Criminal Appeal No. 4 of 2000
2001, June 21, October 19.
Liverpool, J.A.
Mottley, J.A.
Sosa, J.A.

Appellant in person.
Mr. Linbert Willis for the respondent

Criminal Law - Test for ascertaining an intention to kill - Construction and application of section 9 of the Criminal Code.

J U D G M E N T

SOSA, J.A.

In April 2000, the appellant was tried on charges of attempted murder, maim and use of deadly means of harm contrary to sections 103, 78 and 79(c), respectively, of the Criminal Code. Having been directed not to return a verdict on the charge of maim, the jury proceeded to convict the appellant of attempted murder and use of deadly means of harm, which latter charge had been included in the indictment as an alternative to that of maim. Sentences of imprisonment for terms of fifteen and seven years, respectively, to run concurrently, were passed against the appellant, who now appeals against both convictions.

As well at the trial as on this appeal, the appellant was unrepresented.

The case for the prosecution was that on the morning of August 13, 1999, at the house of Martina Bardalez in the village of Boston, Candido Bardalez, a son of Martina and elder brother of the appellant, woke up as usual. He went downstairs, where he found the appellant, who lived on adjacent land, sitting on a wash-stand under the house. On the appellant's lap was his shotgun. Candido proceeded to service the motor vehicle used by Martina's household, a van, and, having completed that task, began walking back towards the steps of the house. As he made his way towards the steps, he saw the appellant slightly lift the gun. At this, Candido halted, looking at the appellant. The latter then, from a distance of some ten feet, pointed the gun at Candido's chest or abdomen and pulled the trigger. According to Candido, the shot caught him in the area of the abdomen, causing him to fall to the ground, supine. Candido's evidence was that, as he struggled to rise, he saw the appellant run to the far right corner of the house and reload his shotgun. On seeing the appellant taking aim at him again, Candido, according to his own account of the facts, held up his right hand to shield his face. The appellant then fired a second shot which caught Candido in the right hand and lower arm. Candido was then able to call out to Martina, whereupon Alex Bardalez, another of Candido's brothers, emerged from the house and went to his assistance. The appellant fired a third shot just before Alex pulled Candido into the house but Candido could not say whether any of the pellets from this shot caught him.

Not long thereafter, Alex and Peter Bardalez, another of Candido's brothers, transported Candido, by van, to the Karl Huesner Memorial Hospital in Belize City, making a brief stop along the way, at the Sand Hill Police Station, to report the matter. Candido was admitted to the hospital, where he was to remain hospitalized for about two months.

Dr. Andre Sosa, an orthopaedic surgeon, at the Karl Huesner Memorial Hospital, evaluated the injuries to Candido's right hand and forearm on August 13. He observed gunshot wounds on the dorsal aspect of the forearm. While he found no damage to major blood vessels in the forearm, X-rays revealed to him a comminuted fracture of the distal part of the right radial bone. In his opinion, the injuries to the right hand and forearm constituted grievous harm.

As stated earlier, it was the testimony of Candido that the first shot had hit him in the abdomen. Dr. Sosa, in this connection, testified that he had had occasion to notice injuries, other than those he had personally treated, on the body of Candido on August 13. Those other injuries were, however, treated by one Dr. Lourdes Rodriquez, who was not among the witnesses testifying at the trial. The record discloses no attempt by the prosecution to have any deposition of hers read as evidence under section 129 of the Indictable Procedure Act.

A statement allegedly given to the police by the appellant was admitted in evidence when he, refraining from alleging that the statement was involuntarily given, claimed instead that he had given no statement to the police. According to the prosecution, the appellant said in this statement that, having awakened at about 6:00 a.m. on August 13, 1999, he went at about 7:00 a.m. to Martina's house to fetch some clothing, taking along with him his 12-gauge shotgun and twenty live rounds of ammunition. Rather than going up the steps' to the house on his arrival there, he sat on a bench, placing his shotgun beside him. Sometime after, Candido came down from the house and went straight to a red van parked in the yard.

