Court of Appeal
Criminal Appeal No. 9 of 1988
2nd March, 1989
SIR JAMES A. SMITH, P.
KENNETH ST. L. HENRY, J.A.
SIR JOSEPH LUCKHOO, J.A.

Mr. Sampson for Appellant
Mr. Lumor for the Respondent

Criminal Appeal - Appeal against conviction of murder - Whether trial judge misdirected jury on specific intent required to establish murder - Whether trial judge erred by failing to direct jury that in the absence of intention to kill, verdict to be returned is manslaughter - Whether trial judge misdirected jury in applying objective test to determine intention to kill - Whether trial judge misdirected jury on burden of proof - Whether trial judge omitted fully or adequately to direct jury on defence of alibi - Appeal allowed - Conviction set aside - New trial ordered in the interest of justice.

J U D G M E N T

On the morning of March 26, 1988 Edilberto Canti left his home in San Roman, Stann Creek in search of firewood. He was last seen alive walking along a footpath which leads off the Southern Highway in a westerly direction at about 9 a.m. Later that day his dead body was found lying on the footpath. There were multiple shotgun entry wounds to the back of his chest and an exit wound on the right lateral side of the chest. Death was due to haemorrhage and shock from these wounds which had damaged the lungs, liver and viscera. The Appellant was charged and convicted of the murder of Mr. Canti. He appeals against his conviction.

The first ground of appeal is as follows:

"The learned trial judge misdirected the jury on the specific intent to establish the crime of MURDER, i.e. "the intention to kill."

(b) Erred in that he failed to direct the jury that if they found an absence of intention to kill, or were in doubt about it, their verdict should be manslaughter.

(c) Misdirected the Jury in applying the objective test to determine an intention to kill."

Counsel for the Appellant submitted that the learned trial judge misdirected the jury when at page 47 he told them that one of the essential elements of the crime of murder was "that the infliction of the bodily harm was with the intention to cause Edilberto Canti's death or to cause him serious or dangerous bodily harm". This misdirection was, Counsel submitted, repeated at page 55 when the learned trial judge twice referred to an intention to cause death or serious bodily harm.

Counsel for the Crown submitted that in speaking of causing serious or dangerous bodily harm the learned trial judge was referring to the unlawful harm which was an essential element of the crime of murder. We do not accept this submission. In our view the learned trial judge was defining the intention which at common law is an essential element of the crime of murder. In the Belizean context however where there is a statutory definition in the Criminal Code of the crime of murder, that common law definition does not apply. The statutory definition in section 114 of the Criminal Code provides:?

"Every person who intentionally causes the death of another person by unlawful harm is guilty of murder ……"

That definition has repeatedly been construed as requiring an intention to kill to establish the crime of murder. There was therefore a clear misdirection by the learned trial judge in this regard.

Counsel for the Crown conceded also that the learned trial judge, while directing the jury in accordance with section 9(b) of the Criminal Code omitted to direct them in accordance with section 9(a) that they were not bound to infer an intention to kill by reason only of the fact that death was a natural and probable result of the Appellant's conduct (assuming they found that he was responsible for inflicting the wounds which caused Mr. Canti's death).

The second ground of appeal is that:

"The learned Judge misdirected the jury on -

(a) the burden of proof with regard to the defence' theory of possible misadventure or accidental shooting by hunters, other users of the picado road or aliens ....

(b) more specifically, he omitted to direct that if the jury found themselves in doubt because of this piece of evidence, they must acquit."

Counsel for the Appellant referred to a passage in the learned trial judge's summing up at page 55 where he said:

"There is the question of accidental shooting by hunters or possibly other users of the Picado Road or Aliens. Those are for your consideration. It is said that anything is possible but was this probably what happened based on the evidence before you? You are the Judges of the facts. You answer the question to arrive at your verdict."

