Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 32 of 2016

Joseph v. Regina (CR-AP 32 of 2016) [2019] TCACA 2 (22 March 2019);

Law report citations
Media neutral citation
[2019] TCACA 2
Coram
Mottley, P
Stollmeyer, JA
Hamel-Smith, JA

TURKS AND CAICOS ISLANDS

IN THE COURT OF APPEAL

CR-AP 32/2016

BETWEEN

JAMESLY JOSEPH

APPELLANT

AND

REGINA

RESPONDENT

BEFORE:

The Hon. Mr. Justice Mottley, President

The Hon. Mr. Justice Stollmeyer, Justice of Appeal

The Hon. Mr. Justice Hamel-Smith, Justice of Appeal (Ag.)

Appearances:

Tim Prudhoe and Willin Belliard for the Appellant

Jillian Williams, Director of Public Prosecutions

Heard: November 16, 2018

Delivered: March 22, 2019

Mottley, P.

1.             Following a trial lasting eight days before Mr. Justice Shuster and a jury, the appellant, Jamesly Joseph was convicted of murder and was sentenced to a term of life imprisonment.

2.             The appellant was charged with the offence of murder, that on 25 May 2015 at Duck Yard, Kew Town, Providenciales, he murdered Dieula Jean.

3.             The prosecution's case was that the appellant and the deceased lived together for a number of years. The relationship was such that the police were called to the residence from time to time.

4.             On Friday 2 May 2015, the appellant left Provo and travelled to South Caicos for the weekend where celebrations relating to Haiti were taking place. He returned to his residence on 25 May 2015 where a quarrel ensued between the appellant and the deceased resulting in the death of the deceased.

5.             A report was made to the police and shortly afterwards, the appellant was taken into custody. Following a caution administered by Sgt Neal Stanislaus, the appellant said:

“Officer, I was in South Caicos when someone called me and tell me my girlfriend had a man in my house. I come “Provo” to talk to her. Whilst talking to her, we start to quarrel. She pick up a cutlass to cut me, so I pick up a knife and I stab her.

And this is what the defendant said my Lord.”

6.             On 3 June 2015, the police conducted an interview with the appellant. The interview which consisted of one hundred and forty-three questions and answers was admitted into evidence without objections by the counsel who appeared at the trial.

7.             During the course of the interview, the appellant said inter alia:

That was why I went to work. When I came from work, that was the same time I saw her coming from the beach. Afterward she said she took water that he washed her vagina, put it [in] the fridge. When I came, I did not know I took it and drank it. My little brother was resented because he knows Dieula was saying that to people. When I became to know on the same Sunday she did that she went to the beach. When I came, that was the time she returned from the beach. I told her no problem since she tells people she made me drink her vagina water and moreover, she came from the beach with her man. When I was mad at her, she called police to kick me out of the house.”

8.             In response to a suggestion that his brother had called him to say that the deceased was going to put him out of the house when he returned from South Caicos, the appellant stated that it was not the brother but was the deceased who told him that on the Friday on which he went to South Caicos that she was putting him out of the house. When asked by the police officer conducting the interview how he felt when the deceased told him that, he responded that he did not feel good because he was the one who spent his money to repair the house.

9.             On appeal, a preliminary point was taken relating to the definition of provocation. Counsel for the appellant submitted that the trial judge erred by not directing the jury in accordance with the provisions of section 54 and 55 of the Coroners and Justice Act 2009 of England.

These sections provide as follows:

“54.--

(1) Where a person ('D') kills or is a party to the killing of another ('V'), D is not to be convicted of murder if--

(a)           D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control,

(b)           the loss of self-control had a qualifying trigger, and

(c)           a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.

(3) In subsection (1)(c) the reference to 'the circumstances of D' is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint.

(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.

(5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

(6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply.

(7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter.

(8) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder does not affect the question whether the killing amounted to murder in the case of any other party to it.

55 (1) This section applies for the purposes of section 54.

(2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.

(3) This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person.

(4) This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which--

(a)           constituted circumstances of an extremely grave character, and

(b)           caused D to have a justifiable sense of being seriously wronged.

(5) This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).

(6) In determining whether a loss of self-control had a qualifying trigger--

(a) D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;

(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;

(c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.

(7) In this section references to 'D' and 'V' are to be construed in accordance with section 54.”

