Court of Appeal
Criminal Appeal No. 10 of 1994
PROFESSOR TELFORD GEORGES, P.
HORACE W. YOUNG, J.A.
SIR DENIS MALONE, J.A.

Mr. F. Lumor for the Appellant
Mr. E. Thompson for the Respondent

Court of Appeal - Appeal against conviction for murder and sentence of death - Misdirection of jury on intention to kill - Provocation - Elements of murder - No conviction unless intention to kill had been proved beyond a reasonable doubt - Insanity a complete defence - Jury should be directed to return verdict of "guilty but insane" - No evidence of delusion - Appeal dismissed - Conviction and sentence affirmed.

J U D G M E N T

The Appellant was charged with the murder of Juan Natividad and Hipolito Cowo on April 15, 1993 at one mile on the Gracie Rock Road, Belize District. He was convicted of both murders and sentenced to death. Against this conviction and sentence he has appealed.

The main witness for the prosecution was Rosita Rivero Carillo, the common law wife of the appellant. She stated that on April 14, 1993 the appellant and herself returned home after a visit to Belize City with groceries and a bottle of Caribbean Rum and a quart of brandy. They met at the house of the two deceased persons, a Belizean man and a Salvadorean man. They had been chopping bush for the appellant and were waiting for their pay. For some reason which is not quite clear the appellant would not pay them immediately.

Rosita cooked and all four of them ate. The three men then began drinking. They talked about the work. The appellant would not pay. At about 9:00 p.m. one of the deceased, the Salvadorean, went to sleep just outside the back door. The Belizean and the Appellant remained drinking. They talked about the work. The Appellant would not pay. For some reason which is not quite clear the Appellant would not pay them immediately.

Rosita who was then in her room did not hear the conversation. The Appellant came into the room about midnight and told her that the Belizean man had told him that she had had sex with the Salvadorean. The Appellant threatened her with a knife, beat her and pushed her causing her to fall in the remains of the fire on which she had cooked. She suffered burns. By that time the other deceased, the Belizean, was himself sleeping near the front door.

The appellant then took two machetes and cleaned them. He told her to take one machete and kill one of the men and he would kill the other. She took one of the machetes and went to the back door where the Salvadorean was sleeping. The appellant went to the front door and chopped the Belizean who was sleeping face up. He chopped him across the neck.

She was meanwhile trying to wake the Salvadorean but he merely stirred and would not wake. The Appellant came to the back door and chopped him - the first blow to his neck. The Salvadorean awoke and ran through the bush. The Appellant followed him. He came back alone and gave two chops to the Belizean man who had got up and was asking for help.

The Appellant was then dressed in underpants. He threw the machete with which he had chopped the men in the bush. He then dressed. The chopping according to Rosita had begun around 3:00 a.m.

About 6:00 a.m. they left for Belmopan. They did nothing there. About 12.30 p.m. they left for Belize. They sat in a park facing the sea. Then they left for Rockville where they lived. The Appellant then told her he would call the police from work, tell them he had left two men at his house working for him and on his return had met one of the men dead by the door and he did not know what had happened to the other man. Sheila Guiseppi, a nurse at the Rockville Hospital, testified that the Appellant and Rosita came to the Hospital about 8:00 p.m. He spoke for a while - perhaps 15 to 20 minutes and then left saying he was going home. Some 10 minutes later he came back reported that he had gone home and found a dead man chopped near his door. Mrs. Guiseppi suggested he call the police, which he did. He could not get his message across. He was not making sense. Mrs. Guiseppi took the receiver and told the police what she had been told. The police in due course turned up at the Hospital.

The police team was led by Corporal Eli Salazar. The appellant told him that he had returned home and had met a man whom he left at the house cutting bush lying in front of his yard apparently dead. They accompanied the appellant to his home. There he saw a Spanish descent man lying down in front of the house on his back on some boards framed like a bed on the ground with a blanket on it. The body was lifeless and covered with blood. There were multiple chop wounds to the head and body.

The appellant told him that there was another man as well. There was a search and on the western side of the house, almost to the bushes they found a second person, lying sideways with multiple chop wounds to the head and body. That body was also lifeless. The forensic pathologist was called. He arrived and examined the bodies on the scene before they were moved to the mortuary.