After he had driven this van to another spot in the yard, Candido approached the appellant on foot and, in a "harass tone of voice", said to him, "Gimme di gun". Thinking that Candido was about to knock him, the appellant picked up the shotgun, stood and aimed at the chest of Candido, who continued to approach him without saying a word. The appellant thereupon fired at Candido. Although hit, Candido did not fall to the ground but only stooped down as if leaning to one side. The appellant reloaded, took aim at Candido again and fired once more. He did not know whether this second shot caught Candido and, while he did reload the gun again, his only other shot was aimed at a parrot on the ground.

The appellant thereafter returned to his house, where he decided to pay a visit to the Sand Hill Police Station to report what had occurred.

As to his reason for shooting Candido, the appellant allegedly said in his caution statement that it was fear. He had been struck by Candido on two previous occasions. On the first, when the appellant was but five years old, Candido had hit him on the head with a "big, big stick" and on the second, in March, 1998, Candido had again used a stick. Therefore, on being approached by Candido on August 13, he had been "very much scared that he would have do me the same thing again". The purpose of the shooting, went the statement, was "to slow him down from catching me". Near the end of the statement, purportedly made at 12:55 p.m. on August 13, the appellant allegedly stated: "I don't mind if he dead or not".

At a close of the case for the prosecution, the appellant gave an unsworn statement from the dock in which he claimed that on August 13 he had returned from hunting "back of' his land. He went on to mention, disjointedly, a walk through his land, the selling of a truckload of stone and a walk up the road to see if he could shoot "something". Upon turning back, still carrying his gun, he saw a police motor vehicle. The police officers, upon learning that he was David Bardalez, accused him of having shot his brother and took him into custody. He closed his dock statement by repeating an assertion he had made earlier in the trial that he had given no statement to the police.

In his subsequent address to the jury, the appellant stated that he had pleaded "not guilty" because he had not done "it".

On the hearing of the appeal, the appellant asseverated to this Court that he was not guilty of the charges on which the jury had convicted him but advanced no ground upon which we might intervene. However, our perusal of the record gave rise to concern over certain portions of the summing-up, a concern which we drew to the attention of Mr. Willis, for the respondent, whose assistance we then invited and gratefully received.

Foremost among the causes of our concern were the directions given to the jury regarding the ascertaining of the intention of the appellant in their deliberations on the charge of attempted murder. Page 98 of the record reveals that they were properly told of the need for the prosecution to prove that, at the time of the alleged shooting, the appellant had had an intention to kill Candido. Shortly thereafter, as the same page shows, they were further directed in the terms following:-

"Surely, members of the jury, if a person takes a gun and shoots you in the area of the leg or the feet, you can hardly come to the conclusion that there was an intention to kill you even if he were to shoot in your direction. But when a person takes a shotgun - a 12-gauge shotgun - and shoots you from a distance of twelve feet - from the witness-stand to where the prosecution is - in the area of the back. Abdomen, yes, or in the area of the head. members of the jury what was that person's intention- You see- And when I come to assess intention, I will go a little more into it." [Emphasis added.]

In the course of further directions on the subject of intention, the jury were rightly told that a jury is often driven to reliance on inferences drawn from proven facts, from what a person said or did and from all the surrounding circumstances. However, as is disclosed at page 105 of the record, they were next directed as follows:-

"You see, members of the jury, let me explain to you again and give you example of how you can draw a person's intention. If a man has a gun and he says, "I am going to kill you" and he fires at you and he catches you in the area of the chest and you die as a result, you have two things there. You will gather his intention from what he said. He said he will kill you and he followed it by the act of shooting you. So clearly his intention was to kill you. He told you and he did it. But there are times when he will not tell you - a person will not tell you," I am going to shoot you" or "I will kill you" but he shoots and kills another person. In that case, members of the jury, you will draw the inference that the accused intended to kill from his action." [Emphasis added.]

