Court of Appeal
Criminal Appeal Nos. 3, 4, and 5 of 1980
19th June, 1980.
CLIFFORD INNISS J. A. (P.)
P. TELFORD GEORGES (J. A.)
SAMUEL H. GRAHAM (J. A.)

Criminal Law - Murder - Appeal against Conviction and Sentence - Defence of Self-defence - Section 33 of the Criminal Code - Misdirection as to the law relating to Self-defence and Abetment - Onus of Proof - How the injury to the right forearm of the first Appellant occurred was a matter of grave importance to the Jury in determining whether to accept the evidence of witnesses - Jury should have been adequately directed on the defence of Provocation - Convictions returned as unsafe.

J U D G M E N T

The three Appellants, Cecil Gordon, Michael Gordon and William Ifield were charged jointly before the Supreme Court of Belize with the Murder of Frankie Batty. On Wednesday, 6th February 1980, the Appellants Cecil Gordon and William Ifield were each found guilty of Murder as charged and sentenced to death by hanging. The other Appellant, Michael Gordon, was found guilty of Manslaughter, and on 25th February, 1980, was sentenced to 5 years imprisonment with hard labour. Each of the Appellant now appeals against his conviction and sentence.

The case was remarkable for the great difference between the account of the death of Frankie Batty given by the prosecution witnesses and that given by Appellants Cecil Gordon and William Ifield, each of whom testified on his own behalf.

The case for the Prosecution was that it was Appellant Cecil Gordon who actually struck the blow by which the deceased was murdered, and that the other two Appellants abetted the murder. It depended in large measures on the evidence of Manuel Estrada and Gerald Dougall, the first of whom was a full eye witness.

Estrada, who knew both the deceased and the three Appellants, told how at about twenty minutes after midnight of the 29th December, 1978, he was passing Carl's Bar at Santa Elena in the Cayo District, when he saw a hand push one Shaber down the stairs. While he and Shaber were discussing the matter, Appellant Cecil Gordon approached and asked Shaber what had happened. Shaber replied that one Waight (the owner of Carl's bar) had pushed him downstairs. The deceased, Frankie Batty, then came from the Mar Azul Club and talked to Estrada. Shaber told the deceased "Happy New Year" and the deceased replied the time had not yet come. Cecil Gordon then told the deceased he had no manners, like a dog. Deceased replied "I am not talking to you". Cecil Gordon then said "If you don't like that you can do anything". He hauled up a dagger from the sock on his right foot and tried to cut the deceased's throat. He did so without any provocation from the deceased. The deceased took the knife away from Cecil Gordon. Apart from that he did nothing to Gordon. Then, in company with Estrada, and with the knife in his hand, deceased walked away towards Mar Azul Club. The spot where the knife was taken away was about 5 yards (distance pointed) from Carl's Bar. Estrada then heard Cecil Gordon hail Michael Gordon and William Ifield from upstairs, telling them to bring down a stool so that he, could whap Frankie. Michael Gordon and William Ifield came down to the street and the three Appellants came behind the deceased and Estrada. None had a stool or anything else in his hands. Then William Ifield came from behind deceased and grabbed him in a half Nelson grip. The other two were right behind him. Deceased had Cecil Gordon's knife in his hand and Cecil Gordon tried to get the knife from him while Ifield had him in that grip. Deceased kicked Cecil Gordon "to the floor". Michael Gordon then tried to take the knife from the deceased and the deceased kicked Michael down on the ground. Ifield changed his grip and held the deceased by the neck. Then he hauled the deceased to the ground on his back. In doing so Ifield fell to the ground with the deceased on top of him. Michael Gordon then held the deceased by the feet and Cecil Gordon took away the knife from the deceased with his right hand. Cecil Gordon then stabbed the deceased in his chest. He stabbed him once. The spot where the deceased was stabbed was about a yard from the fence round the Silva's residence. Estrada did not intervene at all. Then one Taylor came and said to all three Appellants "You have already killed the boy already". Cecil Gordon replied, "If you don't like it you can do anything" and tried to stab Taylor who ran away. Witness Estrada then went to try to pick up the deceased. Cecil Gordon asked him if he was a hero as well and came at him with the knife while Michael Gordon came at him with a piece of stick, trying to whap Estrada with it. But he did not succeed. Cecil Gordon then tried to stab Estrada in the stomach but failed. Estrada then ran to the Police station and reported the matter. According to Estrada, at no time did the deceased try to threaten the Appellants with the knife.

Estrada was cross-examined at considerable length and certain criticism of his evidence resulted, but none of any special consequence.

Gerald Dougall, at that time a constable in the Belize Police Force, was off duty on the night in question, 29th December, 1978, and was in civilian clothes. At about 11 to 12 midnight, he went to Carl's Bar. According to him, at about midnight the three Appellants, accompanied by one Edmond Taylor, arrived and came on to the verandah where Dougall was. Cecil Gordon was speaking in a loud tone. Then all four left the verandah and went into the Bar. A little later Dougall heard an argument coming from downstairs. He looked down and saw it was Appellant Cecil Gordon arguing with the deceased. He did not see the other Appellants at that time. He saw Cecil Gordon take a knife out of his right sock and move the knife towards the deceased's throat. He saw deceased take hold of Cecil Gordon's right hand with the left hand and take away the knife from him. He could not say if at that time Gordon got cut. Dougall then went downstairs and spoke to the deceased asking him what was the matter. He said "Nothing". He did not speak to Cecil Gordon because he was somewhat drunk and behaving badly. He thought it best to leave him alone. Dougall confirmed that the witness Estrada was with the deceased at that time. Estrada said he was going to take the deceased home and then walked of in the direction of Cayo. Dougall returned upstairs to the Bar and after a while went on the verandah where he heard another argument. This time he saw the three Appellants holding deceased by the fence at Silva's residence. William Ifield was holding deceased through the arms and around the head. Michael Gordon held the deceased's feet and Cecil Gordon took away the knife from the deceased. He did not see if anything happened after that because there was a crowd there. He thought they were just taking the knife away from the deceased. He went down again and standing at the steps of the Bar, he saw the three Appellants along with the deceased. Deceased was on the ground. Cecil Gordon was bending over the deceased. He did not see the knife. Michael Gordon was bending down still holding the deceased's feet and William Ifield was still holding the deceased's body. Dougall returned upstairs and 3 ? 4 minutes after he heard someone say "Frankie got stabbed". He went downstairs and on the way down, met the three Appellants coming up. He saw Appellant Cecil Gordon with a knife in his right hand and he saw blood on the knife and on his right hand. He then went to where deceased was lying and saw that he was bleeding from the chest. He accompanied the deceased to the Hospital in a taxi. Deceased was conscious. Dougall asked who had done this to him and, deceased said "Gordon". He also saw the Nurse talking to the deceased, but did not know what she said to him. Later he saw the three Appellants at the Hospital. He noticed that the two Gordons had "cuts on one of their hands". At no time before that did he notice any injuries on them. The knife he saw in the possession of the deceased had a blade 4" ? 5" in length. Deceased was known as a quiet person.

