The Judicial Committee of the Privy Council Decisions

"1. (a) Must the test to defence be based reasonably believed to be necessary to should it be what believed?

be applied for self-

on what a person on reasonable grounds resist an attack or the accused honestly

(b) Where, in the instant case, on a trial of an indictment for murder the issue of self-defence is raised is it a proper direction in law for the jury to be told by the trial judge?

A man who is attacked in circumstances where he reasonably believes his life to be in danger or that he is in danger of serious bodily injury may use such force as on reasonable grounds he thinks necessary in order to resist the attack and if in using such force he kills his assailant he is not guilty of any crime even if the killing is intentional".

"The appellant made a statement from the dock, the gist of which was, that he and other men from Mandeville Police Station were ordered to a house in Greenvale Park where, he was told, a gunman was menacing the occupant. He was informed, he said, that Heather Barnes had reported that her brother Chester Barnes who had arrived from Kingston that morning armed with a firearm, was terrorising her. He said further that the Deputy Superintendent who had despatched them, cautioned that Barnes was a dangerous gunman. On arrival at the house, they took up positions as instructed. The appellant said he saw a man run from the back door with an object which appeared to be a firearm. This man first hid behind a wall and took aim as if to fire. The appellant fired in his direction, whereupon the man ran off, jumped a wall and went into a common where the appellant lost sight of him. The police party went in the direction the man had taken. He heard gunshots and as he neared the location from which the shots were being fired, he saw the same man firing at the police. He returned the fire as did other police officers. The man ran off and was pursued. He continued by saying:

'We went in trace of him and still hear shots coming from a tree root in the common. Other policemen went in that direction, and I saw when Constable Reckord discharged three rounds at the man that morning, and he fell. We were looking around for the gun that we saw the man with in the bushes - searching and looking for the gun but we didn't find it. I went and searched the man and took from his pockets a kerchief and two live rounds of .38 cartridges was wrapped into a kerchief.'

Finally the appellant said that later that day when other policemen and himself returned to the scene, they were informed that relatives of the slain man recovered the gun but had thrown it away.

On the Crown's case, this amounted to a callous killing, an execution of Barnes by the appellant and another police officer, for the slain man had his hands raised in surrender but was nevertheless cut down. On the defence side, this was a plain case of self-defence. Policemen who were instructed to investigate a report of a dangerous gunman in their neighbourhood allegedly committing a breach of the Peace, were fired upon and had returned the fire resulting in his death."

"A ground of appeal which may be dealt with shortly, challenged the learned trial judge's directions to the jury with respect to self-defence. Mr. Phipps submitted that the learned trial judge's direction that -

'A man who is attacked in circumstances where he reasonably believes his life to be in danger or that is in danger of serious bodily injury may use such force as on reasonable grounds he thinks necessary in order to resist the attack and if in using such force he kills his assailant he is not guilty of any crime even if the killing is intentional.'

was wrong in law as being against the weight of current authorities in the United Kingdom. The test suggested in the extract was the reasonable man's assessment of circumstances that would make defensive action necessary. He submitted that the true principle of law is that the test is the appellant's assessment of all the circumstances and the question of what is reasonable is merely to be used in determining whether the appellant's assertion as to the belief he holds is honest or not.

We accept that there appears to be two schools - the 'reasonable belief' on the one hand and the 'honest belief' on the other. Be that as it may, in our judgment this point is concluded by a recent decision of the Court R. v. Arthur Barrett (unreported) SCCA 133/84 delivered on 31st May, 1985, in which the same point was canvassed by the same counsel. We can see no warrant whatever to depart from that decision or to amplify or alter the reasons on which it is based. We are content to say that the directions of the learned trial judge on this aspect of the case are in keeping with the law as we conceive it to be in this jurisdiction. This ground of appeal therefore fails."

"Where a person honestly and reasonably believes that he or his child is in imminent danger of injury, it would be unjust if he were deprived of the right to use reasonable force by way of defence merely because he had made some genuine mistake of fact."

