Graham Edwards Alias David Christopher Murray v. The Queen
Read the full judgment text of CACC 212/1971 on BabelCite. This Court of Appeal judgment was delivered on 1 June 1971.
1. On 24th March, 1971 the appellant was found guilty of murder and sentenced to death. He now appeals against that conviction.
Cited by 1 case
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CACC000212/1971 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 212 OF 1971 -----------------
----------------- Coram: Full Court (Blair-Kerr, Huggins and Pickering, JJ.) Date of Judgment: 1 June 1971 ----------------- JUDGMENT ----------------- 1. On 24th March, 1971 the appellant was found guilty of murder and sentenced to death. He now appeals against that conviction. 2. Before considering the grounds of appeal, it will be convenient to state the facts in some detail. At about 2.30 a.m. on 1st December, 1970, a Mr. Simpson, who was then resident in the Hong Kong Hotel and asleep in room 1427, was awakened by loud screaming and cries of "help me, help me". On looking out of the window a few minutes later, he saw a person walking along a cement ledge outside a bedroom window of the hotel below the 14th floor. He told a member of the hotel staff what he had heard and seen, indicating that, in his view, someone was in serious trouble. He also telephoned the reception desk of the hotel. 3. At 8.50 a.m. the assistant manager of the hotel opened the door of room 1223 by means of a double lock master key. The fact that it was necessary to use such a key indicated that the door had been locked from the inside as a result of the button in the centre of the door handle having been depressed. Outside the door, there hung a "do not disturb" notice. 4. On entering the room, the assistant manager found the dead body of Dr. Ronald Alan Coombe lying on the floor near the door. It was clothed in pyjamas; and these garments were heavily bloodstained. According to his passport, Dr. Coombe was a physicist by training and he held the appointment of Deputy Director of the West Australian Institute of Technology. Having left Perth on 26th November, he spent one night in Singapore before proceeding to Hong Kong on 27th November. He had booked in at the Hong Kong Hotel for 3 or 4 nights, and there was evidence that his intention was to visit Paris, London and other cities. There was also evidence that h had applied for the Directorship of the Hong Kong Institute of Technology. 5. In room 1223 the bed is placed close to the right-hand wall as one faces the window, with the head of the bed nearest to the window. The room was in a state of disorder as if a struggle had taken place. The blankets near the foot of the bed were heavily stained with blood; and there was also blood on the carpet near the foot of the bed and on some of the furniture. 6. The deceased had been stabbed 27 times. The majority of the wounds had been inflicted on the chest and on the front of the right arm. There were also two stab wounds below the right arm-pit, and there were wounds in various other parts of the body, including the front of the neck, the left shoulder, right buttock, left side of the head, the upper lip and one stab wound had penetrated from the left wrist upwards through the limb to the back of the left forearm. The wounds on the left side of the head were directed from back to front, and the wound on the upper lip was directed from the deceased's left to right. There were also abrasions in the region of the right eye. 7. The police pathologist said in evidence that one corner of each of these stab wounds was round and that the other corner was sharp, thereby indicating that the wounds had been caused by a knife, or some similar weapon, which had a blunt edge and a sharp edge. The fatal wounds were inflicted on the chest and below the right arm-pit. In the centre of the chest there was a group of 5 stab wounds; and, in describing these wounds, the pathologist said that the left corner of the wound was round and the right corner was sharp. These 5 wounds were all fairly close together and they pointed roughly in the same direction, that is to say more or less horizontally, or, putting it another way, at right angles to the breast bone. Some of these wounds were 3" deep, and directed slightly upwards making an angle of 70o or 80o vis-a-vis the chest wall. Both lungs had been cut to a depth of 1". 8. The pathologist's evidence indicated that no major blood vessels had been severed. Death was due to loss of blood, and consequent shock, by far the major part of the bleeding having taken place in the lungs, one of which was completely collapsed, and the other partially so. The pathologist said that a person with such wounds could have lived for about half an hour. 9. From the police examination, it was clear that, however the assailant had entered the room, he had left the room by the window and that he had climbed from ledge to ledge from the 12th to the 17th floor; that he had then entered the window of a toilet and had subsequently proceeded to the roof of the hotel, across the roof and down the scaffolding on the west side of the hotel to the Ocean Terminal. On the face of it, this was no mean athletic feat and it required nerves of steel. 