That passage, counsel submitted, suggested to the jury that there was an onus on the Appellant to prove as a probability that the deceased was killed by hunters or other users of the footpath. We do not consider that this construction can properly be placed on what the learned trial judge said. The evidence that hunters and other persons were accustomed to using the footpath was evidence which the jury had to consider along with the other evidence presented to them for the purpose of deciding whether the Appellant was the person responsible for shooting the deceased. If they entertained a reasonable doubt as to this, they were obliged to acquit the Appellant. In our view what the learned trial judge said was by way of inviting them to consider whether the evidence to which he referred indicated a possibility sufficiently real to raise in their minds a reasonable doubt as to whether the Appellant was the person who had shot the deceased. Elsewhere in his summing up he had made it abundantly clear that this was a vital issue for their determination.

The last ground of appeal is as follows:

"The learned judge omitted fully and adequately-

(a) to direct the jury on the cardinal line of defence, i.e. 'ALIBI'.

(b) to draw attention of jury to evidence of PW Jose Ical (p.17) that Appellant was inside of his home by 9:30 a.m. on the fatal day."

Counsel for the Appellant submitted that nowhere in his summing up did the learned trial judge tell the jury what was meant by "alibi", of the consequence of the jury accepting the alibi or entertaining a reasonable doubt as a result of the evidence in relation to it, or of the burden of proof in relation to it. Counsel referred to the two passages in the summing up in which the learned trial judge referred to alibi, at page 45 where he said -

"The Defence of Alibi has been raised also. If you find fabrication on the part of the Accused as to where he was at the material time be it 9:00 a.m., 9:30 a.m. or 10:00 a.m. for that matter, and that the sole reason for that fabrication is to deceive as to where he was and there is no other explanations for the fabrication then that fabrication can provide support for the Identification evidence. But proving that the Accused Porfilio Villanueva has told lies as to where he was at the material time does not by itself prove that he was where the witness says he was. The prosecution's burden includes proving where the Accused was at the material time."

and at page 56 where he said

"He said he left home on a bicycle, his twin brother's bicycle, about 9:00 a.m. But returned after riding only about 300 yards up Little Bill Hill Road, the Dirt Road. His father?in?law saw him jump on the bicycle but went inside his house shortly after and there looked at his alarm clock. The Accused said he returned at 9:20 a.m.; not at about 9:20 a.m. but at 9:20 a.m. Why the specific time? Did he have a watch or was this a farmer's estimation? Would an estimation be 9:20 or about 9:30 a.m.? You are men of this world with experiences use your common sense. But he had told Cpl. Martinez that he hadn't gone out at all that Saturday, 26th March, 1988. Now he is saying that he went out twice. 6:30 a.m. and 9:00 a.m.; to the Corporal he said he didn't got out at all. How do you reconcile these inconsistencies."

In our view there is merit in counsel's submissions. In the passages from the summing up to which counsel referred the learned trial judge appears to have been more concerned with directing the jury as to the effect of lies told by the Appellant than with instructing them as to the burden of proof in relation to the alibi and the evidence which they had to consider. This was particularly unfortunate since some evidence as to the Appellant's movements at about 9:30 a.m. came from a prosecution witness. The evidence led by the prosecution showed that at about 9:00 or 9:30 a.m. (the witness gave both times in evidence) the Appellant was seen riding a bicycle and carrying a shotgun along a road which runs parallel to the footpath taken by the deceased. He was riding in the direction taken by the deceased. He returned home about half an hour later. At about 9:30 a.m. the sound of a shotgun was heard. It is not clear from the evidence what is the distance from the spot where the body of the deceased was found to the point where the Appellant was seen riding a bicycle, but the Appellant's home is about 4,000 feet from the spot where the body of the deceased was found. The Appellant's account is that he left home at about 9:00 a.m. and returned at about 9:20 a.m. The jury would of course have to consider whether the evidence as to the time of death and of the Appellant's movements was sufficiently precise either to show that he was elsewhere when the crime was committed or to raise a reasonable doubt as to this. Although the learned trial judge did tell the jury that the prosecution's burden includes proving where the accused was at the material time in our view the careful directions required were not given, and the Appellant may have been denied the opportunity of an acquittal.

Had the appeal been confined to the directions on the question of the Appellant's intention we would have been prepared to apply the proviso since a reasonable jury properly directed could not on the evidence have concluded that the person who inflicted the fatal injury could have had any intention other then an intention to kill. However in the circumstances we allow the appeal, set aside the conviction and in the interest of justice order a new trial.

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