R v Bernard (JL)
| Jurisdiction | Cayman Islands |
| Judge | (Sanderson, J.) |
| Judgment Date | 22 July 2002 |
| Court | Grand Court (Cayman Islands) |
| Date | 22 July 2002 |
(Sanderson, J.)
A. Roberts, Senior Crown Counsel, for the Crown;
The accused appeared in person;
D.T. McGrath as amicus curiae.
(1) Krug v. R., [1985] 2 S.C.R. 255; (1985), 21 D.L.R. (4th) 161, referred to.
(2) R. v. Earle(1980), 24 Nfld. & P.E.I.R. 65; 65 A.P.R. 65, referred to.
(3) R. v. Evans (C.), Grand Ct., Ind. No. 72 of 2000, May 16th, 2001, unreported, applied.
(4) R. v. Lecky(1978), 42 C.C.C. (2d) 406; 3 C.R. (3d) 225, referred to.
(5) R. v. Logeman(1978), 5 C.R. (3d) 219, referred to.
(6) R. v. Lynch, Eastern Caribbean Supreme Ct. (C.A.), Crim. App. Nos. 4 and 5 of 1996, 1996 E.C.S.C.J. No. 47, followed.
(7) R. v. Nedrick, [1986] 1 W.L.R. 1025; [1986] 3 All E.R. 1, considered.
(8) R. v. Pinkerton, [1979] 3 W.W.R. 241; (1979), 46 C.C.C. (2d) 284, referred to.
(9) R. v. Prince, [1986] 2 S.C.R. 480; (1986), 30 C.C.C. (3d) 35, applied.
(10) R. v. WalkerUNK(1990), 90 Cr. App. R. 226; [1990] Crim. L.R. 44, applied.
(11) R. v. Woollin, [1998] 4 All E.R. 103; [1999] 1 Cr. App. R. 8, dicta of Lord Steyn applied.
Evidence Law (1995 Revision) (Law 13 of 1978, revised 1995), s.18:
‘Provided that-
. . .
(c) the failure of a person charged with an offence . . . to give evidence shall not be made the subject of comment by the prosecution but the court or jury may draw any reasonable inference from such failure . . .’
Penal Code (1995 Revision) (Law 12 of 1975, revised 1995), s.86: The relevant terms of this section are set out at para. 25.
s.192: ‘Whoever-
(a) attempts unlawfully to cause the death of another . . .
is guilty of an offence and liable to imprisonment for life.’
s.201: ‘Whoever unlawfully does grievous bodily harm to another is guilty of an offence and liable to imprisonment for life.’
s.214: ‘Whoever commits an assault occasioning actual bodily harm is guilty of an offence and liable to imprisonment for five years.’
Criminal Law-threatening violence-breach of the peace-offence committed by breach of the peace with intent to alarm if accused intentionally puts victim in fear of being harmed by assault
Criminal Law-murder-attempt-intention to kill required-desire and intention usually plainly co-extensive-if not, sufficient that accused foresaw death was virtually certain result without medical intervention-mens rea to be decided having regard to actions before, during and after attempt-if present at time of attempt, later change of mind irrelevant
Criminal Procedure-charges-multiple charges-multiple convictions for offences arising from same act not intended by legislature if substantial factual and legal nexus (e.g. attempted murder and grievous bodily harm)-single conviction appropriate and less serious charge to be stayed-exception if charges framed according to distinct forms of wrongdoing, or if additional or distinguishing element
The accused was charged with attempted murder, grievous bodily harm, assault occasioning actual bodily harm and threatening violence.
The accused and his wife had a stormy relationship. It was alleged that the accused assaulted her repeatedly during the course of an evening at their home during an argument about a work colleague with whom the accused believed (apparently without foundation) his wife was having an affair. The next day, the argument continued, interrupted by the accused”s visiting his wife”s colleague at work and threatening to kill him and his family if the accused”s wife left him. The threats were accompanied by enraged screaming and posturing. Later that day the accused was arrested, a neighbour having called the police. The wife was treated by a doctor for facial bruising and bruising to her arm. At the time, however, she denied that he husband had caused them.