This witness acknowledged having consumed a large amount of alcohol on the evening in question but insisted that he was not drunk. He was cross-examined at length. Certain criticisms of his evidence emerged from his cross-examination, including a number of differences between the statement he had given to Sgt. Lewis, which he had not amended at the Preliminary Inquiry, and his testimony to the Court. One omission from his testimony which appeared in his statement was as follows:

"When the three men were rushing at Frankie, he began to thrust the knife from right to left to avoid Cecil, Ifield and Michael beating him."

He said he had forgotten to mention this in his evidence. He did not see the knife come into contact with any of the Appellants.

He admitted that he did not intervene because he was afraid of the three Appellants. He did not call the crowd to assist because they themselves were afraid.

He said he had given his statement in a hurry because he had to report to Belize City.

He insisted he was not lying; and, in spite of criticism, stuck to his evidence. In re?examination he said he was a bit nervous when he gave his statement to the Sgt. He had not sleep that night at all.

At the San Ignacio Hospital, deceased Frank Batty was examined by Dr. Sarang, the Government Medical Officer. He testified that deceased was in a state of profound shock and collapse and was gasping for breath. He had profuse hemorrhage in the neck, chest and abdomen and had a deeply penetrating lacerating wound in the front part of the chest starting at the midline going downwards and forwards towards his right side. The wound was 4" long and 2" wide. Its depth could not be ascertained as the wound had entered deep into the thoracic cavity. He also had a wound of a minor lacerated type on the left side of the neck about 2" long, 1/2" wide and 1/4" deep. This evidence tended to support the testimony of Estrada and Dougall that Appellant Cecil Gordon had tried to cut the deceased's throat with the knife. Despite all medical efforts, Frank Batty died about 15 or 20 minutes after his arrival at the Hospital.

Later the same day Dr. Sarang did a post mortem examination on the deceased. In his opinion death was caused by the deep penetrating wound of the chest causing profuse hemorrhage inside the thoracic cavity resulting from multiple injuries to the vital organs like the lungs, liver and the covering of the heart and major blood vessels arising out of the heart. The chest and neck wounds were the only injuries the Doctor observed. Any such type of penetrating wound, could be caused by a long knife. "The wound in the chest" said the Doctor "was the result of repeated stabbings or by forcible movements of the knife inside the body cavity. Deceased had no chance of survival in the condition that he was when brought".

The same night that Batty was brought to the Hospital, Dr. Sarang saw all three Appellants there, but examined only one of them, whom he eventually concluded was Appellant Cecil Gordon. This person's behaviour was very disorderly, uncooperative, gesticulating, shouting loudly; and the Doctor could not get his name. This patient smelt of liquor. The Doctor found a lacerated wound on his right forearm about 2" long, 1/2" wide and 1/4" in depth. This wound he sutured and bandaged. It had been inflicted within an hour of the Doctor's examination. In the Doctor's opinion it could have been caused by a sharp pointed instrument ? a dagger ? and was a minor wound. The Doctor said that when he examined it, the wound did not penetrate the forearm and did not exit on the outside of the forearm. He denied that the wound he saw severed the tendons of the hand.

A defence witness, Dr. Howard Barrow, gave testimony which appeared to conflict with that of Dr. Sarang in regard to this wound. Apparently speaking of the same wound on Appellant Cecil Gordon's right forearm, Dr. Barrow said that on 8th January, 1979, Appellant had been referred to him by the Prison Medical Officer for damage to the flexer tendons of the right arm. At that time Appellant was unable to flex the fingers of his right hand. The only movement was a mere flicker. In a major operation performed by Dr. Solanki with Dr. Barrow assisting, cut ends of tendons were found. They would have had to be severed by a sharp edge. No major tendon was severed. In Dr. Barrow's opinion, after the injury, the person would have had no facility to grasp objects. Having regard to the admissions made by Appellant Cecil Gordon in testimony before the Court of Trial (to which we will later advert) this apparent difference in the medical opinion was of consequence mainly in that it might have affected the credit of the witness Estrada who said that Appellant Cecil Gordon used his right hand to take the knife from the deceased and then stabbed the deceased and of the witness Dougall who said that he saw Appellant Cecil Gordon coming up the stairs at Carl's Bar with a knife in his right hand, with blood on the knife and on his hand, and that he raised the knife to him as if to threaten him.

Maria Requena, the Practical Nurse at the San Ignacio Hospital when deceased was admitted said that she smelt his breath and it was not smelling of alcohol. She also saw the three Appellants that night at the Hospital. She attended Appellant Michael Gordon for a cut on his left upper arm. It was an old cut - days before.