10. By far the greater part of the blood in room 1223 was group "O" (and there is no doubt that this was the deceased's own blood); but there were also a few small spots of group "A" blood on one of the bed sheets and there was some group "A" blood on the window ledge. There was also a trail of blood all the way up to the roof, across the roof, and down the bamboo scaffolding to the Ocean Terminal. Clearly, the assailant had been injured to some extent in room 1223. 11. The appellant was seen about 3 a.m. on 1st December near the Ocean Terminal; and at 3.30 a.m. he boarded a taxi near the Star Ferry. At this time, his left hand and left leg were bleeding. His blood group is "A". He told a nurse at the British Military Hospital that his name was Gene Quantrill; and that he had been discharged from the Army. When asked by this nurse how he came by his injuries he said:
He also said to the nurse that he had got into an argument with someone who had pulled a knife on him. 12. He was taken by military ambulance to Queen Elizabeth Hospital at 4.25 a.m. On admission, he again gave the name Quantrill and said that he had been fighting with some persons in a bar. He had lacerations on the outside surface of the 4th and 5th fingers of the left hand and there were two sharp clean-cut lacerations above the left knee, one on the outer aspect and the other on the inner aspect of the leg. To the first doctor who spoke to him he said that he had been stabbed by a friend. 13. A police inspector took a short statement from the appellant at 5.15 a.m. On this occasion he gave his name as "David Murray alias Robert Quantrill"; and he said that he had come from Australia "for sight-seeing"; that he was staying at Sun Ya Hotel; and that he had argued with some Europeans in a bar. His statement concludes:
14. The lacerations to the left hand were repaired and the knee wounds were explored and repaired under a general anaesthetic. He was out of anaesthesia by 12.45 p.m.; and the medical evidence was that such a patient would have been back to normal in about half an hour to an hour. The doctor who treated the appellant said that his general condition was good. 15. At 5.30 p.m. he was asked if he consented to being medically examined by the police pathologist. He thought about that for 15 minutes; and at 5.45 p.m. he gave his consent. The pathologist's examination included the taking of swabs from the urinary passage and the anus. It appears to have been a routine examination carried out in the normal course of police inquiries. 16. Senior Superintendent Harris was present in the hospital at this time; and the police pathologist told Harris then that, subject to confirmation by laboratory tests, there was nothing to indicate that the appellant had been sexually assaulted, but there was no evidence that the appellant knew that the doctor had expressed this view. 17. The police had visited the Sun Ya Hotel and they had seized the appellant's belongings including a passport in the name of David Christopher Murray. He admitted to Senior Superintendent Harris that the passport was his and that he had arrived from Australia on 27th November. When asked to explain his injuries, he told Superintendent Harris some story about having gone to Kowloon Wharf at 11.30 p.m. the previous night (30th November) to pick up a "contraband package" containing either diamonds or heroin, which he was supposed to smuggle into Australia and leave in the glove compartment of his car in Perth; that he drank a bottle of whisky with these men between 11.30 p.m. and 2.30 a.m. sitting on a pallet by the side of the wharf; that these men said that the package had been "passed on"; that he said to them that he hadn't come all this way to be swindled; that an argument started; that one of the men named "Bill" threatened him with a knife; that when he tried to kick the knife out of Bill's hand, it had cut his leg; and that when he tried to grab the knife it had cut his hand. 18. When asked whether he knew the deceased, he said that he had met him twice; that he knew Mrs. Coombe; and that when he told her that he was coming to Hong Kong for a few days' holidays, she asked him "to drop in and surprise" her husband; that on Sunday 30th November he had "sneaked" into the deceased's room to give him a surprise; that the hotel staff had called the manager who made him wait in the lobby till the deceased had returned; that, on the deceased's arrival, he gave him his wife's regards and borrowed A$20 from him. 19. Superintendent Harris stopped questioning the appellant at 7.30 p.m. to enable him to have a meal. When questioning was resumed at 8 p.m., according to Harris the accused broke down and wept and said:
