Court of Appeal
Criminal Appeal No. 23 of 2001
7th October, 2002 and 27th March, 2003
The Hon Mr. Justice Ira Rowe - President
The Hon Mr. Justice Elliott Mottley - Justice of Appeal
The Hon Mr. Justice Manuel Sosa - Justice of Appeal

Mr. O. Twist for the Appellant.
Mr. K. Anderson, Director of Public Prosecutions, for the Respondent.

Appeal against conviction and application for leave to appeal against sentence of 25 years imprisonment imposed for the offence of manslaughter - Whether issues of self defence and provocation properly left to jury - Section 35 of Criminal Code - No evidence that Appellant was labouring under unfounded belief that he needed to defend himself - Therefore no factual basis of support for leaving issue to jury - Sections 116 and 117 of Criminal Code - No evidence of extreme provocation - Issue wrongly left to jury - Facts not falling within 116(b) - Nevertheless no substantial miscarriage of justice - Errors of judge did not unjustly deprive Appellant of a more favourable verdict than manslaughter - Application of proviso - Sentence not manifestly excessive - Appeal against conviction dismissed - Leave to appeal against sentence refused.

REASONS FOR JUDGMENT

SOSA JA

1. William Garcia ('the deceased'), also known by the soubriquet 'Junie B', was fatally shot a few minutes after the witching hour on 11 September 1999 on Ebony Street, a back street of Belize City. On 13 September 1999, Deon Cadle ('the Appellant') was arrested by Belize City police and charged with the murder of the deceased. The Appellant went on trial before Elrington J (Ag) and a jury of twelve on 21 November 2001 and was, on 23 November, by unanimous verdict, found not guilty of murder but guilty of manslaughter. A sentence of 25 years' imprisonment was then imposed on the Appellant by the trial judge. The Appellant's appeal against his conviction was dismissed, and his application for leave to appeal against sentence refused, by this Court on 7 October 2002, when we promised to give our reasons at a later date, a promise which we now proceed to fulfill.

2. At the trial the prosecution case turned substantially on the respective, testimonies of three companions of the deceased, viz Glenford Gillett, Lindon Beaton and Delton Nuñez, who had been present when he was brutally gunned down. Their evidence can conveniently be dealt with by treating the consecution of events occurring on the night in question as failing into three main parts.

3. An unfortunate encounter between Gillett and three or four youths whom he failed to identify, and the immediate consequences of that encounter, together constitute the first such part. Gillett gave evidence that the youths in question robbed him of a bicycle on Mopan Street on the night of 10 September. He fled the scene of the robbery and, coming upon the deceased and a group of three mutual friends, appealed to the deceased for help. The deceased responded favourably to that appeal and the upshot was that Gillett, the deceased and the three mutual friends presently found themselves at the scene of the robbery. The narrative given by Gillett in his evidence-in-chief ended somewhat anticlimactically with a statement that that he saw none of the robbers on his return to the scene.

4. Beaton and Nuñez testified that they were in a group with the deceased when Gillett met them and reported his encounter with the robbers. They further spoke to a resulting detour by which their group, now enlarged by the presence of Gillett, arrived at the corner of Mopan and Ebony Streets.

5. The second part, for purposes of convenient presentation, of the chain of related events taking place on the night of 10 September is centred on the confrontation between the deceased and the Appellant and the shooting that ensued. Of overriding importance with respect to this part was the evidence of Beaton and Nuñez. It was clear from their respective testimonies that the group comprising Gillett, the deceased and their mutual friends (including Beaton and Nuñez arrived at the corner of Mopan and Ebony Streets shortly after midnight at which time a nearby street lamp was lit.

6. The accounts of Beaton and Nuñez then slightly diverged. Beaton stated that the deceased and Gillett advanced to a spot located in front of a particular yard, leaving him, Beaton, some eight to 10 feet behind them and that the deceased then shouted out. Beaton could see no one in the yard and heard no one reply to the shout of the deceased.

