Court of Appeal
Criminal Appeal No. 2 of 1977
3rd November, 1977
MICHAEL HOGAN, P.
CLIFFORD INNISS, J.A.
ALASTAIR BLAIR-KERR, J.A.

Criminal Appeal against conviction and sentence for using deadly means of harm with intent to wound and intentionally and unlawfully causing dangerous harm - Grounds of Appeal - Whether the word "intentionally" in section 76 of the Criminal Code has the same meaning as the phrase "with intent" in section 77 (b) of the Criminal Code - Using marginal notes as an and to statutory interpretation in "Intentionally" in section 76 of the Criminal Code means "with intent of causing" and bears the same meaning as "intentionally causes the death of another" in section 110 of the Criminal Code - Second count of indictment - Intent - Judge merely directing jury that intent for second count the same as intent for first count - Whether jury understood direction to mean that intent to harm synonymous with intent to wound - Whether this amounted to a misdirection - Defence of intoxication - Section 24(1) and (4) of the Criminal Code - Circumstances under which defence of intoxication ought to be left to the jury - Trial judge putting accused's defence to the jury with a slant, suggesting that he was not to be believed - Effect of misdirection - Whether misdirection resulted in a miscarriage of justice within the meaning of section 31(1) of the Court of Appeal Ordinance - Test to be used by court to determine if miscarriage of justice occurred.

J U D G M E N T

Appellant (to whom for convenience we will in this judgment refer as the Accused) appeals against his conviction on each of two counts?on the first for using deadly means of harm with intent to wound Albert Zelaya, and on the second for intentionally and unlawfully causing dangerous harm to Albert Zelaya. He also seeks leave to appeal against his sentences, which were two years imprisonment with hard labour on the first count and three years imprisonment with hard labour on the second; the sentences to run concurrently.

The evidence indicated that on the 17th July, 1976, there was a party at the house of one Orvin Jeffords at La Democracia Village. Persons present included Albert Zelaya, his brother the Accused, Orvin Jeffords, P.C. 108 Espinosa, and his brother P.C. 255 Gideon. Gin and rum were being drunk.

It appeared that some time after midnight there was a "play fight" between Accused and Jeffords. Albert Zelaya told the Accused to leave the guy alone.

At about 2 a.m., P.C. Espinosa left the party and went home. About five minutes after getting into bed, he heard a loud talking; somebody arguing. He came out of his house and saw that the people arguing were the Accused and his elder brother, Albert Zelaya. He saw them proceeding to their homes still arguing, and was returning to his house when he heard Albert Zelaya telling Accused that he "Doesn't worth nothing". Accused replied "You want to try me then." Albert said "Yes", whereupon Accused said "I am coming but I am going home first". Accused then left; and Albert left for his house. Espinosa went towards Albert's house, which was about 25 yards from that of Accused. He was just about to reach it when he saw Accused come out of his house and go towards Albert's. He had something in his hands, which Espinosa at first took to be a machete. This the Accused raised and pointed to where Albert, who had no weapon, was standing. Espinosa then saw it was a shot?gun. The gun went off and Albert dropped. Espinosa said he then saw that Accused had broken the gun and was trying to re?load it. He ran towards and held on the Accused, with whom he had a tussle because Accused did not want to hand over the gun. Eventually, Accused left the gun in Espinosa's hands and ran. P.C. Gideon, who had come to the spot after the shooting, ran after Accused and caught him. At some stage after shooting Albert, Accused said he did not mean to shoot his brother.

According to Espinosa, Accused was carrying the shot?gun with the barrel pointing downwards, and shot from a position (which he demonstrated in Court) with the gun held at arm's length downwards with the barrel forward.

Albert Zelaya, accompanied by Accused, was taken on the 31 mile journey to the Belize City Hospital in a motor car, arriving at about 5:30 that morning, 18th July, 1976.

There a Doctor, Dr. Premaunand Shenoy, found Albert Zelaya to be suffering from multiple gun?shot injuries over the lower half of both thighs in the front. In the Doctor's opinion the injuries were dangerous because they might have punctured a large blood vessel in the front of the thigh and also because of the profuse bleeding.