Cpl. Salazar arrested the Appellant, cautioned him and informed him of his constitutional rights. He was taken to the C.I.B. Office in Belize. It was then 3:00 a.m. Cpl. Salazar thought that the Appellant seemed tired and he postponed the taking of the statement to later that morning.

Shortly after 9:00 a.m. Sgt. Rhaburn recorded a cautioned statement from the Appellant which was admitted into evidence without objection.

In that statement he stated that on Wednesday April 14, 1993 he came home about 2:00 p.m. and met Rosita on the bed sitting, crying. She told him that one of the men who had been working for him had punched her three times on the face and that the two of them had forcibly had sex with her. They had told her if she said anything to the Appellant they would kill her. The statement made no mention of where the men were when Rosita made this report.

He told her to get dressed. They left for Belize City where they stopped and had something to eat. He bought a bottle of Caribbean Rum and a quart of brandy.

They returned home about 7:30 p.m. He found their clothes scattered all over the place. The two workmen were sitting outside the house awaiting their arrival. Rosita cooked and all four had supper. They then began drinking. He asked them how the clothes had come to be scattered. They said they did not know who may have come into the place.

A discussion of pay for the work they had done followed. He did not want to pay the Belizean as much as the Salvadorean who, he had been told, worked harder. The Salvadorean then had gone to sleep. He was already drunk. He attempted to wake him up but the Salvadorean told him to leave the matter to the next day and went back to sleep. He continued to drink with the Belizean until he too became drunk and went to sleep.

He then went inside where Rosita told him that the man had -

"chance her and to let us kill them; being that I was drinking and was drunk I got my machete, and went to where the Belizean was sleeping and I chopped him several times to his neck and face and other parts of his body. I then went to where the Salvadorean man was sleeping and I chopped him in the head at which time he got up and run and he then fell in a drain not too far away. I went to where he was and continue to chop him"

After chopping them he told Rosita that "she done make me chopped the man then already, so it is best we go to Belmopan." The remainder of the statement substantially agreed with the account given by Rosita. The statement ended "I did not meant to kill these two men and I am sorry now that they are dead. I don't know these men who I had kill."

At the preliminary inquiry he made a statement when called on at the close of the case for the prosecution. In that statement he said that he came home about 1:00 o'clock and met his wife sitting on the bed crying. Her face was bruised. In reply to his question she told him that the men working for him "asked her for wife" and she had not agreed. He then heard the two men answer with swear words from outside saying that Rosita had complained to him and they would kill them both. Turcios jumped into the house with a machete making blows at him. He grabbed his machete and started to run out. He made a chop at Turcios which,

"catch him in his head; the same time, he ran outside without head, his head leaning one side, but he still run outside."

At that time Hipolito Cowo kicked open the door, cursed him and said now that the Appellant had killed his partner, he would kill him. He fired several shots which did not catch him. He managed to chop off Hipolito's hand. The machete fell and Hipolito ran. He chopped him again. He was frightened when he saw Hipolito fall dead. He took him outside and put him by the door. He wanted to go and report the matter to the police but he was afraid, so he went off with his wife to Belmopan and they slept there.

The Appellant made a statement from the dock. He stated that he did not really know what happened. Rosita had then explained to him that while they were sleeping that night the deceased had dragged her out of bed to have sex with her and beat her up. She screamed. The Appellant ran out of the room with a machete and started to chop up the men. He then recounted the journey to Belmopan and Belize ending up at the hospital and the report to the police.

The first ground of appeal was that the trial judge had misdirected the jury on the concept of intention to kill as an element of the crime of murder, and that he had f ailed to give proper directions on the question of intoxication.

In defining the crime of murder the trial judge set out six elements - the death of the deceased persons, that their death was the result of harm, that the harm was inflicted by the accused, that the harm was unlawful, that the harm had been intentionally inflicted and finally that in inflicting the harm the accused intended to kill the deceased persons. It was submitted, correctly, that adding the element of intentional infliction of harm was unnecessary. If the killing must be caused by harm and if there must be an intention to kill, then clearly the infliction of the harm itself must be intentional.

Mr. Lumor submitted that the emphasis on the element of intention in the infliction of the harm may have misled the jury into believing that once there was proof that the harm had been intentionally inflicted and proof that death had resulted, the accused could have been found guilty of murder.