10.          Counsel contended that the effect of section 3 of the Offence Against the Person Ordinance Cap 3.08 required the judge to apply the provisions of section 54 and 55 of the Coroners and Justice Act 2009. Section 3 of the Offences Against the Person Ordinance provides:

“Definition of murder

3. Subject to the provisions of section 4 of this Ordinance, whoever intentionally causes the death of another person by an unlawful act or omission is guilty of murder:

Provided that where on the facts found the offence would, under the laws of England, be reduced to one of manslaughter, then the offence shall be so reduced.”

11.          Counsel submitted that the significance of the proviso is that the words “laws of England” imported into the law of Turks and Caicos the provisions of section 54 and 55 of the Coroners and Justice Act 2009 of England.

12.          Counsel submitted that, in construing the provision of section 3 of the Offences Against the Person Ordinance, the basic principle of construction is the plain meaning rule and the common sense construction rule. He relied on what was said by Lord Reid in Pinner v Everett [1969] 1WLR 1266 at 1273:

''In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute. It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature that it is proper to look for some other possible meaning of the word or phrase.''

13.          He further submitted that given its plain meaning the phrase “laws of England” meant the current state of law in England. The effect of this meant that law relating to provocation was therefore governed by the provision of section 54 and 55 of the Coroners and Justice Act (2009) of England. If these provisions apply it would provide for the partial defence of “loss of control”.

14.          Counsel for the respondent submitted that the phrase “laws of England” should be given its naturally meaning. He contended that if it was intended that the phrase “laws of England” meant the laws of England, from time to time, the Legislature would have made that plain. In support of this submission, reliance was placed on the provision of section 19(3) of the Control of Drugs Ordinance Cap. 3.14 which provides:

“19(3) Without prejudice to the foregoing provisions of this section, in any proceedings under this Ordinance in which an issue arises as to the law of England in relation to any matter which under the foregoing provisions might be proved by such a certificate, the court may take judicial notice of the law for time being in force in England without further proof.”

15.          The Court is of the view that the phrase “law of England” must be given its ordinary meaning and natural meaning- which is the laws of England that existed at the time when the Ordinance was passed. The relevant law in England in 1968 was the Homicide Act of 1957. The relevant section provided:

Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.

16.          In our view, if it was intended that the provisions of section 3 of the Offences Against the Person Ordinance should keep abreast with changes in the law relating to provocation in England, the Legislature in the Turks & Caicos Islands would have made that abundantly clear as it did when enacting the provisions of section 19(3) of the Control of Drugs Ordinance. As stated above, the Legislature expressly gave the court the discretion to “take judicial notice of the law for the time being in force in England”. In so doing, the Legislature put in place a regime relating to dangerous drugs with the intention that it should keep abreast of any changes in the law in England. (see observation of Lord Nicholls of Birkenhead in Department for Environment, Food and Rural Affairs v ASDA stores Ltd [2004] 1 All ER 268 where at para 18 his Lordship said “The phrase ‘for the time being' envisages and is intended to encompass a changing state of affairs”).

17.          No such imperative may be inferred or said to exist which would require the issue of provocation to be brought in line with current law relating to issues of provocation which remained the same in England for over fifty years.

18.          The essential change relating to provocation in the Homicide Act 1975 was that it changed the common law to provide that words said may amount to provocation. Nothing was put before the Court to show any imperative to have the law relating to provocation in Turks & Caicos keep pace with any changes in England. As stated no change was made to the Homicide Act for about fifty years. The Court rejects this submission.

19.          On the state of the evidence the following issues had to be left to the jury for their determination. Firstly, the appellant alleged in the course of his interview by the Police and in his statement to the police when he was arrested that he returned to Provo from South Caicos to speak with Dieula. While speaking with each other they started to quarrel. During the quarrel, the appellant said that Dieula picked up a cutlass and attacked him. He defended himself by stabbing her with a knife.

20.          It was opened to the jury to accept these statements. If they did, it would have led to a verdict of not guilty of murder. It is clear that the jury rejected self defence and by doing so accepted the evidence that no cutlass was found at the scene of the incident.

21.          Secondly, even though the jury would have rejected the evidence that the appellant had been attacked with a cutlass the issue of manslaughter by way of provocation could arise on the facts. The evidence disclosed that Dieula told the appellant that she had taken water she used to wash her vagina and put it in the fridge. When the appellant came home, unaware of the source of the water, he drank it. Dieula then told people that she made the appellant drink her “vagina water”. In addition, Dieula told the appellant that she was putting him out of the house which the appellant said that he spent money building. In addition, it was alleged that Dieula had taken up with another man.

