Ritch v R
| Jurisdiction | Cayman Islands |
| Judge | (Zacca, P., Georges and Kerr, JJ.A.) |
| Judgment Date | 06 December 1985 |
| Court | Court of Appeal (Cayman Islands) |
| Date | 06 December 1985 |
(Zacca, P., Georges and Kerr, JJ.A.)
D.M. Muirhead, Q.C. and S. McField for the appellant;
R.W. Ground, Senior Crown Counsel, for the Crown.
(1) Ajodha v. State, [1982] A.C. 204; [1981] 2 All E.R. 193; (1981), 125 Sol. Jo. 305; 73 Cr. App. R. 129; [1981] Crim. L.R. 555, considered.
(2) Palmer v. R., [1971] A.C. 814; [1971] 1 All E.R. 1077; (1971), 115 Sol. Jo. 264; 55 Cr. App. R. 223, considered.
(3) R. v. Alexander, [1974] 1 W.L.R. 422; [1974] 1 All E.R. 539; (1973), 118 Sol. Jo. 166; 58 Cr. App. R. 294; [1974] Crim. L.R. 137, considered.
(4) R. v. AndersonUNK(1929), 142 L.T. 580; 21 Cr. App. R. 178; 29 Cox, C.C. 102, distinguished.
(5) R. v. Berkeley, [1969] 2 Q.B. 446; [1969] 3 All E.R. 6; (1969), 133 J.P. 589; 113 Sol. Jo. 508; 53 Cr. App. R. 524, considered.
(6) R. v. Falconer-AtleeUNK(1973), 58 Cr. App. R. 348, considered.
(7) R. v. Goodson, [1975] 1 W.L.R. 549; [1975] 1 All E.R. 760; (1975), 119 Sol. Jo. 255; 60 Cr. App. R. 266; [1975] Crim. L.R. 656, considered.
(8) R. v. Ketteridge, [1915] 1 K.B. 467; [1914–15] All E.R. Rep. 482; (1914), 112 L.T. 783; 84 L.J.K.B. 352; 31 T.L.R. 115; 59 Sol. Jo. 163;79J.P.216;24Cox, C.C. 678; 11 Cr. App. R. 54.
(9) R. v. Neal, [1949] 2 K.B. 590; [1949] 2 All E.R. 438; (1949), 65 T.L.R. 557; 93 Sol. Jo. 589; 113 J.P. 468; 48 L.G.R. 93; 33 Cr. App. R. 189.
(10) R. v. Pink, [1971] 1 Q.B. 508; [1970] 3 All E.R. 897; (1970), 114 Sol. Jo. 805; 55 Cr. App. R. 16, considered.
(11) R. v. Reynolds, [1950] 1 K.B. 606; [1950] 1 All E.R. 335; (1950), 66 T.L.R. (Pt. 1) 333; 94 Sol. Jo. 165; 114 J.P. 155; 34 Cr. App. R. 60; 48 L.G.R. 239.
(12) R. v. SuttonUNK(1969), 53 Cr. App. R. 504, considered.
(13) R. v. Thompson, [1917] 2 K.B. 630; (1917), 117 L.T. 575; 86 L.J.K.B. 1321; 33 T.L.R. 506; 81 J.P. 266; 26 Cox, C.C. 31; 12 Cr. App. R. 261, considered.
Evidence-witnesses-recall of witness-application to recall properly made in absence of jury if manner and timing not prejudicial to accused-express consent of accused not required and absence of defence objection signifies approval
Evidence-corroboration-relative of victim-no need to warn of dangers in uncorroborated evidence of complainant”s wife provided jury directed that credibility main issue and properly directed on burden of proof
The appellant was charged in the Grand Court with doing grievous bodily harm contrary to the Penal Code, s.190.
The appellant, armed with a stick, attacked a couple allegedly unknown to him as they walked along a beach. The husband (the complainant), who had been carrying a diver”s knife, handed it to his wife and attempted to defend himself with his hands. The appellant overpowered him, causing serious injuries, and he called to his wife for help. She responded by stabbing the appellant, who was critically injured.
The appellant was charged with doing grievous bodily harm contrary to the Penal Code, s.190. In his statement to the police he alleged that he had met the couple previously and that it was the husband who had initiated the violence. During cross-examination of the couple at the trial, however, no mention was made of the alleged earlier meeting.
When the cross-examination had been completed, the prosecution obtained leave to make a submission in the absence of the jury, the defence not objecting. The prosecution drew attention to the fact that the appellant had not repeated his allegation that he had met the couple before the violent incident and applied for leave to re-call the couple to give further evidence-in-chief. This application was refused and its nature was not disclosed to the jury.
The trial proceeded and the appellant submitted, inter alia, that even assuming that he had initiated the attack, the couple had retaliated with wholly disproportionate violence which went far beyond the bounds of legitimate self-defence; he himself had then responded in self-defence and was not, therefore, guilty of the charge against him.