The appellant was then cautioned; and, after caution, he said that at 10 p.m. on 30th November his intention was to borrow more money from Dr. Coombe; but that the deceased was not in his room; so, (the appellant said), having drunk a few beers in some bar, he returned to the deceased's room 30 - 45 minutes later; and that he tried to borrow A$50 from deceased. He then said that they talked for a long time; and the statement continues:
He then described in detail his perilous journey from ledge to ledge up to the roof and down the scaffolding on the other side of the hotel; how he avoided the police at the car park; how he used part of his shirt to bandage his injuries and then threw the knife and the remnants of his shirt into the sea. 20. On 2nd December, Inspector Gravener formally charged the appellant with the murder of Dr. Coombe. After caution he said:
This appears to be a repetition of the suggestion that Dr. Coombe tried to kiss him. The appellant then said that his name was not Murray, but Edwards. 21. On 3rd December Inspector Gravener explained to the appellant his rights in regard to legal aid. On 5th December the appellant wrote to his father. Part of this letter reads:
On the face of it, it would appear that in this letter the appellant was acknowledging that he had lied when he said that he had been injured when playing cards, when fighting in a bar, and finally by "Bill" and his friends on Kowloon Wharf; but that his story of the deceased having put his arm round him and having requested him to kiss him was "what had really happened" and that he was so ashamed of them finding out after the police doctor had given him an examination that he had told them what had "really happened". 22. However, whatever may be the true meaning of that part of the letter, there can be no doubt that he had no complaints to make against the police at this stage. In this letter the appellant said to his father that the police had been "very helpful and explained that I could apply for Government Legal Aid which I will do ......" 23. On 10th December Inspector Edwards handed the appellant forms of application for legal aid; but it is not known when he first saw his legal advisers. There was evidence that the appellant knew that the committal proceedings would be in January and that his trial would take place some weeks after that. 24. The Crown's case was this: that the deceased and his wife had been separated for about 2 years; that he had been living with another woman; that the appellant had been living with Mrs. Coombe on intimate terms since about June 1970; that she became pregnant by him; and that she had had an abortion in September 1970; that the deceased and his wife were about to be divorced; that the appellant and Mrs. Coombe were planning a sea trip to England in February, and that they intended to get married there; that, in the event of the deceased's death, his estate would have received approximately A$100,000 from his superannuation fund with the West Australian Institute of Technology; that, in conspiracy with Mrs. Coombe, the appellant resolved to follow Dr. Coombe to Hong Kong and kill him here so that he and Mrs. Coombe would receive the benefit of the A$100,000 from this superannuation fund; that the appellant therefore stole a passport belonging to his friend Murray (who was a student at Perth University), took out certain pages from his own passport and inserted pages from Murray's passport and forged a vaccination certificate in the name of Murray so that police inquiries following the death of Dr. Coombe would be hampered in that there would be no documentary evidence that an Australian named Edwards had been in Hong Kong at the material time and they would probably look for someone named Murray. 25. Some days after 2nd December Superintendent Harris received a communication from the Perth police; and, on 9th December he informed the appellant of the results of police enquires in Australia. We do not know precisely what Harris said to the appellant on this occasion; but he said in evidence that he told the appellant that, from the information he had received, there might be more behind the killing of Dr. Coombe than he (the appellant) had previously indicated. Counsel for the appellant also elicited from Harris that on 9th December he suggested to the appellant that the payment of the A$100,000 was the motive for the killing. 26. This interview had an immediate effect upon the appellant. He called for pen and paper; and, at 3.00 p.m. on 9th December, he commenced to write what he described as
He went on to say:
He then proceeded to record certain events in his private life which had occurred in Australia about June 1970. These matters have little or no bearing on this case. The statement breaks off suddenly; and, on 10th December, Inspector Edwards took possession of it. 27. On 14th December, the appellant wrote to Superintendent Harris as follows:-
28. One of the "reasons" which he gave was expressed thus:-