22.          This was evidence if, left to the jury with proper directions, could lead to the jury reaching the conclusion that the appellant had been provoked or could have concluded that they were left in reasonable doubt as to whether the appellant had been provoked. Unfortunately, as set out below, the jury was not properly directed as to how they should approach the issue of provocation.

23.          Before dealing with the issue of provocation, it is important to accept that it was open to the jury to reject the defence of self defence and provocation but yet in the circumstances come to the conclusion that the appellant was not guilty of murder because he did not have the requisite intent i.e. intent to cause her death. It would then have been open to the jury if they accepted that the appellant did not have the requisite intent even though not provoked to come to the conclusion that he was guilty of manslaughter.

24.          In his summation, Shuster J told the jury:

“Now, what is manslaughter?

If in your deliberations, members of the jury, you reach the point where you are sure that defendant did, in fact, cause the death of the female, Dieula Jean, and he did so by an unlawful act, but you are not sure that the defendant intended to kill the deceased, then, as I said, you would acquit the defendant of murder, because one of the essential elements of murder, as I have explained to you, would not have been made out beyond reasonable doubt so that you are sure, that is to say, the intention to kill.”

25.          Later the judge said:

“However, members of the jury, I direct you, and you must listen to what I am saying, that you can only consider the lesser crime of manslaughter if after you have properly deliberated on the evidence adduced by the crown during this trial for the crime of murder, and then consider manslaughter, only if you find the defendant not guilty of murder, which is a crime of specific intent. I need to say more on any possible alternative verdict later in my summing up, and I will.”

26.          The judge did not explain to the jury that in considering the issue of murder it was necessary to consider whether the appellant had been provoked. The judge ought to explain the various avenues by which they could arrive at a verdict of manslaughter.

27.          Further in his summation, the judge told the jury:

“If you are sure that each of these elements, that it was the defendant who intentionally caused the death of the victim by an unlawful act, then you must the convict the defendant of the crime of murder. If you are not sure, you should acquit the defendant of the murder, and then, and only then, can you go on and consider the alternative verdict, which is open to you under the Ordinance, the crime have said intentionally.”

28.          In dealing with the issue of provocation, the judge said:

“I turn now to provocation in a murder case.

Members of the jury, you might also heard about provocation in a murder case from listening to television, etc. If you are sure the defendant unlawfully killed his victim, intending to kill her, then the defendant's guilty of murder, unless you can conclude that this was, or may have been a case involving provocation.

Now, provocation is not a complete defence leading a verdict of not guilty. Provocation reduces what would otherwise be the crime of murder to the lesser offence of manslaughter. Because the prosecution must prove the defendant's guilt, it is also for the prosecution to make sure this was not a cause of provocation. It is not for the prosecution- the defendant to establish it was. When considering the question of provocation, you must first ask yourself whether the defendant was provoked at all.

Now, a person is provoked if he's caused suddenly and temporarily to lose his self-control by things that have been said or done to him by his victim, and perhaps by other people, rather than just by his own bad temper. You heard evidence he was drinking water from the fridge that had been used to wash the complainant's or the deceased's vagina. You also heard he was being put out of his house. It is for you to decide whether you conclude that that was provocation.

Now, the defendant claimed in his record of interview that he heard from someone that his wife was moving out to live with another man. The defendant says on hearing that news he came back on the ferry from South Caicos where he had been working. He says he argued with his partner, then as you have heard, she was stabbed to death. The defendant agreed in his record of interview he came to ‘Provo' to talk to his wife. He said the deceased came at him with a cutlass at Question 128. However, several police officers have given evidence to the effect that no cutlass was found, either at the crime scene, or during a search at the deceased's house. If you are sure the defendant was not provoked in this sense, he might move or be thrown out, then the question of provocation does not arise, and the defendant is guilty of murder. If you find all the essential elements of the offence proved, and if you conclude the defendant himself committed an unlawful act, which caused that death with intention. But what if you think that he was, or he might have been provoked in the sense I've explained, then it is for you to decide whether or not the defendant's momentary loss of self-control was, or is sufficiently excusable to reduce the gravity of this offence from one of murder to one of manslaughter. When deciding this, please, also bear in mind, the law still expects everyone to exercise control over their emotions. If a person has an unusually volatile, an excitable or a violent nature, or if he is drunk then he cannot rely upon that as an excuse. Otherwise, members of the jury, it is entirely a matter for you as representatives of your community, to decide what appropriate standards of behavior are acceptable, and what degree of control a society should reasonable expect of this defendant, and what the just outcome of this case should be. You should make allowance for human nature and for the power of emotion. You should take into account everything that you have heard about the defendant from all of the evidence. If you are sure the defendant's loss of self-control was not sufficiently excusable to reduce the offence from murder to manslaughter, then you would find the defendant guilty of murder. Otherwise your verdict will be not guilty of murder, but guilty of manslaughter by reason of provocation.”

