Privy Council Appeal No. 75 of 2000

Michael Yearwood	Appellant
	v.
The Queen	Respondent

	FROM

	THE COURT OF APPEAL OF GRENADA
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	REASONS FOR REPORT OF THE LORDS OF THE 	JUDICIAL COMMITTEE OF THE PRIVY COUNCIL,
	OF THE 16th May 2001, Delivered the 26th June 2001
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	Present at the hearing:-
			Lord Slynn of Hadley
			Lord Steyn
			Lord Hoffmann
			Lord Hope of Craighead
			Lord Hutton
		  	[Delivered by Lord Hope of Craighead]
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1. 	The deceased Jefferson Gilbert was killed by a single stab wound to the chest on 29th August 1998 during a party at the Grand Mal Community Centre, St George, Grenada.  On 30th August 1998 the appellant Michael Yearwood was arrested and charged with his murder.  On 15th March 1999 in the Supreme Court of Grenada (St Paul J and a jury) he was found guilty of the murder and sentenced to death.  He appealed against his conviction to the Court of Appeal of Grenada.  On 8th July 1999 the Court of Appeal (Byron CJ, Satrohan Singh and Redhead JJA) dismissed the appeal.  On 14th December 1999 he was given special leave to appeal as a poor person to their Lordships’ Board.  At the conclusion of the hearing of the appeal on 16th May 2001 their Lordships announced that, for reasons to be given later, they would humbly advise Her Majesty that the appeal should be allowed and that there should be substituted for the verdict of murder a verdict of manslaughter.  The following are the reasons which their Lordships now give for their report.

2. 	There were a number of eyewitnesses to the events of the evening in the course of which the deceased was killed.  It is unnecessary for the purposes of this report to go into all the details.  The deceased had gone to a party in the Community Centre with his brother Jason Gilbert, his cousin Stephen Greenidge, his brother in law Devon Vincent and one other man. There was a dance hall upstairs where music was being played. After a while Jason Gilbert left the others and went downstairs for a short time.  When he went back upstairs he found that the appellant and another man had positioned themselves in the doorway at one of the entrances with led from a veranda into the dance hall.   He told them that he had paid his entrance fee and asked them to let him pass so that he could get into the hall.  The appellant refused to do so and swore at him, so he went down the corridor and went into the hall through another door.  Later, when he was in the dance hall, he saw the deceased and his cousin trying to leave the dance hall by the doorway which was still being blocked by the appellant.  After an argument they got out of the hall and went downstairs.  Shortly afterwards Jason Gilbert too went downstairs.  He found his brother lying on his face on the ground.  He was bleeding heavily from a wound in his chest.  He was pronounced dead on being taken to hospital.  The cause of death was a single stab wound to the chest.

3. 	Several witnesses including Stephen Greenidge and Devon Vincent said that they had seen an argument between the deceased and the appellant when they were upstairs at the entrance to the dance hall.  Devon Vincent said that they had been pointing hands in each other faces.  Stephen Greenidge said that they were arguing again at the foot of the stairs.  He said that he saw the appellant deliver what appeared to be a punch to the deceased’s chest.  The appellant then turned to him and punched him in the back.  As he walked away he realised that he had been stabbed. Devon Vincent also described this incident.  He said that the deceased had gone downstairs to get some coca cola and was walking back upstairs.  As he did so the appellant took something from the man next to him and put it in his pocket.  He then went downstairs where he grabbed the deceased by the collar, took his hand from his pocket and punched the deceased on his body. Devon Vincent said that he saw what looked like a knife in the appellant’s hand.
4. 	Among the eyewitnesses were three friends of the appellant. Two of them, Alwyn Clarke and Gibson Parris, said that they saw several people quarrelling with the appellant when he was standing at the door to the dance hall.  Alwyn Clarke said that someone said to the appellant that if it was a fight he wanted he should go downstairs and fight.  Gibson Parris said that he saw three men quarrelling with the appellant upstairs.  One of them told the appellant to go downstairs where he would deal with him. Some minutes later the appellant went downstairs.  One of the two men went up to him and started quarrelling with him again. A third man joined in and there was a scuffle during which punches were thrown.  Gibson Parris said that he spoke to the appellant after the deceased had been stabbed and asked him what had happened.  The appellant said that the other men had been fighting with him and that he got the knife from one of them.  

5. 	An off duty police constable, Bernard Thomas, described an incident in the course of the same evening during which the appellant pulled a knife from his pocket and threatened him with it.  He said that he later saw the appellant hold on to a man by his collar, push him against a wall, pull out his knife and make a thrust with it.  The appellant went next day to the police station with his attorney.  When he was questioned by the police he made no admissions and replied “no comment” to almost every question.  He was formally arrested and charged with murder.

