IN THE COURT OF APPEAL
TURKS AND CAICOS ISLANDS CR-AP 36/2013
CLIFFORD GIBSON APPELLANT
Sir Elliott Mottley, President
The Hon. Mr. Justice Adderley, Justice of Appeal
The Hon. Mr. Justice Hamel-Smith, Justice of Appeal
Ms. Sheena Mair for the Appellant
Ms. Leonard Franklin of the Office Director of Public Prosecutions for the Crown
Heard: 4th, 18th, 20th, 25th September 2019
Delivered: 30th January 2020
Sur Elliott Mottley, P.
1. In the early hours of 1 January 2008, an incident occurred in the Downtown Area in Provo. As a result of the incident, Clifford Gibson, the appellant was charged with the murder of Leslie Arellus. Following a trial before the then Chief Justice and a jury, the appellant was convicted of murder on 15 November 2013 and on 13 November 2013 was sentenced to a term of imprisonment for life.
2. The prosecution called two witness as to the incident in the Downtown area. Carissa Ingram, woman police constable 79 with the Royal Turks & Caicos Island Police Force, who was Acting Sergeant. She said she was attending a Junkanoo event which was being held in that area. While there, she saw three young men approach the main road. At that time the three young men “appeared to be fighting or playing”. One of the young men fell to the ground.
3. The acting sergeant continued:
“Whiles the injured man was running behind the one in the white T-shirt he fell to the ground in the vicinity of the Western Union office with. I then proceeded to the area where the injured man was lying, I identified myself to him as a police officer in plain clothing he was conscious at the time.”
4. The witness went on to give evidence of the dying declaration of Leslie that it was the appellant who stabbed him.
5. Natasha Prospere, woman police constable 146 said that around 5:00am she was standing with Sergeant Sutton and other police officers near a police truck when she received a report that a number of young men were fighting in the area Butterfield Square. She subsequently went through a crowd of people and saw a young man lying on the ground.
6. Paula Arthur stated that she attended a party by Butterfield Square. While talking to some friends, she saw a young man walking, holding a little boy's hand. She saw the boy was “attacked from the back by one gentleman and immediately after front the front by another.” The appellant was the person who attacked the deceased from the front. After the attack, the two guys ran away. The deceased ran after them but fell to the ground, another person “lashed” him with the flat side of a cutlass. Someone threw a chair at the guy with the cutlass.
7. In his summation to the jury, the judge directed the jury on the self defence even though it was not specially raised by the appellant. In addition, the Chief Justice correctly left the issue of manslaughter to the jury. He told him:
“Now, I want to talk to you about the possibility which is opened to you to return an alternative verdict to the charge of murder, which will be manslaughter. But I will caution you before you consider the alternative, which I will now explain to you. You should make some decisions based on evidence that you have decided that you can rely upon and those decisions will be to the effect that Clifford Gibson caused the death of Leslie Arellus. And I suggest you have to do that first before you at least consider an alternative to the charge of murder, which is the charge of manslaughter.
So if in your deliberations you've reached the position where you are sure the defendant in fact caused the death of Leslie Arellus and that he did so by an unlawful act but you're not sure that he intended to kill him then you will acquit on the charge of murder because one of the essential ingredients of the offence which I've just explained to you would not have been made out as his intention to kill him. This might arise if you thought, for instance, that the defendant only meant to harm or to disable, or to subdue Leslie Arellus but not to kill him. However, in such a case it is open to you to return a verdict of guilty to manslaughter even though it's not specifically written down on the information. That's provided for by Section 7 of the Criminal Law Ordinance.
So what is manslaughter? Manslaughter is simply causing someone's death by an unlawful harm. For these purposes any harm is unlawful, again, unless there is something which makes it lawful. Again, the only instance which might arise here is harm inflicted in lawful self defence or defence of another. And as I've already explained to you what is self defence.
If you think that any harm that was caused to Leslie Arellus was or might have been inflicted in lawful self defence then you should acquit the defendant outright of both murder and manslaughter. But if you are sure that the defendant was responsible for Leslie Arellus' death and that he did not act in lawful self defence or lawful defence of another but you are unsure
5 that he actually intend to kill him, then you should acquit him of murder but convict him of manslaughter. Thus if you thought the defendant meant to harm Leslie but not to kill him that would be manslaughter.”
8. It is significant that in dealing with this aspect of manslaughter, the Chief Justice restricted his summation to the act being an unlawful act without the necessary element of intention to kill. The Chief Justice therefore limited his summation in respect of manslaughter to the lack of intent to kill. However, the Chief Justice did not direct the jury on the issue of provocation.
