Court of Appeal
Criminal Appeal No. 22 of 1995
PROFESSOR TELFORD GEORGES P.
HORACE WALWIN YOUNG J.A.
NICHOLAS J.O. LIVERPOOL J.A.

Mr. B. S. Sampson S.C. for the Appellant
Mrs. Michelle Rudolpho for the Respondent

Criminal Appeal - Appeal against conviction for the offence of abetment to manslaughter - Failure of trial judge to give jury special directions on issues raised by defence - Failure of trial judge to adequately direct jury on law relating to self-defence and accident - Section 35(4) Criminal Code - Appeal allowed - Trial judge, when dealing with issues of self-defence and accident, failed to tell jury that any doubt which they entertained should be resolved in Appellant's favour and they should acquit - Conviction and sentence set aside.

J U D G M E N T

On November 10, 1995 the Appellant, Lolita Lynch was convicted of the offence of Abetment to manslaughter and sentenced to 5 years imprisonment. She has appealed against this conviction.

At the trial the case for the prosecution was that on August 28, 1993 at about 2:30 a.m. four ladies, Lavern Orosco, Teresita Orosco, Audrey Ferguson and Odessa Orosco were walking home from a dance hall. They were followed by the Appellant and her boyfriend, Adolph Harris, both riding bicycles. Along the way an argument developed between the Appellant and the ladies which resulted in a shot being discharged from a gun by Adolph Harris causing the death of Lavern Orosco. It was the case for the prosecution that this shot was discharged by the encouragement or command of the Appellant.

The case for the defence consisted of the following unsworn statement from the dock which raised the issues of self-defence and accident.

"UNSWORN STATEMENT OF ACCUSED:

On the 30th of August ?

THE COURT: On the 30th?

Of August, 1993 I was going on my bicycle, me and my boyfriend Adolph Harris when I saw the Orosco sisters along with one Audrey Ferguson. Going on Vernon Street on my bicycle ?

THE COURT: Just a minute. Going down Vernon Street?

Me and my boyfriend Adolph Harris when I saw the Orosco sisters, them along with Audrey Ferguson.

Passing on my bicycle, me and Harris, I hear Audrey Ferguson and Lavern Orosco holler out and seh if you di fuck with den dog deh.

THE COURT: I di fuck?

I hear Audrey Ferguson said if you di fuck with den dog deh. So me and Harris stopped on Vernon Street and I asked Lavern Orosco if da me she did talk to and when I asked her if da me, if she did talk to me, she said yes.

So me and she start quarrel and while me and Lavern Orosco were quarrelling the rest of sisters den jumped on me and start cussing me.

So I mi have wan Belikin bottle ena my hand and she Lavern Orosco had one and a fake she with it like a wan knock yan ena yi face and she fake me back the same way with yu she pint weh she mi have. Then we start quarrelling along with the rest of Orosco den.

Yes, me and she start quarrel along with the rest of Orosco then, along with Audrey Ferguson and by - due to the quarrel Teresita Orosco rushed to Lavern Orosco - Teresita rushed into Lavern and passed a gun to Lavern. Same time when I looked at Harris I see Harris pulled out a gun. When I see Harris pulled out a gun I don't know what was his intention. Same time when he pulled out the gun and had it in his hand, one Audrey Ferguson rushed up to Harris and grabbed yan. Adolph Harris never come off of his bicycle. He still had one foot down and one foot up.

It is when Audrey Ferguson grabbed Adolph Harris the gun went off because the Orosco sisters and Audrey Ferguson they were drunk. When Audrey Ferguson done grabbed Adolph Harris and the gun went off as they were all drunk and vex and cussing so I noh si how I could responsible for Lavern Orosco ?

THE COURT: What?

I don't see how I could be responsible for Lavern Orosco's death."

Learned counsel for the Appellant submitted that the trial Judge had failed to give the jury special directions on either of the issues raised by the defence, and had also failed to direct the jury adequately on the law relating to self?defence and accident. In support of the latter submission he argued that it was the duty of the trial Judge to explain to the jury what constituted self?defence by reference to the provisions of section 35(4) of the Criminal Code (Chapter 84). This section is in the following terms:

"(4) For the prevention of or for the defence of himself or of any other person against any of the following crimes, a person may justify the use of necessary force or harm, extending in case of extreme necessity even to killing, namely ?
(a) Treason
(b) Piracy
(c) Murder
(d) Manslaughter, except manslaughter by negligence
(e) Robbery
(f) Burglary
(g) Aggravated burglary
(h) Arson of a dwelling?house or vessel
(i) Rape
(j) Forcible unnatural crime
(k) Dangerous or grievous harm."

