Palmer v R
| Jurisdiction | UK Non-devolved |
| Judge | Lord Morris Of Borth-Y-Gest |
| Judgment Date | 15 February 1971 |
| Court | Privy Council |
| Docket Number | Not Stated |
| Date | 15 February 1971 |
Privy Council
Lord Morris of Borth-y-Gest; Lord Donovan; Lord Avonside
Not Stated
Louie Blom-Cooper, Q.C., and Eugene Cotran for the appellant.
J. S. Kerr, Q.C. ( D.P.P. Jamaica), and Merryn Heald, Q.C., for the Crown.
Criminal law - Murder — Self-defence — Summing-up — Whether jury to be directed to return verdict of manslaughter where excessive force used by accused while intending to defend himself.
The appellant was indicted for the murder on May 14, 1968, of a man named Cecil Henry. After a trial before Robotham, J., in the Supreme Court he was convicted by the jury and he was sentenced to death. He made application to the Court of Appeal, Jamaica, for leave to appeal. His application was heard by Waddington, P.(Ag.), Eccleston, J.A., and Edun, J.A., on May 8, 9, 1969. By their judgment in which all the grounds of appeal were fully examined the application for leave to appeal was refused. By special leave appeal is now brought from the judgment of the Court of Appeal. The only question that is raised for determination is whether in cases where on a charge of murder an issue of self-defence is left to the jury it will in all cases be obligatory to direct the jury that if they found that the accused while intending to defend himself had used more force than was necessary in the circumstances they should return a verdict of guilty of manslaughter. It is necessary to set out the facts in relation to which the question is raised. The case for the Crown at the trial was summarised in the judgment of the Court of Appeal. It was that:
“On May 14, 1968, the accused and two other men, George Wilson and Valentine Wilson, who were brothers, went to the home of Dahlia Campbell at Simm's Run in the parish of St. Ann to purchase ganja: According to the evidence of George Wilson, who was called as a witness for the Crown, before they got to Dahlia Campbell's home he had seen the accused with a shot gun and he had asked the accused to give him the gun, which the accused did. At Dahlia Campbell's yard, George Wilson told her that he heard that she was selling ganja and he asked her to sell him some. Dahlia Campbell was a bit reluctant, believing they were police, but after some persuasion she brought them a sample of the ganja which they all three tested and approved. Dahlia Campbell then brought out a bag of ganja which they started to weigh. Whilst this was going on, Fedley Brown and Augustus Johnson came to the yard also bringing some ganja with them, and they also offered to sell their ganja to the Wilsons and the accused. Brown and Johnson's genie was then weighed and after the ganja was weighed George Wilson remarked, ‘What a way oonu have ganja in the country legge, legge and it is against the law.’ On his saying this, Dahlia Campbell, Fedley Brown and Augustus Johnson ran away. George Wilson then took up the ganja and a machete belonging to Dahlia Campbell, and fired two shots from the gun. They all three then left with the ganja, Valentine Wilson carrying one bag, the accused carrying another bag and George Wilson carrying the gun and machete. They went along the road toward Higgin Land, and after they had gone a little distance the accused demanded back the gun from George Wilson. There was some argument over the gun but eventually George Wilson handed the gun back to the accused and took the bag of ganja which the accused had been carrying. By this time it appears that an alarm had been raised that the three men had taken the ganja and had not paid for it, and so they decided to turn off the main road and go up into the hills in order to avoid contact with the crowd. George Wilson said that they heard the sound of walking coming towards them, and the accused fired a shot and the people ran. They then went to another hill nearby, where all three of them stooped down when they beard more people coming. George Wilson said that the accused then made an attempt to fire the gun but he (George Wilson) held his hand and told him that he did not want anyone to get shot in the country because it was his (George Wilson's) country. He heard some of the men who were pursuing them say that they were still up there in the bush, and thereupon the accused made another attempt to fire the gun and this time Valentine Wilson stopped him, telling him that he should not fire the shot as it might shoot someone in the bush whom they had not seen. George Wilson said that while they were stooping in the bush they heard a walking coming from the direction from which they had come. The people were near to them and he heard someone saying, ‘Palmer, Palmer, come and carry your gun.’ George Wilson said he then saw a shadow, and he took his machete and started to chop his way out of the bush. He then saw the accused leaning on a tree with the gun in his hand and saw him fire two shots in the direction where he had seen the shadow. Wilson then ran out of the bush followed by Valentine Wilson. George Wilson said he heard them both saying that a man had got shot. They were still being followed some of the people, and the accused spoke out loudly so that the people following could hear, saying, that he had a pack of shots, and if they followed him until night he would shoot them because dead men tell no tales. Eventually, they threw off their pursuers and returned to Kingston, from whence they had come, with the ganja.”
