Court of Appeal
Criminal Appeal No. 12 of 2001
2002: June 18 and October 17.

BEFORE:

APPEARANCES:
Mr. B. Simeon Sampson, S.C. for Appellant.
Mr. Kirk Anderson, Director of Public Prosecutions, for the Respondent.

Criminal Law - Appeal - Murder - Manslaughter - Sections 119 and 120 of the Criminal Code - Availability of the Defence of Provocation, even with an intention to kill.

J U D G M E N T

ROWE, P.

1. James Moriera was charged with the murder of Jason Zuniga that occurred in the course of an incident at Dangriga Town on 10th June, 2000. He was convicted before Gonzalez, J. and a jury of the offence of murder. Pursuant to section 114(2), Chapter 101 of the Criminal Code - Revised Edition 2000 - the offence of murder is classified into Class A and Class B. Class A murder is defined in section 106(3) to mean (a) any murder committed in the course or furtherance of theft; (b) murder by shooting or by causing an explosion; (c) murder in the course of resisting, avoiding, preventing a lawful arrest or of escaping or of a person assisting in the escape from lawful arrest; (d) murder of a police officer in the execution of his duty or of assisting a police officer so acting; (e) murder of a prison officer by a prisoner; (f) murder which is related to illegal drugs or criminal gang activity. Any murder which does not fall within Class A is a Class B murder. The charge of which the appellant was convicted was a Class B murder.

2. The learned trial judge conducted a hearing before the jury to determine the sentence that he could impose for this Class B murder. Section 106(1) provides that:

   "Every person who commits murder shall suffer death.

   Provided that in the case of a Class B murder (but not in the case of a Class A murder), the court may, where there are special extenuating circumstances which shall be recorded in writing, and after taking into consideration any recommendations or plea for mercy which the jury hearing the case may wish to make in that behalf, refrain from imposing a death sentence and in lieu thereof shall sentence the convicted person to imprisonment for life."

At the end of the sentencing hearing the jury recommended that the appellant be put in prison for life. The trial judge found that there were special circumstances and imposed a life sentence on the appellant.

3. No grounds of appeal were filed in this matter. However, the Court of its own motion raised with the Director of Public Prosecutions the question of whether the learned trial judge had properly directed the jury on the effect of an intentional killing having regard to sections 119 and 120 of the Criminal Code.

4. On 10 June 2000 the appellant, who was called "Blunt" and a number of young men, including the deceased who was called "Ban", were hanging out at "Amigo's place' in the Benguche area of Dangriga. An argument developed between the appellant and the deceased. Various slang terms were used in the argument and the deceased referred to the appellant as "a poke". That term was never translated to the Jury. One of the men suggested that the argument should cease and the young men decided, at the suggestion of the deceased, that they should go to the Lodge Hall where a dance was in progress. The appellant rode a bicycle and the deceased was carried on the handle bars of the bicycle of John Thomas, a cousin of the appellant. As the men rode along a running conversation continued between the appellant and the deceased in which the appellant said that he would not be riding to the dance hall. However, when the party reached Roquello Street, the appellant continued to ride in the direction of the Lodge Hall dance. Thomas testified that when the deceased looked back and saw that the appellant was riding in their direction, the deceased said, "Boy we don't want any poke with us." The appellant responded: "Poke like you I will make them have a big funeral for him because poke like you Ban, I will kill you. Poke like you Ban I will kill you." Thomas was vigorously cross-examined and he denied defence suggestions that it was the deceased who attacked the appellant with a knife and who was subsequently injured during a wrestling for the knife.

5. A witness, Nelson Sheppard, one or the young men present on the scene graphically explained that the deceased and the appellant were calling each other "pussy boy" and that the central issue of the disagreement between the two men as they rode along towards the Lodge Hall was the sexual orientation of the appellant. He did not hear the words used by the appellant immediately before the deceased jumped off the bicycle and walked towards the appellant. Sheppard was positive that the deceased approached the appellant with wide open arms and when the deceased reached near to the appellant, the appellant "let go his bike and lift his right hand into Jason chest." The deceased immediately hollered that he had been stabbed. He was rushed to the hospital.

6. The prosecution witnesses admitted that the deceased appeared angry when he approached the appellant, that he wanted to fight and that he was a bigger man than the appellant. The prosecution witnesses denied all the defence suggestions that the deceased was armed with a knife and was the one who attacked the appellant with a knife.

7. The appellant made an unsworn statement from the dock. In that statement the appellant said he was described as "dressing as a gal" by the young men in the group with the deceased, who were all "high". They were riding towards the Lodge Hall; the deceased was the rider of his own bicycle, and the men continued to make offensive remarks at him and he reciprocated. He continued:

   "They were high so we all continue to ride. We reach by Blink's house. It seems like he said something that offended me in front of Blink's house. It seems like I said something that offended Jason Zuniga so he told me you madafucker, you are dead. Well I was very afraid of him because I know he was a bullet he like to chance people. So he jumped off the bicycle and he said you are dead you madafucker. I was very frightened. He hauled out a knife from his pants front your Honour when he fired a stab at me that I grab my bike handle your Honour and block it. He took the knife out of his pants front. I raised my bicycle handle up toward where he fired a block and I block it your Honour and the knife fell and I pick it up first your Honour because he was taller than I was your Honour and when I picked up the knife he grabbed it your Honour where we began to wrestle your Honour. I pick it up and he grab it your Honour where we were both facing each other and he lose balance your Honour where he fell front way towards me your Honour. I was still, we were both holding the knife still yet your Honour where John was getting off of his bike when I left go the knife and I get frighten and I just run your Honour."

