Court of Appeal
Criminal Appeal No. 26 of 2002
2002: June 17 and October 17.

Ms. Antoinette Moore for the Appellant.
Mr. Kirk Anderson, Director of Public Prosecutions for the Respondent.

Criminal Law - Appeal against conviction and sentence - Manslaughter - Section 124 of the Criminal Code - Causation - Novus actus interveniens - What constitutes negligent medical treatment to exonerate an accused from liability.

J U D G M E N T

MOTTLEY J.A.

1. The Appellant, Bill Hughes, was charged with manslaughter in that, on 14th January, 2000, he caused the death of Godwin Dawson by unlawful harm by way of stabbing him. On 28th November 2001, he was convicted and sentenced to 15 years' imprisonment. At the time of the incident, he was aged 15.

2. On 14 January 2000, the deceased, along with other young men, were at the corner of Moho and Kanot Streets. A fight, which lasted 2 - 3 minutes, took place between the deceased and the Appellant. The fight started when the deceased walked up to the Appellant and gave him a punch in his face. After receiving this punch, the Appellant took a knife with a four-inch blade from his right pants pocket and stabbed the deceased. The prosecution's witness, Richard Mendez said that, after the Appellant stabbed the deceased, the deceased grabbed the Appellant's arm and punched him in the face whereupon they fell to the ground. The Appellant approached Mendez with a knife in his hand, whereupon Mendez armed himself with a knife and the Appellant ran away. The deceased fell to the ground. After the deceased got up, a small amount of blood was seen in the region of his abdomen.

3. In his statement to the police which was made in the presence of Cyril Moreira and Claudio Serano a Justice of the Peace, the Appellant said he was on his way to buy fried chicken when he saw a crowd of young boys. One of the boys approached him and punched him in his mouth and chest. Mark Martinez, with whom the Appellant had been walking, intervened and tried to stop the deceased from punching him. The Appellant took a knife from his pants pocket and stabbed the deceased in his side. He did not remember which side of his body. He was punched in his face by Richard Mendez.

4. In his unswom statement from the dock, the Appellant said that, when the deceased attacked him, he told his friend to get the deceased off him because he did not wish any trouble. His friend was unable to get the deceased off, so he defended himself. After the stabbing incident, Richard Mendez came from behind him and punched him in his face a couple of times, causing him to fall to the ground. The Appellant stabbed at him but he ran away. Mark Martinez, who gave evidence on behalf of the defence, supported the Appellant.

5. In her evidence Dr. Lydia Larinaga, who worked at the Southern Regional Hospital in Dangriga, said she examined the deceased on 14 January 2000. She observed that he had a wound, which she treated by suturing. Before stitching the wound, she checked to see how deep it was. This was done by the doctor trying to penetrate the wound by inserting her finger. She was unable to do this. At this stage, the wound did not appear to be deep and was considered to be a superficial injury. The deceased left the hospital without being discharged by the doctor. As a result, the doctor was not afforded the opportunity of observing him.

6. On the morning of 15 January 2000 the deceased was again seen at the hospital by the doctor. At that time, he complained of pain. He appeared to be bleeding from the wound. On examination, it was found that the bleeding came from the stitches. He was admitted to the hospital for observation. He remained in hospital until about 10:00 a.m. on the following day when he was discharged. When asked by counsel for the prosecution why he was discharged the doctor said:

"Because at that moment he didn't present anything abnormal so I told his mother if there was any problem like fever or vomiting she would have to bring him back. All the vital signals were normal. At that moment he didn't have pain that is why he was discharged from the hospital. There was no complication."

7. Sometime around 7:00 p.m. on the 16 January 2000, the deceased again returned to the hospital. He had been vomiting since about 3:00 p.m. The doctor said she sent him to Belmopan to be evaluated by a surgeon because he was getting dehydrated. In reply to a question from the Appellant who was unrepresented at the trial, the doctor said that, before discharging him from the hospital on the 16 January, she had observed him overnight and, as there were no complications, she concluded that he could be discharged. In reply to a question from the judge, she conceded that her observation was superficial in that it consisted of looking at him, feeling his pulse, cleaning his injury and noting the absence of any fever. She however retracted this concession and asserted that her observation was not in fact superficial.

8. Dr. Mario Estradabran who conducted a post mortem on the deceased on
18th January, 2000 found that.

"…the deceased has a stab wound 4 cm. It is a little bit - it is less than 2 inch stab wound situated on this area. This is the left flank of the abdomen. The guts is situated 14 cm. from the center of the belly going to the side. The decease had a stab wound right there. And this stab wound penetrates inside the abdomen. Penetration means that stab wound went deep inside of the belly of the cavity inside of the belly."

