Murder reduced to manslaughter

The Court of Appeal has quashed a conviction for murder and substituted a conviction for manslaughter in the case of Stephen Eduardo Ebanks.

Ebanks, who will be 35 this month, was convicted after trial by jury of murdering George Hallmark Ebanks in March 2003.

He had been sentenced to life imprisonment, which is the only penalty for murder in Cayman’s Penal Code.

The court substituted a sentence of ten years imprisonment. Time in custody is to be taken into account.

Stephen always admitted fatally stabbing Hallmark. His trial attorneys ran a defence of self-defence.

The jury had heard a statement Stephen gave to police shortly after the incident, which occurred at Stephen’s home. Hallmark was known to Stephen but had entered without his permission. Stephen said that after they had shared cocaine twice, Hallmark pulled a knife on him.

Stephen said he ducked, then got a knife from the kitchen. Asked about stab wounds to Hallmark’s back, Stephen said that happened when Hallmark was running to get a machete from another room. (Caymanian Compass, 2,6 April 2004).

The judge did instruct the jury on the definition of murder and self-defence. He also advised on the legal ingredients of manslaughter.

However, there was a lack of instruction about provocation.

This was the main point in the appeal argued by Michael Wood QC, who appeared with Attorney James Austin Smith.

The Penal Code explains provocation. Where on a charge of murder there is evidence on which the jury can find that the defendant was provoked to lose his self-control (whether by things done or things said or both), the question whether the provocation was enough to make a reasonable man do as he did shall be left to the jury.

In determining that question, the jury shall take into account everything said and done, according to the effect it would have, in their opinion, on a reasonable man.

Senior Crown Counsel Adam Roberts said there had to be not only evidence of provoking conduct but also evidence that the defendant did lose control. If the judge decided there was not such evidence he ought not leave the question of provocation to the jury.

Mr. Justice Martin Taylor referred to Stephen’s statement to police in which he said he was in a rage. The judge then posed the question: ‘To say I was in a rage means I lost my self-control, doesn’t it?’

Court president Mr. Justice Edward Zacca said he had never seen a case in which an attack with a knife was not sufficient for the question of provocation to be left to the jury.

Mr. Justice Ian Forte said the test had been well settled by the Privy Council.

In announcing their decision, they judges said they were satisfied that the trial judge ought to have left the issue of provocation to the jury. They said there was certainly evidence in Stephen’s statement to police that could have led the jury to arrive at the verdict of manslaughter.

At Stephen’s trial the judge explained that murder occurs when a person of sound mind and discretion unlawfully kills another person with intent to kill or cause grievous bodily harm.

The ingredients of manslaughter do not include intent.

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