"... The court went on, after referring to Morgan's case to say, clearly obiter, 'it seems clear to us that this decision was confined and intended to be confined to rape': per Hollings J. at p. 1127. We do not accept that this was the intention of their Lordships in Morgan's case. Lord Hailsham started his speech by saying that the issue of belief was a question of great academic importance in the theory of English criminal law."

"One M. saw a black youth rob a woman in a street. He caught the youth and held him, but the latter broke from M.' s grasp. M. caught the youth again and knocked him to the ground. The appellant, who had only seen the later stages of the incident, was told by M. that he, M. was arresting the youth for mugging a woman. M. said that he was a police officer, which was untrue, so when asked by the appellant for his warrant card, he could not produce one. A struggle followed and the appellant assaulted M. by punching him in the face and was charged with assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861. His defence was that he honestly believed that the youth was being unlawfully assaulted by M. The jury were directed that, on the assumption that M. was acting lawfully, the appellant's state of mind on the issue of defence of another was to be determined by whether the appellant had an honest belief based on reasonable grounds that reasonable force was necessary to prevent a crime. The appellant was convicted and appealed on the ground that the judge had misdirected the jury.

Held, that the jury should have been directed that, first, the prosecution had the burden of proving the unlawfulness of the appellant's actions; secondly, if the appellant might have been labouring under a mistake as to the facts, he was to be judged according to his mistaken view of the facts, whether or not that mistake was, on an objective view, reasonable or not. The reasonableness or unreasonableness of the appellant's belief was material to the question whether the belief was held by him at all. If the belief was held, its unreasonableness, so far as guilt or innocence was concerned, was irrelevant. Accordingly, the appeal must be allowed and the conviction quashed."

"The mental element necessary to constitute guilt is the intent to apply unlawful force to the victim. We do not believe that the mental element can be substantiated by simply showing an intent to apply force and no more."

"The reasonableness or unreasonableness of the defendant's belief is material to the question of whether the belief was held by the defendant at all. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant. Were it otherwise, the defendant would be convicted because he was negligent in failing to recognise that the victim was not consenting or that a crime was not being committed and so on. In other words the jury should be directed first of all that the prosecution have the burden or duty of proving the unlawfulness of the defendant's actions; secondly, if the defendant may have been labouring under a mistake as to the facts, he must be judged according to his mistaken view of the facts; thirdly, that is so whether the mistake was, on an objective view, a reasonable mistake or not.

In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury came to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case. If however the defendant's alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected.

Even if the jury come to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely upon it."

"Whether the plea is self-defence or defence of another, if the defendant may have been labouring under a mistake as to the facts, he must be judged according to his mistaken belief of the facts: that is so whether the mistake was, on an objective view, a reasonable mistake or not."

"The other situation is this, if you say you don' t find that he had a gun, but we are satisfied that the accused reasonably believed that the man had a gun and that he reasonably apprehended danger to himself because of the belief which he held, and if in those circumstances he used reasonable force to prevent that danger which he reasonably apprehended, in those circumstances he would also be entitled to acquittal. And if you are in doubt about that as well, he must also be acquitted. If you are in doubt about whether or not he reasonably believed that the man had a gun, you must acquit him as well. I don't think I can put it any plainer.

So then, what are the verdicts which are open to you on this case? There are only two, namely, guilty of murder as charged, or not guilty of murder. Those are the only two verdicts that I leave to you on these facts.

One other thing before I ask you to retire, when you come to consider - remember I told you that you must consider all circumstances of the case, all the circumstances of the case includes all the circumstances that exist in the Jamaica of today, you cannot divorce that from your mind, because when you come to consider the question of reasonableness, that is a factor to be considered; the Jamaica today that we live in. But when I tell you that, you must consider that, it doesn't mean that a man is entitled to say that because the Jamaica in which we live today many people are armed with guns and many people are out there with guns, a man can just come and say I believe because we live in Jamaica today and so many guns are around and firing willy-nilly, he must reasonably, that is the test, reasonably believe and he must believe that he had reasonable cause to act as he did. So it is not just a matter of saying to yourselves, plenty men have gun in Jamaica today, so when I see a man running I believe him have a gun and shoot him down. That is not the test, the test is reasonableness, but of course, you consider it, the situation in the country today when you come to consider the reasonableness of his belief."