Barra v R (SCA 21/2012) [2014] SCCA 36 (12 December 2014);

 

IN THE SEYCHELLES COURT OF APPEAL

 

[Coram: Domah J.A, Fernando J.A, Msoffe J.A]

 

Criminal Appeal SCA 21/2012

Appeal against Supreme Court decision CR 29/2011

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Julien Barra                                                   APPELLANT

VS

The Republic                                                RESPONDENT

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Heard:            03rd December 2014

Counsel:         Mr. A. Derjacques for the Appellant

                      Ms. A. Madeleine, Assistant Principal State Counsel, for the Respondent

Delivered:      12th December 2014

 

JUDGMENT

 

A. F. T. FERNANDO JA

 

  1. The Appellant appeals against his conviction for murder and the sentence of life imprisonment imposed on him and seeks by way of relief an order quashing the conviction and sentence or an order substituting the offence of murder for an alternative lesser offence and sentence or a new trial.

  2. The grounds of appeal are:

  1. The Honourable Judge erred in law in failing to properly address the inconsistencies and contradictions in the prosecution case in his closing address to the Jury. A fair address was not delivered.
  2. The Honourable Judge failed to properly and fairly present alternative counts to the charge of murder, to the Jury.
  3. The conviction for murder is unsafe and unsatisfactory, in all the circumstances of this case. It was not proved beyond a reasonable doubt.
  1. The deceased is the step father of the Appellant. The Appellant lived with his step father, the father’s concubine Monica Ghislane Jerome, and his step sister Fadette F. Vidot lived in a flat at Union Vale. According to Ghislane on the day of the incident around 5PM she was in the kitchen down stairs cooking some food at the request of the deceased when the Appellant had suddenly come up to her and placed a knife on her neck and told  her that he wants to have sex with her. She has never had a sexual relationship with him before and thus told him that she cannot agree to it as the deceased was at home. The Appellant had dragged her to the sitting room but Ghislane had struggled and managed to escape from him and run up to her room upstairs and locked herself inside and stayed there for almost two hours. She had in court later identified the knife which was later recovered from the flat with blood stains in it. She had said that she was slightly injured when the knife was placed on her neck. According to the medical evidence there had been a superficial scratch injury around her neck caused by a sharp cutting weapon. Prior to her coming down to the kitchen she had been on the bed with the deceased for a short while relaxing. She had screamed out to the deceased when the appellant placed the knife on her neck, saying that the Appellant had placed a knife underneath her neck and wants to have sex with her, but does not know whether the deceased had heard her. She had not seen the deceased while running upstairs nor was he in the room upstairs. She opened the door only when the police came around 5.30 in the afternoon and asked her to open the door. While inside the room she had been afraid and all that she had heard was bottles falling outside. In answer to the question from the Jury whether she had heard “anything like arguing or screaming” while she was in the room her answer had been “no only bottles falling”.  At first when the police arrived she had thought that it was the deceased who had cut the Appellant. When asked in examination-in chief why she had thought that way, her answer had been to the effect because the two of them quarrel often. Ghislaine was arrested as a suspect in the case and later released. The police officers who came on the scene had confirmed her version that it was when they knocked on her room door that she had opened it. According to the police she had been under the influence of liquor at the time of her arrest.

  2. The police on arrival at the scene had taken into custody a handle and a blade of a knife and a machete which were found on analysis to contain human blood. The handle of the knife had been identified by Ghislain as the one placed on her neck by the Appellant and the machete as belonging to the Appellant by his step sister Fadette Vidot.

  3. J. Jean Paul Victor, the one who lives in the flat adjacent to that of the Appellant and the deceased, had said that on the day of the incident around 5 to 6 PM he had heard the noise of two persons fighting when he came on to his balcony. When asked to describe the noise Victor had said that it was like “someone strangling another” and the “noise was coming from the mouth”. He had said that his flat and that of the deceased are next to each other and share the same boundary. He had then asked his girl friend M.S. Dorothe to text Fadette Vidot who lived in the house from which the noise was coming, to say that there was a fight in her house.  In answer to the question from the Jury: “The noise that you heard was it in the room adjacent to your balcony or was it from another part of the house” his answer had been “It was right next to where I was, that’s why I heard the noise.” M.S. Dorothe the girlfriend of Victor had heard something more than Victor, while she was in the bedroom with Victor around 5 PM. According to her she heard a man calling out softly, “Julien stop it, Julien stop it”, from the flat next to that of her boy friend’s, but whose voice she could not recognize. Her boy friend had then told her to text Fadette and say that Julien (the Appellant) is killing his father. In answer to a question from the Jury she had said that when her boy friend went on to the balcony she did not accompany him.

