22 March 1946
Owens |
v. |
H. M. Advocate |
At advising on 22nd March 1946 the opinion of the Court was delivered by the Lord Justice-General,—
A special defence of self-defence was lodged by the appellant. It should be explained here that counsel for the appellant admitted, and in our view necessarily admitted, that, if it had been proved that the stabbing took place in the room and not in the lobby, there could have been no place for the special defence of self-defence. Counsel maintained, however, that on the evidence the jury were not entitled to come to the conclusion that the stabbing took place within the room. We do not assent to this view, and we think that on the evidence above summarised it would have been open to the jury to find that Falconer was stabbed inside the room and not in the lobby, and, since no question of self-defence or provocation would then have arisen, to go on to find a verdict of murder. But we cannot agree with the Solicitor-General that it must be assumed that the jury arrived at their verdict by following this line of reasoning. The case for the Crown, as the charge shows, was that murder was proved whether the jury might think that the stabbing took place in the room or in the lobby, and we are not entitled to assume that the jury held that the stabbing took place in the room. If the jury thought it took place in the lobby they had then to consider the special defence and to resort to the directions in the charge for guidance in dealing with the evidence of Falconer's conduct, and especially the evidence given by the appellant.
It therefore becomes of crucial importance to consider the grounds of appeal which challenge the directions given by the presiding Judge, for it is fundamental that it should be understood that he charged the jury that there was evidence of conduct by Falconer which the jury were bound to consider and which might, if they accepted it, justify a verdict of acquittal.
The salient questions in this appeal accordingly arise out of the directions which were given in relation to the special defence and to the evidence in support of it. A good deal was said in the appeal about onus, but we think the argument resolves itself into something more verbal than real. The onus is, of course, on the Crown throughout. It must prove that the fatal act was the accused's, and that it was deliberate or committed with a reckless disregard of the consequences. The panel relieved the Crown of the first part of the burden by himself admitting the stabbing with a lethal weapon, but attached to this admission the explanation of its being done in self-defence in the circumstances explained by him. The Crown cannot, we think, take advantage of the admission without displacing the explanation or at all events presenting to the jury a not less strong case that shows directly or indirectly that the explanation is false. When we speak of the onus being on the panel to set up self-defence we merely mean that the accused must take the sting out of his own admission that he delivered the fatal blow. If he does this by proving that he was attacked and put in danger of his life (or had reasonable apprehension of danger to his life), he has set up his defence so that he must be acquitted. But, although he may choose to undertake complete legal proof as the best line of defence in the circumstances of his case, he is not bound to lead such evidence as would amount to a discharge of proof. He can rely on his own sworn statement that he was acting in self-defence and rely on his own credibility to outweigh any colourable case the Crown has laid before the jury; and the jury, if satisfied on a review of the whole evidence in the case of his credibility, is entitled to accept the panel's single sworn explanation and to reject evidence which would probably, without the explanation, have been sufficient for a conviction. It is neither unnatural nor prejudicial to the panel that a presiding Judge in dealing with evidence in his charge should take the shorthand method of saying, first, are you satisfied that the panel has made out his case of self-defence, for example, or alibi. For if the jury is so satisfied that is an end of the case, and the jury may be satisfied by proof of a standard less than proof beyond a reasonable doubt. And the reason for this is that the burden throughout is on the Crown to bring home guilt to the accused beyond reasonable doubt, and the Crown has not reached that position so long as the evidence given for or by the panel operates to create what may be no more than a doubt. It is for that reason that the panel's uncorroborated statement can avail for his acquittal. It may therefore be necessary for the presiding Judge, not only to ask the jury to consider whether the special defence has been made out, but to ask them also to consider whether it has not had the effect of so shaking reliance on the Crown evidence as to warrant an acquittal from the charge. Furthermore, it may often be the Judge's duty in murder cases to ask the jury to consider whether, although a case of crime has been made out, it is of the quality of murder or of the lesser crime of culpable homicide, and they may come to a decision that it is of the lesser quality not only on the Crown evidence but by weighing that along with whatever has been said by the defence witnesses or even with the sole and single story told by the panel himself. This question of onus has recently been discussed by this Court in the case of Lennie, and, in our opinion, nothing that has been said either in that or in the present case in any way traverses well established principles of our criminal law or introduces any novelty of practice.
I will now turn to the passage in the charge where the presiding Judge directs the jury on the essentials of a special defence. The learned Judge said:—
"If he was completely wrong in thinking"
—that is if the appellant was completely wrong in thinking—"there was an object of a dangerous sort in Falconer's hand when he sprang out of bed and there was no such object, then any attack by Falconer following him into the lobby would not have justified the use of a lethal weapon. As I will tell you in a moment with authority the defence must be against an attack which reasonably is understood to be one likely to cause danger to life before it justifies the use of a lethal weapon."
The first of these two sentences is, in our opinion, a misdirection on the essential elements of self-defence. In our opinion self-defence is made out when it is established to the satisfaction of the jury that the panel believed that he was in imminent danger and that he held that belief on reasonable grounds. Grounds for such belief may exist though they are founded on a genuine mistake of fact. In the present case, if the jury had come to the conclusion that the appellant genuinely believed that he was gravely threatened by a man armed with a knife but that Falconer actually had no knife in his hand, it would, in our opinion, have been their duty to acquit, and the jury ought to have been so directed. Here in the first of the two sentences they are plainly instructed to the opposite sense, and the effect of that direction is not taken off by the obscure sentence which follows and which holds out the unfulfilled expectation of a more complete treatment of the law on the question in a later passage of the charge. The result is that the jury were misdirected on the essential nature of the defence which they were considering, and if they had been properly directed they might have acquitted the appellant. The verdict therefore cannot stand. That is sufficient for the disposal of the case, and it is unnecessary to consider further whether the charge is in conformity with what has been already said in this opinion upon the matter of proof where there is a special defence.
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