7. Nuñez, for his part, did not say that the deceased shouted on arriving on Ebony Street but, rather, that when he, Nuñez, arrived at the corner of Mopan and Ebony Streets, a group of young men, the Appellant included amongst them, came out of what he called the Cadles' yard. Although pressured in the course of cross-examination into agreeing that there had been an 'exchange of words' (defence counsel's expression) between the deceased and the Appellant that night, his evidence, at the end of the day, was that, whilst the deceased had asked the Appellant for the bicycle, the Appellant had never orally replied to that request. He indicated that that was what he had meant by an 'exchange of words'.

8. Save in one respect, to which we shall come later, Gillett can only have been of limited assistance to the prosecution in regard to this part of the night's succession of events for, although he stated under cross-examination that the deceased had requested the bicycle of someone, he gave no evidence as to that person's identity.

9. Returning now to the account of Beaton, he testified that, after the deceased had shouted, the Appellant emerged from the yard in question, one hand inside the front of his trousers. Behind him was a crowd of 12 boys.

10. Reference may usefully be made at this stage to the evidence of Beaton and Nuñez that they had both known the Appellant prior to 11 September 1999. Beaton's evidence was that he knew the Appellant by name at this time, had known him for more than two years and used to see him on a daily basis Nuñez said that he had known the Appellant over a period of some five or six years, during which he would see the Appellant three or four times a year.

11. Beaton testified that the Appellant, having come out of the yard in question, approached the deceased who was standing at a spot in front of the yard but towards the middle of the street. When at a distance from the deceased estimated by Beaton to have been about five feet, the Appellant, without saying so much as a word, shot the deceased in the chest with a 'Chrome (sic) 25' gun which he was then holding in his right hand. The deceased, who had not been heard by Beaton to say anything to the Appellant before being shot, thereupon fell to the ground. Beaton said he could not recall having seen anything in the hands of the deceased before the shooting and that he heard a single shot.

12. Nuñez detailed evidence supported that of Beaton that the Appellant had produced a gun and shot the deceased once with it. He maintained that he saw the Appellant come out of the yard carrying a gun, point it at the chest of the unarmed deceased and squeeze the trigger. The gun sparked and the deceased immediately collapsed. He managed to rise up again, only to fall a second time.

13. This brings us to the one respect, adumbrated earlier, in which Gillett's evidence concerning this part of the night's string of events was doubtless of somewhat more than limited use to the prosecution. Whilst, as has been seen, the evidence of Beaton and Nuñez was that the deceased had been shot only once, Gillett testified under cross-examination that he heard two shots fired on Ebony Street on that fateful night and that he heard them fired at a time when the deceased was on Ebony Street and the other members of their group, ie the group of the deceased and Gillett, on Mopan Street.

14. We pass now to what we treat as the third part of the train of events unfolding on the night in question. This part relates to the aftermath of the shooting at the scene. All three companions of the deceased who testified at the trial touched on this subject. Gillett admitted to having left the immediate scene, at least momentarily, upon hearing the two gunshots but stated that he returned in time to witness an attack-in-progress upon the deceased by persons, yet again unidentified by him, who were throwing, literally and figuratively, respectively, missiles and kicks. Beaton and Nuñez both referred in their accounts to this savage onslaught upon the mortally wounded deceased. Beaton stated: 'All a dehn start crowd he and beat he pahn di ground' and he went on to specify the riding of a bicycle over the deceased, the belting of him with a cement block and stompings of him. Nuñez echoed much of what Beaton said in this regard, likewise implicating the Appellant as an active participant in the frenetic attack.

15. Both of these witnesses appear to have lingered on the scene for some time after the conclusion of the attack just described. Beaton stated that, the attack having ended, he went towards Vernon Street and called the police on his own phone, presumably a mobile one. Vernon Street is a scant block away from the corner of Mopan and Ebony Streets. He was still on the scene when the police arrived and carried away the dead or dying deceased. Beaton further stated that the only person other than the Appellant whom he saw carrying a gun that night was one Jericho', who only arrived 'afterwards'. Nuñez testified that he remained on the scene after the assailants ended their attack and all ran off. At that point, he drew sufficiently near to the deceased to be able to tell that he was still breathing. He left sometime after that for the reason that the police were coming.