  4. Frank Songor had stated that the Appellant, who was the “nephew of the mother of my children”, had come to his place around 8 PM on the 4th of July when the 8 o’clock news on TV was on, looking for Franky whom the Appellant said owed him money. Songor had said that the Appellant was calm when he came to his place. In cross-examination it had been put to him that the Appellant insists that he came to Songor’s place well before 8, which Songor had denied.

  5. The police had arrested the Appellant around 8AM on the 7th of June, i.e, three days after the incident at Plaisance. He had been travelling in a car and on seeing the police party the Appellant had got off from his vehicle and taken to his heels. On being arrested after giving chase the Appellant had said that he was going to get some money and then surrender to the police.  

  6. The other item of evidence which implicates the Appellant is the confession which had been admitted as having been made voluntarily after a voire dire. The need for the voire dire arose as the confession had been both repudiated and retracted by the defence. There is no challenge before us as to the admissibility of the confession. We set out below the Appellant’s confession:

“I live at “Vilaz Trezor” in flat number 2, Union Vale.  The flat belongs to my mother, Patricia Barra who died in 2002.  I am currently living with my sister Fadette Vidot, my step father Fane Vidot and concubine, whose name is Ghislaine.  I do not know her surname.  The flat has 3 bedrooms; one for me, one for my sister Fadette and another for Fane and Ghislaine.  At home I sometimes cook food separately even though I was supposed to get help, but there are times when we all cook together.  My bedroom is not locked because I lost the key about 2 months ago.  I leave some of my things in my bedroom and there are some that I leave down in the kitchen.  I do not have my own key to the flat but I was using the same key as my sister Fadette.  However Fadette is not always at home.  She leaves the key under a flower pot outside when she is not home, so that I can open the door and get in.  On Saturday 4th June 2011, I left home at 6 in the morning to go to work at Mont Fleuri where a big building that is under construction by Indian construction workers.  I do landscaping work there.  When I left home Fane and Ghislaine were there in the bedroom.  I finished work at around 2.28pm when I finished planting and also I had already been paid SR400/- by my boss Dothy.  I then stopped at a shop.  I bought a chicken, potatoes and a few other necessary items.  I bought Guiness and a box of Mahe King.  After, I went home.  I reached the flat around 3.30 pm.  When I reached the house, the kitchen door was locked but the door to the living room was opened.  I went through the door to the living room and went inside.  Fane was upstairs in his bedroom and Ghislaine was downstairs in the kitchen.  She was going to cook an octopus and she was drunk.  When I noticed that Ghislaine was drunk, I told her to let me cook the food and to let me boil the octopus.  Ghislaine told me to go ahead and cook the food if I wanted.  I told Ghislaine to get a drink for me and there she told me that Fane had the money.  Immediately I --- Ghislaine went up to the bedroom where Fane was and I started cooking the food as I had finished grating a coconut.  I was cooking the octopus and boiling an eggplant to make a salad.  But then I went upstairs to my bedroom to drop my bag and also get some money so that I could buy a drink.  I had left my money in a small cup, attached and hanging next to the mirror.  Inside, there has been SR2600/- in SR100/- bills.  But there was only SR200/- the rest was missing.  At the moment Fane was in his bedroom along with Ghislaine and their room was locked.  I stood outside their bedroom and I called Fane.  I told him, ‘to come to me; I want to see you please’.  Fane and Ghislaine unlocked their bedroom door; they both came out and entered my bedroom.  