The evidence of Valentine Wilson who was called for the Crown was substantially in agreement with that of George Wilson. Evidence was given by Dahlia Campbell. She gave a different account as to the events at her home. She denied that she had agreed to sell any ganja or that she had had any genie at her home. She said that the two Wilsons and the accused had come to her home whilst Fedley Brown and Augustus Johnson were there and that George Wilson had asked her about ganja. In the course of the events which took place George Wilson, she said, had fired a shot at Johnson's head. She said that later he fired a shot at Brown: Brown ran away and she followed. When she returned, she said, George Wilson fired at her. She ran away again. On her later return she found that a sum of £60 which she had had in a grip in her room was no longer there. Evidence was also given by Fedley Brown and Augustus Johnson. In the main their evidence agreed with that of Dahlia Campbell. They denied that they had brought ganja or had agreed to sell any. Brown described bow after he had raised an alarm he saw the three men going towards Higgin Land. Brown and some others trailed the three men who branched off up a hill. Brown with others remained on the level and some men went around the hill. Brown heard four gun shots on the hill and later after going up the hill he saw the body of the deceased man; it was lying at the spot from whence the sound of firing had come.
Another witness was a man named Granville Fearon who lived about two miles from Dahlia Campbell's house. He saw three men running past his field: they had come from the direction of her house and were going towards Higgin Land. One of them was the accused who had a gun in his right hand and a bag over his shoulder; a second man had a bag; the third man had a handbag over his shoulder. After the three had passed, Brown and Johnson and another man came from the direction of Dahlia Campbell's house. They spoke to Fearon and the four of them went towards Higgin Land after the three men. They met Cecil Henry. Henry and Fearon went on together and there was the sound of a gun. Before going up the hill Fearon had heard two shots. He heard three more after he went on the hill and after the second of these shots he saw Cecil Henry fall. At that moment he saw the accused and two other men: they were some six to seven yards away; the accused had the gun in his hand and it was pointing towards where Fearon and Henry were. Henry had called out on being hit and another shot had then been fired. Later Fearon heard the appellant say that they had trailed him too far and that while he had no powder left he did have a dagger for dead men tell no tales.
Evidence was also given by two men, Joseph Lawrence and George Parry who, being amongst those who were trailing the three men, said that after hearing the shots they saw the three men going down the hill and that the accused had a gun in his hand.
When interrogated by the police on June 9, 1968, the appellant denied all knowledge of the killing of Cecil Henry; being confronted with the two Wilson he suggested that Valentine Wilson had shot the deceased. At the trial he did not give evidence but he made an unsworn statement. In the course of it he said that he accompanied the two Wilsons on a visit to their father's land and that on the way Valentine Wilson took out a gun from a bag and loaded it. He described the visit of the three of them to Dahlia Campbell's yard, giving an account of the ganja transaction which substantially agreed with the account given by the two Wilsons, but as regards the shooting which then took place giving an account of it which was substantially in accord with what had been said in evidence by Dahlia Campbell, Fedley Brown and Augustus Johnson. In a long statement as to subsequent movements he said that Valentine Wilson put more shots into the gun; that he (the accused) heard talking coming closer up the hill; that he saw two men coming; that Valentine Wilson fired two shots; that later after the three of them had gone to another hill there was a noise of tearing through the thicket; that Valentine Wilson fired some shots; that stones were thrown; that Valentine Wilson fired until there were no shots left; that they were being followed by three men who threw stones but that eventually they got away from their pursuers. The statement was in some respects imprecise, but implicit in it and essential to it was...
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