16. It is essential to advert now to the evidence of Dr Mario Estradabran, the doctor who performed a post-mortem examination on the body of the deceased on 13th September, 1999. He testified for the prosecution by reading from his report, according to which two gunshot wounds were found on the body, ie an oval-shaped one on the chest and a star-shaped one on the forehead, as well as facial contusions and two tergal lacerations. It was his opinion that the chest wound was caused by a shot fired from a distance not exceeding three metres whilst the other was occasioned by a shot fired from a gun whose nozzle was virtually in contact with the forehead of the deceased. Dr Estradabran was also of the opinion that the cause of death was 'multiple trauma as a consequence of gunshot wounds to the head and chest'.

17. The Appellant, in the face of what was palpably a strong prosecution case, opted to give sworn testimony but called no witnesses. According to his evidence, he was behind his house, No. 13 Ebony Street, at about midnight on the festive night of 10 September 1999, drinking and otherwise disporting himself in the company of some six young men and one young woman. His dogs then began barking and he heard hollering and the sound of what seemed to be the breaking of pint-bottles. At that point all his companions, with the exception of the young woman, rushed out from behind the house and towards the street. Some 10 to 15 seconds later, he heard the report of a single gunshot. The Appellant stated that, on hearing that report, he walked out from behind the house and went as far as Ebony Street, which was not brightly lit as the street-light was flickering. On the street he saw 15 to 20 young men, his own companions included, arguing, making noise and throwing pint-bottles. He expressly stated that he was neither threatened nor attacked, whether physically or verbally, by anyone whilst on the street and that no one invited him to engage in a fight.

18. In addressing the jury, neither prosecuting counsel nor defence counsel commented on the possibility of a verdict in respect of manslaughter. The former limited herself to recommending a verdict of 'Guilty' on the charge of murder whilst the latter merely urged the jury to return a verdict of 'Not guilty' on the same charge. On the other hand, the trial judge in his summation left to the jury not only the sole issue expressly raised by the Appellant in his evidence, ie that he was hot on the scene when the deceased was shot, but also the complete defence of self-defence and the partial defences of provocation and causing excessive harm in 'self-defence'. A path to a manslaughter verdict was thus cleared.

19. We shall examine the first ground of appeal last. The second ground was that the verdict of the jury was unreasonable having regard to the medical evidence. This ground was argued together with the third, which was that the judge did not properly direct the jury on the state of the medical evidence.

20. Under these grounds, counsel for the Appellant sought to make capital of the fact that there was no medical evidence as to which of the two gunshot wounds was inflicted first. We fail to see the significance of the absence of such evidence. In the first place, it was clear from the strong evidence of Nuñez that no shot was fired before that which hit the deceased in the chest. This witness had his eyes on the gun before that shot was fired. Secondly, it seems to be a matter of common sense that if, as this attempted criticism assumes, two wounds, both potentially fatal, are inflicted on a living person in fairly quick succession, the victim if not medically treated will not succumb only to the wound inflicted first in point of time. It stands to reason that both wounds will begin inexorably to take their deadly toll upon infliction and, regardless of which is the graver and contributes more significantly to bringing about death, both will inevitably be operative causes of the victim's death. As already noted, the evidence in this case was that the deceased was still breathing at a point in time somewhere between the departure of all his assailants and the arrival of the police. Logically, therefore, both gunshot wounds would have operated to bring about the death of the deceased.

21. In any event, the recourse to a logical explanation of the evidence is unnecessary, as the doctor's evidence was without ambiguity: death was caused by multiple trauma resulting from both wounds rather than just one of them.

