Court of Appeal
Criminal Appeal No. 4 of 1978
22nd July, 1978
MICHAEL HOGAN, P.
CLIFFORD INNISS, J.A.
ALASTAIR BLAIR KERR, J.A.

Criminal Appeal against convictions for use of deadly means of harm contrary to section 77(c) of the Criminal Code and intentionally and unlawfully causing dangerous harm contrary to section 76 of the Criminal Code - Wrongful admission of evidence at a preliminary inquiry - whether it invalidates a committal - Section 30(1) of Indictable Procedure Act requiring that at a preliminary inquiry, the deposition of a doctor shall "if necessary" be taken - Whether provision mandatory, rendering non-compliance with it to nullify a committal, or only directory - Defence of intoxication Section 24(4) of the Criminal Code - Circumstances under which it is proper for trial judge to leave defence of intoxication for determination by jury - Challenges of committal proceedings before court sitting to try an indictment - Challenges to be entertained only in exceptional circumstances.

J U D G M E N T

The Appellant appeals against convictions before the Supreme Court on counts for Use of Deadly Means of Harm contrary to section 77 (c) of the Criminal Code and for Intentionally and Unlawfully causing dangerous harm to Joseph Riverol, contrary to section 76 of that Code.

The evidence at the trial was broadly as follows.

At about 2 a.m. on 4th July, 1976, there was an altercation in the San Martin Restaurant, Orange Walk, between the Appellant and Eldo Briceno on the one side, and Joseph Riverol and his close friend, George Wade, on the other. During the course of the dispute the Appellant, who had been urged by Briceno "to shoot", was alleged to have opened his shirt and shown Wade a revolver stuck in his pants. Wade then went outside and on to the upstairs verandah, but there ensued further words and some mutual pushing and shoving between the Appellant and Riverol who claimed to have then heard a gunshot in the restaurant, following which the Appellant and Briceno left through the back door.

Ten minutes later Riverol went out of the front door to where he was shot.

There were two eye?witnesses of this incident ? Wade, who was still on the upstairs verandah, and Riverol himself. Their testimony differed in a number of respect ? notably, as to the course taken by Riverol when he came out of the front door, what words, if any, were spoken, where Riverol was when he was shot, and where Briceno and Appellant were when the shot was fired. Both were agreed, however, that there was only one car parked right in front of the Restaurant, that Appellant and Briceno were by it, that they and Riverol were the only three persons outside the Restaurant in front of it except for Wade on the upstairs verandah, that Appellant held his right hand pointing in the direction of Riverol, that a flash came from his right hand and there was a report, and that Riverol was shot in his stomach. Neither witness, however, actually saw the firearm.

Dr. Tembe, to whom Riverol was taken for examination immediately after the shooting, said that there was a single gunshot wound, oval?shaped, clean?edged, about half an inch at its longest part, on the abdomen slightly to the left of the middle line. This was the only wound of entry and there was no exit wound. He could feel, however, two to three medium?sized pellets close together at the back of Riverol's body. In the Doctor's opinion, there was internal abdominal damage and Riverol's condition was dangerous: in the absence of medical treatment he would have died.

The Doctor's opinion as to the type of firearm which caused the wound and the presence of pellets in Riverol's body was inconsistent with the evidence of both Wade and Riverol as to what had occured, and also with the further evidence of Riverol that on his second operation at the Belize City Hospital, a bullet, not a pellet, was removed from his back and shown to him by the Doctor who removed it. This Doctor did not give evidence.

Dr. Tembe, however, frankly admitted that he had never had a case of a single bullet wound although he had read about them, that he was not conversant with firearms, and did not know the difference between a firearm which discharges a single bullet and one which discharges a number of pellets.

From suggestions made in cross?examination, Appellant's defence, or one leg of it, seemed to be justification, but he neither testified nor gave an unsworn statement from the dock, and these suggestions were unsupported by any evidence. The defence eventually appeared to boil down to a submission that Wade and Riverol had got together to concoct a story to explain the shooting of the latter and the jury should not accept it because they were close friends. In any event the unreliability of their evidence was underlined by the large number of differences between them.

There were, indeed, a large number of fairly substantial differences between them. These were, however, put to the jury at some length by Counsel for the Defence and also by the learned Trial Judge.

They are not the subject of any ground of appeal. The latter was confined to other matters and have been ably argued before us.

The first turns on the validity of the committal. It is alleged that this was illegal and irregular because the magistrate did not follow the requirements of the Indictable Procedure Ordinance, Chapter 22, and the Evidence Ordinance, Chapter 18, in the following matters.