So far as the evidence goes, no one had suggested to him that his wounds had been self-inflicted. 29. Another "reason" was this: He said that he was aware of the terms of Mrs. Coombe's divorce settlement with her husband; that two of those terms were (a) a cash settlement of A$3,500 and (b) a maintenance allowance of A$95 per week. From this, the appellant argued that, on the basis of A$95 per week, Mrs. Coombe would, in 30 years, have received from Dr. Coombe A$150,000; that, in the event of her husband's death now the A$100,000 from the superannuation fund would be reduced as a result of various death duties so that she would in fact only receive A$60,000; and that it was therefore greatly to her advantage to accept A$95 per week over 30 years rather than A$60,000 now. 30. On 16th December, the appellant was discharged from Queen Elizabeth Hospital and he was remanded by the magistrate for 7 days in jail custody. That evening in the remand prison, he wrote the following on a piece of paper:-
This was the first time the word "blackmail" had been mentioned by the appellant; and the statement contains no reference whatsoever to the alleged attempt by the deceased to kiss the appellant which, according to the latter's statement to Superintendent Harris, so infuriated him that he kept stabbing the deceased "until he was still". 31. On 24th December the appellant made a further statement which was filed by the prison authorities. It reads:-
32. The appellant was committed for trial on 18th January. At this time there was a prisoner named Coleman in the Victoria Remand Prison and this man was about to be transferred, or deported, to the United Kingdom. According to the appellant, Coleman and he concocted a statement on or about 23rd January. The statement was actually written by the appellant and he gave it to Coleman to take with him to the United Kingdom, the idea being that Coleman should have it typed there and sent back to the Commissioner of Police and the Chief Justice of Hong Kong. In fact it was taken from Coleman by the prison authorities. 33. The statement purports to be by a person named Ken Markham; and the story which the appellant apparently wished this Ken Markham to tell may be summarised thus:-
34. In addition to the medical evidence, the Crown proved the various statements which had been made by the appellant together with the "Ken Markham" statement. They also called a witness named CHO who, it appears, is a tailor's tout. CHO's object was to solicit business for his tailor's shop and he spoke to the appellant on his arrival at the airport at 7 p.m. on 27th November. At the appellant's request, he also visited the appellant next morning. According to CHO, the appellant said that a fellow-employee had stolen a contract and some diamonds worth about $100,000; that he (the appellant) had come to Hong Kong to recover the stolen goods from this man whom, he suspected, might sell the goods in Paris. CHO said that the appellant mentioned room 1223 of the Hong Kong Hotel and that the appellant had said that he intended to go into the Hong Kong Hotel "secretly" and "steal back" the contract and diamonds. According to CHO, the appellant asked whether the windows of hotels in Hong Kong were the same as those of the Sun Ya Hotel. CHO also said that the appellant showed him an instrument which could be used for opening windows (a glass-cutter was in fact found in the appellant's room in the Sun Ya Hotel); and CHO said that the appellant also asked if he could obtain a pistol in Hong Kong; and that if he could not obtain such a weapon, his second choice would be a knife. 35. The Crown also called various room-boys from the Hong Kong Hotel to testify as to the appellant's visits to room 1223. It appears that at 9 p.m. on 27th November, that is to say two hours after his arrival in Hong Kong, the appellant was on the 12th floor inquiring where this room was. There is no doubt that by 9 p.m. on 27th November the appellant knew that Dr. Coombe's room was no. 1223. At 6 p.m. on 28th November the appellant was seen knocking on the door of this room; but the door was not opened, and the appellant departed. The no. I boy on the 12th floor found the appellant actually inside room 1223 at 4.30 p.m. on 29th November. The appellant said that he was allowed to enter the room by some other boy. But no witness was called to corroborate this. The no. I boy immediately telephoned the reception desk. The assistant manager (Mr. Zimmermann), accompanied by a member of Securicor, came to the room immediately and took the appellant downstairs, where he was requested to remain till Dr. Coombe's return at 6.30 p.m. According to the Crown evidence, Dr. Coombe and he spoke to each other and they then apologised to the assistant manager for the trouble which had been caused. The assistant manager said that the appellant left the Hotel immediately after that and that Dr. Coombe proceeded upstairs. 