Court of Appeal
Criminal Appeal Nos. 19 and 20 of 2000
19th and 22nd June, 2000 and
19th October, 2000
IRA ROWE, P.
ELLIOTT MOTTLEY, J.A.
MANUEL SOSA, J.A.

Ms. Antoinette Moore for the Appellant Sho.
Mr. Simeon Sampson, S.C. for the Appellant Cal.
Mr. Rory Field, Director of Public Prosecutions for the Crown.

Appeal against convictions and sentences of death imposed for murder - joint enterprise - scope of joint enterprise to be determined by jury - issue whether either appellant knew or foresaw that the other might use a knife with the intention of killing and with that knowledge continued to participate - if so that appellant could be convicted of murder - judge should have raised certain questions to invite jury to consider scope of joint enterprise - failure to do so amounted to misdirection - issue of manslaughter should have been left for jury's consideration - appeals allowed - convictions and sentences set aside - verdicts of manslaughter substituted - sentences of 25 years imprisonment against each appellant imposed.

With the consent of Counsel we heard the two appeals together as they arose out of the joint trial of the Appellants. At the conclusions of the arguments we allowed the appeal of each Appellant against his conviction for murder, set aside the sentence of death, substituted a verdict of manslaughter against each Appellant and imposed a sentence of twenty?five years imprisonment against each Appellant to run from the date of conviction. As promised, we now set out our reasons below.

Anna Lightfoot, an English woman, aged 26 years, came to Belize in June 1998 to work with the Raleigh International Volunteer Team to help to build a school in the San Pablo area, near Red Bank, in the Stann Creek District of Belize. She was oriented to the task and was engaged in the construction of the school on August 24, 1998. On that day she travelled by motor vehicular transport to the village of Red Bank where she made some telephone calls, did some grocery shopping and set out walking on her return journey. She was carrying a knapsack on her back which contained sugar, cooking oil and drinking water. She had a wallet with money. She did not arrive at her destination and her dead body was found in a wooded area, referred to as "jungle", on the 28th August, 1998. There were stab wounds to her neck, the front of her chest, her back and her thighs. Exposed to the elements, when discovered the body was in a serious state of decay and was consistent with death on August 24, 1998, the date on which she disappeared.

The Appellants were together when they were taken into custody on Sunday, August 30, 1998. The prosecution's case rested on statements made by each Appellant under caution and on the conduct of the Appellant Cal who took the Police into a wooded area and showed them where the knapsack of the deceased had been abandoned. Each Appellant made an unsworn statement from the dock. After a very long trial before Elrington J. and a jury, both Appellants were convicted of murder.

Except for Ground V of the Grounds of Appeal filed on behalf of the Appellant Sho, the Grounds of Appeal of both Appellants were identical. We will therefore deal with the submissions on behalf of both Counsel at the same time.

The first ground complained that the trial judge erred in law in that he failed adequately to direct the jury on the law of joint enterprise as it should be applied to the facts of this case. Appellant Sho in his statement which was before the jury stated that on August 23, 1998, Appellant Cal came to his house and invited him to join Cal "to jact a white lady". He refused on the basis that he had promised to haul lumber on behalf of Appellant Cal's brother. Cal suggested that Sho should meet him at Red Bank near the Mennonite Church the following day to proceed on the mission. Sho said he hauled lumber until 12:30 p.m., went home and prepared himself for his mission with Appellant Cal. Sho said, I took my black handle knife tucked it to my side and set out to meet Allan Cal". According to Sho when he met Cal on August 24, 1998, he asked Cal what is the next move and Cal told him that he had seen a white lady at his father-in-law's shop. They waited down the road and after about 45 minutes they saw the white lady walking towards them. Sho said that "I suggested to my partner to hide". They hid in the bushes and when the white lady reached their hiding place, they jumped out at her. Cal, he said, grabbed her knapsack from the back and said "Don't move", then told the white lady to "run" the money. Sho further said that she unzipped her bag and placed her wallet in his pocket whereupon Cal stripped the lady of her knapsack, and put it to one side. After this Cal motioned to Sho for his knife. Sho said he took out the knife and gave it to Cal, then he grabbed the lady on her right hand with force. He saw Cal pull the lady's hair back and slashed her on her neck severely. Blood began to flow. Cal stabbed her several times afterwards. Sho said the lady lay on the ground. Cal searched the knapsack and went off into the jungle with it. He returned five minutes later without the knapsack. They both left together to the San Pablo road where Cal gave him $25.00 saying that only $50.00 was in the wallet. Sho said he told Cal that he ought not to have killed the woman for so little money. Cal cleaned his knife in a Waha Leaf tree.