In our view it would have served no useful purpose for the trial Judge either to have read the entire subsection to the jury and pointed which paragraphs did not apply, or to have read only the applicable paragraphs. This course of action could easily have led to confusion in the minds of the jury. The trial Judge directed the jury on the issue of self defence in the following words:

"Members of the jury, if you accept the version of the accused in her defence then that is the end of the matter because Lolita could not have abetted either murder or manslaughter. However, if you believe the witness for the Prosecution that Lolita Lynch said words like "shoot the bitch", you will then have to determine whether Harris shot in necessary self defence because if he shot in self defence then he committed no offence and likewise Lolita would have committed no offence.

The law says that self defence is lawful when it is necessary to use force to resist or defend yourself or another or your property. What is reasonable force, however, depends upon all the facts. For example, the nature of the attack, whether or not a weapon is being used, what kind of weapon and how it is being used or whether the attacker is on his own. Indeed a person defending himself cannot be expected to weigh precisely the exact amount of defensive action that is necessary. If Harris therefore did more then that is very strong evidence that the amount of force used was reasonable and necessary.

As I earlier mentioned a person who acts in self defence commits no unlawful act. Since the Defence is suggesting that Harris acted in self defence the burden rests upon the Prosecution to disprove this self defence. The Prosecution must satisfy you beyond reasonable doubt so that you feel sure that self defence has no basis in the evidence raised on behalf of Harris. If you come to the conclusion that Harris may have been acting in necessary self defence then Harris commits no offence under our law and neither would Lolita Lynch."

This was a simple, straightforward and adequate direction to the jury on the law relating to self?defence as it pertained to this particular case. We therefore reject this submission.

In support of his submission on the failure of the trial Judge to give the special direction in respect of both offences, learned counsel relied on the cases of Baptiste v The State (1983) 34 W.I.R. 253; Ellis Taibo v The Queen, Criminal Appeal No. 2 of 1980 (Belize); R v Abraham, 57 Cr. App. R. 799; and Archbold (1994) Re?issue Volume 2 at pages 2/132 to 2/134. In particular he argued that although the trial Judge had given adequate general directions on the burden and standard of proof, he had not brought it home to the minds of the jury that if they were in doubt whether the prosecution had disproved either of the issues, the benefit of that doubt should be given to the Appellant.

The learned trial Judge in summing?up to the jury told them that there was a suggestion by the defence that the gun went off accidentally and they must also consider self-defence; because if Adolph Harris was acting in necessary self?defence then he would not be guilty of murder or manslaughter and the accused could not be guilty of abetment to either offence; and towards the end of the summing?up he said ?

"I must nevertheless again emphasize that the burden is still on the Prosecution to prove its allegations in the charges for if you are in doubt as to whether the Prosecution has proven its case then you would have to find the accused not guilty. In your deliberations I must direct you to weigh up all the evidence and consider the question of self defence and the question of accident. The Defence does not have to prove or disprove anything. The burden rests and remains with the Prosecution to prove the guilt of the accused beyond reasonable doubt, that is, that you feel sure that the accused is guilty. If you accept the suggestion about accident and or self-defence then you must acquit."

Unfortunately, however, the learned trial Judge did not, when dealing with the specific issues of self?defence and accident tell the jury that any doubt which they entertained should be resolved in favour of the Appellant, and that she should be acquitted. In R v Abraham, 57 Cr. App. R. 799 (at p. 803) the English Court of Appeal suggested how a Judge should deal with such issues. The Judge should first give a clear and general direction as to the onus and standard of proof, then follow it immediately with a direction on the onus and standard of proof in the particular case emphasizing that it is the Crown which has the burden of convincing them that the particular issue has no basis in the case under consideration; and then proceed to deal with the facts. But he must always warn them that if they are in doubt whether for example the accused was acting in self-defence, or that the death had been caused by accident they should acquit, (R v Lobbell, 41 Cr. App. R. 100).

In this case the trial Judge failed to follow these guidelines, and in these circumstances the appeal succeeds on this ground.

The appeal is therefore allowed and the conviction and sentence set aside.

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