At about 2.15 a.m. on 30th December, 1978, Sgt. 225 Philip Lewis took the three Applicants to San Ignacio Police Station. He cautioned each of them. He told them he was investigating a case of murder of Frankie Batty. None of the three said anything. Appellant William Ifield however, said he could show the Sergeant the knife. He accompanied the Sergeant to Santa Elena on the roadside of the Western Highway near to Carl's Bar. In the vicinity pointed out by William Ifield, near a small gate by Silva's residence, the Sergeant found a knife. It blade had something on it resembling blood. The Sergeant showed it to William Ifield, who said "This is the knife". The Sergeant also saw a blood spot near the fence of Silva's residence. The area was brightly lit, he said.

At about 9.15 a.m. the same day, Sgt. Lewis charged all three Appellants with the murder of Frankie Batty. Each Appellant made a voluntary statement. These statements were all admitted in evidence without objection. It is noticeable that in none of them was the stabbing of Frankie Batty mentioned.

Appellant Cecil Gordon's statement was in the following terms:

"I leave from Carl's Bar going home last night. Me and a lee fellow called Sheva. While going, Sheva buck into a guy they called Frank. Sheva curse a bad word. After Sheva buck into Frank, he told Sheva, fock man why you no watch where you are going. Frank hauled out a long knife out of his pocket. Both of them walked up to one another and wanted to fight. I grabbed Sheva around his neck and tell him let's go home. By the time I hold Sheba around his neck the guy the same Frank made a stab through and through my wrist, and a crowd came from upstairs the club, and they carry me da hospital. From the hospital they bring me to the station where I rest and sleep until in the morning. In the morning they charge me with murder. I don't know anything of murder to no man, as I was along with William Ifield, Eddie Armstrong. Michael Gordon and Edmund Taylor. I was drinking last night but I was not drunk".

It was put to the Sergeant in cross?examination that Appellant Cecil Gordon had told him that he stabbed the deceased in self?defence, and he had refused to take it down. The Sergeant denied that the Appellant had told him anything like that.

In his statement to Sgt. Lewis, Appellant Michael Gordon said simply:

"I was at Carl's Bar last night, a hassling start and I run downstairs. They stabbed me when I was running downstairs"

The third Appellant William Ifield in his statement described his movements on the evening in question and how he and his two nephews Cecil and Mike went to Carl's Bar and had a few drinks. His statement then continued:

"After we take the drink we decide to go home. When we in front of Wiltshire house me and Cecil, we Found out that Mike no de with me, me and Cecil. Cecil turned back look for Mike. Then I hear Cecil hauler, hay Pap I get cut. When I rushed to the scene from where Cecil hauler from I see something glitter throw away. I know right to be a knife. I gone to Cecil and hold Cecil, and I asked him who do it. He say he no know the person who do it. I bring him to Police station for Medical Form and when I get here the Police delay with tile Medical Form so I decide to move away with him without the Medical Form and the Police decide to rough me up. And I still continue take the boy to the hospital. After the doctor almost finish with the boy, the Police got there with the form and my next nephew. From there we come back to the police station. Then we gone over to Santa Elena with the Police and showed them where the knife gone to and sleep in the station until this morning. From there I don't know nothing more."

In their defence, two of the Appellants, Cecil Gordon and William Ifield, gave evidence on oath. The other Appellant, Michael Gordon, said nothing.

Cecil Gordon told how just before midnight on 29th December, 1978, he, Michael Gordon, William Ifield and Edmund Taylor left Santa Elena and went to Carl's Bar. At this time he did not see either Manuel Estrada or the deceased at the Bar but Gerald Dougall was there drinking. None of them had anything at the Bar. After twenty minutes to half an hour they all left except Michael who stayed in the Bar. They met one Armstrong, at whose suggestion Appellants Cecil Gordon and William Ifield returned to Carl's Bar with Armstrong, while Taylor went towards his home. They went upstairs and each had a gin. Michael Gordon was on the verandah. William Ifield was the first to leave the bar. About 5 minutes later Cecil Gordon left the Bar by himself. He came down the staircase and was stopped by one Shaber who was lying down in front of the steps, drunk. He raised Shaber up and began to move off. Frankie Batty came up and said something in Spanish to Shaber and Shaber began to curse.

Batty slapped Shaber on his forehead and Cecil Gordon asked him please to leave the drunken man that he was trying to help him. Frankie said "Don't get into this because you will get fucked". At that time Cecil did not see Manuel Estrada anywhere. He tried again to move off with Shaber and again Frankie Batty slapped Shaber in the face. After more words, Batty made a motion to Cecil Gordon with his hand. He leaned forward and only Batty's elbow caught him on the shoulder. He then saw it was a knife and said to Batty: "If you would have caught me in the shoulder with that knife it could have killed me". Batty repeated for the third time: "I am telling you not to get into this for you do not remember what I have told you." Then he placed the knife in front of him and began to walk up to Cecil Gordon. Cecil Gordon began to walk backwards and Batty continued to advance on him. Cecil Gordon then ran in to the underneath of Carl's Bar and Batty ran in after him. Cecil ran around the middle post and got a cut from the knife in his left hand when he held on to the post. Batty was trying to catch him, moving left to right. Cecil Gordon ran under the step, and when he reached there, he hollered for someone to come and help him. Dougall came and he was trying to get the knife from Batty. Dougall told Batty to give him the knife and to behave himself. Batty did not give Dougall the knife. Dougall tried to block Batty and he did not get around him. Cecil then ran back towards San Ignacio in the direction of Silva's residence but Batty ran him down. Appellants' evidence continued:

"He caught me up. I was running beside Silva's fence. I was holding fence with both hands ? and then Batty made a stab at me. I jumped backwards to get out of the way. Batty caught me with the knife through my right arm. I then began to run and bawled hard, very loud. I ran until I fell down by the steps of Carl's Bar. Then Michael Gordon ran from upstairs and I heard bawl "Hey, I got stabbed". Cecil got up and was still bawling for Ifield who was down the street".