36. The appellant was next seen on the 12th floor at 10.45 p.m. on 30th November. On this occasion he was carrying a brief case. The room-boy who saw him said that he walked in the direction of room 1223, and that he returned a few minutes later; but that, on this occasion, he was not carrying the brief case. 37. It appears that after receiving the "Ken Markham" statement, Inspector Gravener went to Australia and made certain inquiries there. In examining Inspector Gravener in chief, Crown Counsel made no attempt to introduce in evidence the results of those inquiries; but, strangely enough, the inspector was cross-examined in regard to the results of his inquiries by Counsel for the appellant. Presumably counsel's object was to obtain some corroboration of the appellant's allegations in regard to Dr. Coombe's sexual habits. The questions were put in the form: "from your investigations can you say ....."; and Inspector Gravener said that the woman with whom Dr. Coombe had been living told him that Dr. Coombe's sexual habits were perfectly normal; that there were no pornographic photos at their residence; and that, if there had been any photos of that nature, she would have been aware of them. 38. In re-examination, the Crown was permitted to elicit from Gravener that upon Dr. Coombe's death his estate would benefit from the superannuation fund to the extent of approximately A$95,000. 39. When the case came on for trial, if the appellant had stuck to the story which he had told Superintendent Harris on 1st December, about his having visited the deceased in order to ask for a loan of A$50 and having reacted violently upon the deceased allegedly trying to kiss him, the judge would have been bound to put the defence of provocation to the jury, no matter how tenuous such a defence might have appeared to be. But, there is no doubt that the appellant abandoned this story entirely during his trial. 40. He admitted that he had lived with Mrs. Coombe for several months and that sexual intercourse between them had taken place; and that he was probably responsible for her preghanoy. He admitted that Mrs. Coombe and he had planned a sea trip to the United Kingdom in February and that he had told his friends that they planned to get married in the United Kingdom. He also admitted that Mrs. Coombe had informed him that the deceased would be staying in the Hong Kong Hotel. There was also evidence that she and the appellant were in telephonic communication while he was in Hong Kong. However, he denied that he had come to Hong Kong to kill Dr. Coombe. His defence was substantially an elaboration of the "Ken Markham" story except that the person who allegedly assisted him in burgling Dr. Coombe's flat was not a person named Ken Markham. (Indeed, the only person of that name known to the appellant was a police officer in Perth!) This person Ken Markham was really a figment of the appellant's imagination. According to him, it was some other person who assisted him in burgling Dr. Coombe's flat. At first he refused to give the court this person's name. Eventually, he wrote a name on a piece of paper and handed it to the court and said that this person could be contacted through two clubs in Melbourne and Sydney. Next day, he mentioned a different name and told the court some story about the person who assisted him using an alias. 41. He said that the flat which he burgled was in Sandgate Street, and that it was Mrs. Coombe who told him where to look for the alleged pornographic photos. It was pointed out to him in cross-examination that according to the statements in Dr. Coombe's petition for divorce the parties had never lived at the Sandgate Street address. It was also put to him that Dr. Coombe had left the Sandgate Street address on the 11th November. Nevertheless, the appellant maintained that he had found the pornographic photo in the Sandgate Street flat on 15th November, i.e., 12 days before he left Perth; that on 18th November he found out that Dr. Coombe was going overseas, and that he stole the passport from the house of his friend Murray on 19th November and decided to follow Dr. Coombe to Hong Kong in order to blackmail him there. He said that Mrs. Coombe paid the air fare for this trip, and that the A$3,000 which he intended to obtain from Dr. Coombe was for Mrs. Coombe. 42. He said that his story about the deceased having tried to kiss him was quite untrue; that it was Superintendent Harris who suggested that he should put forward this as a defence; and that in his weak state he acceded to this suggestion. 43. He alleged that on the 9th December he had intended to complete the "full and final confession" by recording in it his plan to blackmail, but that he did not do so because the police took away the first part before he had time to complete it. He did not say why, having written so much, he did not call for more paper in order to complete his "full and final confession". 44. His story of the events of the 29th and 30th November was this:
At this point, his evidence reads:-