The Doctor found both Albert Zelaya and the Accused to be under the influence of alcohol.

For the Prosecution a statement given by the Accused to the Police after caution was admitted in evidence without challenge from the Defence. In it Accused said that in the course of an argument at Jeffords house, his brother Albert had begun pushing him around and when he left Albert followed him still pushing and elbowing him in his stomach; that on reaching his house Accused was walking upstairs leaving Albert in the yard at the foot of the steps but Albert was still tantalising accused, who rushed for his shot?gun inside the house, and came back and fired at the ground to scare Albert off, the shot accidentally hitting Albert in the legs. Accused claimed that he never had any intention of harming his brother.

In his Defence Accused gave sworn testimony which with some variations repeated his statement to the Police.

In one of his variations he said that when he got home he was resting on the step trying to revive; he was feeling "high" and was trying to feel better; as he was sitting there he saw Albert coming from his house towards Accussed's house, cursing and saying he would take his revenge; that the Accused then got off the steps and went for the gun and fired a shot on the ground to scare Albert off. He denied making any attempt to reload the gun. He said he went towards Albert and asked if he could get up, but the latter did not reply and the Accused was still standing there when P.C. Gideon jumped on him, trying to get the gun from him; that they went to the ground and he gave Gideon the gun. He said he did not notice when Espinosa got there.

He admitted that after he had "shot" he ran, and said he did so in order to "beat" them.

The Accused appeals against his convictions on three grounds. Ground 1, as amended, is in two parts, the first of which, marked (a) is in the following terms

"(a) The learned Trial Judge erred in law when he directed the jury that "intentionally" in section 76 of the Criminal Code of the Laws of Belize has the same meaning as the word "with intent" in Section 77(b) of the said Criminal Code."

The direction complained of is that at the foot of page 22 of the record, where, in directing the jury on count 2, the learned Trial Judge told them:?

"'Intentionally' has the same meaning as it does in the first count."

It will be seen that this direction was couched in terms which are not identical with those alleged in paragraph (a) of Ground I

The statements of intention under the two provisions which are relevant for the purposes of the instant case are, of course, those selected for inclusion in the respective charges. The statement of intention included in the allegation set out in the first count, which is drawn under section 77 (b) of the Criminal Code, is indicated by the words "with intent unlawfully to wound"; and that included in the allegation set out in the second count, which is drawn under section 76 of the said Code, is indicated by the words "intentionally and unlawfully caused dangerous harm".

Counsel for the Appellant in an argument which, if we understood it properly, sought to draw an analogy with the use of the words "unlawfully" and "maliciously" in section 18 and section 20 of the English Offences Against The Person Act 1861 and to derive guidance from the approach to the word "maliciously" discussed by the English Court of Appeal in Mowatt, 51 C.A.R. 402, also referred to the observations by the learned Chief Justice on the relevant Belize provisions in the case of Regina v. James Bradley at the Belize Sessions of January 1977.

For the purposes of the instant case we do not think it necessary to go into the argument at length as we have not found the suggested analogy or the discussion of the word "maliciously" in Mowatt's case particularly relevant to the matter in issue before us. Nor would we consider it appropriate, without argument more directly in point, to express any concluded view on the observations of the Chief Justice except in so far as they differ from the opinion we are about to express in regard to section 76 of the Criminal Code, although we would question whether they give sufficient weight to the absence from section 77 of a requirement that there should be an actual injury and whether the deductions from the right of the prosecution to select a charge are entirely justified.

We would also mention that the marginal note "Intentional harm" to section 73 of the Criminal Code appears to be more appropriate if it has to be proved that the harm was intended rather than merely occasioned by an intentional act but it is not easy to see why sections 74, 75 and 76, which are similar in form, should not carry a similar marginal note.

Returning to the instant case, we are not disposed to read undue significance into the use of the word "intentionally" in the earlier sections as distinct from "with intent" in section 77 (b).