At trial Sho repudiated the entire statement. He said in his unsworn statement that he and been hauling lumber all day on Monday, August 24, 1998 as well as on the following day. He related how he was arrested by the Police on Sunday August 30, 1998 and; that he was beaten several times on that same day as well as on the following Monday and Tuesday and that when he could take no more beating he decided to give a statement. He said the contents of the statement were not true.

Allan Cal in his statement which was admitted in evidence said Appellant Sho invited him to go an "jact the white lady". He reluctantly agreed and followed Sho to San Pablol Road where they followed a white lady walking along the road. Sho held the lady's knapsack from behind, placed a 12 inch long knife at her neck and said, "Don't move, or you die". The lady said she would not move. Sho then told her to "just go where I want or you die". Sho then used the knife to direct her up the hill. Cal said Sho ordered the woman to give up her money and when she was placing her knapsack on the ground, Sho stabbed her twice in the neck. She fell and Sho stabbed her in her back. Sho then searched the bag by removing its contents and found a wallet. Sho took the knapsack further into the bushes, then offered him the bag if he so desired. Sho promised him his share later and that evening he went to Sho's house and Sho gave him $25.00. Cal said that before they left the bushes Sho threatened that if he told anyone, Sho would kill him also.

In his statement from the dock, Appellant Cal said that on the date and time of the murder he was in his father?in?law's house watching television. He said that he was severely beaten by Police Officers, punched, kicked, stamped upon, his head was bashed against the wall, a gun was pointed at his head and he suffered great pain. In addition he said he was promised that if he made the statement he would be released. It was in those circumstances that he gave the statement, the contents of which were untrue.

We observe that Sho in his statement admitted that he carried the knife which he said Cal used to injure the white lady. Sho shifted the blame to Cal. On the other hand, Cal placed himself on the scene at the time of the killing, but placed the blame on Sho. Each Appellant stated that the mission on which they had set out was to "jact" the white lady. It has been agreed by Counsel that the expression "jact" or "jack" is commonly known to mean to "rob".

The only evidence to connect either the Appellant Sho or the Appellant Cal to the murder of Anna Lightfoot was the statement taken from each Appellant by the police. The admissibility of either statement was not challenged by either Counsel on appeal. In his instructions to the jury, the learned trial judge correctly gave them the general directions on joint enterprise in keeping with the dictum of Lord Parker, C.J. in R v Anderson, R v Morris (1966) 2 Q.B. 110 at p. 118, which has been quoted with approval in this Court. See Aguilar & Martinez v The Queen, Criminal Appeals Nos. 5 and 6 of 1992. The Appellants did not take issue with the general directions but complained that the directions did not assist the jury to determine the scope of the joint enterprise. The jury were instructed:

"If you find that it was the intention of the two accused persons to kill the deceased person and that they were acting jointly, the fact that it was one accused person who inflicted the wound and not the other, would not prevent the other from being equally guilty of committing the offense because they are acting jointly. It is only if one goes beyond what they agreed upon, and outside of that, expressed or implied plan and do something outside that he alone will be responsible for what he did. So long as they did what they agreed upon, one actually inflicts the wounds with the knife, the other one is present, both of them are guilty. Because that is what they agreed upon".

