, the learned trial judge properly left to the jury the defences of self-defence and provocation. The jury convicted the appellant.

9 The grounds of appeal challenged the adequacy of the judge's directions both on the defence of self-defence, and that of provocation. Several grounds were advanced and argued, but it is really only necessary to deal with two of them and to mention a third.

10 In dealing with self-defence, the learned trial judge said, at pages 16 and 17 of the record:

“If these five people were making a felonious attack on the accused: that is, if some of them threatened to kill him (there is no evidence of that), then he would be justified in inflicting death if he thought that his life was in danger and if he believed that what he did was reasonably necessary for his own preservation. But, Members of the Jury, in this case there is nothing to show that the attack which was being made on the accused was a felonious attack; the circumstances are, therefore, somewhat different. If the attack is a felonious one, the victim is under no duty to retreat but may stand his...