He went on to say that when he reached the Ocean Terminal, he then realised that he had a knife in his hand and that he throw the knife and the pornographic photo into the sea. We would mention here that all police efforts to recover the knife from the sea were unsuccessful. 45. The appellant's evidence that he returned to room 1223 with Dr. Coombe on 29th November was not in accordance with the evidence of the manager who said that after Dr. Coombe returned at 6.30 p.m., the appellant left the hotel immediately. 46. The first ground of appeal is that the conviction was unreasonable and cannot be supported having regard to the evidence. It is noteworthy that in developing this ground, counsel for the appellant did not refer to the transcript of the evidence at all. However, we have carefully studied the record; and we are satisfied that there is no substance in this ground of appeal. 47. Counsel's main argument was that the evidence against the appellant was largely circumstantial; that it was just as capable of being explained on the footing that the appellant came to Hong Kong to blackmail the deceased as to kill him; and that the jury were unreasonable in rejecting the appellant's story. 48. The jury were perfectly entitled to reject the appellant's evidence if they felt that he was lying; and we see nothing unreasonable in the fact that they did reject his story about having travelled 6,000 miles from Australia to Hong Kong in order to blackmail the deceased into paying A$3,000 by allegedly showing him a print of some pornographic photo. 49. In reaching their conclusion, we must also presume that the jury considered the whole of the evidence relating to the wounds on the bodies of the two men. They also had before them the police photographs depicting clearly the pattern of the wounds on the deceased's body and the lay-out of room 1223. They were entitled to draw such inferences from all this evidence as was reasonable. 50. As regards the appellant's allegation that it was the deceased who first attacked him with a knife, the police pathologist was asked this question by counsel for the defence:
The answer to this question was:
In our view, this answer did not advance the appellant's case in any way. The pathologist's professional knowledge was of no assistance in a matter of this kind. He had given the jury a detailed description of the wounds on the bodies of the two men; and the fact that those wounds could have been caused in the way suggested by counsel for the appellant did not in any way preclude the jury from considering whether there was a struggle for the knife while it remained at all times in the hands of the appellant, that is to say whether the appellant's wounds were caused by the deceased endeavouring to disarm the appellant. Who held and used the knife was, of course, a very important question. Naturally, the only direct evidence on the point was given by the appellant; and, as the jury appear to have rejected that evidence, it was open to them to form their own view on the whole of the remaining evidence. 51. There are only two other points with which we think it is necessary to deal in this judgment. The first is the contention that the learned judge misdirected the jury upon the burden of proof. He did not give a general direction upon this matter at the beginning of his charge but referred to it several times, mostly when he was considering subsidiary issues. It will be most helpful to cite the relevant passages in the order in which they appear in the summing-up. 52. In dealing with the possible effects of the Appellant's testimony as to the reason for his visit to Hong Kong the learned judge said:
That direction continued an assumption made repeatedly in the summing-up (no doubt because that was the manner in which the case had been put before the judge by the Crown) that unless the Appellant had formed an intent to murder before he came to Hong Kong he could not be guilty of murder. That was unduly favourable to the Appellant. At the same time it assumed that if the Appellant came to Hong Kong with an intent to murder it was not open to the jury to return any verdict other than guilty of murder. The real issue for the jury was, of course, what was the state of the Appellant's mind at the time he struck the Deceased - for it is not seriously disputed that he did strike the fatal blows. It might well be that the jury would be slow to believe the Appellant's allegation of an attack by the Deceased if they were satisfied that the Appellant came to Hong Kong to murder the Deceased, but it was essential that this issue be clearly put to them. In so far as the passage cited may have given the impression that an intention to murder once formed could not be changed we think it was open to criticism. As to this we shall see that at one point the jury were told that they must be satisfied not only that the Appellant came here with the express intention of murdering the Deceased but also "that he achieved his purpose and that he is guilty of that murder". No point has been taken on the appeal that this insufficiently directed their attention to the material point of time and we say no more about it. We see no reason to think that the first passage cited could have led the jury to believe that the burden was otherwise than upon the Crown to prove that the Appellant came to Hong Kong with the deliberate intent to murder. 53. The learned judge later returned to this aspect of the case when he said:
This was followed after a brief exchange with counsel by:
Then he went on:
The closing words of this passage and the whole of the preceding passage cannot have left the jury in any doubt that they had to find an intent to murder but elsewhere the emphasis is on the truth of the Appellant's story rather than on the truth of the prosecution's story. Later the learned judge said:
It is contended that all this emphasis on the Appellant's story may have led the jury to believe that it was for the Appellant to raise a doubt rather than for the prosecution to dispel all reasonable doubts. However, the one place where the learned judge did deal with the general burden of proof was in these terms:
We do not think the use of the word "justify" indicates that the learned judge was, as has been suggested, leaving to the jury a question of law. In our view this passage can have left the jury in no doubt that the burden of proof was upon the prosecution. 54. The direction that the onus was on the Crown was repeated shortly before the learned judge ended his summing-up, in relation to the defence of self-defence:
55. Had the matter been left there we would have rejected the argument on behalf of the Appellant out of hand. However, counsel drew the attention of the learned judge to a small error of fact and the judge gave a further direction in these words:
The attention of the jury was thus drawn back to the story of the accused and this time the emphasis was upon the jury's finding that the story was true rather than upon their finding that it might possibly be true. It is argued that the stage of the prc-ceedings at which this direction was given lent special weight to it and that the overall effect of the summing-up was to place the burden of proof upon the Appellant. Having re-read the summing-up with this argument in mind we can say no more than that we are not persuaded that the overall effect of it, even to laymen, would have been that contended for on behalf of the Appellant. We think the overall impression left with the jury was that the burden was on the prosecution, not only to prove the guilt of the Appellant but also to prove that he came to Hong Kong with the intent of murdering the Deceased. If anything that was too lenient a view and in the face of the learned judge's plain hints that he thought the proper verdict to be one of Not guilty of murder but guilty of manslaughter the jury decisively rejected that version of the facts and convicted the Appellant of murder. 56. The second point to which we think it necessary to refer is the contention that the learned judge was wrong to withdraw the issue of provocation from the jury, as he expressly did in these words:
It is now established that where there is evidence upon which a jury could come to the conclusion that the prosecution have not negatived the possibility that the accused killed the deceased as a result of provocation the judge ought to direct them accordingly and explain the circumstances in which a killing may be excused on the ground of provocation. It is immaterial that the accused has not expressly relied upon provocation, and in cases where the accused alleges that he was acting in self-defence he will rarely advance the alternative, and inconsistent, defence. Nevertheless an attack on the accused by the deceased, where the accused has used such excessive violence that the jury reject the defence of self-defence, may constitute an act of provocation which, if it caused the accused no longer to be master of his mind, would justify a verdict of manslaughter. The learned judge did not indicate dissent from this view but he was of opinion that if the Appellant's story of an attack by Dr. Coombe upon him was true his story that he was trying to blackmail Dr. Coombe must also be true and such conduct would deprive him of the right to have the defence of provocation considered by the jury. If A makes an attack upon B with a lethal weapon and compels B to strike back, it ill befits A to suggest that the riposte of B provoked him into killing B. Counsel for the Appellant does not contest that, but he says that the present case is not analogous because all that the Appellant did was to renew a blackmailing demand which had been made 24 hours earlier: he submits that to deprive the Appellant of his right to have the defence of provocation left to the jury it was necessary that what the Appellant did in the first place should have been capable of constituting in law an act of provocation which would have availed the Deceased had he unlawfully killed the Appellant. Counsel for the Crown suggests that the learned judge was right to withdraw provocation because, he says, it would have been incumbent on the judge to direct the jury that they had to consider whether a reasonable man would, if he found himself in the situation in which the Appellant found himself, have done what the Appellant did and he points out that that would raise the absurd hypothesis that a reasonable man could be a blackmailer. 