Some months later, when the couple were living apart, the accused invited his wife back to their former home and tried to persuade her to return to him. When she refused to discuss the matter, he allegedly punched and kicked her. He then stabbed her in the chest with a butcher”s knife that he had placed nearby, together with a paring knife and a machete. She tried to escape but was prevented by the accused, who slashed at her hands, arms and face with the knife, causing deep
lacerations. She suffered severe blood loss and shock. After some hours he agreed to drive her to the hospital on condition that she lied about the origin of her injuries. There she was treated for a collapsed lung caused by the stab wound, which had narrowly missed her heart and which would otherwise have proved fatal. The wound was adjudged to have required moderate force to inflict. The police recovered the weapon at the accused”s home, where extensive bloodstains were observed.
The accused pleaded not guilty to all charges and was tried by a judge alone. A psychiatric report concluded he was fit to stand trial, though he had a paranoid personality. He was not represented and declined to give evidence. He had previously been of good character.
The Crown submitted that (a) the evidence clearly indicated that the accused had caused his wife”s bruises during an argument at home; (b) the accused was guilty of threatening violence, contrary to s.86 of the Penal Code, by committing a breach of the peace with intent to alarm his wife”s colleague; (c) the accused had inflicted the wife”s later injuries with the intention of killing her, since he must at least have recognized that death would be the virtually certain result of his assault; (d) the wife had lied about both assaults to protect the accused and out of fear of reprisal; and (e) the factual and legal overlap between the offences of attempted murder and grievous bodily harm should be addressed by the court in sentencing, and not by declining to convict the accused of the lesser offence.
The accused submitted in reply that (a) his wife had received her bruises by jumping from his car during an argument, and he was therefore not responsible for them; (b) his wife”s colleague had fabricated the allegation of threatening violence, or alternatively, had not taken the threats seriously or felt frightened by them; and (c) he had caused his wife”s life-threatening injuries when defending himself from an attack by her; (d) her evidence that he had simply attacked her with a knife was not credible, given that she had lied to doctors and the police by saying that her attacker was a woman with a grievance against her; and (e) he was the victim of a conspiracy by the judicial system, the police and the immigration authorities.
Held, convicting the accused on all counts:
(1) The court was satisfied that the accused had assaulted his wife on the evening alleged, causing her actual bodily harm, and that she had lied to the police initially to protect him. Notwithstanding that her account of the actual assault was uncorroborated, it was satisfied that her bruises had been caused as she claimed, and not by jumping from a car (paras. 17–19).
(2) The court was also satisfied that the accused had made the threats to his wife”s colleague as alleged. Furthermore, for the purposes of s.86 of the Penal Code, he had committed a breach of the peace-by placing the victim in fear of being harmed through an assault-with the intention of
alarming the victim. The accused”s behaviour had been such that the victim feared an immediate assault. He would be convicted of threatening violence (paras. 24–28).
(3) The court also accepted the wife”s evidence of the accused”s serious assault on her and rejected the accused”s defence as totally implausible. The Crown was required to show that he had intended to kill his wife, rather than merely to cause serious injury, having regard to his actions before, at the time of, and after the offence. Proof of recklessness as to the outcome of the attack did not suffice. When the circumstances were such that the accused”s desire and his intention must have been co-extensive, there was no need for further direction. Exceptionally, if the accused”s act was manifestly dangerous but might not indicate a desire to cause death, the court could have regard to the probability of death and whether the accused foresaw that consequence, in deciding whether he could nevertheless be said to have intended that result. Then, only if satisfied that death was a virtually certain consequence of the attack (without medical intervention) and that the accused appreciated that, could it convict him of attempted murder (paras. 49–53; paras. 56–60).
(4) However, this was a case requiring only the simple direction, since the court was satisfied that the accused had tried to kill his wife. Having first placed the weapon nearby in readiness for the attack, he had stabbed her in the chest with moderate force, close to her heart, then inflicted further wounds and, for some hours afterward, refused to seek medical help for her, when it must have been clear to him that she urgently needed attention. Moreover, he had threatened to kill her both before and after the attack. The fact that he later changed his mind did not affect the Crown”s proof of mens rea at the time of the attack (paras. 61–65; paras. 69–70).
(5) The accused was also guilty of causing grievous bodily harm to his wife by assaulting her, and there was no need to prove any intention on his part to cause such harm. However, since it would be wrong to convict him of that offence as well as attempted murder, the lesser charge would be stayed. The legislature did not intend that multiple convictions should be entered, since there was a substantial factual or legal nexus between the charges, i.e. they resulted from the same act and the same kind of offence (the knife attack, which was an assault in law). Exceptionally, if the same act formed the basis of charges framed according to distinct forms of wrongdoing, or if there was an additional or distinguishing element between the...
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