Romeo Victorio Locanas v. The Queen

CACC000030/1980

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Coram: Leonard, J.A., Addison & Garcia, JJ.

Date of Judgment: 23 July 1980

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JUDGMENT

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Leonard, J.A.:

1. This is a case of a kind which not infrequently comes before this court in that a person was killed by stab wounds in full view of a number of people but the evidence as to the stabbing was limited in the extreme. People who must have seen all the facts leading up to the incident which culminated in the stabbing were reluctant to come forward.

2. The deceased was killed by three stab wounds to the stomach and there was another serious wound to the inside of his arm. It was not seriously contended that these wounds were not inflicted by this appellant. The evidence was further complicated in that it appeared that at the relevant time the appellant was armed with a knife and the deceased with a razor. The appellant suffered minor superficial injuries. Both of the weapons disappeared from the scene. They were hidden after the incident and the general impression to be gained from the evidence was that neither of them was taken from the scene by the accused.

3. There was the tendency of which I have spoken on the part of all eye-witnesses to be evasive as to what had occurred.

4. The defences were of accident and self-defence. Both of these defences were adequately left to the jury and rejected. It was however essential in view of them and of the surrounding circumstances, in particular evidence that in the night in question the deceased who had been drinking was quarrelsome and had been heard to make veiled threats against the appellant, that the question of provocation also be left to the jury. It was left in copy book terms but no explanation was given to the jury as to why it was left. It was a matter which plainly troubled the jury and they asked for a further direction on that question of provocation. They were given not a further direction but a direction in the same terms as that already given.

5. The sole ground of appeal which has given rise to concern on our part was Ground 3 that the learned trial judge failed to direct the jury adequately on the issue of provocation in that he failed to correlate the relevant evidence with the law.

6. We think it was unfortunate that in giving the direction which he finally gave at the request of the jury the trial judge did not explain why he was leaving the issue of provocation to them and give them some indication of the facts on which the jury might have found that the Crown had failed to negative it. There was evidence on which the jury might properly have found that the jury had negatived it. Nevertheless there was also evidence upon which they might have found failure on the part of the Crown to do so.

7. In support of this ground of appeal Mr. Mayne on behalf of the appellant referred us to SUEN Yan⁽¹⁾ and in particular to that paragraph in it which says :

"What is clearly missing is any attempt by the learned judge to correlate the relevant evidence with the law. We accept that there is no formula which it is necessary for a judge to use when directing a jury as to self-defence. As was said in Palmer v. Reg. (1971) A.C. 814 at page 832 :

8. SUEN Yan does not lay down that it is essential in every case or indeed in the majority of cases for a court to correlate the facts or the evidence and the law and indeed one observes from time to time impeccable summings-up in which the law is dealt with first and then the facts. In such cases, of course, it is obvious how the legal principles may be affected by such findings of fact as the jury may arrive at.

9. In Attfield v. R.⁽²⁾ the following passages are of interest:

"No case has laid down, so far as we are aware, that it is essential for the validity of a summing-up that there should be a reference to the evidence, but equally there is no case that, so to speak, absolves a court from what is normally its function of assisting the jury by dealing with the evidence."

At a later stage in the judgment the court had this to say at page 313:

"Nothing that this court is saying today is intended to put forward the suggestion that a judge is entitled to refrain from discussing the evidence if the circumstances of the case and the conduct of the trial demand that he should."

Finally, in Stonehouse⁽³⁾ it is said at page 209:

"A summing-up is not meant to incorporate abstract disquisitions on the general law relating to the offence with which the accused is charged. It ought to be tailored to the evidence that has been adduced in the particular case. It should explain to the jury what facts they must find to be established by the evidence and, where appropriate, what opinion they must form about those facts, in order to justify in law their bringing in a verdict of guilty or not guilty. To do more than this to invite the jury to consider as if it were an open question one to which in common sense and law there can only be one possible answer, runs the risk of confusing the minds of those who are not lawyers."

These, of course, are general observations and to certain extent trite law. We do not think that there is anything new in the situation arising here. Nor do we think that there is general validity in the ground of appeal as expressed.

10. While we recognise that in this case provocation was not raised by the defence we consider that there was a real danger that the jury were left in the dark as to the possibility of its being a real issue, because of the failure of the trial judge when asked for a further direction to give one or to tailor that direction to the particular facts in this case.

11. The appellant in the witness-box gave evidence as to accident and at the same time gave inconsistent evidence as to self-defence. But a man is - and again it is trite law to say so - not to be convicted because he has lied.

12. We consider that the summing-up and the final direction not adequate and that the proper course for us to adopt is to substitute for the verdict of murder one of manslaughter; as to this we would wish to have the assistance of counsel as to sentence.

Representation:

Mr. Ronald Mayne (Lau, Chan & Ko) for appellant.

Mr. S.C. Tisdall, Crown Counsel, for Crown/respondent.

(1) (1979) H.K.L.R. 374.

(2) (1961) 45 Cr. App. R. 309.

(3) (1977) 65 Cr. App. R. 192.