It is the view of this court that the expression "intentionally causes any dangerous harm" in section 76 of the Code means with the intention of causing dangerous harm. In other words, it should be accorded a meaning similar to that which as we under stand, normally has been accorded to the expression "intentionally causes the death of another" in section 110 of the Code, i.e. as requiring an intention to cause death.

This accords with the submission made to us by the Director of Public Prosecutions and it is on this basis that we have considered the accuracy and sufficiency of the learned Trial Judge's direction to the jury on the requirement of intent for the purpose of the second count.

In dealing with the question of intent for the purposes of the first count he had told the jury thay would have to be satisfied that the Accused used a shot?gun "with a specific intention, in this case, the intention to wound". He had also explained to them what an intention is and that they had "to gather it from all the surrounding facts, particularly in a case of this nature".

Turning to the second count, the learned Trial Judge told the jury: ?

"The second charge of the indictment is dangerous harm. Intentionally has the same meaning as it does in the first count".

The submission of the defence is that by these words the jury would have been led to believe that in considering the second count they could convict the Accused if they came to the conclusion that he had the same intention as that required for the first count, i.e. an intent to wound.

The submission of the prosecution on the other hand is that the learned judge by those words did no more than tell the jury that in dealing with the second count they should seek to discover or infer the intention in the same way as he had indicated for the first count, i.e. by gathering it from all the surrounding facts.

The actual sequence in the summation does lend some force to the prosecution's contention that this was the intention of the judge but the danger remains that the passage would more readily have been understood by the jury as meaning that the intent they had to find was an intent to wound. In any event it would have left the jury with an inadequate explanation as to what intent was necessary for the purposes of the second count. In this connection we have looked through the remainder of the summing up and have been unable to find any passage in which the jury were told that for the purposes of the second count the intent which the prosecution had to prove was an intent to cause dangerous harm. On the other hand there are passages in which mention was made of other intents, namely, did he fire the shot?gun at his brother, and if so what was his intent (p. 26) and did he intend to harm his brother (p. 27).

At page 34, near the end of the summation, the Trial Judge told the Jury?

"The first charge is use of deadly means of harm ……….. and if you find that he used that shot gun with intent to cause a wound to his brother you would convict him of the first count and also if you found that he intentionally and unlawfully caused dangerous harm to his brother you would also convict him of the second count.".

Here again no explanation was offered which stated in terms what intent had to be proved for the purposes of the second count.

It seems to us that when the Trial Judge, referring to the second count, directed the jury that "intentionally has the same meaning as it does in the first count", the jury would have been very likely to conclude that the word "intentionally" in the second count meant an intent to wound as in the first count and that this conclusion would not have been altered by what followed. In our view there was a misdirection in law; and the question is whether on a right direction a reasonable jury would inevitably have come to the same conclusion.

Looking at each aspect of the evidence we are unable to say that a reasonable jury, correctly directed on the intent, namely that the prosecution must prove an intent to cause harm endangering life, would inevitably have come to the same conclusion, that is, a verdict of guilty in the second count. In our opinion, for the reasons we have given, the verdict of guilty on the second count cannot be allowed to stand. We accordingly allow the appeal against conviction on the second count, quash that cvoiction and also the sentence passed in respect of it, and direct that a judgment and verdict of acquittal be entered in respect of that count.

We turn now to Ground I (b), as amended, in relation to the first count, which is the only one remaining for consideration. This ground is in the following terms?

"(b) The Trial Judge failed adequately to direct the jury on evidence to be taken into account in determining the intention of the Appellant."

Under this ground the complaint was that the Trial Judge had failed to direct the jury on the question of intoxication. He had told them only?

"It doesn't matter what they were drinking because it doesn't seem intoxication is used as a defence. However, it is a matter for consideration".

By section 24(l) of the Criminal Code of Belize it is enacted?

"Save as provided in this section, intoxication shall not constitute a defence to any criminal charge".

The only provision of section 24 which is material for the purposes of the instant appeal is subsection (4), which is in the following terms??

"Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence".