Although the statement that proof of intentional infliction of harm may be unnecessary it is certainly not wrong. In evaluating the effect of such a statement in misleading the jury one should look at the summing up as a whole. Immediately after the element of intentional harm the trial judge referred to the sixth element - the intention to kill.

In expanding on the concept of intention to inflict harm the trial judge pointed out that intentional was the opposite of accidental - a defence which had not been remotely raised.

He then reviewed the versions of the incident given by the Appellant in the course of which he discussed the concept of self defence. He then went on to deal with the sixth element - whether in inflicting such harm the Appellant intended to kill both deceased persons.

He stated correctly that the intention to kill was an inference to be drawn from all the surrounding circumstances. He described the severity of the wounds on the deceased but pointed out that the jury should not from the mere fact that death was a likely consequence of inflicting such wounds conclude that there was an intention to cause death. It was merely a factor to be considered among all others.

In the course of that direction he stated -

"but if you believe the evidence of Miss Rivero, then there is ample evidence for you to find that the accused intended to kill the deceased."

Taken out of context the statement is clearly too wide. The trial judge did go on to deal with the issue of provocation. Very shortly after that overbroad statement he told the jury -

"Now as I said if you accept the evidence of Miss Rivero, then you will find that there was some element of intention before the act was perpetrated; you have to look at the evidence as a whole to infer the intention of the accused."

Finally towards the end of the summing up the trial judge said:

"Secondly, it is for the prosecution to satisfy you so that you feel sure that each of the elements in this case which I have mentioned to you have been proven beyond a reasonable doubt. The accused as I said does not have to prove anything. If he raises a defence it is up to you to consider it, see how it fits in with the totality of the evidence. He does not have to say anything, in this case he did. He made an unsworn statement, you must not reject it, but look at it and decide how it fits in with all the evidence, and thirdly, if you are in doubt, if you find that the prosecution has not satisfied you, especially in the matters of self-defence or intention to kill, then of course, if you find that the accused acted in self-defence, then it is your duty to find him not guilty of anything whatsoever. If you reject the self defence, and you find that he did kill these two persons intentionally, but that he did not intend to kill, then you must find him guilty of manslaughter. If you find that he did kill these persons and he intended to kill them, but at the time he was labouring under a temporary loss of self-control brought about by extreme provocation caused by anything or anyone, then you must bring him in guilty of manslaughter. If you find that he was labouring under the influence of alcohol to such an extent, that he was incapable of forming the necessary intention to kill, then it is open to you to bring him in guilty of manslaughter. If you reject self-defence, if you reject provocation, extreme provocation, if you reject that when he acted he was so much under the influence of alcohol that he was - he did not know what he was doing, then you must find him guilty of murder."

In the circumstances we conclude that taking the summing up as a whole the jury must have clearly understood that they were not to convict unless an intention to kill had been proved beyond a reasonable doubt.

The second limb of ground 1 dealt with the trial judge's direction on the issue of intoxication. Section 24 of the Criminal Code (the Code) makes intoxication a defence to any criminal charge if the person charged was by reason of intoxication insane as defined by section 25 at the time he committed the act in respect of which he is accused. A person is insane within the meaning of section 25 if such person is prevented,

"by reason of idiocy, imbecility or any mental derangement or disease affecting the mind, from knowing the nature or consequences of the act in respect of which he is accused …."

A person is also insane if -

"the did the act in respect of which he is accused under the influence of a delusion of such a nature as to render him, in the opinion of the jury, an unfit subject for punishment of any kind in respect of such act."

In such cases insanity is a complete defence and the jury should be directed to return a verdict of "guilty but insane" unless the intoxication came about without his consent or by the negligent or malicious act of another person. In such a case the accused person must be acquitted.

Apart from this insanity aspect of intoxication section 26(4) of the Code provides -

"Voluntary intoxication shall be taken into account, for the purpose of determining whether the person charged had formed."

There was no evidence in this case to lead to the slightest inference that the appellant was suffering from any delusion. There was no evidence that he suffered from idiocy, imbecility, mental derangement or disease of the mind. He did, however, read out the section and continued -

"What this is saying is that if by consuming liquor he was along the time rendered temporarily insane, then he could not have formed the necessary." -

As an interpretation of section 26(2)(a) this would have been an error. But that section did not arise and the trial judge did go on to cite section 26(4) and to state -

"In the offence of murder the intention to kill is a specific intent. If you determine that the accused was so much under the influence of liquor, that he could not have formed the specific to kill these two deceased person, then of course, you will find that he did not intend to kill them and so your verdict will have to be manslaughter."