Later in his evidence he stated:

I saw that the stab wound described externally entering going inside the abdominal cavity taking a direction left to right backwards to frontwards, and downwards to upwards. . . . So, it penetrates inside. The stab wound penetrates inside of the Intestines. And external border lower region of the left kidney where the trajectory finished. So in other words, when the stab wound penetrates inside the abdomen, damage the guts colon penetrates the colon I mean the intestine and went below the kidney below the kidney where the trajectory end up. So, up to a depth of approximately 6 inch to the depth of the stab wound was 6 inches."

Dr. Estradabran gave the cause of death as "a septic shock as a consequence of peritonitis due to colon rupture injury to the left kidney as a consequence of stab wound to the abdomen. The septic shock meant generalized infection." He said that "infection normally takes place immediately because the contaminated material of the intestine, the stool or the fluids from the intestine coming out and start to contaminated the liver, kidney, spleen and other organs then the infection appears very very quickly."

9. In reply to a question from the Appellant, the doctor stated:
"To my knowledge they should not release that victim any time at all. They should keep the victim inside the hospital at the first time when the victim arrives at the hospital they should be admitted and that patient immediately and do a proper examination and send him to the nearest hospital if the Dangriga Hospital does not have the facility to save the victim's life."

10. In response to a further question from the judge, the doctor said:
"… the first thing you need to do when you have a stabbing incident that ways (sic) wear a glove wear a surgical glove and push your finger inside of the stab wound to see to have a better idea of the depth of the stab incident. If you see that all the finger goes in and you would feel the guts or the organs or the intestine through the finger then you will be able to have a more clear area to say this is a critical case and needs immediate medical attention."

Dr. Larinaga said she tried to penetrate the wound with her finger but was not successful. The doctor who performed the surgical operation on the deceased was not called as a witness.

11. In his summation, the judge told the jury:

"And Dr. Mario Estradabran testified that he performed an autopsy on the body of Godwin Dawson and concluded that from his examination, or from his autopsy or post mortem on the body he concluded that Dawson died from septic shock due to an injury to the left kidney of his body as a consequence of a stab wound or an injury.... Now, members of the jury, before I move into that let me tell you that Dr. Mario Estradabran did disclose some very revealing things, that there was a certain amount of sloppiness at the hospital or a certain degree of carelessness or negligence by the doctor who attended this particular person. But the law of Belize is, that it is irrelevant whether there was negligence at the hospital at the person - with the result that the person died. The original act of this person, the person who did the stabbing if you find that it is the accused is still responsible for the death irrespective of the negligence of the hospital; that is a different situation. I suspect the rational is - but for the injury inflicted by Bill Hughes that person would not have died any way. It is only if there is proof that the hospital did something totally different and cause the death of Godwin Dawson that the accused would then be exonerated. But if it is only a question of negligence, only a question of sloppiness as this case clearly shows that does not exonerate the accused. I need to make it clear of that."

12. In his first ground of appeal, complaint is made that the judge erred in law by failing to direct the jury that, if they found that the deceased died as a result of manslaughter by negligence of the medical doctor and not by the medical treatment of the injury inflicted by the accused, the Appellant should be found not guilty.

13. Counsel for the Appellant submitted that the evidence shows that the medical treatment which the deceased received was, at the very least, less than the normal standard of care expected for such an injury. She stated that the evidence showed that the treatment may have amounted "to negligence or even negligence by the treating physician." She contended that the judge was wrong when he told the jury that under the law of Belize "it is irrelevant whether there was negligence at the hospital and the person - with the result that the person died."

14. Section 124 of the Criminal Code Act, Cap. 101 deals with "explanations and modifications" to the general provisions of the Code "with respect to causing an event... causing death by harm." Section 124(d) states that:

"Death shall be held to have been caused by harm if the death be caused by the medical or surgical treatment of the harm unless such treatment itself amount to murder or manslaughter."

15. By this provision, the death of a person will be held to have been caused by the injury which was inflicted in circumstances where the death is in fact caused by the medical or surgical treatment of the injury. However, if the treatment itself amounts to murder or manslaughter, then in those circumstances the death will not be considered to be as a result of the injury inflicted. No suggestion has been made that the treatment of the deceased amounted to murder. Counsel submitted that because of the treatment of the deceased by Dr. Larinaga, negligence was in fact relevant. She relied on the evidence of Dr. Estradabran who said in cross-examination that the hospital ought not to have released the deceased at anytime, and that the deceased ought to have been admitted to hospital and a proper examination carried out to ascertain the true nature of the injuries and send him to the nearest hospital if the Dangriga Hospital did not have the facility to save his life.

16. Counsel referred to Smith (1959) - Cr. App. R. 121 in which the case of Jordan (1956) 40 Cr. App. R. 152 was explained. In Smith's case it was held:

"Where a person has received a wound and dies after an interval of time and the occurrence of intervening incidents, if at the time of death the original wound is still an operating and substantial cause, then the wound can properly be said to be the cause of death, albeit that some other cause of death is also operating, and the person who inflicted the wound will be liable for homicide. Only if it can be said that the original wounding is merely the settling in which another cause operates can it be said that death does not result from the wound."