His evidence continued:

"Ifield ran towards me and I ran towards him and when we met he asked me what happened and I told him. I said I did not do Frankie anything and he stabbed me. I do not know where Batty was when I was talking to Ifield ……….. Both of us then proceeded towards Police Station. We were both walking ………. Ifield was trying to guide me. He held my right hand, with his left hand around my shoulder. We did not reach the Station. Ifield then said "Look like guy is coming. He is coming after you again". I spun around and Batty was up close. Ifield was not still holding on to me. I do not know what he was doing. I was bending down in pain. Whi1st bending down I saw something roll along which I thought was a knife. I hauled it and I began to stagger back. Batty then rushed and began to kick me. I saw it was Batty. I was staggering when he kicked me. I saw him when I hauled up my head. I did not see Ifield at that time. Whilst Batty was attacking me, I then was swinging the knife back and forth with the knife in my left hand. Batty was rushing and the knife caught him. I was swinging the knife to stop the attack. Batty then staggered backwards and Ifield grabbed me by my left hand and took the knife away from me. Ifield said he would carry me to the Police Station and did so".

Cecil Gordon added that he could not use his right hand from the time he received the stab.

In cross?examination he said that there was no previous misunderstanding between himself and Batty that he knew of and agreed that Batty was "quiet by personality". He agreed that he passed Estrada as he was going down the staircase of Carl's Bar but didn't know where Estrada was when he picked up Shaber. The reason why his statement, as recorded by the Sergeant, did not mention that he had stabbed Batty was that the Sergeant had said, "I don't want that, the incident did not happen like that". He signed the statement because he was trying to co?operate with the Sergeant. He had told Ifield who had stabbed him. He did not hail Michael, but Michael came down from the bar and tried to help. Michael had run off in the direction of San Ignacio when Frankie got stabbed. At no time did he see Batty on the floor.

In evidence Appellant William Ifield told how on 29th December, 1978, he had been in Carl's Bar with the other two Appellants who were his nephews and how around 12.30 a.m. he had left with Appellant Cecil Gordon and Edmund Taylor. Meeting Eduardo Armstrong, they returned to Carl's Bar without Taylor. Seven to eight minutes later, witness Ifield left Carl's Bar alone. Reaching about 25 to 40 yards from the Club, he waited there for Cecil Gordon who was upstairs in the Bar. About 12 minutes later, he heard a bawling in a voice which sounded like Cecil's. He ran in direction of Carl's Bar and met up with Appellant Cecil Gordon. Cecil told him that Batty had stabbed him on his right wrist. He and Cecil set off in the direction of San Ignacio. Hearing a step behind them, he looked around and saw it was Batty coming. His evidence continued:

"Then I told Cecil Gordon it seems that Frankie is coming again. I turned around facing Carl's Bar. There was Frankie holding a knife in a stabbing motion. As soon as he made a strike I grabbed Batty's hand and the knife fall out of his hand. Next Batty kicked Cecil Gordon. I did not keep hold of Batty's hand. I did not do anything. I could not think of nothing to do at that moment. Then Batty stumbled backwards and when I looked Cecil Gordon had the knife. I took away the knife from Cecil Gordon and I threw it towards gate by Silva's residence".

He added that he and Cecil Gordon went to the Police Station to make a report but the Constable in charge did not allow him to make a report and roughed him up. He did not see Estrada at the Police Station. He and Cecil then went to the Hospital.

In cross?examination he was questioned about his evidence that Cecil Gordon had told him that Batty had stabbed him. As against that was the fact that in his statement to the Sergeant the following appeared:

"I gone to Cecil and hold Cecil, and I asked him who do it. He say he no know the person who do it".

Appellant Ifield denied saying that. He just signed because he (the Sergeant) said he must sign to certify it.

Appellant Ifield denied that he had instigated Cecil and Michael Gordon to attack Batty. It was not his presence at the scene that encouraged Cecil and Michael Gordon to attack Batty. He did not know where Michael Gordon was when Batty got stabbed. He did not see him there.

The defence of the Appellant Cecil Gordon, as we understand it, was that although it was he who stabbed the deceased and caused his death, he was justified in doing so in defending himself against a kicking attack by deceased, Frankie Batty. This was a complete excuse in law, and unless the Prosecution convinced the jury beyond reasonable doubt that self?defence had no basis in the case, the verdict should have been an acquittal (Abraham (1973) 1 W.L.R. 1270).

Appellant Michael Gordon said nothing in his defence, simply putting the Prosecution to the proof of their allegations. No doubt he also availed himself of the evidence of the other two Appellants who said in effect that he was not at the scene when Batty was stabbed. This was consistent with his statement to the Police.

The third Appellant William Ifield, as we understand his defence denied abetting any crime committed by Cecil Gordon.

This was not an easy case for either the Jury of the Trial Judge. The Jury had to decide what facts they accepted as proved ? a task which they might well have found difficult because of the vastly different versions put before them in evidence by the witnesses for the Prosecution on the one hand and those of the defence on the other. So far as the Judge was concerned, a careful and accurate direction from his was needed as to the law which the Jury should apply to the facts which they found proved, including a careful direction on abetment, dealing separately with the 2nd Appellant and the 3rd Appellant. As it was the Trial Judge's directions to the Jury on the law left something to be desired and some of them are the subjects of grounds of appeal.

The learned Trial Judge began by correctly directing the Jury in the following general terms as to the burden and standard of proof (see pp. 57 and 58 of the Record):

"The Accused in that dock are not required to prove anything. The Prosecution must show you so that you are completely satisfied, so that you are sure, that they have proved their case. If you are left in any reasonable doubts, then any reasonable doubt, you have should be resolved in favour of the Accused."

He continued:?

"I shall return to this all pervading burden at a later stage, but I say to you now that it is based on the fundamental principle that an accused person is presumed to be innocent until he has been proved guilty and the fact that the burden never shifts from the Prosecution throughout the entirety of the trial should be your touchstone."

He also correctly advised the Jury not to be misled by the word "defence" for there was no burden whatsoever on the Accused at any time during the trial to prove anything. It was for the Crown to prove the case beyond all reasonable doubt.