At a later stage in the summing-up, the jury were reminded of the need to consider whether the appellant had had the intention to shoot and kill Candido, after which the trial judge posed a rhetorical question as to the method by which they should gather the intention of the appellant in respect of both charges. As appears on page 115 of the record, he continued:-

"You see, members of the jury, I began to tell you that if a person tells you that he will kill you and he shoots you, you can draw the intention that the person - you can draw the inference that the person is going to kill you. But in this time he didn't say "I am going to kill you" and he shoots. What the accused did was to pick up his gun and fire once. While the fellow was in a leaning position he reloads and fires again. Now, members of the jury, if an accused takes a weapon like a 12-gauge shotgun and he shoots another in the area of the abdomen where vital organs are found - heart, spleen, kidney, liver -at a distance of 12 feet, what must have been his intention- Could you not conclude that his intention was to kill- You see- That's a matter entirely for you. And when an accused person then reloads his gun - a 12- gauge shotgun - and he aims at another in the area of the face and he fires or discharges that gun and it catches him in the area of the face what was that person's intention- You know, members of the jury if a blast catches you in this portion of your body - in the portion of your face - what is going to be the end result-" [Emphasis added.]

The posing of that question was followed up with this critical direction (see page 116):-

"So that on that evidence you may come to a conclusion, if you so desire, that the accused intended at the time to kill Candido Bardalez." [Emphasis added.]

We do not disregard the fact that the trial judge went on immediately to add:-

"But you might want to come to another conclusion that he never have the intention to kill,. Maybe he only wanted to discipline Candido as Candido had disciplined him once. It's a matter for you. If you find that he didn't have the intention, you cannot bring him guilty of attempted murder."

The question whether the directions set out above, taken together, were in full accord with the provisions of section 9 of the Criminal Code has engaged our attention at length. So far as material for present purposes, that section, which this Court has had occasion to consider on several occasions in the past, provides as follows:-

"9. A court or jury in determining whether a person has committed an offence-

(a) shall not be bound in law to infer that any question specified in the first column of the Table below is to be answered in the affirmative by reason only of the existence of the factor specified in the second column as appropriate to that question; but

(b) shall treat that factor as relevant to that question, and decide the question by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

TABLE

[Emphasis added.]

The thrust of the directions contained in the passages set out above was that an intention to kill could properly be gathered from the evidence that the appellant shot Candid in the abdomen as well as in the right hand and forearm while Candido was using this hand to shield his face. In the first of these passages, a contrast was drawn between the hypothetical case of a shot to the leg or foot in which, as the trial judge saw it, there could hardly be an intention to kill, and the instant case. The drawing of this contrast, followed immediately by the posing of the question "What was the person's intention-" in relation to the instant case, could have led the jury to construe that question as a purely rhetorical one meant to be answered only by the words: "To kill". The directions that followed show that the question was in fact meant to be so interpreted.

In the second passage quoted above, the jury were first provided with another hypothetical case, that of a man who tells his victim, "I am going to kill you before shooting him. Then they were told by the trial judge that, in such a case, a jury would gather the intention of the man from the words spoken by him. The trial judge then dealt with the case of a shooting carried out without a vocalized threat. In such a case, he told the jury, the intention of the accused was to be drawn "from his action". The jury were now being left with a clear direction, rather than with a mere rhetorical question, the answer to which was supposed to be obvious.

In the third passage from the summing-up set out above, the jury were reminded of the hypothetical case of the gunman who has issued an oral threat to kill before shooting. Turning next to the evidence in the instant case as to the shooting in the area of the abdomen, the trial judge, possibly to the prejudice of the appellant, erroneously referred to the heart as one of the organs found in the abdomen then resorted once more to the rhetorical question, asking: "What must have been his intention-" and, more forcefully, "Could you not conclude that his intention was to kill-" The trial judge then made indirect reference to the evidence of Candido in setting out another hypothetical example in which a gunman reloads his gun and fires again at his victim, hitting him in the area of the face. At this point, we would observe that, whereas it was the evidence of Candido that he was shot in the right hand and forearm while holding his right hand in front of his face, the account of Peter, the other eye-witness for the prosecution, was that Candido had both hands in the vicinity of his abdomen when he, Peter, looked at him moments before the second shot was fired. In the summing-up, however, reference to that evidence and to the account of the firing of the second shot contained in the alleged caution statement was conspicuous in its absence. Be that as it may, the trial judge, after directing attention to the hypothetical situation under consideration, essentially reiterated his earlier rhetorical questions, inquiring: "What was that person's intention-" and"... if a blast catches you in this portion of your body - in this portion of your face - what is going to be the end result?" The effect of the earlier directions was here being reinforced by the reference to the parts of the body actually shot, or at least aimed at, according to Candido, but without recognition of the fact that no evidence had been adduced of Candido having been shot in the face.

