Court of Appeal
Criminal Appeal No. 14 of 1983
11th May, 1984
SIR JOHN SUMMERFIELD P.
ALBERT L. STAINE, J.A.
KENNETH ST. L. HENRY J.A.

Mr. Sampson, for the Appellant
Mr. Gonzalez, for the Crown

Criminal Appeal - Murder - Defences of duress, accident and misadventure - Appellant alleging that he fired shot by sheer mischance without negligence and in circumstances where he had no intention of harming anyone - Trial judge omitting to deal with question of defence of accident or misadventure in summing up to jury - effect of omission - evidence given by on accused person, but a prior statement given to the police in the absence of the co-accused person can never become evidence against that co-accused person - Duty of trial judge when summing up, to tell they jury first to decide whether and accused person made a statement to the police before considering that statement where the accused person denies making the statement.

J U D G M E N T

The Appellant was charged with the murder of one Alberto Maas and acquitted of murder but convicted of manslaughter and sentenced to imprisonment for nine years with hard labour. On May 4, 1984, we allowed his appeal, set aside the conviction and sentence and ordered a new trial for manslaughter. Having promised to put our reasons in writing we now do so.

The prosecution's case is that on October 4, 1982, the Appellant borrowed from one Jose Coc a shotgun which he had previously sold to Coc. That night one Ricardo Tut was at home when he was awakened by the sound of someone knocking at his door. When he opened the door Alberto Maas entered saying "Now you have lost me my people because look at what Santiago Chub did to me". Maas then appeared to have been shot in the leg. Immediately after this the Appellant ordered Tut to open the door threatening that if Tut did not he "would do the same as he did to Maas". The Appellant then had a gun and two other men were with him, one being Alfonso Kib. The Appellant ordered the Tuts out of their home and eventually took them by dorey across the river to his home. There they remained until the next morning. While they were there Mr. Tut heard the sound of two shots coming from the other side of the river. Mrs. Tut heard one. The following morning when they returned home there were bloodstains on the floor. There was no sign of Alberto Mass. The Appellant and the other two men proceeded to clean the blood on the floor. Tut said he did not make a report to the Police because the Appellant threatened that if Tut reported the matter he "would get the same as the other man got". The body of Alberto Maas was subsequently found floating in the river. Maas had died as a result of shock and haemorrhage from multiple wounds to the left thigh, scrotum and left lung. These wounds were caused by shotgun pellets from two separate shots, one to the area of the groin and the other to the area of the thorax. Either injury could, in the doctor's opinion, have proved fatal but he described the injury to the left lung as fatal.

The Appellant gave evidence on oath. He said that Alfonso Kib had threatened to shoot him if he did not kill Alberto Maas. Kib gave him a gun, pushed him up a ladder which apparently led into the deceased's house threatening that if he did not kill the deceased Kib would kill him, his wife and children and burn his home. He went up the ladder trembling and as he did so the gun went off. When he went up the ladder he "had no bad intention in mind", and "did not know whether the gun was cocked or not". He did not pull the trigger of the gun. He took the Tuts across the river to prevent them from getting hurt. He did not threaten them. Upon his return to the Tuts home he saw the deceased sitting on the ground moaning. Alfonso Kib then shot the deceased and compelled the Appellant to assist but said that he did so after the shooting of the deceased because he was afraid of Kib.

Counsel for the Appellant submitted that although on the evidence the defence of duress arose, the Appellant's principal defence was accident or misadventure. The Appellant was saying that he was not a party to any common intention with anyone else and in so far as the shot from the gun he held was concerned, that shot had been fired by sheer mischance without negligence and in circumstances where he had no intention of harming anyone. Accordingly, counsel submitted, the learned trial judge ought to have directed the jury on the defence of accident or misadventure distinguishing this from circumstances in which manslaughter by negligence could arise from the "accidental" firing of the gun. Further, counsel submitted, the learned trial judge ought to have directed the jury that in so far as the defence of accident or misadventure was concerned the burden of proof lay on the prosecution.

In his summing up the learned trial judge dealt with this aspect of the matter in two passages. In the first he said:-

" Now the accidental killing. In certain circumstances if a person is killed by pure accident that is not murder but it must be pure accident. It has been held in a case that even killing by accident, that is, by the accidental discharge of a gun used without legal excuse, amounts to manslaughter. What it means is that if in this case, in the circumstances of this case, if you were to find as a fact that this person went up the ladder with a loaded gun and the loaded gun went off accidentally, I would direct you as a matter of law that that might not be murder but it is certainly manslaughter on that case but I will come to that later."

In the second he said -

"Now, apart from the question of duress, if you find that there was no duress, the question of the accidental shooting, if you find that that was the cause of the death that would only once again reduce the crime to manslaughter because the case I gave you before that if you go with a gun loaded without legal excuse and points it towards the vicinity of where there is a person and it goes off on accidentally that is manslaughter even if you did not intend to kill that person."

Counsel for the Crown quite properly conceded that the learned trial judge omitted to deal with the defence of accident or misadventure. The Appellant was therefore deprived of the opportunity of an acquittal and it could not be said that a reasonable jury properly directed would necessarily have arrived at the same verdict. For this reason we set aside the Appellant's conviction and sentence for manslaughter. We realize the difficulties which the prosecution will face in presenting a case of manslaughter on evidence which prima facie suggests murder. Nevertheless, having regard to all the circumstances we were of the view that the interest of justice required that a new trial be ordered and we accordingly did so.

Before parting with this appeal we consider it desirable to bring to attention two defects in the summing-up of the learned trial judge. The first is contained in the following passage-

"Similarly, or in answer to a statement given to the police or any other person, what you must remember is this- What is contained in the voluntary statement is only evidence against the person who makes the statement. In other words what Santiago Chub said in his statement is only evidence against him, not evidence against the other one, Alberto Chub Maas. Similarly, in the case of Chub Maas what he said in his evidence, in his statement, is only against him and not evidence against the other unless of course, one of them goes into the witness box and when he goes into the witness box his confession becomes evidence against the one because the other person can cross examine him. In this case for example, in the case of Santiago Chub Maas whatever he said in his statement or in the witness box is evidence against Chub Maas, if there is anything against him. In the case of Chub Maas he never went into the witness box, I will refer to that later, so whatever he said in his statement is only evidence against him."

This passage suggests that where an accused person gives a statement to the Police and subsequently gives evidence on oath, what is contained in the statement to the Police becomes evidence against a co-accused. This is an incorrect statement of the law. Evidence given by one accused person may be evidence against another co-accused person, but a prior statement given to the Police in the absence of the co-accused person can never become evidence against that co-accused person. It can only be evidence against the person making the statement. (Vide R. v. Rudd (1948) 32 Cr. App. Rep. 138 R. v. Gunewardine (1951) 2 K.B. 600 R. v. Rhodes (1960) 44 Cr. App. Rep. 23.).

Secondly, in his summing up the learned trial judge failed to tell the jury that it was for them to decide whether the Appellant had made the statement allegedly given to the Police. The Appellant in evidence had denied giving a statement to the Police and unless the jury felt sure that he did give the statement they could not consider it.

The Indictment is amended accordingly.

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