17. The Director of Public Prosecution in his reply relied on the case of David William Cheshire (1991) 93 Cr. App. R. 251 where Beldam L.J. in delivering the judgment of the Court of Appeal had this to say:

"In the criminal law, and in particular in the law of homicide, whether the death of a deceased was the result of the accused's criminal act is a question of fact for the jury, but it is a question of fact to be decided in accordance with legal principles explained to the jury by the judge. We think the matter cannot be better put than it was by Goff L.J., as he then was, in the case of Pagett (1983) 76 Cr. App. R. 279.

At p.288 he said:

"In cases of homicide, it is rarely necessary to give the jury any direction on causation as such. Of course, a necessary ingredient of the crimes of murder and manslaughter is that the accused by his act caused the victim's death. But how the victim came by his death is usually not in dispute. . . . Even where it is necessary to direct the jury's minds to the question of causation, it is usually enough to direct them simply that in law the accused's act need not be the sole cause, or even the main cause of the victim's death, it being enough that his act contributed significantly to that result. It is right to observe in passing, however, that even this simple direction is a direction of law relating to causation, on the basis on which the jury is bound to act in concluding whether the prosecution has established, as a matter fact, that the accused's act did in this sense cause the victim's death. Occasionally, however, a specific issue of causation may arise. One such case is where, although an act of the accused constitutes a causa sine qua non of (or necessary condition for) the death of the victim, nevertheless the intervention of a third person may be regarded as the sole cause of the victim's death, thereby relieving the accused of criminal responsibility. Such intervention, if it has such an effect, has often been described by lawyers as a novus actus interveniens, though no simple translation has proved satisfactory, really because the Latin term has become a term of art which conveys to lawyers the crucial feature that there has not merely been an intervening act of another person but that the act was so independent of the act of the accused that it should be regarded in law as the cause of the victim's death, to the exclusion of the act of the accused. At the risk of scholarly criticism, we shall for the purpose of this judgment continue to use the Latin term."

18. Later in his judgment Bedlam L.J., after reviewing the cases of Smith and Jordan said at page 257:

"It seems to us that these two passages demonstrate the difficulties in formulating and explaining a general concept of causation but what we think does emerge from this and the other cases is that when the victim of a criminal attack is treated for wounds or injuries by doctors or other medical staff attempting to repair the harm done, it will only be in the most extraordinary and unusal case that such treatment can be said to be so independent of the acts of the accused that it could be regarded in law as the cause of the victim's death to the exclusion of the accused's act....

In a case in which the jury have to consider whether negligence in the treatment of injuries inflicted by the accused was the cause of death we think it is sufficient for the judge to tell the jury that they must be satisfied that the Crown have proved that the acts of the accused caused the death of the deceased adding that the accused's acts need not be the sole cause or even the main cause of death it being sufficient that the acts contributed significantly to that result. Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant."

19. Dr. Estradabran stated that, in treating an injury of the kind suffered by the deceased, it was necessary for the doctor to wear a medical glove and insert his finger into the stab wound to ascertain its true depth. The purpose of doing this is to find out whether the gut or organs or intestine had any injury. From any such finding the doctor would then be in position to decide the correct treatment for the injured person. It should be noted that Dr. Larinaga attempted to carry out this treatment but said that she was unable to penetrate the stab wound with her finger. In treating the deceased, Dr. Larinaga appeared to have adopted the accepted treatment for the injury suffered by the deceased.

20. Dr. Estradabran stated that in his opinion the "direct cause of death was a septic shock as a consequence of peritonitis due to colon rupture Injury to the left kidney as a consequence of the stab wound to the abdomen." There was no evidence of any intervening act by any person independent of Appellant's act which would give rise to a claim that the deceased died as a result of murder or manslaughter which was caused by a third party.

21. In our view, the direction of the judge quoted at paragraph 11 was in keeping with the provision of section 124(d) of the Criminal Code. Section 124(d) clearly states that death shall be held to have been caused by the injury if the death is caused by the medical or surgical treatment of the injury unless the treatment itself amounted to murder or manslaughter. This provision may be compared to what was said by Goft L.J. in Pagett's case that "the intervention of a third person may be regarded as the sole cause of the victim's thereby relieving the accused of criminal responsibilities." Negligence would have been relevant if the treatment had been so grossly negligence as to amount to manslaughter. Clearly the treatment of Dr. Larinaga did not in the circumstances amount to gross negligence and therefore it could not be said that the death was caused by manslaughter.

22. For these reasons we dismissed the appeal against conviction.

23. The Appellant and the deceased were engaged in a fight during the course of which the deceased ran at the Appellant. It was after the deceased ran at the Appellant that he was stabbed. However, having regard to the nature of the injury and the unfortunate circumstances which led to the death of the deceased, and the age of the Appellant, we consider that the sentence of 15 years should be varied. The appeal against sentence is allowed and the sentence is varied to 12 years.

----------OO----------