He went on to explain at p. 60 of the Record that the Accused were charged with the crime of Murder and that to prove that offence the Crown bad to prove five elements, one of which ? (3) ? was "that the bodily hurt intentionally inflicted without justification, that is to say, that it was an unjustified voluntary act on the part of his assailant (s) "; and another of which ? (4) ? was "that the assailant or assailants at the time of inflicting that bodily hurt did so with the intent to kill Frankie Batty".

In connection with the third element he explained at p. 62 of the Record:

"There are certain killings which are justified or excused by law. One or them would be a killing in self?defence. And Mr. Barrow has told you that self?defence is the defence here".

He referred the Jury to a passage from Palmer v. R. (1971) A.C. 814, on the question of self?defence, and then turned to the provisions of section 33 of the Criminal Code which are specific and which govern the matter in this Country. He said at p. 65:

"What the law actually says at section 33 (4) is that for the prevention of or for the defence of himself or of any person against murder or manslaughter, a person may justify any necessary force or harm, extending in case of extreme necessity even to killing".

With respect to the learned Trial Judge, in our opinion, the above direction was faulty in a respect which we consider of sufficient importance to be raised although it did not form any ground of appeal. Its fault lay in putting at too high a level the attack against which under the law the 1st Appellant would have been justified in defending himself. The Trial Judge apparently did not abvert to the provisions of section 33 (4) (k) of the Criminal Code which in effect says that for the prevention of or for the defence of himself or of any person against dangerous or grievous harm a person may justify any necessary force or harm, extending in case of extreme necessity even to killing. It is clear from the 1st Appellant's evidence at the top of p. 42 of the Record that Batty had lost the knife and that 1st Appellant had got hold of it; that Batty then rushed him and kicked him and it was only when he was swinging the knife to stop the attack that Batty was stabbed. It seems to us that an attack by kicking would fall more readily into the category of dangerous or grievous harm than into that of Murder or Manslaughter.

Immediately after the abovementioned misdirection the Trial Judge said at p. 63, lines 15 to 26:

"It is clear here that A1 is saying that he was acting in self?defence when, as he says, the deceased was attacking him as he was bending over, and that he held the knife in his hand and that the deceased in effect ran into the knife. Now if you believe the evidence of A1 on this crucial matter, i.e. that for the prevention of or for the defence of himself and the other Accused against a murderous attack by the deceased A1 was justified in using necessary force/harm, and that this was a case of extreme necessity resulting in the killing of the deceased, then it would be your undoubted duty to acquit A1 if you find self?defence proved;"

and in lines 26 to 29 on the same page he continued -

"and indeed you should also acquit A2 and A3 if you believe that A1 was so acting in self?defence of himself and the other two accused when the deceased was killed".

Further on p. 94 of the Record the Trial Judge said in lines 24 ? 27:

"Equally if you find that Accused 1 had proved beyond reasonable doubt that he acted in self?defence as envisaged by section 33 of the Criminal Code (to which I have previously referred) then it would be your duty to acquit him";

and at lines 27 ? 30 he continued:

"and if you found that he was also acting in the defence of the other two Accused, and that it was a case of extreme necessity, then you should also acquit Accused 2 and Accused 3."

The first ground of appeal complains that in the above quoted passages at p.63 line 25 and at p.94 line 24, the Trial Judge misdirected the Jury on the law relating to self?defence in stating that the first Appellant must prove beyond a reasonable doubt that he was acting in self-defence for the jury to acquit him.

It was conceded by Counsel on behalf of the Prosecutions that the passage at p. 94 was a misdirection, but he contended that in the passage at p. 63 which was joined with the Trial Judge was not shifting the onus of proof on to the accused.

In our view, in the passage at lines 15 ? 26 on p. 63, the words "if you believe the evidence of A1" and "if you find self?defence proved", coupled with the absence of any reference to reasonable doubt, seem to make the passage carry at least a suggestion that it was for the Accused Cecil Gordon to prove self?defence. This impression is confirmed and heightened by the passage which appears on p. 94 of the Record at lines 24 ? 27. In our view there was plainly a misdirection on the burden of proof in these two passages when read together.

Allied with the complaint in ground 1 of the grounds of complaint was ground 2 which complained that the Trial Judge misdirected the jury on the law relating to self?defence in stating at line 26 of p. 63 and line 27 of p. 94 that it must be proved beyond a reasonable doubt that the first appellant was acting in defence of the second and third appellant for the second and third Appellant to be acquitted.

In so far as this ground of appeal complains of a shifting of the burden of proof on to the Accused, in our opinion it must be upheld, for the passages complained of must be read respectively with the passages at lines 15 ? 26 on p. 63 and at lines 24 ? 27 on p. 94.

It was contended however, by Counsel for the prosecution that when considered against the whole effect of the summing?up, the misdirection complained of would have been unlikely to cause the Jury to think that there was any burden on the Accused to prove self?defence.

We agree that the direction complained of must be considered against the whole effect of the summing?up. Yap Chuan Ching 63 Cr. App. R. 7.

It is true that in the passage at pp. 57 ? 58 of the Record, to which we have already referred, the learned Trial Judge gave a correct general direction on the burden and standard of proof, and reinforced it in lines 12 ? 15 on p. 90. So far as the 2nd Appellant was concerned, by telling the Jury "you should not draw any undue inferences from the fact that he's elected to remain silent because on the basis that an accused person is presumed innocent until proved guilty and is not required to prove anything, therefore it is perfectly open for an accused person to say: "Let the Crown say what they like, I'm going to say nothing". Further, at the foot of p. 91 he again told the Jury: "I remind you again that the burden of proof in this case is entirely upon the Prosecution. Remember the Accused have to prove nothing". At p. 95, lines 26 ? 33 he said ?

"Thirdly, if you are not satisfied on the evidence or you are not sure and you have substantial doubts then you are entitled to find either the Accused 1 not guilty or the Accused 2 not guilty or the Accused 3 not guilty or all three not guilty depending on how you come to your conclusion in regard to the evidence which had been led against each individual accused".