6. 	There was no dispute at the trial that the deceased died from a stab wound which had been inflicted on him by the appellant. The appellant gave an unsworn statement from the dock.  He said that the deceased and two other men had come up to him when he was upstairs, quarrelled with him and accused him of blocking the door.  The deceased asked if he was afraid to go downstairs. Later, when he went downstairs, the deceased came up to him with a bottle in his hand and they started to quarrel again.  He then saw two men come up to him.  One of them had a knife in his hand.  The quarrelling started up again and there was a scuffle.  He made a grab for the knife, “made a juke” and then ran.  His defences to the charge of murder were provocation, self-defence and accident.  The trial judge left all three defences to the jury in his summing up.  

7. 	In the Court of Appeal various grounds of appeal were argued.  It was said that the trial judge had misdirected the jury on the question of specific intent, and that when he was dealing with the defence of provocation he did not include aspects of the prosecution case which could have been helpful to the defence. The Court of Appeal said that the judge had explained the law to the jury impeccably, that there was ample evidence to support the jury’s finding and that the appellant had not suffered a miscarriage of justice.

8. 	The arguments in support of the appellant’s appeal were presented in a different way before their Lordships’ Board.  It was submitted that the trial judge misdirected the jury on the onus of proof as to his defence of provocation and on the approach to his defence of self-defence.  It was also submitted that he failed to provide the jury with comprehensible directions of law on the essential issues which were adapted to the facts of the case.  Mr Blake QC for the appellant accepted that his argument about the onus of proof of provocation was not raised at the trial or in the Court of Appeal.  He also accepted that his argument on the defence of self-defence could be met without difficulty on the facts by the application of the proviso and that the onus of proof of provocation was the only point in the case.  It was to that point only that he addressed his argument.  In these circumstances their Lordships need say nothing about the other grounds of appeal.   

9. 	Sections 238 to 241 of the Criminal Code of Grenada provide:
“238.  Whoever intentionally causes the death of another person by any unlawful harm is guilty of murder, unless his crime is reduced to manslaughter by reason of such extreme provocation, or other matter of partial excuse, as in the next succeeding section is mentioned.

239.  A person who intentionally causes the death of another person by unlawful harm shall be deemed to be guilty only of manslaughter, and not of murder, if any of the following matters of extenuation are proved on his behalf, namely –
(a)	that he was deprived of the power of self-control by such extreme provocation given by the other person as is mentioned in the next succeeding section; or
(b)	that he was justified in causing some harm to the other person, and that, in causing harm in excess of the harm which he was justified in causing, he acted from such terror of immediate death or grievous harm as in fact deprived him for the time being of the power of self-control; or

(c)	that, in causing the death, he acted in the belief, in good faith and on reasonable grounds, that he was under a legal duty to cause the death or to do the act which he did … 

240. The following matters may amount to extreme provocation to one person to cause the death of another person, namely – 
(a)	an unlawful assault and battery committed upon the accused person by the other person, either in an unlawful fight or otherwise, which is of such a kind, either in respect of its violence or by reason of accompanying words, gestures, or other circumstances of insult or aggravation, as to be likely to deprive a person, being of ordinary character, and being in the circumstances in which the accused person was, of the power of self-control;
(b)	the assumption by the other person, at the commencement of an unlawful fight, of an attitude manifesting an intention of instantly attacking the accused person with deadly or dangerous means or in a deadly manner…

241.(1) Notwithstanding proof on behalf of the accused person of such matter of extreme provocation as in the last preceding section is mentioned, his crime shall not be deemed to be thereby reduced to manslaughter if it appears, either from the evidence given on his behalf or from evidence given on the part of the prosecution – 
(a)	that he was not in fact deprived of the power of self-control by the provocation …”

10. 	The trial judge told the jury that the law on provocation in Grenada was contained in these provisions, which he read out. After summarising the relevant evidence he then gave them these directions:
“Was the accused man provoked and, if you find he was provoked, was the provocation extreme as the law said it should be? If you find he was provoked and the provocation was extreme and he did what he did then you cannot say he is guilty of murder.  Provocation merely reduces the crime from murder to manslaughter, but the provocation must be extreme.

Now, in relating the law as I have read it to you, with the facts as I have also read to you on provocation you should first apply the objective test and determine whether those acts you have heard from the evidence are capable of causing a person having the power of self-control to be expected of an ordinary person as the accused person to lose his self-control.  The reasonable man referred to in the law is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused but in other respects sharing such of the accused’s characteristics as you think would affect the gravity of the provocation to him and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but would also react to the provocation as the accused reacted.  For there to be a conviction for murder, you have to be satisfied beyond a reasonable doubt so that you feel sure that the original intent, if there was an original intention to kill, must still have been operating in the mind of the accused notwithstanding the alleged provocation.”