22. Counsel suggested, in addition, that the prosecution had not proved as required that the Appellant had fired both shots that caught the deceased. We do not agree. Two witnesses saw him fire once at the deceased and a third heard two shots on Ebony Street whilst the deceased was there and his companions on Mopan Street. There was no evidence that anyone else fired a gun that night. Tencho, the only other person seen by any of the witnesses with a gun, did not arrive on the scene until 'afterwards' which, in the particular context, could only have meant after the shooting of the deceased. No one saw him fire the gun that he had with him or go as near to the deceased as the medical evidence demonstrated that the gunman must have gone. The judge rightly chose not to invite the jury to speculate as to whether Tencho had fired the second shot.

23. The further argument that one of the shots may have been fired by one of the several other persons on the scene at the time is even more hopeless having regard to the total absence of evidence that any of those persons was carrying a gun at the time of the shooting. There was no merit in these two combined grounds.

24. The first ground of appeal argued was that the judge was in error in leaving the issues of self-defence and provocation to the jury since such issues did not arise on the evidence. It was complained that, by leaving those issues with the jury, the judge deprived the Appellant of the opportunity of a complete acquittal. The contention that self-defence did not arise on the evidence, whilst obviously the result of objective scrutiny of the evidence on the part of counsel for the Appellant, was one decidedly incapable of assisting his cause. Not surprisingly, therefore, counsel resiled from it upon being reminded by the Court that the leaving of self-defence to the jury could only have provided the Appellant with, rather than deprived him of, an opportunity of a complete acquittal. Nevertheless, the contention demands proper consideration before this appeal can properly be disposed of.

25. In giving it such consideration, we note that, on 11 September 1999, the Criminal Code was to be found in Chapter 84 of the Laws of Belize, Revised Edition 1980-1990 and that section 35 thereof, as material for present purposes, stated:

    '(4) For the prevention of or for the defence of himself or of another 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 -

    (c) Murder

    (k) Dangerous or grievous harm.

26. In Norman Shaw v. The Queen, Privy Council Appeal No. 58 of 2000, the Board has reaffirmed its decision in Director of Public Prosecutions v. Bailey (Michael) (1986) 44 WIR 327, at p 331 of which it had been stated:

    'It is clear that perfectly hopeless defences which have no factual basis of support do not have to be left to the jury. But it is no less clear, in their lordships' view, that if the accused's account of what happened includes matters which if accepted could raise a prima facie case of self-defence this should be left to the jury even if the accused has not formally relied upon self-defence.'

27. There was evidence in this case of the deceased having stood in front of the Appellant's gate and shouted. Additionally, there was evidence that he asked the Appellant for Gillett's bicycle. Conspicuous in its absence, however, was evidence that the deceased was armed. Moreover, the Appellant made it clear beyond all doubt by his evidence that he was not attacked or threatened by anyone and there was no evidence from anyone that the deceased threatened any of the Appellant's companions. A fortiori, evidence that the deceased was about to commit one or more of the specific felonies of murder, dangerous harm or grievous harm was nowhere to be found. In our view, the relevant evidence of the Appellant himself left no scope for an inference that he had at any time laboured or might have laboured under an unfounded belief that he was in need of defending himself against the deceased. In those circumstances, we consider that the contention advanced by counsel for the Appellant in his skeleton arguments and at the outset of his oral submissions was perfectly sound. There was, manifestly, no evidence of self-defence fit to be left to the jury. The 'factual basis of support' stipulated for in Bailey was nonexistent.

28. We turn now to examine the submission that provocation was wrongly left with the jury. In so doing, we bear in mind that in Bullard v. R [1958] 42 Cr App R 1, the Board, in a judgment delivered by Lord Tucker, stated at p 7:

    'Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given.'

This we do, however, in the appreciation that Lord Tucker had earlier in that judgment, at p 5, said,

'It has long been settled law that if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to the jury, and whether or not this issue has been specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond a reasonable doubt that the killing was unprovoked. See such cases as HOPPER, 11 Cr. App. R. 136; (1915] 2 K.B. 431, at p. 435, and KWAKU MENSAH v. THE KING [1946] A.C. 83, at p. 93.'

