Appeal against convictions and sentences of 12 years each and 2 years imposed for two counts of attempted murder and one count of "disturbance of court" respectively ? appropriate direction given on intention to kill ? defence of insanity ? even if judge misdirected the jury, jury would have come to the same conclusion ? defence of diminished responsibility ? not available to persons charged with attempted murder ? appeal against conviction dismissed ? appeal against sentence allowed ? sentences on counts of attempted murder both reduced to ten years each.

J U D G M E N T

The Appellant, Charles Good, was convicted in the Supreme Court on two counts of attempted murder contrary to section 103 of the Criminal Code and on another count of "disturbance in court" contrary to section 271 of the Code. On the first count he was charged with attempting to murder Olive Arnold, and in the third count with attempting to murder Yakub Gaznabbi, the magistrate for Belize Judicial District.

The Appellant and Olive Arnold lived together from 1974 to 1981 and had three children. They separated in 1981. In 1983 she commenced proceedings in the magistrate court against the appellant, claiming maintenance for the children. An order was made requiring the Appellant to pay $180 a month. The payments fell into arrear. Olive Arnold claimed $270 arrears which the Appellant paid in September 1984. He then took out a summons against her which was set down for hearing on 24 October 1984 and the matter came before the magistrate, Yakub Gaznabbi on that morning. Both Olive Arnold and the Appellant were present in court. Olive Arnold's counsel was not present and she asked for an adjournment to another date. This was opposed by the Appellant's counsel. The magistrate asked P.C. Domingo to set the matter down for another date.

At that stage, according to Olive Arnold, the Appellant stood up and pointed a gun at the magistrate and fired two shots.

Olive Arnold said she threw herself on the floor and then ran for the door, followed by the Appellant who shot her in her right hip. She continued to run: she fell down; covered her face with her hands: the Appellant fired another shot which severed the tip of her finger: she was assisted by police officers and taken to hospital where she remained for eight days. She still has a bullet embedded in her hip.

When the first shot was fired the magistrate Yakub Gaznabbi was sitting on the bench. He said that as he was about to fix a date for the adjournment of the case, the Appellant suddenly sprang up out of his chair in the court room causing it to tumble over, fumbled in his pocket: pulled out a gun and pointed it in the direction of the magistrate. The magistrate said he ducked, heard two shots fired and "dropped to the floor as if dead". He remained there for a few minutes, then moved and hid behind a partition for half an hour. From measurements taken later the shots were fired from a distance of 13 feet and one bullet hole was 2 or 3 inches below the top of the magistrate's desk.

P.C. Domingo confirmed the evidence of both Olive Arnold and Yakub Gaznabbi, the magistrate.

Inspector Alvan Rowland received a telephone call about 11 a.m. and went to the court room where on inspection he saw a bullet hole in the top of the magistrate's desk and another bullet hole in the wall above the magistrate's desk and another hole in the window. The same day, in the afternoon, the Inspector saw the Appellant in Matron Roberts Street and after speaking to him, the appellant handed the inspector a .38 revolver (a Smith & Wesson special) with five live rounds in the chamber.

About 11 a.m. on the morning of the shooting, according to Valerie Richardson, an employee at the offices of the Amandala newspaper, the Appellant entered her office and told her he had just killed two people, the magistrate and a lady in the magistrate's court: that the lady had taken him to court eight times and he didn't have justice. As he spoke he took a gun from his pocket and showed it to her, saying "that was the gun" . This evidence was confirmed by Celia Zetina another employee who was also present at the time.

At the close of the case for the prosecution, the Appellant neither gave evidence on oath nor did he make a statement from the dock.

The only witness for the defence was Doctor Oswald Marin, a pyschiatrist. He first examined the Appellant on 23rd November, who told the doctor "when he was in court he was shooting" and he wanted to know what to know what was wrong with him because he also had black-outs, and especially mentioned a black-out on 21 September when he was taken to hospital and x-rayed. Asked why he did the shooting he said he didn't know but maybe it was because of problems of maintenance. He saw the doctor on 3rd December. In the meantime the doctor had obtained the X-rays of 21 September, but they showed no sign of fracture. He sought the additional opinion of a neorologist in Guatemala and following that consultation he decided the Appellant was not normal, his brain was damaged and his behaviour psychotic. The brain damage the doctor thought could have been caused to the brain when boxing or by soldiers fighting. The Appellant at one time was a boxer and he was also a police officer, and an officer in the Defence Force.