9. In the opinion of the Court, the issue of manslaughter as a result of provocation arose on the evidence of woman police constable Clarrisa Ingram. The constable said she was three young men who approached the main road and appeared to be fighting. The prosecution did not seek to have the witness clarify what the witness meant when she said she saw three men approaching her and at the time they were fighting. The concept of fighting meant that what the witness saw would involve blows passing between the three men. The witness did not say what they were doing to each other. Nor was the witness able to say how the fight started. Having regard to what had taken place previously at the fair, it was necessary for the prosecution to disprove the issue of provocation- that the appellant had not been provoked.
10. In his summation, the judge reminded the jury of her evidence. He told the jury:
“You've heard from Carissa Clare Ingram. In 2008 she was a student at an American University. She was in Downtown Providenciales attending the Junkanoo. She saw three men approaching her and who appeared to be fighting [emphasis added].She described seeing the bigger one of those three men of slim built fall to the ground. She saw one of the other two men holding an ice pick and the third man pull out a knife from behind his pants. She moves on to say that she saw that man stabbed the first man who was now lying on the ground in his back twice whiles the other man kicked the man on the ground. Then the man on the ground turns as if to get up, when the man with the knife, she says, stabbed him in the stomach and the chest.
She describes the two men fleeing the scene as dressed in a black T-shirt - - one in a black T-shirt and one in a white T-shirt. The black shirt ran towards the T.C. I. Bank and the man in the white shirt ran towards the American Airline office.
11. He continued:
She attended the Junkanoo in Downtown Providenciales and whiles talking to some friends see a young boy walking who was attacked from the back by one man and then immediately attacked from the front by another.
She told you in her evidence that the man who attacked from the front was C.J. Gibson an she told you that she both knew C.J. Gibson from a long time on and then she saw him in court as she gave her evidence of the attack. She saw, she says, that Gibson was holding a knife in his hand and in a stabbing motion struck the victim's chest.
She went on to describe the actions of a third assailant who began his assault on the victim by spanking him with a cutlass on the side. She repeated that the first assailant attacked from behind but the victim tried to turn to face that attacker but before being able to do so was stabbed by the second attacker from the front and then the third attacker only becoming involved when the victim was already floored. And all three assailants eventually fleeing the scene although not together.
12. The judge said:
There is no evidence before the court on behalf of the defence.
It has also reduced the possibility that he was acting in self defence as he said nothing to raise that defence before.
13. In leaving the issues to the jury the Chief Justice told the jury:
I suggest that you have a choice of three possible verdicts on the count in relation to the defendant and those three possibilities of guilty of murder, not guilty of murder but guilty of manslaughter and not guilty.
The second option, not guilty of murder but guilty of manslaughter: If you are sure that the defendant killed Leslie Arellus by an unlawful act, not provoked but you are not sure that he actually intend to kill him or not, in other words, you are not sure whether he really meant to kill him then you should acquit of murder and convict of manslaughter [emphasis added]. Provided that you are sure that the defendant intended some harm however slight towards him.
14. While the judge told the jury that they had to be sure that the defendant killed the deceased by an unlawful act not provoked, at no stage did he explain to the jury what is meant by the word provocation.
15. 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.”
It is therefore necessary to look at Section 3 of the Homicide Act 1957 of England.
16. Section 3 of the Homicide Act 1957 states as follows:
"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."
17. The defendant need not raise the issue of provocation. If on the evidence it arises, the court is required to leave it to the jury even though it is not specifically raised by the defendant. In Daniel v The State (Trinidad and Tobago)  UKPC 3, Lord Huges, in giving the judgment of the Court observed:
“ ... It is necessary to re-state and to emphasise the rule that provocation must be left even if it is not the defendant's primary case if, taking the evidence at its most favourable to him and remembering that the onus of proof is on the State to rebut it, manslaughter by reason of provocation is a conclusion to which the jury might reasonably come. It behoves every trial judge to be very cautious about withdrawing the issue from the jury...”
18. In Director of Public Prosecutions v Nelson  UKPC 7. 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 Board stated:
 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.
19. This Court is of the opinion that the Chief Justice erred in not leaving to the jury the issue of manslaughter by reason of provocation. In the circumstances, the appeal against conviction for murder is allowed. The conviction for murder is quashed and the sentence of life imprisonment is set aside. A conviction for manslaughter is substituted and a sentence of 15 years is imposed.
20. In imposing the 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.”
Time spent in custody is to be taken into account.
21. It is accepted that in manslaughter cases involving the “use of a firearm the sentence imposed by a Court would be heavier than manslaughter where no gun is involved.
“In a contested trial where no firearm was used and there is no mitigating circumstances the range of sentence should be 16 to 20 years.”
In this matter provocation arose in as much as one witness stated she saw two men fighting. No evidence was given as to how this fight was started and who started it. The offence took place in the early morning on 1 January in a public place.
22. While there was some evidence of an earlier altercation, no evidence was led to indicate how this altercation started, who started it and how long it started.
Sir Elliott Mottley, P