The burden is always on the prosecution to prove that the Accused actually had the intent necessary to constitute the crime. In Broadhurst v. The Queen (11964) A.C. 441 at p. 463, an appeal from the Supreme Court of Malta, where the statutory provision requiring intoxication to be taken into account on the question of the accused's intention was identical with section 24(4) of the Belize Criminal Code, the Board of the Privy Council approved the following proposition?

"that it is not for an accused to prove incapacity affecting the intent and that if there is material suggesting intoxication the jury should be directed to take it into account and to determine whether it is weighty enough to leave them with a reasonable doubt about the accused's guilty intent".

Implicit in this proposition is the requirement that there must be material suggesting intoxication before that issue need be left to the jury on the question of the Accused's intent; and Broadhurst, at pp. 462?463, shows that it is not any kind of evidence of intoxication which qualifies as material suggesting intoxication. Indeed at p. 463 their Lordshirs expressed the opinion that in the particular circumstances of that case the jury could properly have been directed not to consider intoxication at all in relation to the offence in question.

In the instant case there was evidence that the Accused had been drinking with others, including his brother, Albert, in Jefford's house before the shooting incident and Albert Zelaya testified how on his way from the party, "Roy (the Accused)" came behind me and was still talking drunk thing". Some of the witnesses testified as to their observation of the Accused. Espinosa said "That night Albert and Roy did not appear drunk". Albert Zelaya said? "We were drinking and even high, but not intoxicated". According to Rose Neal, the common law wife of Albert Zelaya, she knew they were drinking: she didn't think they were drunk.

Dr. Premaunand Shenoy said that at about 5:30 a.m. on the 18th July, 1976, Albert Zelaya was brought in to the Belize City Hospital. She testified to having examined him ?and in cross?examination said she had found him under the influence of alcohol. She had also examined the Accused and found him, too, under the influence of alcohol. His eyes were red, pupils dilated, and his breath was smelling of alcohol. She put him through tests of co?ordinated movements like walking on a straight line and picking up a pencil from the floor and he could not do them properly. He was not aware of time nor where he was and from where he was brought. She said she had made the same tests in respect of Albert Zelaya as regards time and orientation. He could not co?ordinate. He could not tell time.

The Doctor's evidence, of course, related to the state of the Accused some three hours or thereabouts after the event?(after he had travelled some three hours or thereabouts after the event)?after he had travelled the 31 miles into Belize City in a motor car. What is material, of course, is his state of mind at the time of the event. In this respect there is a difference between this appeal and Broadhurst (supra) in that the Accused himself testified before the court, giving evidence as to his intention at the time he discharged the shot which wounded Albert Zelaya,. There was also before the court a statement made by the Accused to the Police after caution. In each case Accused gave a collected account of what happened immediately before the shooting, explained his reason for the shooting, and stated his intention in discharging the shot. He said in effect that after he had got home Albert continued to tantalise him; that he got the gun and fired at the ground to scare Albert off so he would leave him alone; that the shot accidentally caught Albert in the legs; and that he never had any intention of harming his brother.

The case for the prosecution was that the Accused intended to wound Albert Zelaya. That intention Accused denied, but he made no suggestion whatever that he did not form that intention because of a state of intoxication, and no such suggestion arises from the evidence. Accused, in effect, said that his mind was working and that he had formed another intention?to scare Albert so he would leave him alone. He repeated more than once that he never intended to harm his brother Albert.

There was other evidence besides that of the Accused which suggested that his mind was working rationally, namely, Espinosa's evidence that when Albert said he wanted to try the Accused, Accused said ? "I am coming but I am going home first". He then went to his house and returned with the gun.

In our opinion there was insufficient material on the evidence to justify leaving the question of intoxication to the jury for their consideration in terms of section 24(4) of the Criminal Code. Ground l (b) accordingly fails.

In view of our finding on Ground 1 (a), it is unnecessary to consider Ground 2 of the Grounds of Appeal, as amended, and the supporting arguments which have bean addressed to us on alternative charges and which referred to the West Indies case of R. v. Lewis 9 W.I.L.R. 333 and the English cases of Cowdell 1962 C.L.R. 262, Harris 53 C.A.R. 376, and Torr (1966) 1 W.L.R. 52. We therefore turn to Ground 3, which is in the following terms?

