REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Cr. App. No. 34 of 2005
MARCUS JASON DANIEL APPELLANT
THE STATE RESPONDENT
R. Hamel-Smith, C.J. (Ag.)
S. John, J.A.
P. Weekes, J.A.
Mr. Bindra Dolsingh and Mr. John Heath for the Appellant
Mr. Roger Gaspard for the State
DATE DELIVERED: 16th March 2007
Delivered by S. John J.A
1. Marcus Jason Daniel (“the appellant”) and another person were charged with the
murder of Suzette Gibson (“the deceased”, his cousin) which occurred at Blue Basin,
Diego Martin on the 23rd January 2002. On the 14th December 2005, after a trial at the
Port of Spain Assizes they were convicted of murder and sentenced to death.
2. Before considering the grounds of appeal we shall deal with the evidence in the
case. The prosecution‟s case was that the deceased who was then 16 years old, left her
parents‟ home at Carenage Road, Diego Martin, on the 23rd January 2002 to attend a
dance class. It was customary for her to return home by 9:30 p.m., but on that day she
failed to return.
3. Alvin Gibson, the deceased‟s father testified that he went in search of her. In the
course of the search he met the appellant and his co-accused. He informed them of the
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situation and the appellant told him that he had seen the deceased at around 3:00 p.m.
earlier that day.
4 Mr. Gibson observed that the appellant‟s right hand was bandaged and inquired of
him what had happened. The appellant‟s response was that earlier in the day he had gone
to look for the deceased as he knew she had dance classes. He did not see her and
entered a telephone booth on the boulevard to make a telephone call when a man
approached him and asked to use the phone. He told the man to wait and that seemed to
anger the man who then attacked him with a knife. A struggle ensued and he sustained a
cut on his hand. The appellant further told him that he did not know his attacker and had
not reported the matter to the police.
5. Mr. Gibson then asked the appellant to borrow his vehicle to go and look for the
deceased. The appellant obliged and he and his co-accused accompanied
Mr. Gibson. They left the yard at around 11:30 p.m. and drove to the home of
Ms. Gooding, the deceased‟s dance instructor, but she was not at home. They searched
throughout Diego Martin and some parks but they were unsuccessful in locating her.
6. At 12:45 a.m. on the 24th January 2002, Mr. Gibson retuned to the home of the
deceased‟s dance teacher with the appellant and his co-accused and she took them to the
home of another dance teacher in Diego Martin. They then visited the homes of some
students in the dance class, but no useful information was obtained.
7. At about 6:00 a.m. that morning, Mr. Gibson, Ms. Gooding, the appellant and the
co-accused conducted another search, using the appellant‟s vehicle. While proceeding
along the Diego Martin Highway the appellant pointed to a white vehicle travelling in the
opposite direction, and instructed Mr. Gibson to turn around and follow the vehicle as he
believed he had seen the vehicle trailing them the previous night. Mr. Gibson complied
but after speaking with the driver of that vehicle he continued his search for the deceased.
8. One Sheldon Linton visited the Gibson‟s home on the morning of the 24th January
2002 and spoke to the deceased‟s mother. As a result of the conversation they both went
to the West End Police Station where Mr. Linton told the police of certain observations
he had made concerning his motor vehicle which he had lent the appellant the previous
evening. The police inspected the vehicle.
9. At around 12:45 p.m., Mr. Gibson, the appellant and his co-accused went to the
West End Police Station. There, Mr. Gibson spoke to Cpl. Gosine who requested to
speak with the appellant and co-accused. Mr. Gibson left both men at the station and
continued his search, using the appellant‟s vehicle.
10. Sometime thereafter, Corporal Gosine spoke to Inspector Olivierre and they both
examined the vehicle which was parked on the compound of the Police Station.
11. Inspector Olivierre and Corporal Gosine interviewed the co-accused who
provided them with vital information concerning the death of the deceased. The officers,
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together with the co-accused went to Blue Basin. There, the co-accused directed them to
an area where they found the deceased‟s body and observed that it bore multiple injuries.
12. The co-accused then led Inspector Olivierre and the police party to Brunton Road,
Diego Martin where they recovered two knives. The appellant later dictated a cautionary
statement to the complainant in the presence of a Justice of the Peace.
