*547 Regina v. Lobell. [1957] 2 W.L.R. 524 Court of Criminal Appeal CCA Lord Goddard C.J.

, Cassels and Gorman JJ. 1957 Mar. 4, 11. Criminal Law--Self--defence--Onus of proof--Onus of establishing plea of self--defence not on accused--Unlawful wounding. Criminal Law--Wounding--Onus of proof--Self--defence. Burden of Proof--Criminal case--Burden on prosecution throughout--Self-defence--Wounding. In cases where the defence of self-defence or justification is raised the onus of proof of the guilt of the accused remains throughout on the prosecution. That does not mean that the prosecution must give evidencein-chief to rebut a suggestion of self-defence before that issue is raised, or, indeed, need give any evidence on the subject at all. If an issue relating to self-defence is to be left to the jury there must be some evidence from which a jury would be entitled to find that issue in favour of the accused, but there is a difference between leading evidence which would enable a jury to find an issue in favour of the accused and in putting the onus upon him. The jury must come to a verdict on the whole of the evidence that has been laid before them: if on a consideration of all the evidence the jury are left in doubt whether the killing or wounding may not have been in self-defence the proper verdict would be not guilty. Where, therefore, at the trial of the appellant on a charge of wounding with intent to do grievous bodily harm, the appellant set up a defence of selfdefence, which there was evidence to support, and the trial judge directed the jury that it was for the defence to establish that plea to their satisfaction:Held, that a proper direction would have been to tell the jury that the burden of establishing guilt was on the prosecution throughout but that they must also consider the evidence for the defence which might either 1

convince them of the innocence of the accused or cause them to doubt, in which case he was entitled to an acquittal, or which might, as it sometimes did, strengthen the case *548 for the prosecution; and that, as the court did not feel satisfied that if the correct direction had been given the jury would have been sure to have convicted, the conviction must be quashed. Chan Kau v. The Queen[1955] A.C. 206; [1955] 1 All E.R. 266 applied. Reg. v. Smith(1837) 8 C. & P. 160 disapproved. APPEAL against conviction. The appellant, Harry Lazarus Lobell, was charged at Manchester Crown Court with wounding with intent to do grievous bodily harm. There had been bad blood and enmity between the appellant, who was a wholesale butcher and had a stall in a meat market, and the complainant, one Evans. There was evidence of threats which had been uttered by Evans against the appellant; he had on a previous occasion, with a knife in his hand, said he would kill Evans, who had retorted that if the appellant moved his arm he would break it. On the day of the wounding alleged in the indictment it was said that Evans approached the appellant uttering threats, that the latter then threw a brick at Evans who, however, continued to advance towards him in a threatening manner, whereupon the appellant picked up a knife, which he said he had brought for his protection, and stabbed him. He then drove off to the police station and said that he had stabbed a man in self-defence. At the trial the sole defence set up by the appellant was that in inflicting the wound he was acting in self-defence. Jones J., summing up, directed the jury, and several times stressed, that it was for the defence to establish that plea to their satisfaction. The jury convicted the appellant and he appealed on the grounds that the judge's direction that the burden of proving this defence was on the accused was erroneous, and also that the judge did not direct the jury that the degree of proof required from the defence was of a less degree than that required from the prosecution. J. R. D. Crichton Q.C. and I. R. Taylor for the appellant. The burden of proof is never placed upon an accused person except in cases of insanity or where a statute expressly provides, and it was therefore a misdirection to tell the jury that it was for the defence to establish to their satisfaction the plea of self-defence. Where there is a plea of justification the onus is on the Crown throughout: Chan Kau v. The Queen. [FN1] The judge *549 apparently followed the passage in Archbold's Criminal Pleading, Evidence and Practice, 33rd ed., pp. 941, 942, [FN2] where the summingup in Reg. v. Smith [FN3] is quoted; that passage was disapproved in Chan Kau v. The Queen, [FN4] where Lord Tucker [FN5] said that it needed modification in the light of modern decisions. FN1 [1955] A.C. 206: [1955] 1 All E.R. 266 . FN2 Amended in Cumulative Supplement.

FN3 (1837) 8 C. & P. 160 . FN4 [1955] A.C. 206 . FN5 Ibid. 211, 212. [CASSELS J. referred to Woolmington v. Director of Public Prosecutions. [FN6] ] FN6 [1935] A.C. 462; 51 T.L.R. 446 . It is not contended that it does not lie upon a defendant setting up selfdefence to put forward evidence upon which the jury can find that he was acting in self-defence, but it is for the Crown to overcome that evidence and to establish their case over and above the plea of self-defence. At no time did the judge direct the jury that the standard of proof required of the defence is not as high as that required of the prosecution. [Reference was made to Rex v. Haddy. [FN7] ] In view of that omission, and the clear misdirection, it is submitted that the conviction cannot stand. FN7 [1944] K.B. 442: 60 T.L.R. 253; [1944] 1 All E.R. 319 . Sir Noel Goldie Q.C. and Donald Summerfield for the Crown. In Chan Kau v. The Queen [FN8] it was considered that there had been a misdirection as to the onus of proof in regard to self-defence, but the appeal was not allowed on that ground, but on the ground that a plea of provocation had been improperly withdrawn from the jury. If there is a misdirection here, it is submitted that it does not go to the root of the matter and that the test to be applied is that in Lejzor Teper v. The Queen [FN9] as modified and applied in Chan Kau v. The Queen. [FN10] There was ample evidence on which the jury could have come to their decision and it is submitted that this is a case in which the court should apply the proviso to section 4 (1) of the Criminal Appeal Act, 1907 . FN8 [1955] A.C. 206 . FN9 [1952] A.C. 480, 492; [1952] 2 T.L.R. 162; [1952] 2 All E.R. 447 . FN10 [1955] A.C. 206 , 214. LORD GODDARD C.J. The court will quash the conviction, but as the case raises a question of considerable importance we will put our judgment into writing and deliver it at a later date. March 11. LORD GODDARD C.J., reading the judgment of the court, stated the facts and the grounds of appeal as set out *550 above and 3