I asked Fane ‘where was my money, what did you do with my money, I can’t find my money’.  But then Fane started getting angry and swearing saying “liki ou manman” and pushing me.  I told him not to insult me.  I got aggressive and Ghislaine got out of my bedroom, and told me that I had no money.  Fane was the one responsible for money. I knew nothing concerning money. I saw Ghislaine go downstairs.  I think she was going to the kitchen because there was a food in a pot, on the stove, getting burned.  I started to get aggressive together with Fane. Things started there; I grabbed a knife which was in my work bag, with me in my room, I use the knife to work with.  I think I stabbed Fane once with it in his stomach.  I think he had pressed in the knife, which I had stabbed him with in the stomach.  At that moment he said “mon pou kas ou liki”.  I saw blood flowing where I had stabbed him and he had pressed.  The machete was still in my hands.  I was turning around so that I could go down to the kitchen when Fane jumped to my neck, squeezed and try to injure my throat.  Then he passed behind me.  I didn’t turn around to look at him.  I stabbed Fane once I think with the machete which was in my hands.  I stabbed him in his stomach.  However, he did not tell me anything but continued to forcefully hold me trying to apply pressure on my neck.  I was able to remove one of his hands from my neck but he was still behind me.  I did not turn around to look at Fane; I just hit him at the side of his neck with the machete.  I saw that he had fallen in my bed, on my mattress.  After that I saw him drag a part of the mattress with him.  I saw him fall in one corner of my bed.  I did not hear him speak.  However he was moving.  The machete was with me in my right hand.  I just dropped the machete on my bed.  I went downstairs so that I could leave through the kitchen.  I did not see Ghislaine in the kitchen.  I didn’t know if she had gone upstairs to their bedroom.  Both the kitchen door and living room door were locked.  There was no key on the doors.  I removed “louvers” from a window near the kitchen. I went outside through that window.  I took one of the louvers and left.  I left the “louvers” next to the road, whole.  After that I went to the shop in Union Vale and right after that I went to Sans Souci, to my aunt’s husband, Frank Songor.  When I had injured and stabbed Fane with the machete and left him in my bedroom, I don’t know what had happened to him.  The door was open.  I want to say that Fane was my stepfather.  He was Fadette’s father ever since my mother was alive.  I called him by his name, Fane since I was 12 years old.  I got to know him as he was lived with my mother.  On Saturday I was wearing black trousers and a black shirt with sleeves when I had acted against Fane.  I was wearing a black and white cap and my shoes were black.  I left my shoes at my place at Union Vale.  My cap is in my room.  I threw away my shirt this morning when the policemen were running after me in the forest at Mont Buxton, along with the trouser which I was wearing, which I had washed and worn.  I would like to point out that while giving my statement, S.I. Bell showed me a machete with a wooden handle.  A part of the handle was broken.  There are writings on the side which I had not paid attention to before.  It was the same machete which I had removed from my work bag in my bedroom, which I had used to stab and injure Fane, my stepfather on Saturday 4th June in my bedroom.  It is the machete that I work with.  He also showed me the blade of the knife which had some kind of red substance on it and a knife handle of black colour which had a piece of cloth attached to it.  The blade and the handle were in the kitchen where I live along with Fane, Ghislaine and Fadette.  The knife is used to cook food.  I did not use the knife that day when I had stabbed and injured Fin.  But today on Monday 7th June 2011 I was arrested by the police due to a connection with the death of Fane.  I was questioned and I gave a statement.