13. In the statement, the appellant admitted to slitting the throat of the deceased and
stabbing her. He attributed those acts to a demon which arose inside his head after he had
indulged in drugs and alcohol and had listened to heavy rock music. He also identified
one of the knives as the weapon he used to kill the deceased. His co-accused also gave a
cautionary statement to the police.
14. According to the forensic pathologist, the deceased died as a result of multiple
stab and incised wounds.
15. The appellant gave evidence on oath. He said that on the material day he had
glimpsed the deceased disembarking a taxi at around 4:00 p.m. He then went home and
drank rum and listened to rock music. At about 6:00 p.m. that evening, he borrowed the
vehicle of a customer- Sheldon Linton and picked up his co-accused and they drank rum
and smoked cigarettes. Then he went, by himself, to pick up the deceased. She sat in the
back seat and he picked up his co-accused once again, who sat in the front seat.
16. He drove around for a while, and then parked the vehicle in Blue Basin. He then
drank some more and then “started getting in to the rock music”. He and his co-accused
reclined their car seats and he touched the deceased‟s shoulder but she promptly slapped
his hand away. He said “that is when the demon thing raise in me. Then I started
choking her for about ah minute and ah half…Then I pull her against me and…I take a
knife and slit her throat …and … started stabbing her in her chest and stomach”. He said
that afterwards he slit the fingers on his right hand and his co-accused hid the knives in
the bushes at Brunton Road. He further testified that he was remorseful and did not
intend to murder the deceased and attributed it to the demon in his head.
17. Under cross-examination, he said that he did not realise that he was stabbing the
deceased and that in his statement he only spoke of taking a knife and slitting her throat
after the officers had told him that they had found her with her throat slit and he realised
that what he was seeing and stabbing was the deceased.
18. He acknowledged that he did not speak of seeing a dark object in his confession
statement, but maintained that he did see a dark object on the material night and was
„high‟ on drugs-marijuana and cocaine and drink. He said that he did not recall how long
he observed the dark object. In cross-examination, he said that when he choked her there
was no dark image in front of him.
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19. Mr. Dolsingh filed five grounds of appeal on behalf of the appellant.
The learned trial Judge in his directions diminished or minimised the jury‟s ability to
consider whether the appellant had the lack of intention to kill or to cause grievous
20. Counsel submitted that, in light of the appellant‟s defence that he did not intend to
commit the act, there were two issues for the jury to determine namely, whether the
appellant had the intention simpliciter and secondly whether that intention manifested
itself in him killing the deceased. In relation to the first issue, Counsel submitted that the
trial Judge wrongly directed the jury that they could use the appellant‟s previous
experiences with drugs and drink to show that he had an intention to kill on the occasion
in question. Counsel submitted that in relation to the second issue, the trial Judge failed
to direct the jury that if the appellant had the intention to kill then that may not have been
directed towards the deceased at all but may have been intended for the demonic dark
image. Therefore, he said, the jury was left with the impression that intention simpliciter
was equivalent to an intention to kill the deceased, which was wrong. Additionally,
Mr. Dolsingh contended that the Judge compounded his error by telling the jury that there
was no evidence that the appellant was being attacked by a demon or “no satanic offering
at the altar”, and had basically crippled the appellant‟s defence when he told them that the
appellant was obviously a “weirdo”.
21. Moreover, the trial Judge‟s direction to the jury that they ought to consider
whether the appellant stabbed the deceased under the influence of alcohol and drugs was
incomplete, as the appellant‟s defence was that it was the combination of alcohol, drugs
and the delusion of the demon image which caused him to act as he did, with the delusion
being the decisive factor in his actions.
22. Counsel further submitted that the trial Judge in dealing with the issue of intention
directed and marshalled the evidence in such a manner as to deprive the jury of their
responsibility to decide whether the appellant had the necessary intention to kill. This
was highlighted in the Judge‟s direction to the jury when he said that based on the type of
knife they could conclude that he had the “presence of mind” to use it in the way he did,
and possessed it not simply to peel fruits as he had suggested. This conclusion was
properly for the jury and not the Judge, with the result that the trial Judge had usurped the
jury‟s function in that regard.
