Palmer v The Queen; Irving v The Queen

February 15. The judgments of their Lordships were delivered by LORD MORRIS OF BORTH-Y-GEST.

The appellant, Sigismund Palmer, 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 Ag. P., Eccleston and Edun JJ.A. on May 8 and 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:

“On May 14, 1968, the accused and two other men, George Wilson land Valentine Wilson, who were brothers, went to the home of Dahlia Campbell at Simm's Run in the parish of Saint 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 that 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 ganja 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 ko 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 heard 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 by 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...