Mr. K. Anderson for the Appellant.
Mr. S. Gamalath for the Crown.

Court of Appeal - Appeal against conviction for manslaughter - Whether trial judge erred in allowing evidence of previous criminal acts - Such evidence allowed to show accused likely from his criminal conduct to have committed offence - Makin v Attorney General for New South Wales (1894) A.C. 57 - Whether defective indictment could be corrected by amendment - Section 146(1) Indictable Procedure Act, Chapter 93 - Arrest of judgment only applicable where defect cannot be corrected by amendment - Appeal against conviction dismissed.

J U D G M E N T

The Appellant was charged with the murder of Raymond Castillo following an encounter between the two men on Vernon Street in Belize City on August 18, 1992, when Castillo received a gunshot wound in the abdomen from which he died the following day. The Appellant was convicted for manslaughter and sentenced to 7 years imprisonment. He appealed against his conviction and sought leave to appeal against his sentence.

At the hearing of the appeal counsel for the Appellant sought and obtained leave to substitute for the single ground of appeal originally filed five grounds of appeal against conviction and one ground of appeal against sentence. Two of the five grounds of appeal were however subsequently abandoned. The first of the remaining grounds which we have to consider is as follows:

"2. That the learned trial Judge erred in law, in having omitted to tell the jury that as a matter of law, the retreat of the Defendant/Appellant in this case, in the face of an impending attack by the person now deceased, constituted the best evidence that when the Defendant/Appellant acted in shooting the person now deceased, he did so in genuine self defence."

The short answer to this ground is that there was no evidence of a retreat by the Appellant. In his statement given to the Police the Appellant stated:

"I was walking on Vernon Street from the direction of Western Road heading towards the Boulevard and ahead of me was the same young lady Sonia. Whilst doing so, I saw one Joe Castillo on a bicycle coming in the opposite direction who I know very well as he usually interferes with me. He said to me if I don't want to shot him (Joe) as I have a gun or else he (Joe) will shot me. I then told him Joe leave me alone. He then continue his way, and I continue mine. In a short space of time I glance and saw Joe coming back. He then said to me again, "If I don't shot him; he will shot me." I told him to sic. to leave me alone and go away, but he still continue
coming towards me. As he had already tell me that if I don't shot him, he will shoot me, I then shot him somewhere in the abdomen. I put a cartridge into the gun when Joe first met me on Vernon Street and told me if I don't shot him, he will shoot me."

In his evidence at the trial the Appellant elaborated on this statement, emphasizing his apprehension and the efforts he made to get the deceased to leave him alone. Nowhere in that evidence however did he speak of retreating. There was no eyewitness of the actual shooting as the prosecution witness who saw the first encounter, heard the taunt and threat issued by the deceased and saw the deceased ride off and return was, he said, occupied in telephoning the police when he heard the sound of the gunshot. He did not, however, give any evidence of a retreat by the Appellant. This ground of appeal therefore fails.

The second ground of appeal is:

"That the learned trial Judge erred in law, in having allowed the evidence of Julian Hernandez to be given, as such evidence was irrelevant, and the prejudicial nature of such evidence, far exceeded any probative value which it may have had."

The evidence of Julian Hernandez was as to the prior relationship between the Appellant, the deceased and one Ethel, and a particular occasion in December 1991 when the Appellant forced Ethel to leave the deceased and return to live with him and also forced the witness at gunpoint to assist him. The object of this evidence as stated by prosecuting counsel at the trial was to prove the "long time thing" of which the Appellant spoke when handing over his shot gun to the police, and to negative provocation by seeking to establish a previous purpose on the Appellant's part. In our view the evidence was clearly relevant and admissible for this purpose. As Lord Herschell observed in Makin v. Attorney General for New South Wales (1894) A.C. 57 at 65:

"It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused had been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused."

The third ground of appeal is:

"That the learned trial Judge erred in law, in having dismissed the motion made in arrest of Judgment by learned defence counsel, pursuant to section 146(1) of the Indictable Procedure Act of Belize (Chapter 93 of the Laws of Belize, 1980), in that, as a matter of law, the Indictment's Statement of Crime disclosed no offence, and was drafted contrary to the mandatory requirements of section 5(5) of the Indictable Procedure Rules of Belize."

In relation to this ground counsel for the Appellant submitted that in the statement of crime the Indictment wrongly referred to section 102 rather than section 114 of the Criminal Code as the section under which the charge of murder was laid and that the trial judge ought therefore to have upheld his submission in arrest of the judgment. He conceded that, on the basis of the decision of the English Court of Appeal in R. v. Clifford Nelson (1977) 65 Cr. App. Rep. 119 it was open to the court to apply the proviso even if it accepted his submission. However he asked that guidelines be laid down as to the proper form of indictment to be adopted in circumstances whereas in the case of murder, the creation of an offence and the provision of a penalty for that offence are contained in separate sections of a statute.

Usually the section of a statute which creates an offence provides also the penalty which may be imposed for an offence. In our view the object of rule 5(3) of the Indictment Rules contained in the First Schedule to the Indictable Procedure Act in providing that, "The statement of crime shall …. contain a reference to the section of the Ordinance under which the charge is laid" is to inform an accused person both as to the statutory provision which he is alleged to have infringed and as to the penalty to which he may be liable for such infringement. When that information is contained in separate sections of a statute it is therefore appropriate to refer to both such sections in the statement of crime. However rule 5(5) of the Indictment Rules provides that, "Forms prescribed under paragraph (b) of section 202 shall be used in cases to which they are applicable. Where, therefore, such a form refers to only one such section in the statement of crime, in compliance with the rule the statement of crime, is an indictment for the offence ought to refer to that section.

In the present case the statutory offence of murder is created by section 114 of the Criminal Code whereas the penalty for the offence is prescribed by section 102. It would therefore be appropriate in the statement of crime to refer to both sections 102 and 114. But since the form prescribed under paragraph (b) of section 202 of the Indictable Procedure Act refers in the statement of crime for murder to section 114 only, an indictment for murder ought to be drafted in compliance with that form. The indictment against the Appellant was not so drafted and was therefore defective. The defect could however have been corrected by amendment. Section 146(l) of the Indictable Procedure Act Chap. 93 provides as follows:

"146. (1) The accused person may, at any time before sentence, move in arrest of judgment on the ground that the indictment does not, after any amendment which the court is willing and has power to make, state any crime."

It appears to us that the section provides for arrest of judgment only in circumstances where the defect in the indictment cannot be corrected by amendment. That was not the case here, and the Appellant's application at trial could not therefore succeed. This ground of appeal fails also.

In so far as the sentence is concerned we cannot say in all the circumstances that it was manifestly excessive.

For these reasons the appeal against conviction is dismissed and the conviction affirmed, and the application for leave to appeal against sentence is refused.

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