11. 	The short point to which Mr Blake addressed his argument was that the effect of these directions was that it was for the appellant to prove that he acted under provocation on a balance of probabilities.  He accepted that the trial judge began his summing up by telling the jury that the accused had nothing to prove, and that he repeated this direction before reminding them of his unsworn statement from the dock.  But he said that, when the judge read the words of the Criminal Code on the law of provocation, he omitted to tell the jury that the words “if any of the following matters of extenuation are proved on his behalf” did not have the effect of transferring the onus of proof to the accused.  The directions which he then gave reinforced the impression given by the ordinary meaning of these words that the onus was on the accused to establish this defence.  The misdirection was compounded by what he said in the last sentence of the passage which their Lordships have quoted, as this suggested that if the jury were satisfied that the original intent to kill was established a conviction for murder must follow notwithstanding the alleged provocation.

12. 	Their Lordships consider that section 239 of the Criminal Code must be read and given effect in a way that is compatible with the provisions for the protection of the fundamental rights and freedoms to which every person is entitled under the Constitution of Grenada.  Section 8(2)(a) of the Grenada Constitution Order 1973 provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.  It has already been held in Grenada that the onus of proof is on the prosecution when the evidence raises an issue of provocation.  In Ambrose v The Queen (1978) 2 OECSLR 32 the Court of Appeal of Grenada held that the onus of proving that the killing is unprovoked is on the prosecution.  Sir Maurice Davis CJ said:
“In the present case the fact that the jury rejected the plea of self defence does not necessarily mean that the evidence for the defence was not of such a kind that even if not accepted in its entirety, it might not have left them in reasonable doubt whether the prosecution had discharged the onus which lay on them of proving that the killing was unprovoked.”

13. 	In Vasquez v The Queen [1994] 1 WLR 1304 their Lordships’ Board had occasion to consider the provisions of sections 115 to 119 of the Belize Criminal Code, which are in similar terms to those of section 238 to 241 of the Criminal Code of Grenada, and section 6(3)(a) of the Constitution of Belize, which is in the same terms as section 8(2)(a) of the Grenada Constitution Order.  The appellants’ first argument was that the words “proved on his behalf” in section 116(a) of the Belize Criminal Code (section 239 of the Grenada Criminal Code) imposed no more than an evidential burden on the accused.  Their second argument was that section 116(a) was in conflict with section 6(3)(a) of the Constitution (section 8(2)(a) of the Grenada Constitution Order) and that it had to be modified to conform to it.  The judgment of the Board was delivered by Lord Jauncey of Tullichettle.  The first argument was rejected.  Lord Jauncey said at p 1311B-D that, although the Courts of Appeal of The Bahamas and Grenada had held in Clarke v The Queen [1971-6] 1 LRB 143 and Ambrose v The Queen (1978) 2 OECSLR 32 that the onus was on the prosecution, the Court of Appeal of Belize had always construed the Code as placing the onus of proving provocation on the accused.  The case was decided in the appellant’s favour on the second argument.  
14. 	Lord Jauncey set out the reasons for the decision of the Board on this point at p 1314D-F:
“In their Lordships’ view section 116(a) of the Code, by placing the burden of proof of provocation upon an accused, is in conflict with section 6(3)(a) of the Constitution and must accordingly be modified to conform therewith.  Their Lordships consider that section 116(a) should be construed as though the prefatory words of the section read: ‘A person who intentionally causes the death of another person by unlawful harm shall be deemed to be guilty only of manslaughter, and not of murder, if there is such evidence as raised a reasonable doubt as to whether he was deprived of the power of self-control by such extreme provocation given by the other person as is mentioned in section 117; …’ and that the prefatory words of section 119 (1) should be construed as though they read: ‘Notwithstanding the existence of such evidence as is referred to in section 116(a) the crime of the accused shall not be deemed to be thereby reduced to manslaughter if it appear, either from the evidence given on his behalf, or from evidence given on the part of the prosecution …’  It follows that the trial judge misdirected the jury on onus of proof and the conviction for murder must be quashed.”

15. 	Their Lordships consider that the same reasoning applies with equal force to the relevant provisions of the Grenada Criminal Code, having regard to the provision in section 8(2)(a) of the Grenada Constitution Order which entitles a person who is accused of a criminal charge to the presumption of innocence. This point is not in dispute.  It follows that section 239 of the Grenada Criminal Code must be read and given effect as if for the words “are proved on his behalf” there were substituted the words “are the subject of such evidence as to raise a reasonable doubt,” and that section 240 must be read and given effect in the same way.  But, as Lord Jauncey of Tullichettle emphasised in Vasquez v The Queen at p 1314G-H, a judge need not be astute to conjure up hypothetical situations in which provocation could conceivably have arisen if the issue is not directly raised in evidence.  He should only direct the jury on provocation if there is evidence before the court which, if believed, might be taken by a reasonable jury to support this defence.