23. Counsel also impugned the trial Judge‟s direction to the jury that in determining
the appellant‟s intention they could look at the number of stab wounds and the attack,
which the trial Judge felt demonstrated that the injuries occurred as a frenzied attack.
Counsel felt the “frenzied” attack, as described by the trial Judge, was possibly an
indication of the appellant‟s lack of intention to kill and the lack of ability to control his
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24. Counsel submitted that the trial Judge failed to put to the jury in his summing up,
the evidence that the appellant had no motive for killing or harming the deceased as they
were on very good terms with no ill-will or disharmony existing between them.
Additionally, the trial Judge should have addressed the fact that the appellant worshipped
evil, which fortified the appellant‟s contention that he actually saw a devil in the form of
a dark image and sought to repel it with his knife. Counsel submitted that the appellant‟s
credibility and the veracity of his case were diminished by these crucial matters not being
highlighted by the trial Judge.
25. Mr. Gaspard, for the respondent submitted firstly that the trial Judge, adequately
and fairly left for the jury‟s consideration, the issue whether the appellant had at the
material time formed the intention to kill or to cause grievous bodily harm to the
deceased and secondly the Judge‟s handling of the evidence in no way trivialised the
appellant‟s defence of lack of intention.
26. In considering, whether the trial Judge properly directed the jury on the issue of
whether the appellant had the lack of intention to kill or to cause grievous bodily harm,
we find it necessary to examine in detail his directions. At page 5 of his summing up he
directed them as follows:
Because in this case here, the issue raised on his behalf is he was under
the influence of drink and/or drugs, and for that reason, at the time when
it is that he killed the deceased, he did not have the intention for murder.
And for that reason, the Defence says you may not and cannot convict him
of Murder...The difference between murder and manslaughter is that in
Murder there is an unlawful killing, but it is accompanied by the intention
to kill or to cause really serious injury.
27. Later on at page 35 of the summation, the trial Judge recounted the appellant‟s
apparent remorsefulness for killing the deceased, and his attribution of his action to the
demon inside his head. The Judge reminded the jury that the appellant‟s statement was
not in dispute and therefore they had to decide “whether he had the intention to kill her at
the time when he inflicted the injuries upon her, from which it is open to you to find that
she perished,…whether he had that accompanying intention”.
28. Of greater significance, is the Judge‟s direction to the jury that:
“When he says that he did not mean to kill her, you have to decide
whether in saying that, as well as his own testimony here about the dark
body or image that he had seen in the darkness, whether, members of the
jury, when he inflicted the injuries on the deceased, he did so with the
intention to kill or to cause grievous bodily harm.”
29. The trial judge at page 37 of his summation noted that the issue for the jury was
whether the appellant had the intention to kill the deceased as he had admitted doing, in
light of his evidence that he was under the influence of drugs, drink and rock music.
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30. At page 38 of the summing up, the trial Judge said:
A drunken drugged intent to kill or to cause grievous harm is still an
intention for murder. What is more, it is not a defence for the prisoner to
say that he would not have behaved in this way had he not been affected
by that cocktail of drugs, drink and/or music.
31. The trial Judge at page 52 of the summing up reminded the jury that the onus was
on the State to establish that the appellant had the intention to kill or cause grievous
bodily harm to the deceased. He further directed them that the knife used to unlawfully
kill the deceased and the nature and position of the deceased‟s injuries were some of the
factors that could be taken into consideration in determining whether the appellant had
the requisite intention.
32. Having thoroughly reviewed the trial Judge‟s directions to the jury on „intention‟,
we have come to several conclusions. Firstly, we think that the aggregate effect of the
Judge‟s directions was such that the jury must have addressed their minds to the
appellant's claims of being intoxicated, under the influence of the rock music and his new
evidence at the trial of mistaking the deceased for a dark demonic image in considering
whether he had the intent required for murder.
33. Moreover, the trial Judge was correct in saying that intoxication was no defence
to a murderous intent, as enunciated in the case of R v Lipman1. There, the accused killed
another by cramming a sheet into her mouth and striking her while he was on an L.S.D.