Signed: Julien Barra.”

  1.  According to Dr. M. Zlatkovic who conducted the post mortem examination on the body of the deceased there were open semicircular laceration wounds on the right hand, two on the left hand (wrist), anterior neck, anterior lower abdomen, excoriation on the left shoulder and lower part of the left shoulder, the chest, and an open laceration wound of the anterior neck involving trachea, esophagus, with dissection of the carotid arteries, veins and nerves. There had been 9 injuries in all. According to the doctor the injuries to the neck which were fatal had been inflicted with strong force probably by the machete that was found at the scene of crime and the injuries on the abdomen, chest and left shoulder by the knife found at the scene of crime. The doctor had said the injuries on the hands were probably defensive wounds. The cause of death had been stated to be hypovolemic shock, dissection of the carotid arteries, trachea, esophagus and cervical vertebrae.

  2. At the close of the case for the prosecution the Appellant had made an unsworn statement from the dock as follows:

“Good morning my name is Julien Terry Barra.  I live at Union Vale, I am 33 years old.  I have been accused of a murder case which I have not done.  On the 4th of June I left my home at 6.30 in the morning.  I went to work as usual.  After work I’ve got paid Rs400/- from my boss.  I went to the house because I knew I had nothing to cook to eat, I went by the shop to get some groceries.  I had a few drinks, a few guiness.  When I got home I saw Ghislaine she was drunk and she was cooking.  I told her let me cook the food since you are drunk.  She let me cook the food, she said okay you can cook if you want.  I had been teasing her a bit about sex.  I held her and she held me.  She has scratched me and I also I had scratched her, we were holding each other.  I left her and go, I did not do anything to her.  She went to her bedroom upstairs.  And I went to my room and I placed my bag away with my machete, I changed my clothes.  Then I went back to the kitchen I did not see Ghislaine, I did not even see Fin.  The food had already been cooked and the door was locked, I had no key.  I removed two louvre blades and I went to Sans Souci.  One thing I want to say is that when the Police arrested me they asked me for a statement about Ghilslaine Jerome and I gave it to them.  I was placed in a cell and I was removed from the cell again.  When I was removed from the cell there had been a statement that had already been prepared, been written down and I was asked to sign it.  I was told that even with smut in my nose and tears in my eyes I will sign the statement.  I did not want to sign it at first but I have to sign it the way I was being treated.  I was being heat with electric teasers to my ribs twice, if you received two shots from this teaser you will not ask for the third one.  I had no choice I have to sign it.  And if you are looking at the statement I was looking at it last time, I got a copy from my lawyer.  There are something which I have said on Monica Jerome’s statement which are present on that statement which is correct it had been added to the other statement.  It had been added to the statement which the Police had forced me to sign.  I have a conscience that I know that I had never, never, never killed Fin Vidot.  Because there’s just the two of us who are working in that house and why would I killed that person, there is no reason, we had no problem with each other.  I don’t have anything else to say but I know I am not guilty for the death of Fin Vidot.”

  1. The Appellant in his Skeleton Heads of Arguments have complained about the lack of finger printing of the 2 knives, louver blades and syringe, the lack of testing the syringe for drugs and DNA evidence and blames it on the Learned Trial Judge for failure to highlight the inefficient investigation on these matters. We find this allegation unsubstantiated as the Learned Trial Judge had in his summing up drawn the attention of the Jury that: “IT is borne out in the evidence that no finger printing was done and no DNA evidence was led by the prosecution, therefore the only deduction you the members of the Jury must come to is there is no finger print or DNA evidence against the accused.” Further the Appellants complaint of lack of investigation by the police as to the possible involvement of a third party in the crime and the possibility that this was a drug related crime fades into insignificance in view of the confession of the Appellant on which the Appellant has relied upon on this appeal.

  2. Having both repudiated and retracted the confession and having denied his involvement in the killing, the Appellant has placed reliance on the confession produced by the prosecution to advance his position pertaining to self-defence, provocation and intoxication, at his trial and in his Skeleton Heads of Argument. In his summing up the learned Trial Judge having explained the law of self-defence in detail had stated:

“Both counsel have addressed court that when one considers the statement of the accused it contains both inculpatory (implicating) and exculpatory (exonerating) facts and as the accused has stated in his statement that the “deceased had jumped to my neck, squeezed and tried to injure my throat” the issue that the accused acted in self defence arises.  I therefore in short will explain to you all the meaning of self defence.”

  1.  We cannot fault the Judge in his exposition of the law. Learned Counsel for the Appellant in the Skeleton Heads of argument takes objection to the Judges’s statements: “Learned Counsel for the prosecution explained to you the reasons on similar lines based on the evidence and why self defence should not succeed”, and “The accused himself contradicts this fact that he acted in self defence when in his own defence he states that he was not present at the time when Fin Vidot was attacked”. It is the submission of the Appellant’s Counsel that the Learned Trial Judge in doing so had “adopted the address of the prosecution, as if it is his address and clearly identifies himself with the prosecutor and prejudices the mind of the Jurors. He becomes part and parcel of the prosecutor’s case and lends the weight and majesty of his office to the prosecutor”. Counsel further submits: “The Honourable Judge simply seems to state, if you discard his unsworn evidence, as a lie, then do not consider the statements on self defence in the Appellant’s, sworn statement under caution. He again manifestly prejudices the minds of the Jurors.” This is the only challenge by the Appellant to the manner self defence was explained to the Jury in the summing up. In our view this is a serious and unwarranted allegation of bias against the Learned Trial Judge without a basis. Learned Counsel in making these allegations had failed to make reference to the statements of the Learned Trial Judge who had said: “Further it was learned counsel for the accused contention that the prosecution had to disprove beyond reasonable doubt the defence of the accused of self defence once it is raised by the defence. The burden of negativing self defence rests on the prosecution.” In our view the Learned Trial Judge was merely placing before the Jury the two positions taken up by the prosecution and the defence, and in a case of this nature where the accused takes up the position of having been involved in the killing as per his confession and not been involved in the killing as per his unsworn statement and calling upon the Jury to rely on both we see no objection in the Learned Trial Judge making reference to it in his summing up. We do not agree with the Counsel’s submission that this amounts to the Judge saying “if you discard his unsworn evidence, as a lie, then do not consider the statements on self defence in the Appellant’s, sworn statement under caution”. In our view there is no misdirection or non-direction on the law pertaining to self defence. We also find that the Appellant in his confession does not state that he acted under apprehension of death or grievous harm at the hands of the deceased. All that he had stated was that he started to get aggressive with the deceased when the deceased started swearing at him and pushing him when questioned about the money that was missing.

