Court of Appeal
Criminal Appeal No. 3 of 1987
16th June, 1987
SIR JAMES A. SMITH P.
SIR ALBERT L. STAINE J.A.

Mr. G. Quallo for the Appellant
Mr. F. Lumor for the Respondent

Appeal against conviction and application for leave to appeal against sentence of 9 months imprisonment imposed for causing dangerous harm - Alleged misdirection on self defence - Failure of judge to direct jury that onus on Prosecution to negative self defence - Complaint that judge deprecated appellant's defence by his comments - Judge entitled to comment and make his own views on the evidence - Judge made it clear to jury that burden of proof lay on Crown generally and in relation to self defence and that questions of fact were for them to decide - No miscarriage of justice - Sentence not manifestly excessive in circumstances - Appeal against conviction dismissed and application for leave to appeal against sentence refused.

J U D G M E N T

The Appellant was charged with intentionally and unlawfully causing dangerous harm to one John Sweet. He was convicted of unlawful wounding and sentenced to 9 months imprisonment. This is an appeal against his conviction and sentence.

On the night of the incident giving rise to the charge John Sweet was one of a group of soldiers in civilian dress drinking in The Grotto bar in San Ignacio. His evidence is that while he was waiting in one of the two queues at the bar to buy a drink a man not in either queue attempted to reach the bar ahead of him. When told to wait the man knocked his glasses off. He could not say whether this man was the Appellant. About an hour later three men approached the bar, he felt a jab from one of them and 2 or 3 minutes later he realised that he had been stabbed. It was too dark for him to recognize the man who stabbed him. He was taken to Airport Camp in Belize City where Major Milner operated on him and removed his spleen. According to Major Milner the stab wound was serious. It penetrated the spleen, stomach and and but for emergency treatment may well have proved fatal.

The evidence of Trooper Abbotts is that after telling him four or five times to wait his turn he punched the man who had been trying to reach the bar out of turn. The man left but returned some 5 or 10 minutes later "with 10 coloured guys". He again left when Trooper Abbotts approached him. Trooper Abbotts followed him outside the bar and, when he disappeared, was about to return to the bar when Cpl. Sweet emerged. He and others took Sweet to the Camp in a taxi but before doing so he saw a policeman examining a knife which was in the policeman's hands. He was not present and did not know when Sweet was stabbed.

The evidence of Jose Garcia is that the Appellant handed him a knife outside the bar and said "I have jucked him already".

Dennis Ogaldez, a Police Officer, stated that he saw the Appellant with a knife and asked the accused to give it to him, but the Appellant handed it to Jose Garcia who in turn handed it to him.

The Appellant who was a Police Officer at the time gave two statements to the Police. In the first he indicated that the complainant had first patted his girl friend on the buttocks, cursed him when he remonstrated and finally when he tried to get a drink from the bar punched him in the face while two other soldiers held him. He managed to escape went home and returned with a knife. When he returned the soldiers started to laugh at him and tease him and he then stabbed the complainant. In the second statement he confirmed the first except that he said that he had the knife with him from the outset and went to the bathroom to take it out. He also mentioned that he was under the influence of alcohol and did not know quite well what he was doing.

At the trial the Appellant made an unsworn statement, in the course of which he said -

"When I took out my money to pay one of the soldiers held me by the hands and Lance Cpl. Sweet hit me over the face. Seven of them held me and began beating me. The doorman who sells tickets came and parted us and I managed to get away. As I was trying to leave the British soldiers rushed behind me so I ran into the bathroom and they went in there behind me. I slipped out of the bathroom without they seeing me and tried to make my way out of the disco. They held me there and began beating me again, so I took a knife I had, and used it which was the only way, I had to get away from them."

At the end of the statement he said,

"I say I did stab a soldier but I did it in self defence because if I did not stab that soldier I would not have been able to come out of that disco."

