Danny Benjamin Appellant v The Queen Respondent

• Jurisdiction: British Virgin Islands
• Judge: Blenman JA
• Judgment Date: 06 April 2015
• Judgment citation (vLex): [2015] ECSC J0406-2
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: BVIHCRAP2013/0001
• Date: 06 April 2015

[2015] ECSC J0406-2

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

BVIHCRAP2013/0001

Between:

Danny Benjamin

Appellant

and

The Queen

Respondent

Appearances:

Mr. Patrick Thompson for the Appellant

Ms. Tiffany Scatliffe Principal Crown Counsel for the Respondent

Criminal Appeal — Unlawful and malicious wounding — Whether learned trial judge erred in directing jury on the issue of transferred malice — Whether learned trial judge erred in failing to give good character direction — Whether learned trial judge erred in failing to advise jurors on lesser alternative offence — Whether learned trial judge materially misdirected jurors on self-defence — Court of Appeal Act Section 43 — Application of proviso

Mr. Danny Benjamin was charged on an indictment that preferred two counts against him — firstly, that he unlawfully and maliciously wounded August Pond with intent; and secondly, that on the same date and at the same location he unlawfully and maliciously wounded Christian Morillo with intent.

Mr. Benjamin and Mr. Pond were friends. On the day in question, Mr. Pond, Mr. Benjamin and another friend, Lance went to Anna's Bar to have drinks. There were other persons in the bar including three Spanish men. One of the Spanish men seated at this time next to

Mr. Benjamin started to rap. Mr. Benjamin appeared to be agitated and started to shout at the Spanish man whereupon an argument ensued between them. Mr. Pond and others tried to prevent Mr. Benjamin from becoming involved in a fight. Mr. Benjamin pushed Mr. Pond's hand away and went to the Spanish man and confronted him. Mr. Pond made another attempt to get Mr. Benjamin to leave by this time he (Mr. Benjamin) and the Spanish man were locked in a fight. Mr. Christian Morillo pushed Mr. Benjamin and the Spanish man in an effort to separate them.

Mr. Benjamin's friends were able to persuade him to leave the bar, which he did. Mr. Morillo thereafter returned to the bar and sat down. However, Mr. Benjamin did not leave the bar altogether, but went to his vehicle that was parked in front of the entrance of the bar, retrieved a machete from his vehicle and re-entered the bar. Mr. Morillo then heard "Christian be careful" and he observed that Mr. Benjamin was about to chop him. He raised his right hand so as to prevent the impact of the machete. Having been struck by the machete he fell to the ground whereupon Mr. Benjamin struck him again.

The Spanish men unsuccessfully tried to take the machete away from Mr. Benjamin. However, one of them pushed him out of the bar causing him to fall while still holding the machete. Mr. Pond who was at the front of the door talking to the DJ turned around and saw Mr. Benjamin re-entering the bar with the machete. He turned away and continued speaking to the DJ when he felt the machete across his head. He fell to the floor and could not move the left side of his body. Mr. Pond sustained very severe injuries to his skull and consequently had to undergo two major surgeries.

In the court below, the Crown prosecuted its case against Mr. Benjamin in relation to Mr. Pond on the basis of transferred malice; whereas the Crown's case in relation to Mr. Morillo was that Mr. Benjamin intended to harm Mr. Morillo. In his defence, Mr. Benjamin argued that though he intended to strike Mr. Morillo, he was acting in self-defence. Mr. Benjamin also argued that he was acting in self-defence when he accidentally struck Mr. Pond as he was defending him from Mr. Morillo.

In relation to the count that related to Mr. Pond, the learned trial judge directed the jury on the principles that are applicable to transferred malice and self-defence. In relation to the count in which Mr. Morillo was the victim, the judge's direction addressed the offence charged and the defence of self-defence. Despite the fact that Mr. Benjamin had no previous convictions, his then counsel Mr. Rowe did not bring out that fact during the trial and therefore Mr. Benjamin did not get benefit of a good character direction. There is no indication as to when the jury retired to deliberate or the length of time for which they deliberated. They returned with unanimous verdicts in relation to both offences. The learned trial judge thereafter sentenced Mr. Benjamin to ten years in prison on each offence, to run concurrently.