  2. In the Skeleton Heads of Argument, Counsel for the Appellant has also raised the issue of intoxication which has a bearing on; the specific intent that is needed to prove malice aforethought and provocation; not having been properly addressed in the summing up.  At the outset we wish to state that it is trite law that voluntary intoxication is not considered in determining whether a person has been provoked. We also find that there is no evidence of intoxication of the Appellant in this case. All that we find in the confessional statement was that the Appellant had bought Guiness on his way home from work on the day of the incident. The confession also shows that on reaching home he had been able to notice that Ghislaine was drunk and therefore wanted to take over the cooking from her. He had also asked Ghislaine to get a drink for him but there is no evidence that Ghislaine got the drink for him as requested. The rest of his statement clearly shows that he was fully aware of the happenings that evening. Ghislaine and Songor to whose house the Appellant went around 8 PM, in their evidence do not say that the Appellant was drunk. The Appellant in his unsworn statement had stated that he “had a few drinks, a few guiness’’ before he went home on the evening of the incident but does not say he was intoxicated. Facts being such in our view that the issue of intoxication does not arise from the evidence in this case. Yet the Learned Trial Judge had more than adequately dealt with intoxication when he stated:

“The next defence taken by learned counsel for the accused in his submission is the defence of intoxication.

In this regards I would like to warn you that the mere fact that the defendant’s mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there.  A drunken intent is nevertheless an intent.  Secondly, and subject to this, you the members of the jury should have regard to all the evidence, including that relating to drink, and draw such inferences as you think proper from the evidence, and on that basis to ask yourselves whether you feel sure that at the material time the defendant had the requisite intent or was by reason of intoxication did not know that such act was wrong or did not know what he was doing or insane temporarily or otherwise at the time of such act.”  

  1. In the Skeleton Heads of Argument, Counsel for the Appellant has also complained that provocation has not been adequately dealt with in the summing up. It is the defence contention that: “The Judge seems to consider the exchanges between the parties but not the mind and thinking of the appellant, the subjective test. He seems to allow only for an objective test as what an ordinary person may do, but fails to address on what would be the thoughts and mind of the Appellant who believed that the deceased had stolen his SR 2,600/- and was now insulting him and assaulting him.” Counsel then makes allegations of bias against the Judge towards the prosecution as he has done in connection with self defence. We wish to advise Counsel that it is inappropriate to make such allegations in arguing an appeal and if Counsel feel that such allegations can be substantiated they should be made at another forum and not in an appeal. We are only concerned to see whether there have been any misdirections or non directions which would have denied the Appellant a fair trial. We reproduce below the Learned Trial Judge’s summing up on provocation:

“Provocation is some act, or series of acts, done (or words spoken) (by the dead man to the accused) which would cause in any reasonable or ordinary person, and actually causes in the accused a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”

Learned counsel for the accused gave you an excellent example of provocation of a man coming home and seeing his wife in bed with his best friend.

Both counsel have addressed court that when one considers the statement of the accused it contains both inculpatory and exculpatory facts and as the accused has stated in his statement “I asked Fane “where was my money, what did you do with my money.  I can’t find my money.  But then Fin started getting angry swearing saying “liki ou manman and pushing me.  I told him not to insult me I got aggressive,” there was provocation on the part of the deceased.

In this case you must ask yourself the question with regards to whether there was provocation by the deceased Fin, whether the use of the words liki ou manman and the act of pushing the accused sufficient enough to cause a reasonable or ordinary person from the community to which the accused belongs, to suddenly and temporarily lose control or deprive him of the power of self control and induce him to assault the person using a machete and a knife?.  If your answer is in the negative then you must consider that there was no provocation.  If your answer to this question is affirmative then you are untitled (sic) to find that there was provocation and find the accused guilty of manslaughter and not murder.