It was urged that this passage followed the passage complained of and would have done something to correct it. That seems to us very doubtful as the directions here given were limited to the evidence "led against each individual accused". It will be noted that all the directions referred to above were of a general nature. It has been laid down in the authorities, however, that in cases of self?defence, the Judge, after giving a general direction on the burden and standard of proof, should give a specific direction on the issue of self?defence and how the onus and standard of proof applies in that regard (Abraham (1973) I W.L.R. p. 1270 at p. 1273).

In the instant case, the Judge at p. 60 line 10, near the beginning of the summing?up, did tell the Jury that one of the five conditions which they must find before they could enter a verdict of guilty of Murder was "that the bodily hurt was intentionally inflicted without justification". This was in effect repeated at the foot of page 61. It is conceded, however, that he did not tell them in the manner approved in Abraham (supra), that the Prosecution must negative self?defence.

The main passage in which self?defence was expressly referred to in the summing?up were those at pp. 63 and 94 of which complaint was made. It is of special importance in our opinion to note the context in which the passage at lines 24 ?30 of p. 94 occurred. This passage immediately followed general directions of an unexceptionable kind which were in the following terms:

"If you think that the Crown has not proved its case or you are not sure of the case of the Crown, then you should acquit all the Accused. If on the other hand, you are not sure of the Crown has proved its case, or you are not sure of the case in respect of one or other of the Accused ……….. you should acquit that respective Accused. If on the other hand, you think that all the elements of the charge of murder have been proved against one or more, but you are not sure there was an intention to kill, then your proper, verdict would be one if manslaughter. If you find that all the elements of the charge of murder have been proved, including an intention to kill, so that you feel sure of all that, then it would be your duty to return with a verdict of guilty as charged."

There then followed the passage complained of in Ground 1 ?

"Equally if you find that Accused 1 has proved beyond reasonable doubt that he acted in self?defence as envisaged by section 33 of the Criminal Code (to which I have previously referred) then it would be your duty to acquit him".

It seems to us that this direction following, as it does, immediately after the general direction which we have set out above, and referring specifically to self-defence, could hardly fail to impress on the minds of the Jury that there was something special about self?defence; that in its particular case the burden was on the Accused to prove it, and indeed that there was a burden on the Accused to prove it beyond reasonable doubt. Further, it is to be noted that this direction was given to the Jury only about a page from the end of the summing?up, in other words, just before they retired, so that they would have it fresh in their minds when they began their deliberations. In our view, there was at least a very great danger that the Jury, in the matter of self?defence, would think that the burden was on the Accused to prove his allegation and moreover to prove it beyond reasonable doubt. This was in our view a misdirection of a most serious kind, going right to the heart of the trial. In Abraham (supra) one of the grounds on which the Court of Appeal allowed the appeal was that the Jury could have been left in doubt as to where the burden lay on the issue of self?defence.

Another complaint which arose under Ground 2 of the Grounds of Appeal was that the directions of the Trial Judge at p. 63 line 26 and p. 94, line 27, were at least capable of the construction that the only ground on which the 2nd and 3rd Appellants could be acquitted was if it were proved beyond a reasonable doubt that the 1st Appellant was acting in their defence. Further that it was never the case for the Defence that the 1st Appellant was acting in defence of the other two. As we understand the evidence, the defence of the 2nd Appellant seems to have been that he was not present at the scene when Batty was stabbed and so could not be an abettor; and the defence of the 3rd Appellant was that, although present at the scene, he did not participate in any crime which may have been committed by 1st Appellant. We do not think that the language of the Judge in the Passages complained of limited the defence of the 2nd and 3rd appellants in the way suggested, and indeed at p. 89 lines 27 ? 28, the Trial Judge did briefly state the defence of the 2nd and 3rd Appellants which arose out of the evidence.

In Ground 3 complaint is made that the learned Trial Judge at p. 65 line 10 of the Record misdirected the Jury on the law relating to the onus of proof in stating that the Jury "would have to be satisfied beyond all reasonable doubt that there was no actual intent or that the Accused did not foresee that more likely than not their actions might cause death in order to return a verdict of manslaughter."

We agree that, taken at its face value, the passage complained of is at least capable of the interpretation that there was a burden on the Accused to prove beyond all reasonable doubt that there was no actual intent on their part to kill or that they did not foresee that their actions might cause death. This passage however, is not to be looked at in isolation. We must consider it against the whole effect of the summing?up. (Yam Chuan Ching, supra).

Looking at the rest of the summing?up, we have found several other passages in which the nature of the offence of manslaughter as well as the burden of proving it are correctly explained and in the context of the whole summing?up we do not think that the one passage complained of in Ground 3 would have been at all likely to cause the Jury to think that there was any burden on the Accused to prove the absence of an intention to kill.

In our opinion, there is no substance in this aspect of the contention advanced in Ground 3.

There is, however, another aspect of that contention. It is that the Trial Judge erred in this passage in dealing with all the three Appellants together. It was submitted that if the inflictor of the wound inflicted it without the specific intent required for murder, that would be manslaughter as regards the inflictor of the wound, but it would not necessarily be manslaughter as well in the case of the other two Accused.

Counsel for the Appellants, after some argument, conceded that if there were proper directions on abetment, the direction complained of would not offend. This in turn, led to a consideration of whether there had been a proper direction on abetment.

It appeared that the Trial Judge had directed the Jury (see pp. 66, 77 of the Record) as to the English common law with regard to abetment. This is different from the law appearing in section 17 of the Criminal Code (Ch. 22) which governs the law of abetment in this Country. It was not until the last page of the summing up (p. 95) that the Trial Judge referred to the Jury the provisions of section 17 (1) and (2) of the Criminal Code (but without any explanation). This was perhaps unfortunate as it might have lightened his task and led to greater accuracy in his exposition of the law of abetment in this Country. The provisions of section 17 (1) are in the following terms:

"17. - (1) Every person who -

(a) directly or indirectly instigates, commands, counsels, procures, solicits or in any manner purposely aids, facilitates or encourages or promotes the commission of any crime, whether by his act, presence or otherwise, or

(b) does any act for the purpose of aiding, facilitating, encouraging or promoting the commission of a crime by any other person, whether known or unknown, certain or uncertain, shall be guilty of abetting that crime, and of abetting the other person in respect of that crime.