How is the scope of the joint enterprise to be determined? That is an issue for the jury and it is one which must be left by the trial judge for the determination of the jury. In two cases decided almost ten years ago, this Court laid it down that where the prosecution proceeded on a basis of joint enterprise, the trial judge had a duty to clearly direct the jury to determine the nature and extent of the joint enterprise, if any, to which the Appellant was a party as a necessary prerequisite to deciding whether the act which resulted in death was outside the scope of that joint enterprise. In Aguilar & Martinez v The Queen, supra, four men were riding in a taxi apparently looking for certain individuals. Two of these four men armed with firearms kidnapped two men and placed them in the taxi. The two kidnapped men were being questioned and then there was a shot. One of the two kidnapped men died of the gunshot wound. There was no direct evidence of who fired the shot. In a caution statement one of the Appellants said the gun had gone off accidentally while he was using it to hit the deceased but in his unsworn statement at trial he said that it was someone else who had fired the shot. In relation to the issue of joint enterprise, this Court said:

"In applying the principle it is essential for a jury to determine the nature and extent of the joint enterprise and, where the use of violence is part of that joint enterprise, the extent of violence which is or may reasonably be regarded as being within the contemplation of the parties to it. When death results, it is of particular importance to determine whether the act which resulted in death was one which was within the scope of the enterprise".

In the judgment in the case of Barillas and Rivera v The Queen, Criminal Appeals Nos. 3 and 4 of 1990, the Court gave guidance that where the prosecution's case rests on the admissions of the accused, the intention of the accused could only be determined from those admissions and the application of the doctrine of common design or joint enterprise. An issue in that case was whether the shooting which caused death was in furtherance of the common design or was something which was an independent act outside the scope of the common design.

The common thread linking the two decisions of this Court referred to above is that the jury must be directed to determine the nature and scope of the joint enterprise.

We were referred to the decision of the House of Lords in Reg. v Powell and English, (1997) 3 W.L.R. 959, 978, where the House discussed the mental element which a secondary party to a charge of murder must have in order to be guilty of the offence of murder. In that case the House held that it is sufficient to found a conviction for murder for a secondary party to have realized that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm. This decision was referred to and followed by the Privy Council in Charles, Carter and Carter v The State (1999) 54 WIR 455, 467. The Appellants in the latter case admittedly chased the deceased and during the chase a shot was fired which killed the deceased. The prosecution case was that Steve Carter fired the fatal shot but that the Appellants were present and chased down the street after the deceased together, one carrying a small cutlass and two stones, another a cutlass and the third man, a beer bottle. The learned trial judge gave directions on knowledge and intention which their Lordships found to be confusing. Lord Slynn of Hadley in delivering the opinion of the Board said:

"It seems to their lordships that what is missing from the summing up is a clear direction that it was not enough, for Curtis Charles and Leroy Carter to be convicted as secondary parties, that they knew that Steve Carter would or might use the weapon or that it was foreseeable that he might use a weapon. What they should have been directed is that the jury might be satisfied that Curtis Charles and Leroy Carter knew or foresaw that Steve Carter would or might use the weapon with the intention of killing, or causing grievous bodily harm, and that with that knowledge or foresight they continued to take part in the joint enterprise".

It was common ground that in this jurisdiction an intention to cause grievous bodily harm is not sufficient to prove a case of murder. There must be, in the accused, the intention to kill. Applying the dictum of Lord Slynn, quoted above to this jurisdiction, (with the omission of "intent to cause grievous bodily harm"), the jury should have been directed that if either of the Appellants knew or foresaw that the other would or might use a knife with the intention of killing Anna Lightfoot and that the Appellant with such knowledge continued to take part in the joint enterprise, as determined by the jury, it was open to the jury to find that the person who did not do the actual stabbing, nevertheless intended to kill Anna Lightfoot and on that basis he could be convicted of murder.

If the jury accepted that the statement given by Appellant Sho was true, this Appellant was admitting that he was a party with Appellant Cal to rob the deceased, that he armed himself with a knife for that purpose, that he and Appellant Cal hid themselves in bushes and jumped on the deceased as she approached. Appellant Sho saw Appellant Cal hold the deceased's knapsack, heard him threaten to kill the deceased and together they steered the deceased into the bushes. Appellant Sho was present when Appellant Cal stripped the deceased of her knapsack; Appellant Sho interpreted a signal from Appellant Cal as a request for his knife which he gave to Appellant Cal. Appellant Sho then held the right hand of the deceased with force and then Appellant Cal stabbed the deceased. The learned trial judge should have placed all those separate factors before the jury and invited them to determine if all those acts of Appellant Sho were done in furtherance of the robbery which they planned or if those acts of taking the young woman into the bushes after the threat to kill had been issued, then the woman having surrendered her knapsack, his giving his knife to Appellant Cal and holding the woman's hand, if those acts on Sho's part indicated a knowledge in Sho that Cal intended to kill the deceased and whether Sho had the intention that Cal should kill the woman.