Further it was learned counsel for the accused contention that the prosecution had to disprove beyond reasonable doubt the fact that the accused was provoked.  Learned counsel for the prosecution explained to you the reasons based on the statement and evidence why provocation should not succeed.  He pointed out a material fact that the provocation in this case occurred when the accused put the knife to Ghislain throat and said he wanted to fuck her and therefore it was the accused who started the provocation and not the deceased Fin Vidot.  In his unsworn statement the accused himself contradicts the fact he was provoked when he states in his unsworn statement that he was not present at the time when Fin Vidot was attacked and does not refer to any provocation and denies any attack provoked or otherwise on the deceased in his unsworn statement from the dock.” (emphasis added)

  1. Section 197 of the Penal Code states:

“When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as herein after defined, and before there is time for his passion to cool, he is guilty of manslaughter only.”

  1. Section 198 then goes on to define “provocation” and we have set out here in the provisions relevant to this case. As per section 198, provocation means and includes any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered. An ordinary person shall mean an ordinary person of the community to which the accused belongs. (emphasis added)

  2. The following elements have to be present before one could say that the killing was on provocation:

  1. The accused acted in the heat of passion, before there is time for his passion to cool;
  2. Caused by sudden provocation;
  3. Provocation was as a result of any wrongful act or insult of such a nature as to be likely, when done to an ordinary person; (‘An ordinary person’ shall mean an ordinary person of the community to which the accused belongs.)
  4. To deprive him of the power of self-control and;
  5. To induce him to assault the person by whom the act or insult is done.
  1. The words “in the heat of passion and before there is time for his passion to cool” necessarily connotes a subjective test and the words “any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, to deprive him of the power of self-control”  brings in the objective element. The words “acted in the heat of passion, before there is time for his passion to cool.” are not a matter of degree but is absolute and there is no intermediate stage between icy detachment and going berserk.  Our law of provocation does not state that the retaliation must be proportionate to the provocation or in other words the mode of retaliation must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter. To do so would be to introduce a third condition to the law on provocation. It would be wrong to tell or even suggest to the Jury that fists might be answered by fists but not with a deadly weapon, because if fists were answered with a deadly weapon as in this case, such a direction would take out of the Jury’s hands a question which is exclusively for them and on which their opinion is decisive. So long as the accused had acted in the heat of passion and before there is time for his passion to cool and the provocative conduct was of such a nature as to be likely, when done to an ordinary person, to deprive him of the power of self-control and to induce him to assault the person who provokes him that would suffice. As to what the nature of the assault should be has not been specified. Thus it was a misdirection on the part of the Learned Trial Judge to have posed the question to the Jury in his summing up, whether the provocation by the deceased Fin was sufficient enough to cause a reasonable or ordinary person from the community to which the accused belongs to assault Fin by using a machete and knife. We are also of the view that this would have prejudiced the Appellant’s case to a great extent in view of the type of weapons used and the gravity of the injuries caused to the deceased. Had the Learned Trial Judge not misdirected himself on this matter we are not sure what verdict the Jury may have returned. This is more so because, as to what happened moments before the killing, comes out only from the confession of the Appellant, as Ghislane strangely pleads ignorance of the events that unfolded in the house after she went up to her room and locked herself inside. Jean Paul Victor somewhat corroborates the Appellant’s version, as found in his confession, of having been strangled by the deceased at the time of the incident. Common sense and the facts and circumstances of this case dictates that something ought to have happened on the evening of the of the 4th of June 2012 for the Appellant to have attacked his step father whom he knew for the past 21 years and with whom he had lived for several years. In this regard we have only the confession of the Appellant to rely upon.

  2. In view of the misdirection on the law of provocation we quash the conviction of murder and the sentence of life imprisonment and substitute in place a conviction for manslaughter. Taking into consideration the seriousness of the injuries inflicted, the type of weapons used and the particular circumstances of the case we have decided to impose a sentence of 12 years imprisonment on the Appellant.

A.F.T.FERNANDO

JUSTICE OF APPEAL

 

I concur:

S. Domah

JUSTICE OF APPEAL

 

I concur:  

J. Msoffe

JUSTICE OF APPEAL

 

Signed, dated and delivered at Palais De Justice, Ile du Port on this12th day of December 2014.