In our opinion the above provisions clearly contemplate that to be an abettor, the person in question must know that the crime is to be committed or is being committed. The aid he gives has to be given purposely, and any act which he does must be done for the purpose of aiding the commission of the crimes.

Before referring to the terms of section 17 (1) and (2) of the Criminal Code, the Trial Judge, at p. 90 of the record lines 26 ? 32, directed the Jury in the following terms:

"If you believe, if you believe, tile witness that say he" (2nd Accused) "held the feet while A3 was holding the head ?neck? and A1 delivered the fatal blow with the knife, then I would direct you that they all three would be guilty of murder because they would have participated sufficiently to come within participation in a crime of murder".

In our opinion this direction was defective in that it put the case too strongly against the 2nd and 3rd Appellants for it did not advert to the use of the word "purposely" in section, 17 (1) of the Criminal Code. It should, we think, be

"……… The only point that shows up is that it may show that Sgt. Lewis was wrong when he said that he made his cross with his bandaged right hand. That's the only point. It places Sgt. Lewis in a more questionable position but to my mind it, won't concern you greatly in regard to the putting of the 'X' on his statement provided he did it with one or other of his hands."

The complaint is that the learned Trial Judge misdirected the Jury as to the implication of the severed tendons in the right wrist of the first Appellant is saying that the matter was important only in regard to the signing of the statement in as much as the injury would have precluded the first Accused from stabbing the deceased with his right hand as alleged by the prosecution witnesses (p. 15 line 10) and thereafter from holding the knife in his right hand and threatening violence with it (p. 19, line 9 p. 25 line 22).

We note that at page 15, line 10 the witness Estrada said that the 1st Appellant took the knife away with his right hand and then stabbed the deceased who was lying on his back; and that at p. 19 line 9 and p. 25 line 21, Dougall said that when he passed the 1st Appellant on the stairs at Carl's Bar, the 1st Appellant had a knife in his right hand and raised the knife to him as if to threaten him.

We agree that if the Jury accepted that the injury to the 1st Appellant's right forearm occurred before the stabbing of the deceased and also accepted the evidence of the defence witness Dr. Barrow that once the tendons were cut anything held must be dropped, it would appear that the 1st Appellant could not have held the knife in his right hand either at the time he stabbed the deceased or at the time he passed Dougall on the stairs at Carl's Bar. This in turn would affect the credit of both Estrada and Dougall and should have been borne in mind by the Jury in determining whether they accepted the version of what occurred given by those witnesses. It was therefore a misdirection of some consequence to advise the jury, as in effect the Trial Judge did, that the matter of the cut tendons was only of importance in deciding whether the 1st Appellant signed the statement with his right hand or left his hand, find that was not very important. To do so might easily have suggested to the Jury that it was not worth the while to go to the trouble of determining whether they accepted the evidence of 1st Appellant and Dr. Barrow on this issue as against the testimony of Dr. Sarang and the Prosecution witnesses whereas, for the reason we have stated, it was a matter of importance which the Jury should have decided.

Another misdirection which we have noted is that the possibility of a verdict of manslaughter by reason of provocation was not properly put to the Jury. At p. 59 of the Record, the Trial Judge did read to the Jury the provisions of section III of the Criminal Code which sets out the conditions under which intentional homicide is reduced to manslaughter and includes a references to extreme provocation. The matter, however was left there and no attempt was ever made to relate the defence of extreme provocation to the facts of the case. Indeed, no further reference to provocation appears in the summing-up.

It is true that provocation does not seem to have been put forward as a defence at the Trial, although the Court is handicapped in this regard by the fact that no note whatever of Counsel's addresses appears on the record. Never remembered that even on the version of the incident given by the Prosecution, the deceased was in possession of the knife until the very last minute and as far as the evidence went, it was possible that the 2nd and 3rd Appellants were holding the deceased only to enable the 1st Appellant to take the knife away from him. Gerald Dougall testified that he thought that that was happening and Estrada said he did not think deceased was in any danger. In our opinion it was of the greatest importance that the Jury should have been advised that to constitute the 2nd and 3rd Appellants abettors, of the crime, they (the Jury), in addition to being sure that those two Appellants were holding the deceased when he was stabbed, would have to be sure that they knew that the deceased was to be killed if and when Cecil Gordon got the knife, and purposely aided him in that regard. The Jury was not so advised and in our view, the omission made the direction unsatisfactory.

We were urged to find that the omission was repaired by the directions in the summing?up such as that appearing at p. 66 lines 23?27:

"In addition, any person who could be either with the Accused or part of a joint enterprise and who has a similar intent is liable if he assented to and actually promoted the attack by help or encouragement to be also guilty of murder."

Again in a passage beginning at p. 67, line 33 and continuing to line 4 on p. 68, the Trial Judge said:

"If you are not satisfied that the understanding as assented to by the Accused went so far as intending death then you cannot find the Accused guilty of murder: that is to say, if you are dealing with one and looking at the other two."

We were also referred to the mention by the Trial Judge at the end of the summing-up of the provisions of section 17 (1) and (2) of the Criminal Code. We do not agree with this submission. In our view, the faulty direction to which we have referred, relating as it did to the facts of the case, and being couched in the terms in which it was couched, would have been very likely to have been regarded by the Jury as all embracing and covering the Judge's other general directions. In our opinion it was unsatisfactory.

Ground 4 was not pressed by Counsel for the Appellants and there is no need to deal with it.

