Court of Appeal
Criminal Appeal No. 3 of 1995
TELFORD GEORGES P.
HORACE W. YOUNG J.A.
SIR DENIS E. G. MALONE J.A.

Mr. S. Sampson for the Appellant.
Mr. E. Thompson for the Crown.

Criminal Appeal - Appeal against conviction for murder - Defence of provocation - That trial judge failed to adequately direct the jury on the law of provocation - Sections 116 and 117 of Criminal Code - Note received from jury - Material irregularity - Failure by trial judge to show defence counsel written question submitted by jury - That trial judge erred in law in failing to adequately direct jury in accordance of section 21 Juries Act - Appeal dismissed - Conviction and sentence affirmed.

J U D G M E N T

The Appellant, Adolph Harris, was convicted of having murdered Lavern Orosco on August 29, 1993. From that conviction he has appealed.

The case for the prosecution was that the Appellant shot the deceased at close range in the left temporal region with a revolver. The pathologist, Dr. Mario Estrada Bran, testified that the deceased died from trauma to the head secondary to a gun shot wound. In his opinion the muzzle of the gun must have been about 1 inch ? 2?3 cm. ? from the body when the gun was fired. He formed this view because of discolouration caused by black powder/gun powder residue in the area of the entry wound.

Three witnesses testified to the circumstances in which the wound was inflicted. They were Teresita Orosco and Odessa Orosco, sisters of the deceased, Lavern, and Audrey Ferguson a friend of the deceased and also of Lolita Lynch, the girl friend of the Appellant.

On August 28, 1993 the deceased Lavern and her sister Teresita went to a dance at Lodge Hall, Regent Street, Belize City reaching there at about 11:50 p.m. Around 12:30 a.m. to 1:00 a.m. on August 29, they met Audrey Ferguson outside the dance hall.

In the course of talking they went down a nearby alley where they crossed Lolita Lynch and the Appellant. Lolita Lynch and the deceased bandied words. There had apparently been a long standing resentment between the two women.

Later that morning about 2.30 a.m. Teresita, Odessa and Audrey and the deceased were going home when they saw the Appellant and Lolita coming toward them on Bolton Bridge. Again Lolita and the deceased exchanged words. Lolita got off her bicycle and approached the deceased. Lolita had a Belikin bottle in her hand and she began "faking Lavern with the Belikin pint. "

The prosecutor's case was that Lolita threatened that she would kill the deceased to which the deceased replied that she could kill her as she had only one life to live. They were then some 5' one from the other. The exchange of words continued. Lolita boxed a plate of rice and beans from the hands of the deceased and the deceased responded by pushing her.

Lolita asked the Appellant to give her the gun. The Appellant did not do so. He stated that if she had to do anything to the deceased she should do it then so that they could go. After he said these words he pulled a small gun from his back pocket, "cranked it" placed it to the temple of the deceased. Lolita told the Appellant to "shoot the bitch and lets go." The deceased said to shoot her, she had only one life to live. The Appellant then shot her in the temple and she fell on the face in the drain. The Appellant and Lolita then rode away.

Audrey Ferguson's evidence was that at one stage when the Appellant had the gun in his hand, with his arm at his side she had placed her arms around his shoulder but she denied that this happened while he held the gun to the deceased's temple.

The Appellant's defence (apart from suggestions made in cross-examination and denied) was put forward in a statement from the dock. He stated that as he was riding home with Lolita they met Audrey and the Orosco family blocking Vernon Street. They were forced to stop. Lolita and the deceased exchanged words. The deceased asked the others to kill him and Lolita. They were the only two in the street apart from the Orosco's and Audrey Ferguson. He then saw Teresita pull a shiny object from her pocket. Audrey and Odessa each held a beer bottle. They came towards him. He was frightened. He pulled a little gun he had in his pocket and "hauled out the hammer. " As he raised his arm Audrey grasped it "as if to point skywards. Shortly after the gun went off. He got frightened and rode away.

The first ground of appeal was that the trial judge failed adequately to direct the jury on the law of provocation. In dealing with this issue the trial judge referred to the threats of killing which the Appellant stated that the deceased had made, the movement of the women towards them, one with a shiny object and two with bottles and he continued ?

"Now, if the accused saw this and the accused had the fear or if he was fearful for his life then this is what in law we call "Provocation".

Later he stated -

"So on the evidence it is open to you to come to a conclusion that the accused suffered from extreme provocation. The Defence is saying that when Laverne said lets kill the two of them, namely Harris and Lolita, because only two of them were out there on the street, and when he saw Theresita Orosco haul out this sharp and shiny object out of her pocket and saw the other girls proceeding and drawing nearer or closer to them, he may have been provoked, and as a result of that, he suddenly lost his self-control and took out his gun and the gun was fired. Now, if you accept the version of the accused, and you find that the accused was provoked then you will return manslaughter."

Mr. Sampson contends that this direction is inadequate. He argues that the trial judge should have used the specific language of sections 116 and 117 of the Criminal Code. Any attempt at paraphrase was likely to mislead.

In our view the direction was adequate. Section 117(a) and (b) of the Code set out matters which may amount to extreme provocation. They read ?