This appreciation is crucial for, as the Board, at para 34 of its judgment in Warren v. The State (Trinidad and Tobago) [1998] UKPC 48 (9th December 1998), has observed:

'... when ... Lord Tucker said "Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given", it is clearly implicit that the reference to "any evidence" means "any evidence fit to be left to a jury".'

The practical importance, to trial judges, of these observations of the Board is underscored by the following words of Lord Devlin, rendering the advice of the Board, in Lee Chun-Chuen v. Reginam [1963] 1 All ER 72, at p 78:

'… their Lordships must observe that there is a practical difference between the approach of a trial judge and that of an appellate court. A judge is naturally very reluctant to withdraw from a jury any issue that should properly be left to them and he is therefore likely to tilt the balance in favour of the defendant. An appellate court must apply the test with as much exactitude as the circumstances permit.'

29. The relevant statutory provisions may now be adverted to. On 11 September, 1999 the statute law of Belize as to provocation was contained in the Criminal Code then in force, to which some reference has already been made. The amendments made to that Code by the Law Reform Miscellaneous Provisions Act 1998 in the wake of the decisions of the Board in Vasquez v. R; O' Neil v. R [1994] 3 All ER 674 and Logan v. R [1996] 4 All ER 190 had come into force on 1 August, 1998. The law as to provocation on 11 September 1999 was thus the game as that now found in the Criminal Code, Chapter 101 of the Laws of Belize, Revised Edition 2000.

30. Section 116 of the Code in force at the time, so far as relevant, stated:

    '116. A person who intentionally causes the death of another person by unlawful harm shall be deemed to be guilty only of manslaughter, and not of murder, if there is such evidence as raises a reasonable doubt as to whether - -

    (a) he was deprived of the power of self-control by such extreme provocation given by the other person as is mentioned in section 117…'

31. Section 117, as material for present purposes, provided as follows:

    '117. The following matters may amount to extreme provocation to one person to cause the death of another person, namely -

    '(a) an unlawful assault or battery committed upon the accused person by the other person, either in an unlawful fight or otherwise, which is of such a kind either in respect of its violence or by reason of words, gestures or other circumstances of insult or aggravation, as to be likely to deprive a person, being of ordinary character, and being in the circumstances in which the accused person was, of the power of self-control;

    (b) the assumption by the other, person, at the commencement of an unlawful fight of an attitude manifesting an intention of instantly attacking the accused person with deadly or dangerous means or in a deadly manner;

    (c) any things (sic) said to the accused person by the other person or by a third person which were grave enough to make a reasonable man to (sic) lose his self-control.'

32. There was, in the instant case, no evidence whatsoever of an assault or battery, let alone an unlawful one, committed upon the Appellant by the deceased. No one testified that the deceased was armed and the evidence was that he did no more than shout and ask the Appellant for Gillett's bicycle. (It is pertinent that in Robert Sheldon Culmer v. The Queen [1997] 1 WLR 1296 the Board said in reference to a provision in the Penal Code of The Bahamas akin to that of section 117 (b): 'Plainly an attack with fists or a mere taunt does not qualify.') Nor was there a shred of evidence of any fight, whether unlawful or otherwise, between the deceased and the Appellant. In the light of the Appellant's express statement that no one invited him to engage in a fight that night, no room was left for the contemplation by the jury of any possibility, save for a fanciful one, that there had nonetheless been a fight. Beaton saw the deceased, just before being shot, facing the Appellant but only at a distance from the latter which he, Beaton, estimated at five feet. It is also clear to us that nothing said by the deceased, according to the evidence, could conceivably have been considered by a reasonable jury to have been grave enough to make a reasonable man lose his self-control. Accordingly, we hold that there was no evidence of 'extreme provocation' for the purposes of section 117 (a), (b) and (e) of the Criminal Code. It follows that, in our opinion, the trial judge was in error when he left the partial defence of provocation to the jury.