29.          In leaving the issue of provocation to the jury, the judge did not instruct the jury that if they were left in reasonable doubt as to whether the appellant was provoked, then they must give the appellant the benefit of doubt and return a verdict of not guilty of murder but guilty of manslaughter. The failure to do this was a serious non-direction by the judge.

30.          In addition, the judge misdirected the jury relating to the issue of provocation. At no stage did the judge tell the jury that if they found the appellant intended to kill Dieula but if they found that the intent arose as a result of provocation by Dieula, then he would not be guilty of murder but guilty of manslaughter. This issue engaged the attention of the Courts of Appeal in the Caribbean and the Judicial Committee of the Privy Council.

31.          In R v Bunting - (1965) 8 WIR 276, Lewis JA in delivering the judgement of the Court of Appeal of Jamaica stated:

In a case where provocation arises as a defence to a charge of murder it is proper and indeed necessary for the trial judge to tell the jury that murder is not established unless an intent to kill or to cause grievous bodily harm is proved, but the converse proposition, namely, that the accused is guilty of murder if such an intention is proved, is not necessarily correct. For where the intention to kill or to cause grievous bodily harm results not from premeditation but solely from the loss of self-control induced by provocation the accused is guilty not of murder but of manslaughter. See A G of Ceylon v Perera ([1953] AC 200, 97 Sol Jo 78, PC, 15 Digest (Repl) 941, 5769) per Lord GODDARD ([1953] AC at p 206); Lee Chun Chuen v R ([1963] 1 All ER 73, [1963] AC 220, [1962] 3 WLR 1461, 106 Sol Jo 1008, PC, Digest Cont Vol A, 153, 788a). Nowhere in his summing up did the learned judge point this out to the jury.

32.          The approach adopted in Bunting was followed by the Court of Appeal in Trinidad and Tobago in Baptiste v The State- (1983) 34 WIR 253. Delivering the judgment of the Court, Kelsick Acting CJ stated:

“Another important direction that the judge must give to a jury in appropriate cases is that an intention to kill is not inconsistent with the establishment of the plea, not only of self-defence, but also of provocation. Expression was given to that principle as far back as 1965 by Lewis JA in R v Bunting (1965) 8 WIR 276 at page 278:

'In a case where provocation arises as a defence to a charge of murder it is proper and indeed necessary for the trial judge to tell the jury that murder is not established unless an intent to kill or to cause grievous bodily harm is proved; but the converse proposition, namely, that the accused is guilty of murder if such an intention is proved, is not necessarily correct. For where bodily harm results not from pre-meditation but solely from the loss of self-control induced by provocation the accused is guilty not of murder but of manslaughter.'

In R v Plinton (1965) 9 WIR 44 at page 48 Sir Herbert Duffus P criticised the trial judge for not telling the jury that, even if they found that there was an intention to kill or to cause grievous bodily harm, the offence might be manslaughter if the intention arose by means of provocation.”

33.          In Boyce (Calvin) v R- (1999) 58 WIR 96, Sir Dennis Williams, Chief Justice giving the judgment of the Barbados Court of Appeal stated:

In a case in which provocation was being left as a defence, this unqualified direction to the jury to return a verdict of 'Guilty of Murder' if they found that the accused intended to kill his wife was inaccurate. As Lewis JA said in R v Bunting (1965) 8 WIR 276 at 278 when delivering the judgment of the Court of Appeal of Jamaica:

'In a case where provocation arises as a defence to a charge of murder it is proper and indeed necessary for the trial judge to tell the jury that murder is not established unless an intent to kill or to cause grievous bodily harm is proved, but the converse proposition, namely that the accused is guilty of murder if such an intention is proved, is not necessarily correct. For where the intention to kill or to cause grievous bodily harm results not from premeditation but solely from the loss of self-control induced by provocation the accused is guilty not of murder but of manslaughter ... Nowhere in his summing-up did the judge point this out to the jury.'