The appellant did not call any witnesses.

8. The learned trial judge left the defence of self defence to the jury in an impeccable manner and no complaint is made in relation thereto. He then turned his attention to the defence of provocation. At page 121 of the Record, the learned trial judge directed the jury as follows:

   "What is provocation? Provocation in law madam fore lady and members of the jury, is some act or series of acts done which causes a person to be terrified of immediate death or grievous harm or words spoken which causes the accused person, or any person, a sudden and temporary loss of self control and which could cause a reasonable person to lose his self-control and to behave as the accused did in the circumstances.

   So in considering the accused statement relative to this justification of provocation, you will have to consider two questions. Did the alleged provoking conduct cause the accused to lose his self control and two, would that conduct have caused a reasonable person to lose his self control and behave as the accused did. As to the second question madam fore lady and members of the jury you should take into account everything said or done according to the effect which it could have on a reasonable man. And a reasonable man, members of the jury, is a person having the power of self-control to be expected of an ordinary person of gender and age as that of the accused person. Again I must tell you members of the jury that because the prosecution must prove the guilt of the accused, it is for them to disprove the justification of provocation. It is not for the accused to prove that he was not so provoked."

9. In an earlier direction to the jury at page 115 of the Record, the learned trial judge had directed the jury that:

   "For murder you must have the specific intention to kill. For manslaughter the intention is to cause harm but the person nevertheless dies. So manslaughter does not have the element of intention. The law is saying that you can come to a conclusion that when the accused killed the deceased he did not have the intention to kill but only to cause a harm but the deceased nevertheless perished as a result. In this case you are entitled to return a verdict of manslaughter only. And the element of manslaughter, members of the jury in this case would be that Jason Zuniga is dead. Same as in the murder that he died as a result of a harm; that the harm was unlawful, that he was not justified; and it was the accused James Moriera who caused the death of Jason Zuniga. Note well there is no intention to kill. So in this particular verdict in which you are entitled to come, madam fore lady and members of the jury, you need not find that the accused had intention to kill.

   Before I go on, however, I need to, for the sake of completeness, define to you what the law says is manslaughter, and the law says, members of the jury that manslaughter occurs when a person causes the death of another by unlawful harm. Again from that definition there is no element of intention, and question of intention to kill. So members of the jury, if you come to your deliberations, you come to a conclusion and you are sure of it, that the accused's intention was to cause harm and not to kill and provided that the other element for the charge had been proven, you can return a verdict of manslaughter, that is an alternative and complete verdict which you can come to if you are not satisfied with the intention of the accused person."

10. We were of the view that on the facts of this case the directions on manslaughter quoted above dealt with only one of the circumstances under which the appellant could be found guilty of manslaughter and effectively deprived the appellant of the protection of section 119 and section 120 of the Criminal Code - 2000 Revision. Although manslaughter is defined in section 116 to cover two sets of circumstances, a trial judge must have regard to the provisions of sections 119 and 120 of the Criminal Code if the facts demonstrate a situation that falls short of self defence but may amount to extreme provocation as defined.

11. Section 116 provides as follows:

    "(1) Every person who causes the death of another person by any unlawful harm is guilty of manslaughter.

    (2) If the harm was negligently caused, he is guilty only of manslaughter by negligence".

    In this case the directions of the trial judge concentrated on manslaughter as defined in section 116(1).

12. Section 119 expressly provides in its opening words that:

    "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 …"

and there follows a list of circumstances in which the offence would be deemed to be manslaughter only. For present purposes, section 119(a) is relevant and the circumstances provided therein are if:

"he was deprived of the power of self-control by such extreme provocation given by the other person as is mentioned in section 120."

13. Section 120(b) provides as follows:

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

14. The defence raised by the appellant effectively was that the deceased after having used abusive language to him, pulled a knife from his pants waist, advanced on him, fired a stab at him which he blocked with his bicycle and then the struggle began. He was advancing circumstances which reasonably fell within the provisions of section 120(b) of the Criminal Code. In our view, the appellant was entitled to a direction on manslaughter, even if at the time of inflicting the fatal blow he had the intention to kill.

15. A similar question arose in the case of Cleon Smith v. The Queen, 59 of 2000. In that case, Lord Bingharn of Cornhill, at paragraph 7 of the Opinion of the Board said:

    "Under the Criminal Code of Belize a defendant accused of murder is not guilty of that crime if he lacks an intention to kill or if he kills when provoked to lose his self control by words or conduct if the provocation is so extreme that a reasonable man would have been provoked to act as the defendant did. Unless the prosecution disprove these possibilities, the defendant must be acquitted of murder and may only be convicted of manslaughter."

Lord Bingham reviewed sections 116(a) and 117 of the Criminal Code (which are now 119(a) and 120 of the 2000 Revision), and at paragraph 10 of the Opinion of the Board he said:

"It plainly follows from these provisions that a defendant charged with murder may raise a defence of provocation even though he has killed intentionally, and if the evidence discloses an arguable defence of provocation the judge must leave it to the jury. Unless the jury are sure that the defendant was not provoked within the meaning of these provisions, the defendant may only be convicted of manslaughter."

16. The jury had clearly rejected the defence of self defence. In our view, if they had been given adequate directions on the question of extreme provocation, the jury could have returned a verdict of manslaughter and would not inevitably have convicted of murder. We therefore allowed the appeal against the conviction of murder, quashed that conviction, and substituted a verdict of manslaughter.

    We reviewed the sentence of life imprisonment and held that, having regard to the range of sentences imposed for the offence of manslaughter in recent years, an appropriate sentence was fifteen years imprisonment, which term we substituted for the term of life imprisonment.

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