"117. (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. "

The factual situation which the trial judge outlined in the quotation set out above in effect relate to this case the general propositions set out in the sections. If the jury did find that the women were approaching the Appellant armed with bottles and a shiny object they would be finding that there was an assault on the deceased. If the jury did find that there were threats to kill the Appellant, then the assault would be of such a kind by reason of the words accompanying it as would be likely to deprive a person of the power of self control. The elements of provocation would have been proved. While it is safe to quote the words of the section of the code, it is as important to relate the facts to the language of the section to assist the jury fully. We are of the view that this ground cannot succeed.

Ground 3 raises the issue of a material irregularity ? a failure by the trial judge to show to the defence counsel a written question which the jury submitted to the judge when they returned seeking assistance. The note does not appear on the record of the proceedings. Mr. Sampson referred us to Augustine Achuzia Kachikwu (1968) Vol. 52 Cr. App. R. 538. The jury in that case had returned from the jury room to the court with a written note seeking assistance. On appeal Winn C.J. stated at p. 541 ?

"It seems that no immediate steps were taken, as they should always be taken when a note is received from a jury, to show, the terms of the note to both counsel before it is put in the archives of the court."

It may well be that this note was never handed to the judge since the report states at p. 541 that the shorthand writer understood the note to have a meaning, an understanding which the presiding Judge also at first shared. There was a dispute as to the true intent of the question asked, a dispute which was important in the context of the appeal. Here there is no dispute as to what was asked or the answer which was given.

In Furlong and others (1950) 34 Cr. App. R. 79 at p? 81 Lord Goddard stated the practice thus -

"We desire to say that we are in no way departing from the rules which have been laid down in this Court and the right practice to follow is this: If a jury when they are considering their verdict, wish to ask a question or to have more information or to make any request about the case, they should do so in open court and the Judge should answer in open court in the presence of the prisoner. A jury may, of course, put the request into writing or be asked by the Judge so to do, but the communication in such a case should always be read and answered in open court."

There was no departure from this practice here. Should defence counsel seek himself to read the document, then obviously it will be handed over but the trial judge can meet the requirement of openness by reading the document. This argument fails.

Mr. Sampson expanded this ground by arguing that the Court did not, in fact, give the assistance the jury required. He contends that the jury were not assisted with regard to the issue of "intention to harm" and "intention to kill". The record reads ?

"Jury returned at 5:05 p.m.
Roll call: All jurors present.
Jury are ask (sic) whether they have reached a verdict in respect to murder and whether it is unanimous.
The jury informs the Court that this verdict is not unanimous.
The jury are asked whether they need to clear up anything or need any assistance.
ANSWER: Yes.
With respect to the charge of murder is your verdict unanimous?
ANSWER: The jury informs court that they need some assistance in respect to intention to harm and intention to kill.
The jury are asked if that is all the assistance they require.
The jury then begins conferring.
The jury are then informed that if they need more time to formulate any question, they can have it.
The jury then informs court that they need more time. The jury then retire to the jury room.
The jury returned 5:30 p.m. and informed court by way of a written question whether if they cannot agree unanimously on murder whether they can go on to consider manslaughter or should the defendant walk.
The jury were asked whether that was all the guidance they required and they answered in the affirmative. The jury were then directed to consider the charge of murder first, and if they cannot agree unanimously on a verdict, then they should then go on to consider the alternative verdict of manslaughter which does not require a unanimous verdict; and if they cannot reach a verdict on this they must say so."

While the issue of intention to kill and intention to harm was originally mentioned the jury after retiring for consultation returned with an entirely different question. The trial judge dealt with this. The record does not support Mr. Sampson's submission that the trial judge failed to give the jury the assistance it sought. Accordingly this ground fails.

Ground 2 of Appeal was that the trial judge erred in law in failing adequately to direct the jury in accordance with section 21 of the Juries Act.

The record shows that the jury retired at 12:15 p.m. They returned at 5.05 p.m. some 4 hours and 50 minutes later. The events which followed have been set out in the excerpt from the record set out above. After the judge had answered the question it is noted that he read to them "the Watson direction". They jury then retired and returned at 9:45 p.m. with a verdict of guilty of murder.
Section 21 of the Juries Act Cap. 78 reads:

"21. (1) For the trial of the issue in every criminal cause in which the accused person is arraigned for an offence punishable with death, the jury shall consist of twelve persons and the verdict of that jury shall be unanimous, nevertheless on an indictment for murder that jury may, on or after the expiration of four hours from the time when it retired to consider its verdict, return a verdict of manslaughter if it considers that crime proved, whenever it is agreed in the proportion of eleven to one or ten to two, and that verdict when so delivered shall have the same effect as if the whole jury had concurred therein."

Mr. Sampson contends that after 4 hours a right is vested in an accused person for the jury to be told that they may return a verdict of manslaughter in a murder case. We do not think the section can bear such an interpretation. The Watson directions are clearly a reference to the directions set out in Archbold 43rd Edition at para. 4?438(a).

Mr. Sampson contended that the length of time which the jury took to arrive at its verdict is an indication that they may have felt pressured to achieve unanimity and had they been told after they first returned that they could, if they so agreed, return a manslaughter verdict by a majority of 10 to 2 or 11 to 1 they may well have done so. The record shows that the judge did so direct them though the members needed for a majority verdict were not mentioned. He told them that they should consider the charge of murder first and if they could not be unanimous they should then consider the alternative of manslaughter which did not require a unanimous verdict and if they could reach a verdict on that they must say so. With such a clear direction it is speculation to contend that the jury felt pressure to remain sequestered until they could arrive at a unanimous verdict.

Accordingly the appeal must be dismissed and the conviction and sentence affirmed.

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