57. In our view it was for the jury, applying the objective test restated in Bedder v. Director of Public Prosecutions,(1) to decide as a question of fact whether the conduct of the Appellant in the present case would have been a sufficient act of provocation if the Deceased had killed the Appellant and whether the Appellant should, therefore, have realised that he was doing something likely to provoke the Deceased into doing what the Appellant alleged the Deceased in fact did: it was not a question of law for the judge. As we see it even a criminal is entitled to some protection from the law and the mere fact that the Appellant behaved initially in what some might consider a "provocative" manner would not necessarily deprive him of the right to plead provocation himself if the Deceased reacted in a way which the law would not consider excusable. An example may make the position clearer. Suppose a case where A, knowing that B has an inordinately jealous wife, obtains a photograph which shows B with his arm round another woman but which is not in any way suggestive of immoral conduct; and suppose A demands from B a sum of $10 for the surrender of the photograph. Could it be right that if B thereupon attacked A with a weapon, but was himself killed by A, A should be deprived, by reason of his illegal demand for $10, of the defence of self-defence or, if he used such excessive violence that self-defence was not open to him, of the defence of provocation? We do not think that A's initial illegal act would necessarily raise a presumption that when he killed B he had malice aforethought and that therefore the defence of provocation was negatived by the initial illegal act. It is a matter of degree and therefore a matter for the jury. 58. That is not, however, the end of the matter because the learned judge did direct the jury that if the Deceased attacked the Appellant and the Appellant used more force than was necessary to defend himself the proper verdict was Not guilty of murder but guilty of manslaughter. We think that in so directing the jury he must have had in mind the Australian case of Reg. v. Howe(2). In our view that was not a correct direction because it confused conduct which may justify a homicide and conduct which may excuse a homicide. Homicide in self-defence is justifiable - but only if the legal limits of self-defence are observed. An accused who has used excessive viblence in defending himself cannot justify a killing: the defence of self-defence is not available to him and the questions then arise whether the killing amounted only to involuntary manslaughter or whether it was excusable on the ground of provocation or whether it was the result of malice aforethought. There is no need to complicate the law by introducing some new ground of excuse for homicide. The law in Hong Kong is now governed by the decision of the Privy Council in Reg. v. Palmer(3), where the Board said at p.844:
59. In our view, therefore, there was clearly a misdirection as well as a nondirection, but it remains to consider whether it is open to this Court to apply the proviso to s.80(2) of the Criminal Procedure Ordinance. While the nondirection on the face of it deprived the Appellant of a possible verdict of Not guilty of murder but guilty of manslaughter the misdirection supplied a possibility of such a verdict which he should not have had. Moreover, what that misdirection did in effect (though, of course, not in theory because provocation was expressly withdrawn) was to tell the jury that conduct which might constitute an act of provocation was sufficient to reduce the crime to manslaughter even though the Appellant did not as a result thereof become no longer master of his mind. That was unduly favourable to the Appellant. By their verdict the jury necessarily rejected the possibility that the Deceased attacked the Appellant in this way. Counsel for the Appellant submits that it would nonetheless have been open to the jury to accept that possibility in relation to the defence of provocation: he said that the mere fact that that would have involved inconsistent findings was immaterial because juries do sometimes return inconsistent verdicts. So they do, but we are not going to assume that this jury would so have misconducted itself. In our view the verdict of murder which was returned shows that the jury was satisfied that the Deceased did not attack the Appellant first. It follows that even upon a proper direction as to the law of provocation they must have rejected that defence. That being so, the errors of direction have not caused any possible miscarriage of justice and this is a proper case for the application of the proviso. 60. For the above reasons, this appeal is dismissed. Representation: B. Bernacchi, Q.C. & S.K.S. Leung (Johnson, Stokes & Master) assigned for Appellant. A.P. Duckett, S.C.C., for Respondent. (1) (1954) 1 W.L.R. 1119 (2) (1958) 100 C.L.R. 448. (3) (1971) 2 W.L.R. 831 |
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