It was, however, in the fourth of the passages from the summing-up set out above that the steady progression towards serious misdirection was completed. The significance of the direction encapsulated in this passage justifies reproduction thereof in this portion of the judgment:-

"So that on that evidence you may come to a conclusion, if you so desire, that the accused intended at the time to kill Candido Bardalez." [Emphasis added.]

In the most explicit of terms, the jury were now being directed that it was open to them to find the intention to kill proven on the basis of the evidence of Candido alone, i.e. without consideration of the rest of the evidence in the case, including Peter's, insofar as it differed from the evidence of Candido, and the contents of the alleged caution statement. Furthermore, the jury were being told that this was simply a matter of desire, with no regard to the legal restraints created by the requirements of section 9(b) of the Code. We consider that this was a serious misdirection of law.

In the leading local case of Winswell Williams v The Queen, Criminal Appeal No.2 of 1992, Williams, riding a bicycle, had approached his victim from behind and, with a knife, inflicted a fatal stab wound, 7 inches deep, to the latter's neck. The knife had penetrated the upper part of the right lung, causing asphyxia which had resulted in the victim's death shortly thereafter. On Williams's appeal against his conviction for murder, this Court considered a direction to the jury which, because of its similarity to the pertinent directions in the present case, may usefully be quoted in extenso. The impugned direction was as follows:-

"So that the very doing of that act if it goes without an explanation would be evidence from which you the jurors can draw an inference that he had the necessary intent when he did the act. So you will have to consider the act in question, the act itself...

Now the law presumes that person to intend the natural and probable consequences of his acts. You may feel that the natural and probable consequences of the stab wound of the cervical region immediately below the posterior region of the neck with some degree of force with a dagger type knife is that the person is seriously injured and dies.

You have the evidence that Kirk Nicholson received this stab wound from the back and if you accept the evidence of Dr. Estrada then he says it is with a moderate degree of force and without any other evidence you may presume that the accused Williams intended to kill when he delivered the blow." [Emphasis added.]

Allowing the appeal this Court stated:-

"There was... in our opinion a real danger that the jury may have been led to believe, particularly by the second passage quoted above... from the summing-up and the words 'without any other evidence' that, without considering any other evidence, they could presume an intention to kill from the act itself and its probable consequences. This, in our view, is contrary to the provisions of section 9. Certainly, unlike other jurisdictions, there is no provision to this effect in the Criminal Code of Belize. It is true that, as counsel for the Crown pointed out, the passages about which complaint was made appeared in a part of the summing-up in which the learned trial judge was directing - correctly - that they had to take all the circumstances into consideration in deciding the question of intention. It may also be that when he used the words 'without any other evidence' he intended to say 'in the absence of any other evidence to the contrary'. However this may be, it was in our view preferable for him,. consonant with section 9, to have told the jury that they were not bound to infer an intention to kill from the mere fact that death was in their opinion a natural and probable result of the appellant's act, but that that fact was relevant to the question of intent and they would have to take it into account when considering all the evidence and the proper inferences to be drawn from that evidence. If having considered all the evidence, including the medical evidence that a moderate degree of force only was required to inflict the fatal injury, the jury either considered that the proper inference to be drawn was that the appellant did not intend to kill, or were in doubt as to whether this was the proper inference to draw, they would have been obliged to convict not of murder but of manslaughter. The effect of this error by the learned trial judge was therefore to deprive the appellant of the opportunity of such a conviction." [Emphasis added.]