16. 	Mr Knox for the respondent accepted that the Constitution of Grenada did not contain an existing laws provision and that there was therefore no obstacle to construing the Grenada Criminal Code in such a way as to bring it into conformity with the Constitution.  He also accepted, in the light of the decisions in Ambrose and Vasquez, that the law of Grenada was that the burden of proving that the killing was unprovoked was on the prosecution.  He recognised that it would have been a misdirection for the trial judge to suggest to the jury that the burden of proof was on the defence.  His arguments were that this was not the effect of the directions taken as a whole, and that in any event the jury’s verdict showed that they must have rejected the evidential basis for provocation, so the proviso should be applied.

17. 	Their Lordships were unable to accept Mr Knox’s argument as to the effect of the directions taken as a whole.  The trial judge began his summing up by telling the jury that there was no onus on the accused.  He ended it by telling them that if they were left in reasonable doubt as to whether the offence proved was murder or manslaughter they should choose the lesser offence of manslaughter.  But there is no doubt that the effect of the passage in the summing up where he dealt with provocation was that it was for the appellant to prove that he acted as he did because he had been provoked.  The effect of the misdirections might have been corrected if the judge had taken the opportunity in a later part of his summing up to tell the jury that what he said earlier about the onus of proving provocation was wrong.  But he did not do that.  The misdirections were on a point which was fundamental to a proper understanding of the right approach to this issue.  They cannot be regarded as having been removed by the general direction which the judge gave about onus at the end of the summing up.

18. 	As for the proviso, the test to be applied is whether, if the jury had been properly directed, they would inevitably have come to the same conclusion upon a review of all the evidence: Woolmington v Director of Public Prosecutions [1935] AC 462, 482-483, per Viscount Sankey LC; Stirland v Director of Public Prosecutions [1944] AC 315, 321 per Viscount Simon LC; Stafford v The State (Note) [1999] 1 WLR 2026, 2029H.  Mr Knox said that the jury’s verdict indicated that they must have rejected the appellant’s principal defence, which was that he acted as he did in response to an assault, in regard to which there had been no misdirection.  But it does not follow that the jury would have taken the same view as to the defence of provocation if they had been given an accurate direction as to where the onus lay.  In their Lordships’ opinion a reasonable jury, having rejected the appellant’s suggestion that he acted in self-defence, might have held nevertheless that the evidence raised a reasonable doubt on the defence of provocation.  Support for that view might well have been found in various incidents in the course of the confrontations which took place that evening as described by the witnesses.  Hands were pointed, challenges to fight were issued and other gestures made which the jury might reasonably have taken to be of that character.   Their Lordships cannot say that, if they had been properly directed, the jury would inevitably have come to the conclusion that the prosecution had established beyond a reasonable doubt that this was case of murder.

19. 	Before parting with this case however their Lordships wish to draw attention to section 118 of the Criminal Code of Belize which was introduced into the Code in 1980.  It contains a provision which describes the circumstances in which the question whether there was provocation should be left to be determined by the jury.  A provision in almost the same terms was introduced into the Penal Code of The Bahamas in 1987 as section 325 of that Code: see Culmer v The Queen [1997] 1 WLR 1296.  As Lord Jauncey said in Vasquez v The Queen at p 1311H, section 118 of the Belize Criminal Code differs from section 3 of the Homicide Act 1957 because it includes the word “extreme” which is absent from section 3.  It also differs in this respect from section 325 of The Bahamas Penal Code, which follows the wording of section 3 of the 1957 Act.  In Culmer v The Queen the Board held that section 325 prevailed as the leading provision in the Code relating to the defence of provocation in The Bahamas. In Bull v The Queen [1998] 1 WLR 1523, 1525A Lord Steyn, who delivered the judgment of the Board, said that judges in Belize also should sum up in the terms of section 118, ignoring the ballast of the old law.  

20. 	Their Lordships mention this point because one of the criticisms of the summing up which the appellant made in his printed case was that the directions which the trial judge gave on provocation were over elaborate.  Section 118 of the Belize Code and section 325 of the Penal Code of The Bahamas have brought the law on this issue in those jurisdictions up to date.  They also express the essential points in relatively simple language.  This has made it possible for judges to discard the outdated language of the old law and to concentrate instead on the modern law of provocation when they are summing up.  Their Lordships respectfully suggest that a provision in the same terms as those of section 325 of the Penal Code of The Bahamas might now with advantage be introduced into the Criminal Code of Grenada. 

21. 	For these reasons their Lordships will humbly advise Her Majesty that the appeal should be allowed, that for the verdict of murder there should be substituted a verdict of manslaughter and that the sentence of death should be set aside.  It will be for the Court of Appeal to decide what the sentence should be in the light of the alternative verdict of manslaughter.