The sole ground of appeal argued before us was that the jury was misdirected in regard to the defence of self defence in that the learned trial judge did not direct the jury that the defence of self defence only fails if the prosecution has proved that what the defendant did (i.e. the stabbing) was not by way of self defence. In support of this ground of appeal counsel referred to the following passage in the summing up:

"Consider by all means the accused's statement from the dock with all its limitations and then ask yourself, was he acting in self defence? Do you believe he was acting in self defence? He did not swear he was acting in self defence. Did the Prosecution discharge the burden that there was no self defence at all considering all the circumstances you have heard? You must decide on that. You must decide also whether you believe that he brought it, the knife, from his house. You might think that the accused had plenty of opportunity to desist, to give up the struggle and leave the disco altogether. You must ask yourself whether the fight was at the very most a scuffle, where there was the use of moderate force, and you must ask yourself whether going home to fetch a knife, or even having a knife at the same time, is or can be used to justify self defence. You might think that yes, perhaps, but he had exceeded that right of self defence, in which event he will be guilty of the crime charged. Members of the Jury, the accused in the dock is a Police Constable in the regular force. These people receive some training and ample instructions in the elements of criminal law and procedure. He is supposed to know his rights. He is supposed to know the rights of the citizen and he must therefore know his own rights. If he stabbed in self defence one would have expected him to go directly to the Police Station himself that same night and tell his superiors he was acting in self defence. This defence of self defence came about nine months after the event. Nine months afterwards he says I am defending myself."

Counsel submitted that it was not enough for the learned trial judge to leave it to the jury to say whether the prosecution had discharged the burden to negative self defence. Furthermore, he submitted, the learned trial judge had simply deprecated the defence of self defence which was not merely raised by the Appellant's unsworn statement but to a certain extent supported by the evidence of Trooper Abbotts who admitted that there was a fight, admitted hitting the Appellant in the face and admitted chasing the Appellant.

In his summing up the learned trial judge adopted the pattern of giving general directions on the law to the Jury, in the course of which he directed them on the burden and standard of proof and the respective functions of Judge and Jury. He then reviewed the evidence, commenting on it, and having dealt with the question of intention to cause dangerous harm, gave directions on the alternative verdict open to the Jury. A trial judge is entitled to comment on, and make his own views known in relation to, evidence provided he makes it clear to the jury that his views are subject to theirs and that they are not obliged to accept or act on any observations he may make in relation to the facts. If the judge chooses to project his own view it is also important for him to ensure that he does not, having regard to its contents as a whole, fail to present a balanced and fair summing up to the jury.

There can be little doubt that in the passage about which complaint is made the learned trial judge was communicating his own views to the jury in relation to the question of self defence. Similarly in a passage shortly before that about which complaint is made the learned trial judge said -

"Here there was no killing but the accused in his third statement from the dock says he stabbed the soldier in self defence because if he had not stabbed that soldier he would not have been able to get away from the disco alive. On this statement the accused could not be cross examined. The law gives him the right to make a statement from the dock but without the opportunity of seeing him, without the opportunity of cross examination, you might consider what he says to be not of very much value, but by all means bear it in mind within the context of the whole of the evidence that you heard. I repeat the burden of proof is on the Prosecution to negative the assertion of self defence and the accused himself bears no onus."

Again he made clear his own views as to the weight to be attached to the Appellant's unsworn statement. Nevertheless earlier in his summing up he had reminded the jury in detail of the contents of that statement albeit in the context of comparing it with the statement given to the Police. He more than once made it clear to the jury that the burden of proof lay on the Crown, not only generally, but in relation to the issue of self defence, and that questions of fact were for them to decide. In the circumstances it must have been clear to the jury that they could not convict the Appellant unless on the evidence they felt sure that the Appellant did not act in self defence. It would perhaps have been preferable for the learned trial judge to give the jury specific directions as to the principles of law applicable to self defence, but those principles could be ascertained from the passage about which complaint is made. Viewing the summing up as a whole we cannot say that there has been a miscarriage of justice.

In so far as the sentence is concerned, the Appellant was a police officer with no previous convictions. He is a young man and on any view of the evidence he was provoked and did not initiate the violence which occurred. On the other hand the wound inflicted was a potentially fatal one. In all the circumstances we cannot say that a sentence of 9 months imprisonment is manifestly excessive.

The appeal against conviction is therefore dismissed and the application for leave to appeal against sentence refused.

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