The trial judge then went on to stress that the jury should look at the evidence as a whole bearing in mind that the accused did not have to prove anything. The passage near the end of the summing up where the trial judge again referred to the defence of intoxication and the directions there are clearly inadequate.

Accordingly ground 1 of the grounds of appeal fails.

Ground 2 of the Grounds of Appeal raised the issue of the judge's failure to deal with corroboration under the terms of section 90 (4) of the Evidence Act which states that a person -

"shall not be convicted solely on the uncorroborated evidence of an accomplice, and the judge shall direct the jury that the accused is not to be convicted unless there exists confirmation of the accomplice's evidence in a material particular by some fact or circumstance."

Ground 3 stated that in the alternative the trial judge failed to warn the jury that it would be dangerous to convict on the uncorroborated evidence of Rosita Rivero Carillo since she may have been a witness with a purpose of her own to serve.

In his statement from the dock he said that she suggested to him that he bury the men since he had already killed them. He refused. In his statement at the preliminary inquiry he was acting in self defence and Rosita played no part. In his statement to the police he does state that she suggested that they should kill the men and "being that he was drinking and was drunk" he went and chopped the sleeping Belizean man. None of this evidence was on path. On this evidence there would have been no basis for leaving to the jury the question as to whether Rosita was accomplice or not. Section 90(4) would not consequently have become applicable.

In Orceno Flores v The Queen Cr. App. No. 16 of 1980 it was held that the provisions of s. 90(4) of the Evidence Act applied only to accomplices and not to witnesses with an interest of their own to serve. There may be circumstances in which fairness would require a warning that the evidence of a witness who was not an accomplice should be examined with care. There were no such circumstances in this case. There was in any event confirmatory evidence. There were statements by the accused admitting having himself killed both the deceased.

Ground 4 of the grounds of appeal complains that the trial judge failed to direct the jury in accordance with section 89 of the Evidence Act. This section reads

"If an accused person having made any confession or admission that he had committed a crime or offence, pleads not guilty at his trial, he shall not be convicted on such confession or admission alone without such confirmatory evidence as the court thinks sufficient."

It is contended that the trial judge should have warned the jury of the consequences of convicting the Appellant on the admission and confessions alone admitted at the trial without confirmatory evidence.

It was also submitted that the statement given before the Magistrate ought not to have been admitted in evidence unless it was regarded as an admission or confession. The statement does contain an admission that the appellant did kill the deceased persons. Essentially, however, it puts forward a defence of self-defence. Even if it be regarded as exculpatory it would be admissible under section 34 of the Indictable Procedure Code. At the end of the preliminary inquiry the Magistrate is required to ask the accused whether he wished to say anything and to warn him that he was not obliged to say anything but that whatever he said would be taken down in writing and might be given in evidence at his trial. The Magistrate is further to warn him that if he had been threatened or offered any statement to lead him to make a confession any statement he then made would be given in evidence despite such threat or inducement. The reply of the accused is to be noted and read over to him and he is to be asked to sign it.

Section 34(4) reads -

"On the trial of the accused the statement so taken down, whether signed by him or not, may be given in evidence without further proof thereof, unless it is proved that the examining magistrate purporting to sign the statement did not in fact sign it."

The examining magistrate was quite unnecessarily called as a witness in this case. The statement could have been tendered as the statement taken under section 34 of the Indictable Procedure Code.

In our view this was not a case in which the prosecution was relying for a conviction on a confession or admission of the accused person alone. The principal witness for the prosecution was Rosita. Accordingly this ground of appeal fails.

Ground 5 raised issues as to the correctness of the directions as to provocation.

In relation to self defence it was submitted that the trial judge had failed to direct the jury that they should acquit the appellant if they found or were left in doubt that he was acting in self defence even though he intended to kill. The trial judge did so direct the jury. He stated -

"According to our law for the prevention of or for the defence of himself or of any other person against any of the following crimes, a person would justify the use of necessary force or harm extending in the case of extreme necessity even to killing and the crimes which he can kill to prevent happening to him are crimes like murder, manslaughter, dangerous or grievous harm."