continued: It is unnecessary to set out verbatim the passages in the judge's full and careful summing-up which have been criticized by counsel for the appellant, because there is no doubt, and the prosecution has not contended otherwise, that he directed the jury that it was for the defence to establish to their satisfaction his plea of self-defence. The onus was clearly put in the summing-up on the defendant. There is no doubt that in so doing, the judge had the support of Reg. v. Smith [FN11] where Bosanquet J., [FN12] apparently with the approval of Bolland B. and Coltman J., charged the jury that before a person can avail himself of this defence he must satisfy the jury that the defence was necessary, that he did all he could to avoid it, and that it was necessary to protect his own life, or to protect himself from such serious bodily harm as would give a reasonable apprehension that his life was in immediate danger. In that case the judge said that the accused would be justified. He no doubt had in mind the provisions of 9 Geo. 4, c. 31, s. 10 , now replaced and reenacted by section 7 of the Offences against the Person Act, 1861 , which enacts that no punishment or forfeiture shall be incurred by any person who shall kill another by misfortune or in his own defence, or in any other manner without felony. This passage from the summing-up has for many years appeared in Archbold's Criminal Pleading and Practice as the proper direction to be given in such cases and certainly puts the onus of establishing a defence of killing se defendendo on the accused. It is a defence of justification, or, to put it in terms of pleading, a confession and avoidance. In civil cases this plea is always to be proved by the party setting it up; and it is perhaps not altogether easy to see why it should not be so in a criminal case, more especially as when self-defence is set up the facts must often be known only to the defendant who relies upon it. FN11 (1837) 8 C. & P. 160 . FN12 Ibid. 162. But in the opinion of the court the cases of Woolmington v. Director of Public Prosecutions [FN13] and Mancini v. Director of Public Prosecutions [FN14] establish that in murder or manslaughter the rule that the onus is on the prosecution permits of no exception except as to proof of insanity. In the recent case of Chan Kau v. The Queen [FN15] this was stated in terms by Lord Tucker, [FN16] who referred to *551 Reg. v. Smith [FN17] and said that the passage from the summing-up quoted in Archbold clearly needed some modification in the light of modern decisions. It must, however, be understood that maintaining the rule that the onus always remains on the prosecution does not mean that the Crown must give evidence-in-chief to rebut a suggestion of self-defence before that issue is raised, or indeed need give any evidence on the subject at all. If an issue relating to self-defence is to be left to the jury there must be some evidence from which a jury would be entitled to find that issue in favour of 4

the accused, and ordinarily no doubt such evidence would be given by the defence. But there is a difference between leading evidence which would enable a jury to find an issue in favour of a defendant and in putting the onus upon him. The truth is that the jury must come to a verdict on the whole of the evidence that has been laid before them. If on a consideration of all the evidence the jury are left in doubt whether the killing or wounding may not have been in self-defence the proper verdict would be not guilty. A convenient way of directing the jury is to tell them that the burden of establishing guilt is on the prosecution, but that they must also consider the evidence for the defence which may have one of three results: it may convince them of the innocence of the accused, or it may cause them to doubt, in which case the defendant is entitled to an acquittal, or it may and sometimes does strengthen the case for the prosecution. It is perhaps a fine distinction to say that before a jury can find a particular issue in favour of an accused person he must give some evidence on which it can be found but none the less the onus remains on the prosecution; what it really amounts to is that if in the result the jury are left in doubt where the truth lies the verdict should be not guilty, and this is as true of an issue as to self-defence as it is to one of provocation, though of course the latter plea goes only to a mitigation of the offence. Had the judge in the present case gone on to say that it was not for the accused to establish his plea with the same degree of certainty as is necessary to establish a case for the prosecution it might have been that we should have had to consider whether this was a case for the application of the proviso. There was certainly here material on which a jury might have found self-defence. But that it was the duty of the accused to satisfy them on this point was on several occasions stressed in the *552 summing-up and we do not feel by any means satisfied that if what we now hold was the correct direction had been given the jury would be sure to have convicted. For these reasons we quashed the conviction at the close of the argument. FN13 [1935] A.C. 462; 51 T.L.R. 446 . FN14 [1942] A.C. 1; 58 T.L.R. 25; [1941] 3 All E.R. 272 . FN15 [1955] A.C. 206; [1955] 1 All E.R. 266 . FN16 [1955] A.C. 206 , 211, 212. FN17 8 C. & P. 160 . Representation Solicitors:A. E. M. West & Co., Manchester ;Sharpe, Pritchard & Co. forP. B. Dingle, Manchester . 5

Appeal allowed. (J. F. L. ) (c) Incorporated Council of Law Reporting For England & Wales [1957] 1 Q.B. 547 END OF DOCUMENT Adobe Reader is required to view PDF images. (C) 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.