(1) The examining magistrate did not, as required by s. 30 of the Indictable Procedure Ordinance, cause a doctor to examine Riverol.

(2) The examining magistrate, contrary to s. 36 (3) of Cap. 18, took into consideration the medico legal report of Dr. Tembe, which was tendered by a police witness, and did not ensure the taking of the Doctor's deposition as required by the said s. 30.

(3) The examining magistrate did not hear and consider the evidence of Gasper Ayuso from whom the prosecution had obtained a statement and whom they had intended to call at the preliminary inquiry but who failed to attend with the result that a bench warrant was issued for him.

It would seem that more than one answer could be made to the first two grounds of complaint and in the court below the learned Chief Justice rejected a similar submission on the ground that s. 30 was directed to a more archaic form of preliminary inquiry and had no relevance to the modern form where the investigation was primarily the responsibility of the police.

Before us this view has been attacked, primarily on the ground that the scheme of the Ordinance is a consistent whole which leaves no room for excisions of this kind.

We see no need to reach any concluded opinion on this aspect as we would approach the matter on a somewhat narrower front.

Counsel for the Appellant has accepted that the onus of showing a departure from the statute would rest on him, as he has alleged it, but he claimed that this onus had been discharged, as a perusal of the Preliminary Inquiry record disclosed no such request by the Magistrate. We have reservations, to which we will return, about this assumption that the Preliminary Inquiry records which form no part of the Supreme Court trial proceedings, should be persued in this way but, putting these reservations aside for the moment, we are not satisfied that the mere absence of a reference in the record of the Inquiry would displace the presumption of omnia praesumuntar rite esse acta. It would not, for example, displace the possibility of a standing request to the police to secure a medical examination in all such cases. Moreover, once the Magistrate was aware that an examination had been made and a report was available to him, we would not regard the omission, in these circumstances, of the consequently meaning ritual of requesting an examination which had already taken place as having any effect on the validity of the Inquiry. This view might indeed be justified by s. 32 (e) of the Ordinance, which authorises modification of the procedure by the Magistrate so long as he does not act inconsistently with the Ordinance. When the result contemplated by the Ordinance has been achieved, the acceptance of that fact can hardly be regarded as inconsistent. But, even apart from the section, we do not think the validity of the Inquiry could be impugned.

Similarly, in respect of the Magistrate's action in taking cognisance of Dr. Tembe's medico legal report, it is to be noted that s. 36 of Chapter 18 enables other reports, but not those of a doctor, to be so treated. The effect of the section as a whole is not, however, to impose a prohibition but to leave the magistrate without the specific enabling provisions contained in s. 36 (1). It might possibly be argued that this could again leave room for the operation of s. 32 (e) of Chapter 22, but, quite apart from that, it is well established that under the provisions in England, which do not apparently contain the relaxation provided by s. 36 (1) of Chapter 18, wrongful admission of evidence does not invalidate a committal. See R.v. Norfolk Quarter Sessions ex parte Brunson (1953) 1 A.E.R. 346, Halsbury's Laws of England (3r Ed.) Vol. 10, p. 362 and Archbold's 39th Ed. para. 359.

Counsel sought to meet this point by arguing that s. 36 was a procedural section which fell within the reservation expressed in Paley on Summary Convictions (10th Edition) p. 55, when the authors said:

"Provided that the specified procedure is followed by examining justices the reception of some inadmissible evidence would not vitiate the committal".

We see no reason, however, to differ from the view expressed by the learned Chief Justice in the court below that the section deals with the law of evidence and is not within the reservation. To hold otherwise would fly in the face of the Norfolk decision. This view is strengthened by the fact that section 36 does not add an additional prohibition to the law of evidence, but merely provides for a limited relaxation.

The next ground is again highly technical but somewhat more formidable. Section 30 (1) of Chapter 22 says the deposition of the doctor shall "if necessary be taken. It is of course questionable whether a deposition, prior to the trial, was necessary in this case where there was abundant evidence, quite apart from the doctor, that the victim had been shot and seriously injured; so it might well be that there was no departure from the section. But assuming there was such a departure, then we think that, unlike the circumstances in R . v. Gee and Others, 25 C.A.R. 198, it did not render the proceedings so defective as to vitiate the committal. The provision can well be regarded as directory rather than mandatory and the absence of a deposition is not shown to have caused prejudice or the danger of prejudice to anyone.

The last procedural objection rests on section 33 of Chapter 22 which requires the Examining Magistrate to take as evidence the written statements of the witnesses for the prosecution in accordance with the prescribed procedure and then, under the provisions of section 40, to consider "the whole of the evidence" at the close of the Inquiry.