At the trial of the appellant, there was, as noted earlier, passing reference in the course of the summing-up to the fact that, in trying to determine the intention of an accused, a jury is often impelled to rely on inferences drawn from proven facts, from what a person said or did and from all the surrounding circumstances. We consider, however, that, like the correct direction of the trial judge in Winswell Williams to the effect that the jury had to consider all the circumstances in deciding the question of intention, that was not enough. Nor do we consider it material that the trial judge in the case now before us at no time told the jury in so many words, that there is, under the law of Belize, a presumption that an accused intended the natural and probable consequences of his act. The effect of his directions was, despite the different wording, substantially similar to that of the direction in Winswell Williams. Indeed, the misdirection appears more clearly in the case now before us than in Winswell Williams, where, as seen in the passage quoted above, the words "without any evidence" might have been intended to mean "in the absence of any other evidence to the contrary". The exaggerated emphasis on the act itself and probable result is plain in the first three passages quoted above from the summing-up. Section 9 of the Code was not complied with.

As indicated above, the trial judge, having so misdirected the jury, failed to draw their attention to the evidence of Peter, referred to earlier in this judgment, regarding the position of the hands of Candido moments before the ringing out of the second shot. But, more significantly, he maintained silence throughout on the portions of the alleged statement under caution which indicated that the appellant had shot Candido to "slow him down from catching me" (a purpose not inconsistent with the appellant's run to the far right corner of the house described by Candido) and that his attitude, a few hours after the event, was one of mere indifference as to the fate of his wounded brother. To tell the jury, as the trial judge did, that they might want to find that the appellant had not intended to kill but only to "discipline" Candido as the latter had previously disciplined him was not, in our opinion, the remedy as the suggestion manifestly had no basis in the evidence and was likely, for that reason, properly to be dismissed as fanciful by a reasonable jury. We would observe, in this regard, that while it may have been favourable, in some respects, to the appellant that the trial judge expressed the view that there may have been something "fishy" in the conduct of the police as regards the production of the alleged statement under caution, the trial judge failed to take the precaution of pointing out to the jury those portions of that statement that were favourable to the appellant lest they should find that he had indeed made it.

We have anxiously considered whether this misdirection was such as to result in a miscarriage of justice. This was not an instance of a mere momentary lapse such as that considered by this Court in Pasqual Bull v The Oueen. Criminal Appeal No.10 of 1994, a decision appealed to the Privy Council on grounds not relating to the issue of intention. In that case, the trial judge, in the course of otherwise adequate directions on the question of the intention to kill, had directed the jury that, if they believed the evidence of one of the witnesses for the prosecution, there was ample evidence for them to find that the accused had intended to kill the deceased but, at a later stage in the summing-up, had made what this Court considered sufficient amends for this error. On the other hand, the instant case shares a disturbing feature with Francisco Conorquie v The Queen. Criminal Appeal No.7 of 1992, in which Conorquie, during an altercation with another man, had inflicted two stab wounds to the left side of the latter's chest. The weapon, a broken bottle, had penetrated the heart of the victim, who died as a result. Conorquie's appeal against his conviction for murder was allowed by this Court, which found fault in the failure of the trial judge to alert the jury to the possibility that Conorquie may have intended only to harm rather than to kill his victim. In the instant case, similarly, the possibility, rooted in the evidence adduced by the prosecution, that the appellant may have intended to harm, but not to kill, his brother was never brought home to the jury in the summing-up. On balance, we conclude that there was a miscarriage of justice. We are unable to say that a reasonable jury, properly directed, would inevitably have arrived at the conclusion that the appellant had shot his brother with an intention to kill. There is indeed no telling whether the jury troubled themselves fully to assess the credibility of Candido once they had received the misdirections examined above.

In the light of the above conclusion, it is unnecessary for us to enter into the other causes for concern we voiced at the hearing.

Accordingly, we allow the appeal against the conviction for attempted murder, quash that conviction and set aside the sentence of fifteen years that was imposed in respect thereof.

We see no reason, however, to disturb the conviction for use of deadly means of harm or the sentence passed in respect thereof. The latter conviction and the corresponding sentence are, in the circumstances, affirmed.

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