The doctor also said the Appellant in a sudden outburst would not know what he was doing and at that time "his mental state would not be sane". He concluded the Appellant had disease of the mind.

The Appellant was found guilty of the attempted murder of Olive Arnold, the attempted murder of the magistrate, Yakub Gaznabbi and the offence of disturbance of court for which he was sentenced to 12 years, 12 years and 2 years respectively to run concurrently. He appeals against both conviction and sentence.

The Appellant complained in the first ground of his grounds of appeal that the learned trrial judge failed to put the defence adequately to the jury in that in particular, the issue of an intent to kill on the charges of attempted murder were not properly put to them. In support of this contention learned Counsel for the Appellant drew attention to various passages in the summing up at p. 46 line 5 to 16 page 50 line 25 to 28, page 51, line 7 to 15, page 49 line 10-13 page 52 line 30 to 31 and page 53 line 19 to 24. The basis of his argument was firstly that the Chief Justice only directed the jury on the actus reas of the offence; that he misdirected the jury as to the mens rea required; that at p. 51 he applied an objective test, which, it was submitted, was clearly wrong in law and lastly that he failed to give a clear direction to the jury that even if they accepted all the facts they must also be satisfied that the Appellant had a specific intent to cause death.

The various passages on which counsel relied were set out in his grounds of appeal. It is to be remembered that such passages are to be read in the context of the summing up as a whole. The Chief Justice early in his summing up directed the jury on the definition of murder saying (at p. 45/46):-

"I tell you that a person commits murder if he intentionally causes the death of another person by any unlawful harm. And to establish murder the prosecution would have had to establish the death of someone as a result of harm caused by the accused unlawfully and with intention to kill."

Then followed the first passage of which the Appellant complains. There the Chief Justice set out to distinguish an attempt to commit a crime from mere preparation. This extract of the summing up is to be read with the definition of murder already given to the jury and not in osolation. So read there is a clear explanation of what is an attempt to murder in law.

Then the Chief Justice directed the jury on grievous harm which was the subject of the second count of the indictment and alternative to the first count charging the attempted murder of Olive Arnold.

At P. 50 he directed the jury on the third count, of the attempted murder of the magistrare and said:

"You also have to decide whether at the time there was an intent to kill"

and went on to explain that the proof of the Appellant's intention was to be gathered by drawing inferences from all the circumstances and one of the factors to be borne in mind was:

"The natural and probable consequence of shooting a person at close range is that he would be injured and die and that was one factor that you consider in the light of all other circumstances put to you."

Counsel criticised the passage on page 50 which read:

(p. 50 line 25 to 28) "Is there any evidence that aiming and firing at Mr. Gaznabbi can be regarded as having any purpose other than inflicting harm on him from which he would die."

and p. 52 line 2 to 6:

"Again you ask yourselves whether you have any doubt that shooting at Miss Arnold in the circumstances as outlined to you can be regarded as having any purpose other than inflicting harm on her from which she would die".

Counsel submitted that in both these passages from the summing up, the Chief Justice misdirected the jury. It appears to us that if A has a purpose to inflict harm on B from which he would die that is another way of saying A intends to kill B. The way the Chief Justice thus expressed it to the jury was one which they would easily understand, and was not a misdirection. There were several occasions dduring the summing up when the Chief Justice stressed the need for the prosecution to prove beyond reasonable doubt that the Appellant had an intention to kill.

The next complaint was that the Chief Justice had applied an objective test which was clearly wroong in law.

