Georges JA, Henry JA, Zacca JA
IN THE CAYMAN ISLANDS COURT OF APPEAL
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
C.I.C.A. NO. 24/87
BEFORE: THE HON. PRESIDENT
THE HON. MR. JUSTICE GEORGES, J.A.
THE HON. MR. JUSTICE HENRY, J.A.
EUGENIE GORDON vs. REGINA
Mr. Keith Collins for the Appellant
Mr. Anthony Smellie for the Crown
REASONS FOR JUDGMENT
APRIL 18 & 19, AUGUST 7, 1989
The Appellant was charged with the murder of Erskine Connolly. Pursuant to section 121A of the Criminal Procedure Code she elected to be tried by a judge alone and on June 30th, 1987 she was convicted of manslaughter and sentenced to imprisonment for 8 years. She appealed against her conviction and sentence.
The Appellant was employed as a housekeeper by the deceased for about 3 weeks prior to his death. She occupied the front room of two adjoining rooms which formed the outbuilding on premises owned by the deceased's uncle. The deceased occupied the other. The rooms were separated by a curtained doorway.
The Appellant's evidence was that after she entered his employment the deceased made sexual advances and improper suggestions to her which she continued to reject. Eventually one night after she had gone to bed the deceased came into her room and told her to come into his room. When she refused he kicked her and boxed her, grabbed a machete and came after her. She ran to the adjoining room and he followed, raising the machete "like he wanted to chop me". She remembered there was a knife on the table and as he was coming towards her with the cutlass she
grabbed his hand and stabbed him in his chest. After she stabbed him, the cutlass fell from his hand and they struggled and fell on the bed. She was on top of him. He was calling out for his uncle. She put her hand on his mouth. He bit her thumb and caught her round the back of the neck. She didn't have a chance to get away and "kept juking him with the knife" trying to get him to let go her neck, until she felt his hand release from around her neck.
Two friends of the Appellant gave evidence for the Prosecution of independent admissions by the Appellant to them that she had killed the deceased. In neither account did the Appellant mention a machete or suggest that the killing was in self defence, although she said that the deceased had made an indecent proposition to her and, when she refused he had boxed her whereupon she pushed him and flung a knife at him hitting him in the stomach. The body of the deceased bore 12 stab wounds, some of them superficial but three of which penetrated the heart, the pleural cavity and the liver respectively.
The learned trial judge rejected the defence of self defence. The principal ground of appeal is that he was in error in so doing having regard to his findings:
(i) The deceased made sexual advanced to the Appellant in her bedroom on the night in question;
(ii) The Deceased was wearing his underclothes at the time;
(iii) The deceased started the fight attacking the Appellant with a machete;
(iv) That the Appellant did not appear to be a patently obvious liar.
The learned trial judge correctly approached the issue of self defence on the basis of Beckford v R (1987) 3 All ER 426
that the test was a subjective one and a person could use such force in the defence of himself or another as was reasonable in the circumstances as he honestly believed them to be. He expressed himself as not believing "that the defendant thought she was in danger of bodily injury from Connolly". He was clearly influenced by evidence from a prosecution witness Mrs. Dawes of an occasion on which the deceased had lifted a cutlass to her and put it down when she raised a hand. The learned trial judge observed that "Mrs. Dawes had obviously not taken the old man's earlier threat of herself seriously and she was a slighter and older man than the defendant". The deceased, a man of 72, was described as "a small man. He wasn't heavy. He had a stomach problem. He was physically not frail. Looks wiry. Walked brisk". There was, however, evidence that the deceased was "hardly ever sober" and that "when drunk he was a violent man". There was no evidence as to his condition or as to the circumstances in which he lifted a cutlass to Mrs. Dawes, nor was there evidence that the Appellant knew of the incident. Once the learned trial judge accepted that the deceased started the fight armed with a cutlass and concluded that "the truth of the matter was probably not far removed at all from her account" it is difficult to see how he could refer to the subsequent struggle as the Appellant persisting in her attack". The Appellant was, on those findings by the learned trial judge, alone at night facing a man, albeit far older and apparently frailer than she, armed with a cutlass which he appeared to be about to use to attack her. We do not consider that there was sufficient other evidence to refute her evidence indicating her apprehension or to justify the conclusion
of the learned trial judge that the Appellant did not think she was in danger of bodily injury from the deceased. If she did believe she was in danger of bodily injury she would have been justified in using in self defence such means as were at her disposal and which were reasonable in the circumstances. She did not go in search of a knife. One was to hand when the deceased attacked her. Its use to repel an attack with a cutlass would have been reasonable in the circumstances. Even if it could be said that, after the machete fell from the deceased, the Appellant was not justified in continuing to use the knife to inflict so many stab wounds, the first stab to the chest which she inflicted would clearly have been in self defence and may well have been the one which ultimately caused death.
For these reasons we were of the view that the plea of self defence ought to have succeeded and we allowed the appeal.