“trip”, as he had the illusion of descending to the centre of the earth and being attacked
by snakes, which he fought. Though the jury, convicted on the grounds that the accused
was reckless or grossly negligent when, quite consciously, he took the drugs, the Court of
Appeal upheld the conviction by applying the doctrine in R v Church 2, which was that
whereas, formerly, a killing by any unlawful act amounted to manslaughter, this
consequence does not now inexorably follow unless the unlawful act is one in which the
ordinary, sober and responsible people would recognise the existence of risk. The
unlawful act in R v Lipman was the battery committed on the deceased while the accused
34. In the instant case, we acknowledge that the appellant‟s defence was not mere
intoxication, however we think that the trial Judge quite properly stated the law that
intoxication was no defence to a murderous intent and we find that his summation
adequately highlighted the appellant‟s full defence which was that the combined effect of
the drugs, alcohol and the demon inside his head, led him to kill the deceased.
35. Counsel also challenged the Judge‟s direction to the jury not to speculate that the
deceased‟s death “was a satanic offering on an altar”, and also the use of the term
„weirdo‟. We are satisfied that the trial Judge‟s first comment was meant to steer the jury
clear of any fanciful explanation for the appellant‟s actions as there was no evidence that
there was a motive behind the killing. He then said that, if anything, they could term
 1 QB 152
 1 QB 59
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him, based on the evidence a „weirdo‟, as he seemed to be very different from the norm,
judging from the state of his bedroom. The use of the word „weirdo‟ may indeed have
been unfortunate, however, we find that the Judge simply sought to suggest what they
could and could not make of the appellant‟s evidence, if they so chose. It was highly
unlikely that any injustice occurred from the use of such comments.
36. Additionally, Counsel for the appellant seemed to believe that the trial Judge was
duty bound to rehearse all the evidence in the case particularly the evidence that
supported the appellant‟s case, such as the evidence of his lack of motive. In this regard,
the case of Price v The State3 is instructive. In this case, the Court of Appeal of Guyana
found that although the trial Judge should have told the jury that, in the absence of any
motive to kill the victim, the appellant was less likely to have done so, his failure to have
so directed was not in the circumstances of the case fatal to the conviction as it did not
amount to a failure to put the accused‟s defence of denial fairly and fully to the jury.
Similarly, we are satisfied that the appellant‟s defence of lack of intention was put before
the jury fairly and fully and the appellant not suffer any prejudice as a result. In the
circumstances, we find this ground of appeal unmeritorious.
The Appellant was deprived of manslaughter when the Judge failed to present to the jury
an alternative direction on the issue of the appellant‟s intention to commit the crime of
him being reckless by his use of alcohol, drugs and music.
37. Counsel submitted that the appellant was denied the benefit of the alternative
direction to the jury on manslaughter as the judge directed the jury that the appellant‟s
prior appreciation of the effects of the alcohol and music on him, but his insistence on
using same was evidence of his intention to kill. Counsel submitted that the appellant‟s
actions and knowledge of the effects that the alcohol, drugs and music had on him on
previous occasions showed his recklessness or lack of care but was not indicative of an
intention to kill.
38. Furthermore, he submitted that the jury had to be satisfied that the appellant had
the intention and knew what he was doing and not merely that he consumed alcohol and
drugs at significant risk of being mentally misaligned and uncontrollable.
39. Counsel for the respondent submitted that the learned trial Judge lucidly and
properly left the issue of manslaughter to the jury. Thus, the appellant was not deprived
of the opportunity of the jury considering the alternative offence of manslaughter.
40. We are satisfied that the trial Judge‟s clarified directions were correct and
succinctly set out the law in relation to the facts properly and accurately, when he said:
“Intention is something that is inferred from the circumstances as you find
it. That is, the presence of the accompanying intention is a matter that the
jury is entitled to infer from the given circumstances….Now you are
entitled to look at the weapon and to say what would be the intention of a
(1982) 37 WIR 222. See also the case of R v Howell  2 All ER 806.
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person who takes a knife, as that which was exhibited, and slashes the
1throat of another human being? Would that intention be to kill or to
cause grievous bodily harm, in which case the intention is established for
murder? Or, is it an intention not to kill or to cause grievous bodily harm,
in which case it will be the lesser intention, and the verdict which would
not be murder, but the unlawful killing without the intention for murder.”