In his direction to the jury the trial judge (Hull, J.) stated that the main issue was how the violence began. He summarised the prosecution”s case that the appellant had made an unprovoked attack to which the couple had responded in self-defence, and the appellant”s allegation that he himself had acted in self-defence; he then reminded the jury that the prosecution had the burden of proving beyond reasonable doubt
that the appellant was not acting in self-defence. The appellant was convicted and sentenced.
On appeal, the appellant submitted that (i) the trial judge should not have directed the jury to leave the court without the express consent of the defence and, since the jury would have inferred that they were being excluded because the prosecution wished to raise matters adverse to the appellant, the irregularity was so fundamental that it vitiated the whole trial; (ii) the trial judge failed to direct the jury adequately on the issue of self-defence because, even assuming that the appellant had initiated the attack, he had been the victim of unnecessary and disproportionate violence and yet the jury had not been directed as to the circumstances in which legitimate self-defence ceased and aggression began; and (iii) the trial judge had improperly failed to warn the jury that the evidence of the complainant”s wife might be tainted because it was a wife”s evidence and that it might therefore be dangerous to rely upon it in the absence of corroboration.
Held, dismissing the appeal:
(1) The trial judge had acted properly in ensuring that matters prejudicial to the accused were not discussed in the presence of the jury. The prosecution had not created a prejudicial impression by the manner or timing of the application and, since its nature was never disclosed to the jury, there was no basis for unfavourable conjecture. The personal express consent of the accused was not required for an application of this nature (where prosecution counsel was merely seeking to open a new line of examination) and, since there had been no objection by the defence, it was fair to conclude that the jurors were sent out with the approval and for the benefit of the defence. If there had been any irregularity it had not prejudiced a fair trial and was so minimal as not to justify interference with the verdict of the jury (page 503, line 29 – page 504, line 18).
(2) The direction given to the jury on the issue of self-defence was appropriate to the particular facts and circumstances of the case. There was no formula that had to be employed for this purpose and the trial judge had correctly identified the main issue as being: Who was the aggressor? The adequacy of the force used against the appellant would have been relevant only if the complainant”s wife (who had stabbed the appellant) had been charged with an offence (page 508, lines 5–27).
(3) The trial judge had no duty to warn the jury of the danger of relying upon the uncorroborated evidence of the complainant”s wife. The jury would naturally have realised that the husband and wife would tend to support each other and it was sufficient that they were told that the main consideration was credibility, with the burden of proof on the prosecution to satisfy them beyond reasonable doubt as to the guilt of the appellant (page 508, line 36 – page 509, line 15).
(4) The appeal would therefore be dismissed.
| KERR, J.A.: delivering the judgment of the court: In the | |
| Grand Court before Hull, J. and a jury the appellant was con- | |
| victed on October 9th, 1984 of the offence of doing grievous | |
| bodily harm contrary to s.190 of the Penal Code and sentenced to | |
| 35 | two years” imprisonment. We dismissed the appeal and affirmed |
| the conviction and sentence. As promised we set out herein our | |
| reasons for so doing. | |
| Walter Lee Guice, an engineer, and his wife Dr. Joanne Piz- | |
| zino, both of Houston, Texas, came to the Cayman Islands on | |
| 40 | April 22nd, 1984 for their ‘honeymoon vacation.’ On April 27th, |
| they went on a picnic on the beach at East End, Grand Cayman, |
| arriving there about noon. At 4 p.m. while strolling along the | |
| beach holding hands they met the appellant. There was a fierce | |
| encounter between visitors and citizen. Both Guice and the | |
| appellant suffered injuries. The account given in evidence by the | |
| 5 | complainant Guice and his wife differed considerably from that |
| given by the appellant. According to the visitors, on their stroll | |
| they passed the appellant who had a stick in his hand. He then | |
| overtook them and confronted them. He had a towel over his | |
| head forming a sort of mask. He gestured to them and when | |
| 10 | Guice enquired what he wanted, the appellant showed them a |
| plastic bag containing what appeared to be cigarette butts. Guice | |
| moved off to pass him when the appellant spun him around, caus- | |
| ing the sunglasses Guice was wearing to fall to the ground. Guice | |
| handed to his wife what he had in his hands, including a diver”s | |
| 15 | knife with a blade about 8 in. long. According to Guice he did so |
| to free his hands, he being trained in karate. He told the appel- | |
| lant he had no time for him. The appellant then struck him a | |
| heavy blow across his face with the stick and then swung it at the | |
| wife who parried the blow with the knife. The appellant then gave | |
| 20 | the complainant several blows with the stick. The complainant in |
| turn picked up a stick and flung it at the appellant. They closed | |
| and fell to the ground. According to Guice the blow to the head | |
| affected his co-ordination. As they struggled Guice called to his | |
| wife for help. The appellant was choking and punching the com- | |
| 25 | plainant. She responded to her husband”s cry by stabbing the |
| appellant-three stabs, one in the back and the others in chest | |
| and abdomen. The appellant held on to the knife and all three | |
| were involved in the struggle. The |
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