Suen Yan v. The Queen
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CACC001165/1978 Murder - self defence - jury directed as to the law - no correlation of evidence to the law - defence tenuous - conviction quashed.
----------------- Coram: Roberts, C.J., Huggins, J.A. and McMullin, J. Date of Judgment: 28 June 1979 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. This is an appeal against a conviction on a charge of murder. It is a sad story. The Deceased was a man of eighty. The Appellant is a man of sixty-eight. They had apparently been disputing between themselves for some time. On 17th May 1978 the Appellant went to the Deceased's premises. He had taken with him a tael of gold intending to reach a compromise of the disputes between them: the Appellant was rightly or wrongly under the impression that the Deceased was spreading false rumours about him. In addition the Deceased had on a previous occasion demanded that the Appellant hand over to him the title deeds to a flat which the Appellant had bought, and it is clear that the Appellant's belief was that the Deceased was trying to deprive him of this, which represented his life's savings. When the Appellant went to the Deceased on 17th May he says that he tried to reach a compromise and that the Deceased was adamant and insisted on having the title deeds. A dispute then followed. 2. Of course, we have very little evidence as to what actually happened. We have the Appellant's story, which is to the effect that he was first attacked by the Deceased, and that he struck the Deceased in self-defence, or, at least, when provoked. On the other hand, there is evidence from a witness for the Crown who says that at one point during the struggle he saw the Appellant leaning over the Deceased, who was lying on the ground, and that the Appellant then stabbed the Deceased three times, after which the Deceased ceased to move and the Appellant then took a pair of scissors and used them to strike or cut the Deceased. 3. We have heard, so far, full argument on only one point, and that is the contention advanced by Mr. Kotewall that the learned judge failed adequately to direct the jury in relation to self-defence, and, as counsel will have gathered, not without considerable hesitation we have come to the conclusion that that complaint must be upheld. The learned judge did refer to self-defence. He did not go in any great detail into the nature of the defence. He did emphasize, in the first instance, that the burden was on the prosecution to negative self-defence, although he used an unfortunate phrase subsequently that that defence had to be "established". But 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 1 All E.R. 1077 at 1088:
In the present case the defence was advanced by the Accused on three separate occasions. By that I mean that on his arrest he was taken to a police station and there made a statement. In that statement he claimed to be acting in self-defence. However, the facts which he then recounted were certainly not such as would have justified a jury in thinking that self-defence was a possible explanation. The Appellant, however, apparently was given a note-book in which, as I understand the position, there was very little space, and he was, therefore, not able to write a full statement. He was taken to another police station and some, I think it was four, hours later he made another statement. He had been asked in some questions about the previous statement that he made. He indicated that he had been aware that the Deceased had died and had said he had therefore surrendered himself because of his guilty conscience. He was stopped, and thereupon cautioned again, and he made a statement. In that second statement he indicated that he was first attacked by the Deceased, and he suggested that the reason why he struck the Deceased was that the Deceased was trying to obtain a weapon. To give a little more detail, the allegation was that the Deceased first of all picked up a pair of scissors, that when the Appellant seized the scissors the Deceased picked up a knife, that the Appellant managed to take the knife, and that the Deceased then tried to obtain some further scissors which were hanging on the wall. That was the second statement. It has been objected that that statement should not have been admitted. It appears that one reason for its admission - it was admitted at the instance of the defence - was that the learned judge considered that it was really part and parcel of the first statement. We think that we must accept that this statement was in evidence and treat it as part of the evidence. In his evidence at the trial the Appellant again said that he was attacked by the Deceased, that the Deceased, after he had been disarmed twice, tried to push past the Appellant in order to get another weapon and that somehow or other the Deceased was injured. We think that there was here evidence upon which a jury could conceivably have found that there was self-defence. It was at best a tenuous defence, but it is not for this court to substitute its opinion on the evidence for that of a jury. 4. In the case of Badjan [1965] 50 Crim. App. Rep. 141 somewhat similar circumstances arose. The difference is that there the judge did not refer to self-defence at all. It was said that the defence in the light of the evidence might have been regarded as of tenuous worth but it was a defence which the appellant was entitled to have left to the jury for their assessment. As I say, in this case the defence was referred to, but we are quite satisfied that it was not sufficiently referred to, and, to all intents and purposes, the cases are indistinguishable. In that case it was held that it would be wrong for the court to accede to an invitation to apply the proviso where a defence had not been properly put before the jury. We reluctantly come to the conclusion that the same result must occur as resulted in that case and that the conviction must be quashed. [After further argument] 5. It is now submitted to us that we should order a re-trial. The error which has led to the quashing of the conviction was an error by the judge. It is submitted on the other hand that the Appellant is a man of advanced years and that it would be unjust to make him face yet another trial. We are forced to the conclusion that this is a case where we ought to order a re-trial, but it is, of course, for the Attorney General to decide whether or not he is going to offer any evidence upon the re-trial, and, if he does, upon what charge he will proceed. 28th June 1979. |