41. Counsel for the appellant, in support of this submission, further directed the court
to a portion of the trial Judge‟s direction on intent, which related to an aspect of the
appellant‟s evidence where the trial Judge said:
“Now, he is the very one who told you earlier in his testimony that while it
is he customarily listened to this music and drank, that it caused him to do
certain things; he would mash up things, he would have a rage. But
notwithstanding with his beloved first cousin, the love of all his cousins, he
proceeds to smoke up after having been drinking, he proceeds first to take
her, in his statement, it was of a lime; he takes her up to Blue Basin, in a
dark area, it is open to you to find, with another young man; proceeds to
put on or has on his loud rock music, the same music that he admits on
oath affects him; he has a knife, he lights up his “Blacks”. On the
evidence he has his faculties to that point in time.”
42. We believe that the trial Judge properly looked at the appellant‟s knowledge of
his prior reactions to the music, drugs and alcohol, as these were factors to be used by the
jury in assessing whether the appellant had the necessary intention to murder or whether
he was guilty of manslaughter. In any event, the trial Judge was correct in indicating to
the jury that they could disregard his views as they were the sole arbiters of fact even
though he was entitled to share his views on the evidence. See the cases of R v
O’Connell4 and R v Berrada5. We do not believe that the trial Judge went beyond the
permissible bounds in his comments. Therefore, this ground fails.
On the issue of recklessness, the trial Judge should have directed the jury to assess the
evidence of the appellant by applying the „subjective‟ test and not the „objective‟ test.
43. The trial Judge told the jury that the appellant had the “presence of mind” to
commit the act and knew where he was going and what he was doing immediately
afterwards and that he knew it had a significant effect and in such circumstances the men
and women on the jury knew the effects of alcohol. Appellant‟s Counsel submitted that
the wrong objective test was applied. Counsel relied on the case of R v G6 in support of
44. Counsel for the respondent submitted that, on the facts of this case, there was no
need for the trial judge to give any directions on recklessness as such directions would
 12 Cr. App. R 219
 91 Cr. App. R 131
 UKHL 50.
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have been otiose, academic and may have confused the jury. Furthermore, owing to the
nature and conduct of the appellant‟s defence relative to the State‟s case against him, the
critical issue was whether the appellant could have formed the requisite mens rea for
murder, rather than whether he had been reckless „per se‟
45. In DPP v Majewski7, the House of Lords held that the failure to foresee a risk
provides no defence where the failure results from self-induced intoxication. The facts
were as follows:
“During the course of a disturbance at a public house the appellant
attacked the landlord and two other persons, injuring all three of them.
When the police arrived, he assaulted an officer, and later, at the police
station where he had been taken, he struck two other officers. The
appellant was indicted on four counts of assault occasioning actual bodily
harm, and three counts of assaulting a police constable in the execution of
his duty. At his trial the appellant testified that during the 48 hours
preceding the disturbance he had taken a considerable quantity of drugs
and that, at the time when the assaults were committed, he was acting
under a combination of drugs and alcohol to such an extant that he did not
know what he was doing and had no recollection of the incidents that had
occurred. The judge, however, directed the jury that „the fact that [the
appellant] may have taken drink and drugs is irrelevant, provided that you
are satisfied that the state which he was in [as] a result of those drink and
drugs or a combination of both was self-induced‟. The appellant was
convicted on six of the seven counts. He appealed on the ground that,
because of his condition at the time of the assaults, he was incapable of
forming the intent necessary to constitute the offences charged and the
direction of the judge to disregard evidence of the appellant‟s intoxicated
state in determining whether he had the necessary intent contravened s 8а
of the Criminal Justice Act 1967.”
46. In R v G, the defendants were two young boys who set fire to a few bundles of
newspaper that they had found in a yard. They left the yard without putting out the
burning papers and a fire spread to several buildings resulting in approximately £1m
worth of damage. They were charged with arson, contrary to section 1(1) of the Criminal
Damage Act 1971 (UK), in that they caused damage to property, being reckless as to
whether such property would be destroyed or damaged. The House of Lords held that in
order to convict under section 1 it had to be shown that the defendants‟ state of mind was
culpable in that they acted recklessly in respect of a circumstance if they were aware of a
risk which did or would exist or in respect of a result if they were aware of a risk that
47. Notwithstanding the test of recklessness in R v G, it is apparent that it in no way
undermines the decision in D.P.P. v Majewski to the fact that failure to foresee a risk
provides no defence where the failure results from self-induced intoxication.