Mr. Benjamin appealed on the grounds that the sentence imposed by the learned trial judge was excessive in all the circumstances of the case; the learned trial judge erred in failing to give a good character direction to the jury in respect of Mr. Benjamin; the learned trial judge erred in failing to advise the jurors of the statutory and lesser alternative offence of inflicting grievous bodily harm contrary to Section 164 of the Criminal Code of the British Virgin Islands ("the Criminal Code") thereby depriving Mr. Benjamin of a verdict which was properly open to the jurors on the evidence; the learned trial judge materially misdirected the jurors on the issue of self-defence; count 1 of the indictment alleging that the appellant unlawfully and maliciously wounded Augustus Pond intending to do so was defective; and that the learned trial judge erred in advising the jurors of the fact that they could deliver a majority verdict before the time for doing so had properly arisen.

Held: allowing the appeal and remitting the matter to the court below for retrial, that:

• 1. The well-known principle of transferred malice essentially dictates that that where the defendant does an act intending to injure person B, he is guilty of having committed the offence against person B and the defendant's criminality is precisely the same whether it is person A or person B who is injured. Once the actus reus and the mens rea of the same crime coincide, the offence is committed. In order to be able to rely on this principle, the Crown must provide the evidential basis for so doing and cannot abdicate its responsibility by simply relying on a theory that is put forward by the defence. In the present case, the Crown quite erroneously relied on the principle of transferred malice in order to establish the offence in relation to Mr. Pond as the evidence that it adduced did not give rise to any basis for prosecution on this principle. Furthermore, it is clear that the learned judge misdirected the jury in summing up the case in relation to Mr. Pond on the basis of transferred malice as no evidence was led by the Crown in support of this principle. However, given the cogency of the evidence led by the Crown in relation to the ingredients of the offence of unlawful and maliciously wounding with intent, more specifically the overwhelming evidence that may have enabled the jury to infer that Mr. Benjamin had the requisite intention, the learned trial judge's misdirection was not fatal so as to vitiate Mr. Benjamin's conviction.

  Latimer v R (1886) 17 QBD 359 applied; DPP v Frederick Daley and Another [2002] 2 WLR 1 applied; R v Mitchell [1983] QB 741 applied.

• 2. It is settled that the question of whether or not to leave an alternative verdict for a lesser offence to the jury involves the exercise of the judge's discretion. It is the law that an appellate court will not lightly interfere with the exercise of the trial judge's discretion. To do so the appeal court must be satisfied that the failure to leave the alternative verdict to the jury in the circumstances of the particular case has affected the safety of the conviction. The judge in making that decision must take a number of factors into account: (a) the judge must examine all of the evidence, disputed and undisputed and the issues of law and fact to which it has given rise; (b) in considering this matter, the judge is obliged to take into account the question of fairness to the defendant, on the one hand, and proportionality, that is to say, whether the alternative verdict would do justice to the facts of the case; and (c) the decision whether to leave an alternative verdict is one for the judge's discretion, based on the evidence in the case.

  Sections 163 and 164 of the British Virgin Islands Criminal Code applied; R v Foster and other Appeals [2008] 2 All ER 597, 61 applied; Patrick Facey et al v The Queen BVIHCRAP2013/0009 ( delivered 18th May 2015, unreported) applied.

• 3. It is plain that the difference between sections 163 and 164 of the Criminal Code is that an offence under section 163 requires proof that the defendant intended to wound or cause grievous bodily harm to the victim or to prevent the lawful apprehension while an offence under section 164 may be committed without any such intention. Section 163 is obviously the more serious of the two offences. The overwhelming evidence that was adduced by the Crown pointed to the intention to cause the greater offence. To have left the alternative verdict to the jury may have been unfair to the Crown since that verdict would not have done justice to the facts of the case. Accordingly, the learned trial judge's decision to direct the jury only on the greater offence and his refusal to leave the alternative verdict resulted in no unfairness to Mr. Benjamin and does not undermine the safety of the conviction.

  Sections 163 and 164 of the British Virgin Islands Criminal Code applied; R v Foster and other Appeals [2008] 2 All ER 597, 61 applied; Patrick Facey et al v The Queen BVIHCRAP2013/0009 ( delivered 18th May 2015, unreported) applied.

• 4. It is the law that where a plea of self-defence arises, if the defendant may have been honestly mistaken as to the facts, he must be judged according to his mistaken belief of the facts, whether the mistake was on an objective view a reasonable mistake or not. The law also allows such force to be used as is...