Lewis JA went on to say (at p 279):

'Care should also be taken in a case where provocation arises as a defence to avoid the use of expressions which suggest that the presence of intention in the mind of the accused must inevitably lead to a verdict of murder rather than manslaughter.'

Nowhere in the summing-up did the trial judge make it clear to the jury that an intention to kill or to cause grievous bodily harm resulting solely from the loss of control induced by provocation rendered the appellant not guilty of murder but of manslaughter. He did tell the jury (at p 166) that the law is that where a person because he has been provoked loses his self-control and does an act which results in death, that person is guilty of manslaughter and that provocation therefore reduced murder to manslaughter. But he returned at the close of the summing-up to repeat the unqualified direction that he had earlier given (at p 254):

'Mr. Foreman and members of the jury, what are the possible verdicts that you can reach? You can find the [appellant] "Guilty of Murder", or "Not Guilty of Murder" but "Guilty of Manslaughter", or "Not Guilty" of any offence at all. If the evidence for the prosecution satisfies you so that you feel sure that the [appellant] strangled Erma Boyce, and when he was strangling her he intended to kill her or cause her serious bodily harm, then you will return a verdict of "Guilty of Murder".'

He went on shortly afterwards to say that if they found that the appellant was provoked, as he had explained provocation to them, then they will find him 'Guilty of Manslaughter'.

In our judgment there is a danger that the unqualified directions earlier quoted that an intention to kill or to cause serious bodily harm meant a verdict of 'Guilty of Murder' could have resulted in prejudice to the appellant on the issue of provocation. The jury could have been left with the impression that once they felt sure that there was an intention to kill or to cause really serious harm, a verdict of 'Guilty of Murder' necessarily followed.

34.          The issue engaged the attention of the Judicial Committee of the Privy Council in Director of Public Prosecutions v Nelson. In 2015, The Judicial Committee considered in an appeal from the Court of Appeal of the Eastern Caribbean Supreme Court. Lord Hughes delivering the opinion of the court stated:

“PROVOCATION

[7] The defence advanced at trial was reasonable self defence, alternatively reasonable action taken to prevent a crime. Provocation was not advanced; indeed the defence case was positively inconsistent with it, because the Defendant asserted that, far from being provoked to loss of control leading him to shoot the deceased, he had been in control throughout and had used his gun only as a matter of last resort when under attack. Nevertheless, on the evidence, it was plainly possible that if the jury were to reject the Defendant's account and find that he had shot the deceased by way of reprisal for the severe blow to his eye, provocation might be open to it. This was therefore a trial in which the judge had to leave manslaughter by way of provocation to the jury, notwithstanding that this was not the Defendant's case, and had, in doing so, to avoid saying anything which might be taken by the jury to undermine the defence which the Defendant was advancing.

35.          Later his Lordship continued-

[9] It is of course trite law that murderous intent (of either kind) is in no sense inconsistent with the partial defence of provocation. Indeed, provocation assumes murderous intent. It only arises when the essential elements of murder are all proved, including murderous intent. If the judge had indeed left manslaughter to the jury in a manner which might have led it to think that murderous intent negated provocation, that would have been a material misdirection.”

36.          It was imperative that the judge directed the jury that of the intent to kill arose as a result of provocation by Dieula then the appellant ought to be found not guilty of murder but guilty of manslaughter. The Court considered that appeal against the conviction for murder showed be allowed. The Court quashed the conviction for murder and set aside the sentence of life imprisonment. The Court substituted a conviction of manslaughter.

37.          In imposing a sentence of 15 years imprisonment, the Court had regard to what was said by Sir David Simmons when delivering he judgment of the Barbados Court of Appeal in R v Lorde 73 WIR 28. Sir David at the time set out the Guidelines for persons convicted by manslaughter. At paras 35, it is stated:

“In a contested trial where no firearm was used and there are no mitigating circumstances the range should be 16 to 20 years.”

38.          The Court considers that there was sufficient evidence of provocation and hence mitigating circumstances. The Court imposed a sentence of 15 years of imprisonment.

_______________

Mottley P

________________

Stollmeyer JA

______________

Hamel-Smith JA (Ag.)