There is no merit in this subhead of ground 5.

It was also submitted that the trial judge had failed to direct the jury that in the event that they should find that the appellant used excessive force in defending himself they should return a verdict of guilty of manslaughter.

For the Crown it was submitted that on the facts of this case no question could arise as to whether or not excessive force was used. The evidence relating to self defence appears only in the appellant's statement at the preliminary inquiry. The pertinent portion reads -

"I then heard the two men answer outside and said, 'you mada fucker yuh di explain to yuh husband what we did to you so now we come to kill both of you.' While saying this, Turcios jumped in the house with his machete and the other one stayed outside. I got so frightened I had a machete on the bedhead. I so frightened I grabbed my machete and start to run out, but as I reach out the room in the hall I saw him with the machete. He fly a chop which just brushed my hair; at the same time I fly a chop which catch him in his head; the same time he ran outside without head; his head leaning one side, but he still run outside. Then the same time Hipolito Cowo kick open the door; he jumped in the house saying, 'you mada fucker, you done kill my partner so now I wan kill you'. While saying this he action his machete too. He fired several chops at me, but couldn't catch me. I manage to chop his hand again and the machete drop. When the machete drop he then ran into me and at the same time I chop him again. I frightened when I see him drop dead so I took him outside and put him by the door. I covered him and after this I went to my wife in the room. I covered him and after this I went to my wife in the room. I got so frightened I didn't know what to do."

On that account no question of the use of excessive force applied. The nature of the attach was such that the preventive action could be no less. The trial judge had made clear that in a moment of crisis a person attacked could not be expected to weigh to a nicety the exact measure of the defensive reaction.

On the facts no question of excessive force could arise. This sub-head fails.

In Ground 5(c) it was submitted that contrary to section 118 of the Criminal Code, the trial judge had directed the jury that they were the body to make a determination that Appellant had been provoked.

The fact that the judge left the issue of provocation to the jury establishes that he did conclude that the defence was available. If he had thought otherwise he would not have left the matter for their determination. The trial judge did on a number of occasions speak of the jury "finding" provocation. This formulation excluding the word "extreme" was unduly favourable to the appellant but clearly what he was asking them to determine was whether there was "extreme provocation" as defined in the section which he had read to them. There is no merit in that subhead of ground 5.

In the last subhead of ground 5 the appellant complained that the judge did not especially state that the prosecution had to negative the element of provocation. In the penultimate paragraph of the summing up he did emphasise that the appellant did not have to prove that he was provoked. The plain inference from this is that the prosecution must prove that he was not provoked. This subhead of the grounds also fails.

Ground 6 raises an issue dealing with the conduct of the trial. It would appear and is not in dispute that there was agreement that there should be a visit to the locus. This took place after the Defence had closed its case, the Appellant having made a statement from the dock and having stated that he had no witnesses to call.

When the court reconvened the record notes the various places pointed out by various person. Rosita Rivero was recalled sworn again and stated that the record of the places she had pointed out was correct. Neither counsel asked any questions. The Court asked a question the answer to which is noted as follows -

"When the accused chopped the Belizean man this took place inside the house. I do not know how the Belizean man got outside the house lying on the bed as he was found."

The Prosecutor then asked -

Q. "Your evidence in Court is that the Belize man was sleeping when your husband chopped him. Is that correct-

A. Yes. The Belize man was sleeping by the front door. That is where the Belize man got chopped. That is outside the house."

It is preferable to have a visit to the locus fitted in before the case for the prosecution is closed.

The evidence given as a result of the question posed by the Court merely reiterated evidence given in the course of the case for the prosecution. There was no miscarriage of justice, no unfairness to the appellant. The evidence elicited was such that it required no further questions by the attorney appearing on behalf of the appellant. It does not constitute a reason for declaring a mistrial.

Ground 6 alleges that the trial judge failed to put the case for the defence fairly and adequately. The situation was by no means run of the mill. The appellant made three statements which were not consistent the one with the other. Each of them was read in full to the jury. The defences of lack of intention, self-defence and provocation were all explained and the evidence supporting each mentioned. As was to be expected the weakness were also detailed. The Appellant's case was adequately put.

Accordingly the appeal must be dismissed and the conviction and sentence affirmed.

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