"It is respectfully submitted that the learned Trial Judge failed to put to the jury the defence advanced by the Appellant in a form which the jury would have appreciated and thus denied the Appellant a possible favourable verdict and so resulted in a miscarriage of justice".

Under this ground of appeal it was contented, as we understood it, that while the Trial Judge did put the defence to the jury he did so with a slant, suggesting, unfairly that the Accused was not 'to be believed, dealing with certain disputed facts as established by the evidence, and omitting reference to others which were favourable to the defence, with the result that the jury would be likely to defer to these strongly expressed views and return a verdict of guilty.

The main complaint under this ground, related to a passage in the summing?up at p. 33 of the record which is as, follows?

"According to Espinosa he wasn't just reaching for the gun he was going inside the house and coming outside, and there has been an attempt to re?load the gun and there was the tussle when he decided to take away the gun. And on these points Espinosa was not cross?examined and you would wonder in the light of that, can you really believe what the accused has told you even on oath."

In his defence Accused testified; and in the course of his evidence had said ?he was sitting on the step when he saw Albert coming. He got off the step and got the gun out of his house by putting his hand round the door and he went towards his brother's house. He also said that he did not make any attempt to re?load the gun; that the tussle over the gun was with P.C. Gideon; and that he did not notice when Espinosa got there.

It appears that Espinosa had not been cross?examined directly on any of his statements? (1) that after being challenged by Albert Accused went to his house and returned with the shot gun; (2) that Accused had attempted to re?load the gun; and (3) that Accused and he had had a tussle over the gun.

Espinosa's evidence on these matters was, of course, important on the issue of the Accused's intention; and it was submitted that earlier in his summing?up the Trial Judge had re?inforced his apparent view that the Accused's evidence ought to be disbelieved by dealing with two of these matters as established facts. The passage in question appears at p. 17 and is as follows:?

"Again you would ask yourself if he did not intend to harm his brother, he had fired at him, would he then reload having seen that his brother had been hit and had fallen down. You might think he must have meant that, because he ran after him and he said he didn't mean to shoot him according to Espinosa. According to the Accused himself, he ran up and asked his? brother if he was hurt. Well those points you would bear in mind, as I say, and the fact he put up a struggle when Espinosa tried to take away the gun from him, because the question of intent is most important in this case".

The defence stressed that the Trial Judge had failed to remind the jury that, according to Albert, Accused, after shooting, enquired whether he, Albert, could get up; and had also failed to remind them that, according to Espinosa, the Accused was carrying the gun with the barrel pointing downwards.

On the latter point it is to be noted that neither did the Trial Judge remind the jury of Espinosa's evidence as to how the Accused was holding the gun when he discharged it.

In Stoddart 2 C.A.R., 217 the Lord Chief Justice reading the judgment of the court, said at p. 246?

"It is no misdirection not to tell the jury everything that might have been told them".

In our view the matter of real importance raised under this ground of appeal is the suggestion of the Trial Judge that the Accused's evidence ought to be disbelieved simply because Espinosa had not been cross?examined on the three above mentioned matters.

Counsel maintained that it was not necessary to cross?examine directly on each of the points mentioned and that the whole trend of her cross?examination, particularly passages such as those suggesting that, because of poor light, witnesses could not have seen what they claimed to have witnessed, was sufficient to show that the prosecution version of the incident was being challenged.

This raises the question of counsel's manner and approach to his or her task. Some like to put explicitly each item on which it will be sought to contradict a witness. Others see a little advantage in putting again to a witness a point on which he has already expressed himself categorically and clearly. The essential aspect is of course that a witness should be given an opportunity of dealing with a matter where it is intended to call evidence that he might be in a position to contradict or explain. But where he has dealt with the point there can rarely be much advantage in merely asking him to re?assert it or to contradict himself.