The learned judge's direction was:

"Some acts are themselves so dangerous that a man of reasonable prudence would perceive that certain consequences would flow or are likely to flow from doing those acts. The natural and probable consequence of shooting a person at close range is that he would be injured and die and that is one factor you consider in the light of all the other circumstances put to you."

and he continued his summing up as follows:-

"So you consider the firing at Mr. Gaznabbi and all other circumstances and decide whether the inferences you draw point in the direction that the accused intended to kill Mr. Gaznabbi. If you feel sure that he intended to kill you can so conclude and the element would then be established. Having found the other elements establsihed then the offence of attempted murder would have been proved. But if you are left in reasonable doubt as to whether he had an intent to kill then this element of intent would not be established and the accused could not be found guilty of attempted murder."

As to the first sentence of this extract from the Chief Justice's summing up had it stood on its own, it might then have been argued that the Chief Justice was indicating to the jury an objective test. But what the Chief Justice was stressing in the context of this part of his summing up was that the natural consequence of firing a gun at close range was to cause death and if the jury so found they could infer that he had formed an intention to kill. That would have been a subjective test.

The background of the evidence on which this direction was based was that the Appellant fired from a range of 13 feet and the bullet hit the desk, where the magistrate was sitting, two or three inches below the top. Had the trajectory of the bullet been a few inches higher it could have hit the magistrate had he not dropped to the floor when he saw the Appellant aim the gun at him. In those circumstance an inference could be drawn of the Appellant's intention to kill the magistrate and this is what the Chief Justice was asking the jury to consider and to decide whether or not that had been proved beyond reasonable doubt.

We do not find that in putting the matter to the jury in the way that he did the did the Chief Justice misdirected them.

The last complaint in the first ground of appeal was in more general terms. Three short extracts from the summing up were quoted relating to the evidence presented by the prosecution containing comments by the Chief Justice to the effect that there should be no difficulty in accepting the evidence for the prosecution since it had not really been challenged. This ground again complains of the Chief Justice's alleged lack of clarity in directing the jury that even if they accepted as facts the evidence for the prosecution they must also be satisfied as to the intent to cause death. This question of an intent to kill has been raised by counsel for the Appellant in the earlier complaints in the first ground of appeal which this Court finds to be unfounded. The Chief Justice, as has already been indicated, gave the jury full direction on this question of intent to kill. His expression "there is really no challenge to the prosecution's case" means no more than the fact that there were several eye witnesses who have evidence of what happened in the courtroom that morning and there had been no evidence tendered by the defence to rebut that evidence. We find no substance in the complaint on this ground.

The complaint in the second ground of appeal was that the Chief Justice in his summing up failed to put the defence of insanity to the jury adequately and fairly; and that he also misdirected the jury by saying "that there was no medical evidence about the mental condition of the accused on 24th October the day of the incident, In support of this ground of appeal counsel relied on these two passages in the summing up:-

at p. 58 line 28 to p. 59 line 5:-

"Firstly let me remind you ….. that you have to decide whether the accused Charles Good was insane at the time of the shooting that is on 24th October… with that in mind you will note the doctor's evidence that it was some time after 3rd December that he decided and formed his opinion that the accused had a disease of the mind. Secondly…… this doctor tells you he was unable to tell you anything about the mental condition of the accused on 24th October. He was unable to tell you anything about the mental history of the accussed."

and at p. 60 line 19 to 22:-

"I think above all you bear in mind the most important answer I think from the doctor in realtion to this issue, that he can't tell you anything about the accused's mental condition in October of last year."

Before he came to this stage of summing up the Chief Justice had correctly explained what in law constitutes insanity; where the onus of proof of insanity rested, that is on the defence on a balance of probabilities; and that it was a question of fact for the jury to decide. He drew the attention of the jury to the additional evidence, apart from Dr. Marin's testimony, upon which the defence relied- the evidence of Olive Arnold that the Appellant had beaten her up when they were living together and other incidents of violent behaviour by him at that time: also what happened when the Appellant visited the offices of th Amandala newspaper on 24th October after the shooting as described by Valerie Richardson and Celia Zetina.