33. This Court must, however, consider whether the two errors so committed by the trial judge led to a 'substantial miscarriage of justice' within the meaning of the proviso to section 30(1) of the Court of Appeal Act. The Director of Public Prosecutions suggested that there was no such miscarriage since the evidence was such that a reasonable jury, properly directed, as this jury (in the submission of the Director) was, would inevitably have convicted the Appellant of manslaughter having regard to the provisions of section 116 (b) of the Code in force on 11 September 1999, some of which provisions we have already quoted. In full, those provisions read as follows:

    '116. A person who intentionally causes the death of another person by unlawful harm shall be deemed to be guilty only of manslaughter, and not of murder, if there is such evidence as raises a reasonable doubt as to whether

    (b) he was justified in causing some harm to the other person, and that in causing harm in excess of the harm which he was justified in causing he acted from such terror of immediate death or grievous harm as in fact deprived him, for the time being, of the power of self-control .. .'

34. As this Court made clear in David Jones v. The Queen, Criminal Appeal No. 20 of 2001, at para 22, trial judges in deciding whether to leave to juries the partial defence provided for in section 116 (b) ought to derive guidance from the following passage in the judgment of the Board in Norman Shaw, supra, at para 28:

    'If there is no evidence which, even if believed, discloses any reasonably possible justification under section 116 (b), the trial judge is under no duty to direct the jury under that subsection. If there is such evidence he must do so, whether the defence raised the issue at trial or not and whatever the trial judge's opinion of the weight of the evidence. This is clearly established to be the law in relation to provocation (see Kwaku Mensah v. The King [1946] AC 83 at 91-92; Vasquez v. R [1994] 1 WLR 1304 at 1314) and self-defence (Director of Public Prosecutions (Jamaica) v. Bailey [1995] 1 Cr App R 257). There is no reason why a possible justification under section 116 (b) should be approached differently, and to do so would conflict with the reasoning of Lord Goddard, giving the advice of the Board in Kwaku Mensah v. The King, in the passage referred to above.

35. In Jones we came to the conclusion that the trial judge was under no duty to leave the jury with the partial defence under section 116 (b). We did so after ourselves answering the four questions posed by the Board in Shaw, as well as in Cleon Smith v. The Queen, Privy Council Appeal No. 59 of 2000. Applying the same test in the instant case, we start with the first question which is whether there was evidence of a situation in which the Appellant was justified in causing some harm to the deceased. This question has, by necessary implication, been answered in the negative earlier in considering whether self defence was properly left to the jury. In Shaw the Board, in regard to this question, stated:

    'The answer must be affirmative if, in relation to either of the deceased, the Appellant's life was threatened or the Appellant (even if mistakenly or unreasonably) believed it to be threatened.'

We find no evidence of such a threat or belief in the present case. In view of the negative answer, the second question, ie whether there was evidence that the Appellant caused harm in excess of the harm he was justified in causing, does not arise. The third question, whether there was evidence that the Appellant was acting from terror of immediate death or grievous harm when acting as he did, must, in the light of the evidence previously alluded to, also be answered negatively. The fourth, being whether there was evidence that such terror (if found possibly to have existed) deprived the Appellant for the time being of the power of self-control, does not arise having regard to the answer to the third. Those being the answers to the two of the four questions recommended in Shaw that actually arise, we must conclude that the partial defence created by section 116 (b) was wrongly left with the jury. We therefore reject the reason advanced by the Director for the proposition that there was no substantial miscarriage of justice in this case. A properly directed jury would not have found it necessary to consider this partial defence and, consequently, would not have found itself with the alternative route to a manslaughter verdict referred to by the Director.