Ground 5 complains of a passage at pp. 82 and 83 of the summing?up. Dealing with the difference between Dr. Sarang and Dr. Barrow as to the implication or the injury to 1st Appellant's right wrist, the Trial Judge said:

"Obviously the Doctor" (Dr. Barrow) "this morning didn't want to condemn him but said that he should have carried out the basic tests to see if the fingers had been affected. However, you will have to decide that. I don't know how important it is, except in regard to the signing of the statement. There, I think, Mr. Barrow is probably right when he says that the statement must have been signed with his left hand. He's put a cross. Well, I don't think that's very important, Mr. Foreman, really the less it is laid down in the authorities (for example Porritt, 45 Cr. App. R. 348 at 356) that?

"notwithstanding the fact that a particular issue is not raised by the defence, it is incumbent upon the judge trying the case, if the evidence justifies it, to leave such issue to the jury."

In our view, the issue of provocation arose both on the evidence for the Prosecution and on that for the defence, and it is of special importance that it should have been left to the Jury in this case because, as we see it, no reasonable jury, even if properly directed on the nature of self?defence and the burden and standard of proof in that regard would have found that this was a case of extreme necessity justifying a killing in self?defence or would have had any reasonable doubt in that regard. On the evidence, the 1st Appellant at the material time had the knife, a relative of his, who was more robust that the deceased, was present at the scene, and the attack against which the 1st Appellant was defending himself was no more than a kicking one.

The matters which, in our view, constituted material on which the jury could have come to the conclusion, even although under section III of the Criminal Code the burden is on the Accused to establish provocation (on a balance of probability) that this was a killing after provocation and, accordingly, would justify a verdict of manslaughter are as follows: Deceased kicked the 1st Appellant and this might well have caused the latter to lose control.

The evidence of the 1st Appellant was to the effect that he had not had any previous misunderstandings with the deceased who was of a quiet personality and there was no suggestion, even on the case for the Prosecutions, that he acted from any previous purpose to cause Batty's death. There was no interval for cooling; and the Jury might well have decided, if the issue had been left to them, that the one stab inflicted by the 1st Appellant was not greatly in excess of the manner in which a person of ordinary character would have been likely under the circumstances to be deprived of his self?control by the provocation.

We have been invited to apply the proviso, but, as we understood it, this submission was made on the view that there had been no substantial misdirection. With this view we are unable to agree. As we have indicated, there were, in our opinion, several misdirections, and we are unable to say that no substantial miscarriage of justice has actually occurred through some of them.

We have given careful consideration to the action which we should take. In this connection our attention has been directed to two cases. One was Chan Kati Alias Chan Kai v. The Queen (1935) A. C. 206. In this case the Appellant had been convicted of murder. He had put forward two defence, provocation and self?defence. Provocation was expressly withdrawn from the Jury by the Trial Judge; and so far as self?defence was concerned, the Trial Judge directed the jury in terms which suggested that the burden of establishing self?defence lay on the accused and told them that on the evidence there was no warranty for the defence of self?defence. The jury rejected it.

The Privy Council held as regards provocation, that there was a case fit to be left to the Jury and that accordingly the verdict of guilty of murder could not stand. With regard to self?defence, they commented as follows:-

"Although the judge gave correct and ample directions in general terms at the beginning and end of his summing?up as to the onus of proof, when he came to deal, with the defence of self?defence he quoted the passage referred to above from Reg. v. Smith (1837) 8 C. & P. 160, 162, and added the words "he the accused must satisfy you that the defence was necessary", with the result that the jury were not in fact adequately directed on this issue."

At page 214, the following passage occurs:

"Viewing the case as a whole, their Lordships do not consider that the Jury's rejection of the defence of self?defence amounted to a miscarriage of justice. It is difficult, if not impossible, to infer from the evidence, taking the most favourable view for the defence, that the Appellant's life was ever seriously endangered so as to justify ? as distinct from excuse ? the use of such a weapon."

Applying the test in Teper v. The Queen (1952) A.C. 480, 492, the Privy Council went on to decide that it could not be held that there was a probability that this misdirection turned the scale against the Appellant. In the result, the Privy Council were of opinion that the appeal should be allowed and the verdict of murder set aside and a verdict of manslaughter substituted, and so advised Her Majesty.

In Porritt (1961) 45 Cr. App. R., p. 348, the Jury had rejected a defence of defence of a near relative and had convicted the appellant of murder. The issue of provocation had not been raised at the Trial and had not been left with the jury by the Trial Judge. The Court of Appeal held that there was sufficient evidence of provocation to justify a verdict of manslaughter and the judge should have left the issue to the jury. In the circumstances the Court allowed the appeal in regard to conviction and substituted a verdict of manslaughter.

Turning to the instant case, as we have indicated, in our view, no reasonable jury, even if properly directed on the nature of self?defence and the burden and standard of proof in that regard, could have found that this was a case of extreme necessity justifying a killing in self?defence or have had any reasonable doubt in that regard. Consequently, in our opinion, it cannot be said that the misdirection on the burden and standard of proof on the issue of self?defence, serious as it was, turned the scale against the 1st Appellant.

Nevertheless, in our opinion, as we have also indicated, there was material on which the jury must have come to the conclusion, if the issue had been left to them, that this killing was a killing after provocation and, accordingly, would justify a verdict of manslaughter.

For the reasons we have given, this court, exercising the powers conferred upon it by section 32 (2) of the Court of Appeal Ordinance, 1967 (No. 18 of 1967) will substitute for the verdict of Murder returned by the Jury against the 1st Appellant a judgment of guilty of Manslaughter. In doing so, we follow what was done in Chan Kua alias Chan Kai v. The Queen in Porritt (supra).

Turning to the case of the other two Appellants, it seems to us that because of the misdirection as to abetment to which we have adverted, a miscarriage of justice may well have occurred in the case of each and we are unable to say that it was not substantial. For these reasons we quash the conviction of each and of the 2nd and 3rd Appellants and direct that a judgment and verdict of acquittal be entered in respect of each.

The 1st Appellant, Cecil Gordon will undergo seven years imprisonment with hard labour.

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