The Chief Justice took the jury carefully through the evidence of Dr, Martin regarding his examination of the Appellant on 23rd November; his consultation with an unnamed neurologist from Guatemala; his further examination of the Appellant on 3rd December and his ultimate opinion that the Appellant was suffering from a disease of the mind. The Chief Justice reminded the jury that whether or not the Appellant was insane at the time of the shooting on 24th October was a matter for them to decide and they "were not bound by anybody's opinion, be it a doctor, judge or otherwise."

In his submission counsel criticised the apparent failure of the Chief Justice to deal with the evidence of Dr. Marin which related to a period before 24th October. Counsel had in mind the Appellant's blackout in September when he was put into hospital and x-rays were taken; that in the doctor's opinion after the examination of the Appellant or 3rd December he was suffering from a cortical disfucntion of the mind which could have resulted from brain damage suffered at birth, or caused by blows to the brain by boxing or soldiers fighting. Counsel drew our attention to the facts that the Appellant was once a boxer and had a distinguished career in the Police Force and the Defence Force of Belize.

It is apparent that Dr. Marin, to the extent indicated above did give some consideration to the Appellant's mental symptoms before 24th October. But as 23rd November when the Appellant consulted him the doctor was unable to come to a conclusion as to the Appellant's mental condition as he appeared to be normal on that day. Again according to the doctor he appeared to be normal on 3rd December. It was only after consulting the unnamed neurologist in Guatemala that Dr. Martiin formed in opinion that the Appellant had disease of the mind. In reaching that conclusion it appears that Dr. Marin may have been influenced in his opinion by what the neurologist told him. However the neurologist's identity is unknown and no weight could be given to any opinion he may have expressed to Dr. Martin.

It is by no means clear from the transcript of the evidence whether the doctor's opinion that the Appellant was suffering from a disease of the mind relates to the time of his examination of the Appellant or to the time the offences are alleged to have been committed. If it relates to the time of examination the directions of the Chief Justice are accurate. If it relates to the time the offences are alleged to have been committed there was a misdirection of fact by the Chief Justice. However having regard to all the evidence including the evidence as to what the Appellant said to Valerie Richardson and Celia Zetina it is highly improbable that the jury would have come to a different conclusion on the issue of insanity even with an accurate direction.

The third ground of appeal complained that the Chief Justice failed to put to the jury the partial defence of diminished responsibility.

The defence of diminished responsibility was first enacted in the English Homicide Act 1957 Sec. 2 and a similar provision is now included as section 115 of our Criminal Code, Ch. 84. Whether this defence is available to a person charged with attempted murder is doubtful. Ir has been held that provocation is not a defence to a charge of attempted murder (Bruzas (1972) Criminal L.R. 367 and in the view if the learned authors of Crimianl Law by Smith Hogan (3rd Ed.p. 208) "if this is right, diminished responsibility and suicide pact are a fortior, not defences to attempted murder, being statutory offences.

In any event the defence of diminished responsibility was not raised by the Appellant at his trial such as to require the Chief Justice to direct the jury on thr trial such as to require the Chief Justice to direct the jury on the point, and the medical evidence did not warrant such a direction.

For these reasons we would dismiss the appeal against conviction.

Lastly there is the application for leave to appeal to appeal against sentence; the concurrent sentences imposes totalled 12 years . The learned Chief Justice before sentencing set out his reasons for sentence at some length. The offences of attempted murder were aggravated in the sense that they were committed on the courtroom while the magistrate in public session was sitting to hear civil matters. The Chief Justice quite properly considered he had a duty in imposing sentence not only to punish but to deter others and at the same time have due regard to the good reports of the Commissioner of Police and Major Greenwood the Appellant's commanding officer in the Belize Defence Force. We consider that the sentence of 12 years imprisonemnt was appropriate to the circumstances of the present case before considering a reduction for previous good conduct for which some allowance by reduction of sentence from 12 years might have been made. In all the circumstances we think such a reduction of two years may be appropriate. We would therefore reduce the overall sentence by two years, substituting 10 years imprisonment as the sentences for each attempted murder to run concurrently.

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