36. This Court has, nevertheless, not found it possible to reach the conclusion that there was a substantial miscarriage of justice. In the final analysis, what clearly emerges is that the only defence that the trial judge was bound to leave to the jury was in fact duly left with them. That was the Appellant's assertion that he was not on the crime scene when the deceased was fatally shot. The verdict of the jury leaves no doubt as to the fate of that defence - it was obviously rejected by them. Faced with a choice between a conviction on the basis of the version of the events provided by Beaton and Nuñez, on the one hand, and an acquittal on the strength of the version given by the Appellant, on the other, the jury chose to convict. That they returned a verdict of 'Not guilty' of murder but 'Guilty' of manslaughter, in those circumstances, is a cause for deep perplexity since, apart from our above stated conclusions that none of the three defences in question arose, there was overwhelming evidence before the jury of an intention to kill. Accordingly, we are of opinion that there was no miscarriage of justice in this case. The errors of the trial judge did not have the effect of unjustly depriving the Appellant of the opportunity of a verdict more favourable to him than that actually returned by the jury.

37. The case is, in form, reminiscent of Raymond Flowers v. The Queen, Criminal Appeal No. 5 of 1998, in which Flowers stood trial on a charge of murder but was convicted of manslaughter in circumstances where the learned trial judge left the issue of manslaughter to the jury after prosecuting and defence counsel had both deliberately avoided it in their closing addresses. On appeal this Court held that the issue of manslaughter did not arise on the evidence but went on to state at pages 10- 11 of its judgment:

    'In the present case on the evidence the jury had two options either to find the Appellant guilty because he actively assisted in the killing of the deceased or to acquit him because he was asleep and therefore could not take part. By finding him guilty of manslaughter they were in effect rejecting his defence and holding that he was a participant and therefore guilty of homicide. The decision to find him guilty of manslaughter rather than of murder represents a classic case of a jury taking a soft option but its effect was that he was guilty of culpable homicide.'

Flower's appeal was accordingly dismissed.

38. In the instant case, as regards ground 1, we are, as was the Court in Flowers, obliged to apply the proviso to section 30 (1) of the Court of Appeal Act.

39. With respect to the sentence, we do not regard it as manifestly excessive notwithstanding the young age of the Appellant (21 years at the time of his trial) and his previously almost unblemished record. There was a marked element of cold-bloodedness in the shooting of the deceased and, moreover, ample evidence, of full participation by the Appellant in the perpetration of what Crown counsel aptly termed 'unspeakable acts' against the dying man. An offender should only be punished for the crime of which he has been convicted but this was a very bad case of manslaughter on the borderline of murder. In its composite judgment in Enrique Soberanis v. The Queen, Criminal Appeal No. 10 of 1996, Raymond Flowers v. The Queen, Criminal Appeal No. 11 of 1996 and Gregorio Osorio v. The Queen, Criminal Appeal No. 12 of 1996, this Court, dealing with similarly bad cases of manslaughter, stated, at pp 3-4:

    'It should be noted that each of these Appellants was indeed fortunate to have had the State accept a plea of guilty of manslaughter. It is difficult to eke out from the facts any element of provocation and a clear inference of an intention to kill can certainly be drawn. They can be described as very bad cases of manslaughter, on the borderline of murder.'

The Court added, at p 5:

'The continued frequency of such cases may well have moved trial judges to take the view that an increase in the existing maximum was needed to emphasise the intention of the courts to do all in their power to protect society from young offenders armed with guns . ..'

The Court proceeded to uphold sentences of 25 years' imprisonment in each case, in one of which the offender, Soberanis, had at the age of 16 years shot and killed another youth, at least an hour after having been physically attacked by a third party.

40. We consider that the Appellant in the instant case was similarly fortunate, although for different reasons, and, in all the circumstances, we were constrained to refuse him leave to appeal against sentence.

41. Since it did not appear from the record, or otherwise, that the judge had fixed a commencement date for the sentence, we ordered that, in accordance with section 162 of the Indictable Procedure Act, the term should be deemed to have commenced on 2 October, 2001, the date of the commencement of the sitting at which the Appellant was sentenced, and not on the sentencing date itself.

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