 AC 443, HL
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48. The basis of the criminal liability in such cases was explained by Lord Elwyn-
“If a man of his own volition takes a substance which causes him to cast
off the restraints of reason and conscience, no wrong is done to him by
holding him answerable criminally for any injury he may do while in that
condition. His course of conduct in reducing himself by drugs and drink
to that condition in my view supplies the evidence of mens rea, of guilty
mind certainly sufficient for crimes of basic intent. It is a reckless course
of conduct and recklessness is enough to constitute the necessary mens rea
in assault cases.”
A little later on he said:
“In the case of these offences it is no excuse in law that, because of drink
or drugs which the accused himself had taken knowingly and willingly, he
had deprived himself of the ability to exercise self-control, to realise the
possible consequences of what he was doing or even to be conscious that
he was doing it. As in the instant case, the jury may be properly instructed
that they can ignore the subject of drink or drugs as being in any way a
defence to charges of this character.”
49. Moreover, in the case of R v Sheehan and Moore8, it was held that where the
prosecution were required to prove a mental element such as intent or knowledge in
instances of self- induced intoxication, the jury must consider any evidence of
intoxication in determining whether the necessary mental element had been proved. The
Court of Appeal noted that:
“(I)n cases where drunkenness and its possible effect upon the defendant‟s
mens rea is in issue …the proper direction to a jury is, first, to warn them
that …A drunken intent is nevertheless an intent. Secondly, and subject to
this, the jury should merely be instructed to have regard to all the
evidence, including that relating to drink, to draw such inferences as they
think proper from the evidence, and on that basis to ask themselves
whether they feel sure that at the material time the defendant had the
50. This direction was approved in R v Alden and Jones 9 where the court rejected a
suggestion that there were two inconsistent lines of authority, Sheehan and Moore and R
v Bennett10, ante, on the one hand, and Sooklal and The State11 and R v McKnight12, on
the other. The court said that so far as alcohol and specific intent are concerned, the
crucial question where there is evidence of the consumption by the defendant of a
substantial quantity of drink, is whether there is an issue as to the defendant‟s formation
of specific intent by reason of the alcohol which he has taken; and that the necessary pre-
60 Cr. App. R 308 at 312, CA
 5 Archbold News 3, Ct-MAC
 C.L.R. 877, CA
 1 WLR 2011,PC
The Times 2000, CA
Page 10 of 13
requisite to a direction of the kind identified in Sheehan and Moore, is that there must be
an issue as to the effect of drunkenness upon the defendant‟s state of mind.
51. In the instant case, we find that a direction on recklessness in consonance with the
House of Lords‟ decision in R v G would be unsuitable, as there was no requirement to
establish recklessness in order to prove that the appellant committed the offence of
murder or manslaughter. Moreover, we are of the opinion, that the trial judge directed
the jury to examine all the evidence in determining the issue of intent, and therefore the
critical features of the case had been addressed. Accordingly, we find no merit in this
The summing up was devoid of the direction of the element of doubt in the prosecution‟s
case whether or not the appellant had the intention to kill or cause grievous bodily harm.
52. Counsel submitted that it was incumbent on the trial Judge to place the question
of doubt for the jury to consider. He submitted that the jury‟s task as directed by the trial
Judge was to determine firstly whether the appellant had the requisite intention and then
whether that intention was directed towards the deceased or towards the demonic image.
He contended that the jury might have been in doubt that either intention existed and
therefore needed to be directed as to how they ought to act in such a scenario.
53. Counsel for the respondent submitted that the trial Judge adequately and properly
directed the jury on the onus and standard of proof. They were then required to
determine whether the Prosecution satisfied the requisite standard of proof.
