The Tribune

By FARRAH JOHNSON

Tribune Staff Reporter

fjohnson@tribunemedia.net

THE Court of Appeal on Friday quashed the 20-year manslaughter sentence of a man who fatally stabbed another man he believed intended to rape him.

After reserving their decision, Justices Sir Michael Barnett, Jon Isaacs and Milton Evans granted Albury’s appeal and quashed his conviction and sentence, just before ordering that he be retried for manslaughter in a new trial that is to be held “as soon as is practicable.”

Lamar Albury was charged with the murder of Devince Smith in 2016. Court documents said that during his trial, his defence was that the deceased had shown him pornography and when he “objected and expressed distaste for the images”, the man “grabbed and held his penis and tried to strike him over the head with a vase.”

At the time, Albury said he believed that he would have been raped by the deceased which prompted him to defend himself by stabbing Mr Smith multiple times about the head, neck and chest, which ultimately led to his death.

After a trial by jury in 2017, Albury was convicted of the lesser offence of manslaughter by reason of provocation and sentenced to 20 years imprisonment.

He recently appealed his conviction after arguing “the learned judge failed to give an adequate direction to the jury” as it related to his argument of self-defence. He contended that this factor not only affected the safety of his conviction, but also impacted the fairness of his trial.

In their judgement, delivered by Justice Evans, the panel said while the trial judge gave the required direction as it related to honest belief, she failed to “adequately make clear to the jury what the actual circumstances” were as Albury “perceived them to be.”

“The learned judge did not seem to focus her mind to the fact that the primary concern expressed by the applicant at trial was that he was of the view that the deceased intended to rape him,” Justice Evans said. “The evidence from the applicant was that the deceased grabbed and held the applicant’s penis and attempted to hit him over the head with a vase. The applicant then having an honest belief that the deceased was attempting to rape him, defended himself to prevent being raped. The implication being that the use of the vase was intended to subdue the applicant to facilitate the rape by the deceased."

He added: "Section 107 (4) of the Penal Code clearly lists rape as one of the crimes against which a person may defend themselves by using force even to the extent of killing the attacker. It is unfortunate that the learned trial judge focused her attention to the crimes of causing dangerous/ grievous harm or death.”

Justice Evans said based on the “ambiguity of the judge's summation”, it was clear that she was of the view that the jury could find Albury not guilty of murder by virtue of self-defence, but still proceed to consider and convict him on a charge of manslaughter by provocation.

He said that viewpoint was “clearly wrong”, because if the jury had found that Albury was justified in defending himself, he was “entitled to be acquitted of all charges”.

“If the jury was of the view that he was entitled to defend himself, but he used more force than was necessary they ought to find him guilty of manslaughter,” Justice Evans continued. “The issue of manslaughter due to provocation could only arise where the jury rejected the defence of self-defence completely, that is to say, that the force used was not justified (which the judge said that the jury found was justified). It is only then that they could have properly considered whether the applicant was motivated by provocation.

“...It is obvious that having regard to the not guilty verdict on the charge of murder a retrial would have to relate to the offence of manslaughter. I would therefore order that the conviction and sentence be quashed and a new trial held as soon as is practicable”.