In any event this is primarily a matter for counsel's judgment and discretion. Without knowledge of what has passed between counsel and client there can be danger in inviting a jury to disbelieve a witness merely because counsel has omitted to ask certain questions. Occasions may of course occur when it would be appropriate but this does not appear to have been one of them. We do not think the learned judge was justified in inviting the jury to disbelieve the Accused because of the course taken by counsel but, apart from that, we think the judge's comments did not exceed those appropriate to his function. Moreover in assessing the impact on the jury of the judge's observations it is to be noted that at the outset of the summation the jury were told that it was their function to make findings as to the facts in the case and they were not obliged to accept an opinion on fact from anyone, not not even the Trial Judge. "You are entirely free" they were told "... to reject any view that you may think I or anyone else holds and form your own independent view of the evidence".

Nevertheless, (as was pointed out in Broadhurst v. The Queen (1964) A.C. 441 at p. 464) a jury is likely to pay great attention to the opinions of the Trial Judge; and even in a case where a proper warning is given, an appellate court may still interfere if it considers them far stronger than facts warrant.

It remains for us to consider whether the above misdirection on fact led to a miscarriage of justice within the meaning of section 31 (1) of the Court of Appeal Ordinance 1967 (Ord. No. 18 of 1967) which in all material respects is the same as section 4 (1) of the Criminal Appeal Act, 1907, of England.

In Archbold, Criminal Pleading Evidence and Practice (38th Edition) para. 918, it is said that the test is whether it is reasonably probable that the jury would not have returned their verdict had there been no misdirection but it is open to question whether the cases to which reference is made entirely support this conclusion and it is probably wiser not to redefine the statutory requirement that we should intervene only if we think there has been a miscarriage of justice.

The issue before the jury was simple. It was conceded that the Accused had discharged the shot?gun. The prosecution alleged that he had pointed it at his brother Albert and discharged it with intent to wound Albert. The Accused denied any such intent, and said that he had fired the shot?gun at the ground with the intention of scaring Albert so that he would leave the Accused alone; and that the wounding of Albert was accidental.

The evidence that the Accused had attempted to re?load the shot?gun strongly supported the allegation that he intended to wound Albert, and so did the evidence that after Albert had said he wanted to try him the Accused had gone to his house and returned with the gun. The denial that the Accused had a struggle with Espinosa for the gun is not of great consequence, in our view, because the Accused had admitted having had a struggle for it, but with P.C. Gideon.

This, however, was not the only evidence in the case bearing on the question of the Accused's intention. According to the Doctor, whose evidence was undisputed, there were multiple gun shot injuries over the lower front half of both thighs. The position of the injuries is of consequence. The Doctor did not mention any injuries below knee level, nor any in the body above the thighs, nor indeed, any in the upper thighs. The absence of any injuries below knee level, in our view would clearly suggest the exclusion of any possibility of the pellets ricocheting off the ground before striking Albert Zelaya and consequent inconsistency with the Accused's story of firing into the ground; and the evidence that all the injuries were found in the area of the lower thighs and none higher up the body would, we, think, suggest to the jury that the gun was carefully aimed to wound Albert Zelaya, although, perhaps, not to cause injury of a dangerous kind.

We see no likelihood that a reasonable jury, properly directed, would have come to a conclusion on the first count different from that reached in the court below.

Consequently, in our opinion, there has been no miscarriage of justice within the meaning of the proviso to section 31(l) of the Court of Appeal Ordinance, 1967, of this country, which we are prepared to apply in the present case.

There is, therefore, no ground for quashing the conviction on the first count. The appeal against conviction on that count is accordingly dismissed and the conviction on it affirmed.

We turn now to the application for leave to appeal against the sentence on the first count.

The offence under section 77(b) of the Criminal Code of which the Accused was convicted is punishable with a maximum penalty of ten years imprisonment with hard labour.

A shot?gun is a terrible instrument with which to wound another person, and we were informed that Albert Zelaya is still walking with a limp and using a crutch.

In awarding such a light sentence as two years imprisonment with hard labour for this offence the Trial Judge no doubt took into account the Accused's good record and the fact that he was being pestered by his brother, Albert. We see no reason for disturbing that sentence.

The application for leave to appeal against sentence on the first count is accordingly dismissed and the sentence of two years imprisonment with hard labour on that count is hereby affirmed.

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