54. This ground can be dispensed with briefly. We feel that the trial Judge‟s duty was
to set out to the jury the necessary standards to which the prosecution was to satisfy them
in proving either murder or manslaughter. The contention, that the jury may have found
neither offence and may have been left in a quandary is in our view without substance.
Accordingly, this ground also fails.
The learned trial Judge failed to ascertain the difficulty which the jury had concerning
the issue of intention and by failing to do so could not adequately address their concerns.
Further, after the request for assistance was made by the foreman of the jury after they
had retire to consider a verdict, the judge makes reference to a “lesser intention” for the
first time and in the circumstances this was more likely than not to further confuse the
55. The main issue under this ground was whether the jury were properly directed by
the trial Judge in response to their inquiries when they returned for further directions. In
order to fully appreciate the thrust of the submission we have set out in full the exchange
between the foreman and the judge and the Judge‟s response.
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Judge: Madam Foreperson, I understand that the jurors require some
clarification of my directions.
Madam Foreman: Yes, please, to assist with our deliberations. Can you please
redefine intent for us as it pertains? (emphasis)
Judge: As it relates to drunkenness or just intent?
Madam Foreman: No, as it pertains to the matter of this case.
Judge: : Yes, very well.
56. Counsel for the appellant submitted that from the exchange the jury clearly had
some difficulty with the concept of “intention” and the trial judge failed to ascertain the
exact nature of the difficulty that they were experiencing. He further submitted that the
Judge may have just recapitulated such parts of his earlier summation as they related to
“intent” and which had caused the difficulty to the jury.
57. In support of his submission he placed strong reliance on Byfield Mears v The
Queen13. In that case, the appellant was charged with murder. Some two hours after the
jury had retired they returned to announce that they were not agreed upon a verdict and
that they had a problem relating to the evidence. Instead of asking them to retire again
and set out their problem in writing so that he could help them with their particular
difficulty, the judge immediately embarked on a recapitulation of the evidence, repeating
many of the matters which were the subject of complaint in the first direction. Thirteen
minutes later they returned with a verdict of guilty.
58. In delivering the advice of the Board, Lord Lane said that the failure of the judge
to ascertain what it was about the evidence which was puzzling the jury and the
reiteration thereafter of some of the questionable parts of the summing up proper were
sufficient to convince their lordships that the conviction could not be allowed to stand.
He referred to the observations made by Lord Lowry in Berry v The Queen14:
“The judge…did not find out what was the problem which had brought the
jury back into the court and it is therefore impossible to tell whether
anything said by the judge resolved the problem or not, because no one
knows what the problem was. Their lordships have already met this
difficulty in some other recent cases…The jury are entitled at any stage to
the judge‟s help on the facts as well as on the law. To withhold that
assistance constitutes an irregularity which may be material depending on
the circumstances, since if the jury return a guilty verdict, one cannot tell
whether some misconception or irrelevance has played a part.”
59. In the instant case the judge ascertained with sufficient clarity the exact nature of
the difficulty which the jury had concerning “intent”. That is quite clear from the
question he posed to them, that is. “As it relates to drunkenness or just intent?”
WLR 818 @ 823 a decision of the P.C. from the C/A of Jamaica
 A.C. 364, 383
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60. In the context of this case “intention” arose in two ways. In the general definition
of murder and intent as affected by drunkenness. The judge gave full directions on
intent. When he spoke of „lesser intent‟ he was making the distinction between the intent
required for murder and that required for manslaughter.
The assistance given the jury by the judge is clearly what the jury requested. At page 55
of the summation he said:
“So there is no intention required in the proof against Accused No. 1, it is
foresight of consequence. As regards Accused No. 2, I think that I have
done as well as I can to explain to you how intention can be found by you,
the jury, in this matter. Does that help you? Madam Foreman: Yes, it
does. The Court: Great, Yes, take the jurors back out.”
61. The situation which occurred in Mears` was quite different from the situation in
this case. In Mears the jury came back and in effect said, “Look, we have a problem with
the evidence.” and the jury did not really identify the problem. The problem in the instant
case was properly identified and addressed by the trial judge. In the circumstances, this
ground also fails.
62. In view of the foregoing, we would dismiss the appeal and affirm the conviction
Acting Chief Justice
Justice of Appeal
Justice of Appeal
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