The section seems to be directed more at the manner of taking the evidence than anything else but, quite apart from that, Counsel recognised that his argument depended on Ayuso falling within the expression "witness for the prosecution", which he contended Ayuso did, because the police had a written statement from Ayuso, had summoned him and had obtained a bench warrant when he did not attend. Mention was also made of the fact that he had given evidence at an earlier abortive Inquiry.

The short answer is that none of these things either taken singly or together made him a witness at the Inquiry in question. There may have been an intention, at one time, to call him as a witness but he did not assume that role at the second Inquiry.

The point is without merit and we turn to the second ground of appeal which is briefly a complaint that the judge did not leave to the jury a specific issue as to intoxication and its effect on the intent which the Appellant was alleged to have formed in respect of each charge.

In support of this complaint, Counsel referred to section 24 (4) of the Criminal Code, which reads as follows:

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

This, Counsel suggested, differed from the law in England where the leading case of D.P.P. v. Beard (1921) A.C. 479 propounded the view that it was only drunkenness, which rendered an accused incapable of forming the specific intent required for certain crimes, that had to be taken into account.

Both Counsel referred at length to Broadhurst v. The Queen (1964) A.C. 441, where the provision in Malta, which corresponds precisely with our section 24 (4), was under consideration. Lord Devlin, who delivered the opinion of the Privy Council, thought it unnecessary to explore whether there was any real difference between it and the British test because where, as in the Broadhurst case, there was no direct evidence as to the accused's state of mind, and intent had to be inferred from surrounding circumstances, only evidence as to being incapable of forming the necessary intent and nothing less could be considered. Counsel for the Appellant had reservations about the logical justification for the distinction and suggested that the judgment eventually resiled from it: a construction we find difficult to accept. Be that as it may, a similar position appears to prevail, as Counsel for the Crown submitted, in the instant case, where we have no direct evidence as to the Appellant's state of mind and very little as to what he had drunk. There is one brief reference in Wade's evidence when he said:

"I know that (Appellant) had been drinking but I would not say that he was drunk".

Apart from that, Counsel for the Appellant has made a valiant effort to extract from the references to the Appellant's behaviour, stance and conversation some facets which would suggest that the Appellant's faculties were affected by drink, but it was an uphill struggle that met with little success. As an example, we found difficulty in accepting Counsel's submission that we could extract from the fact that the Appellant was seen leaning over the back of a car outside the restaurant, before the shooting, an inference that the Appellant was unable to stand.

It is abundantly clear that the evidence of intoxication was negligible and fell far short of that in the Broadhurst case where the Privy Council thought intoxication could properly have been withdrawn from the jury.

Whilst we fully accept Counsel's contention that intoxication, if it exists, is a factor to be left to the jury to be considered with other matters when deliberating on intent, the question as to whether it existed need only be raised for consideration when there is material on which a conclusion could be based.

To use the words adopted in Phipson on Evidence, 11th Edition, para. 101, to which we have been referred, and also in R. v. Gill, 47 C.A.R. 166, 171, 172, material had not been placed before the court to make intoxication " a live issue fit and proper to be placed before the jury". Consequently, we think the judge was justified in refusing to ask the jury to consider it when drawing conclusions as to the intent of the accused. This ground of appeal cannot be sustained.

We may add that we have dealt at some length with the matters raised under the first ground of appeal, but we are by no means satisfied that the Appellant was entitled to raise them in the fashion adopted in either this Court or the court below.

The court sitting to try an indictment is not there to act in an appellate or revisory capacity in respect of the committal proceedings and there is much authority for the view that its power to go behind the indictment and explore how it came to be preferred are limited. Thus in R. v. London County Sessions ex parte Downes, 37 C.A.R. 148, a very strong Divisional Court said:

"The only ground on which the court can examine the depositions before arraignment is to see whether, if a count is included for which there has not been a committal, the deposition or examination taken before a justice in the presence of the accused discloses that offence".

In the same case, an indication is given of the very limited range of circumstances which can arrest arraignment and trial once an indictment is before the court and although these include a motion to quash, the judge's ruling in respect of the latter will be made upon the form and matter on the face of the indictment save in the one instance where there has been no committal for the offence charged and it is alleged not be disclosed by the depositions. See Archbold, 39th Ed. paras. 99A and 120, and R. v. Jones and others, 59 C.A.R. 120, 126.

The point has not been raised or argued before us and we make no finding in respect of it, but we mention these matters now lest the action of this Court and the lower court in overlooking these obstacles should be taken as a precedent in the future.

The appeal is dismissed.

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