Similarly, when dealing with the case against the Appellant Cal, the jury should have been invited by the learned trial judge to determine whether the acts which the Appellant Cal said he did and what he said he knew of the events of that day, proved beyond reasonable doubt that Appellant Cal had the intention to kill Anna Lightfoot, even though on Cal's statement it was Sho who did the actual stabbing. Cal admitted that he saw Sho place a 12 inch long knife at the deceased's throat, issue two threats to kill the deceased and forced her into the bushes at knife point. The jury should have been invited to determine if the enterprise was simply to rob, why did the Appellants not just take the knapsack at the roadside and run away. Why did they take her into the bushes at knife point? After the woman had been killed why did Appellant Cal go to Appellant Sho's house later for his share of the money? Those are questions which the trial judge should have left for the determination of the jury in order for them to determine the scope of the joint enterprise upon which Appellant Cal had entered and what was his intention at the time when the deceased was killed.

These issues were never articulated before the jury and in our view the complaints contained in the first ground of appeal of each Appellant succeeds.

The second ground of appeal argued on behalf of both Appellants is that towards the end of his summation, the learned trial judge failed adequately to direct the jury that in arriving at their verdict they must bear in mind that the extra judicial statement of one accused is not evidence against his co-accused. At pages 484 to 485 of the Record the learned trial judge gave a very long and quite exemplary direction to the jury on how to treat the evidence of each Appellant given outside the Court and made it clear to the jury that in no circumstances could anything said by either Appellant be used or treated as evidence against the other Appellant. We were not directed to any other passages in the summing up where the trial judge eroded or qualified his earlier quite impeccable directions on how to treat the extra judicial statement of each Appellant. We found no merit in this ground of appeal.

Ms. Moore on behalf of Appellant Sho submitted in support of Ground V that the learned trial judge erred by expressing his opinion, virtually giving a prosecution speech, on what evidence the jury ought to find reliable with respect to the Appellant's alibi and whether the Appellant's confession was coerced by the police. Grave charges of extreme violence lasting over a period of two nights and two days, were levelled against Police Officers. At the time when each Appellant gave the caution statement a Justice of the Peace was present. Both Justices of the Peace said they observed no marks of violence on either Appellant. In those circumstances a trial judge was entitled to comment on what he considered to be the demeanour of the witnesses. The judicial comments in this case were particularly strong but in our view they were warranted having regard to the conduct of the case and did not bear the character of a prosecution speech as characterized by Ms. Moore. This ground also fails.

Having determined that there was a misdirection on the issue of joint enterprise, we considered whether in this case the issue of manslaughter ought to have been left for the jury's consideration. The prosecution put into evidence the statement given by each Appellant under caution and that was the sum total of the evidence against each Appellant except that the Appellant Cal showed the Police where the deceased's knapsack had been abandoned. Each Appellant admitted that he was present at the time when the fatal injuries were inflicted to the deceased and had been a party to a joint enterprise to use some force to rob the deceased. If the intention of either Appellant to kill the deceased was not so found by the jury, then it was open to the jury to find each of them guilty of manslaughter on his own statement. Counsel for each Appellant conceded that on the evidence conviction for manslaughter was inevitable. The jury had been directed in terms of murder or nothing and the issue of manslaughter had not been left for their determination. True, as the learned Director of Public Prosecutions argued, defence counsel did not ask the Court to leave the issue of manslaughter to the jury. However, we are persuaded that manslaughter ought to have been left to the jury by the trial judge. Accordingly, we allowed the appeal as stated earlier and substituted a verdict of manslaughter.

This was a senseless and brutal killing for which the perpetrators deserve the society's condemnation.

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