Court of Appeal
Criminal Appeal No. 5 of 1990
8th February, 1990
KENNETH ST. L. HENRY P.
SIR DENIS E. G. MALONE J.A.
DR. NICHOLAS J.O. LIVERPOOL J.A.

Mr. B. S. Sampson for the Appellant
The Director of Public Prosecutions (Mr. F. Lumor) for the
Respondent

Appeal against convictions and sentences of 3 years imprisonment each imposed for dangerous harm and use of deadly means of harm - Section 78 of Criminal Code - intention required for offence of dangerous harm is the specific intention to cause dangerous harm - judge properly directed jury on intent vis-à-vis dangerous harm but not so vis-à-vis the specific intent required for the offence of use of deadly means of harm - conviction and sentence upheld for count of dangerous harm but appeal allowed against conviction and sentence for charge of use of deadly means of harm.

J U D G M E N T

The Appellant, a pastry maker and cook, runs a shop in the house at 4266 Central American Boulevard in Belize City where he also lives with his two daughters. On 28 February, 1989 he left the children in care of Gerald Hamilton and went to purchase materials to make pies. Before he left he gave the victim Glenford Morgan a bun and some juice. During his absence Glenford Morgan asked for and received two additional buns and some more juice from Gerald Hamilton. When the Appellant returned home and was told about the additional buns and juice he was angry. The victim accused him of being "chancey". He approached the victim with a knife, a fight ensued and the Appellant and the victim were parted with no visible injury to either party.

What happened thereafter is the subject of dispute. The result was, however, that the victim suffered extensive burns to the neck, back of the head in the region of the ear, both shoulders, frontal chest, a large part of the back and parts of both upper limbs. The Appellant's version of this incident according to his evidence on oath is that after the fight he was on his way to collect a spoon on the fire hearth in front of his front door when he saw the victim holding a "white big mouth bottle" which belonged to the Appellant. When he got close the victim dashed at him with the bottle and some of the contents of the bottle (gasoline) spilled on both of them. Another fight took place, and in the pushing which ensued from side to side in the area in which the fight was taking place, the victim's clothes caught fire when he got too close to the fire hearth. In the appellant's statement to the police on the day after the incident, however, he gave a slightly different version of the cause of the victim's burns; for in reference to the second fight he stated that after the contents of the bottle (gasoline) was spilled, the victim struck a match and his (the victim's) clothes caught ablaze.

The victim's version of what transpired after the first fight ended is that he was walking out of the Appellant's yard when he felt that some cold liquid had been thrown over his head and back. He started to run, the Appellant ran after him struck three or four matches, the last of which caught his clothes and set them on fire.

The Appellant was indicted on three counts. Attempted murder, contrary to section 103 of the Criminal Code; in the alternative, Intentionally and unlawfully causing dangerous harm, contrary to section 78 of the Code; and Use of deadly means with intent to cause dangerous harm, contrary to section 79(c) of the Code. At the trial he was acquitted on the first count, but convicted on the second and third counts and sentenced to three years imprisonment on each count to run concurrently. He appeals against his conviction and sentence.

The grounds of appeal relate solely to the directions given, or omitted, in the learned Judge's summing up. Ground I is based on the standard tests of intention and the directions to the jury (or lack of them) in that regard; Ground II states that the learned trial Judge failed adequately and fairly to put the case of the Defence to the jury (a) in that he misrepresented a statement by the accused, and (b) that the learned trial Judge suggested to the jury implicitly that they should imply guilt from the character of the accused; and Ground III, which was added at the hearing of the appeal. is based on the alleged failure of the learned trial Judge to leave the defence of self?defence to the jury.

The case for the Crown was in effect that the Appellant deliberately threw gasoline on the victim and lit a match which caused the victim's clothes to catch fire with the resultant injuries. The Appellant denied both allegations. He admitted, however, that in "blocking" an attempt by the victim to throw gasoline on the Appellant, the liquid fell on both their clothing; and also that in the course of the second fight he "shoved" the victim towards the fire hearth, and this was the cause of the victim's injuries. In our view the question of self?defence did not arise in the circumstances adumbrated by the Appellant and therefore the learned trial Judge cannot be faulted for failing to leave the defence of self?defence to the jury. In our view this ground of appeal fails.

Counsel for the Appellant pointed to several instances in which the learned trial Judge told the jury that the Appellant had "pushed", "dashed" or "shoved" the victim towards the fire hearth and urged that in putting this as strongly as he did, the learned trial Judge may have unduly influenced the jury's decision to return a verdict of guilty. The Appellant himself, in respect of his actions during the second fight, after both himself and the victim had had their clothing wet from gasoline, gave evidence of "dashing" and "shoving" the victim close to the fire hearth. The learned trial Judge merely repeated the Appellant's words, and consequently we find no substance in this ground of appeal.

We also do not agree that the learned trial judge implictly suggested to the jury that they should imply guilt from the Appellant's character. We agree with the submission of the Director of Public Prosecutions tht the learned trial Judge was merely adverting to the Appellant's behaviour to determine the circumstances of the Appellant's conduct at the time of the incident, and that in doing so he was not inviting the jury to take an adverse view of the Appellant. This ground of Appeal, in our view, also fails.

We turn now to what is the substantial ground of appeal in this case, namely, the failure of the learned trial Judge to direct the jury adequately on the law relating to intention in respect of both charges for which the Appellant was found guilty.

Section 78 of the Criminal Code states as follows:

"Every person who intentionally and unlawfully causes a maim or any dangerous harm to a person shall be liable to imprisonment ……".

In Alfonso Aguilar Aquino v The Queen, Criminal Appeal No. 6 of 1986, this Court referred to the cases of Roy Reuben Zelaya v. R., Criminal Appeal No. 2 of 1977, Absolom Neal Cowo v. R., Criminal Appeal No. 13 of 1977, and Irwin de Jesus Silva v. The Queen, Criminal Appeal No. 18 of 1983, which all point out rather forcefully that the specific intent to cause a maim or dangerous harm must be proved, and the Judge should point this out to the jury. The words appearing at page 3 of the judgment in Cowo's case bears repeating:

"It is the view of this court that the expression 'intentionally ….. causes any dangerous harm' in section 76 of the Code (now section 78) means with the intention of causing dangerous harm. In other words it should be accorded the meaning similar to which, we understand normally has been accorded to the expression 'intentionally caused the death of another' in section 110 of the code (now section 114) i.e. requiring an intention to cause death."

After quoting the provisions of section 78 of the Criminal Code, this court amplified this statement in Silva's case at page 4 in the following words:

"It is clear from that provision that an intention to cause dangerous harm is an essential ingredient of the offence.

To be guilty of that offence the offender must unlawfully cause dangerous harm. That means he must commit an unlawful act (i.e. without justification or lawful excuse) which results in dangerous harm, with the basic intention of committing that unlawful act. At the same time he must have the specific intention of causing dangerous harm or have no substantial doubt that his conduct would produce it; otherwise the word "intentionally" would be superfluous.

What the section is saying with regard to intention is: " Every person who intentionally ...... causes …… grievous harm to a person etc. …". Unless he intends grievous harm he cannot be guilty of that offence. One has only to compare the provision (truncated above) with the offence of murder i.e. "Every person who intentionally causes the death of another etc. ..." to demonstrate the point. No one would suggest that an intention to cause death is not an essential element of the offence of murder. The comparison demonstrates plainly that an intent to cause dangerous harm is a specific intention under section 78.

Sections 5 and 6 of the Criminal Code are also relevant to this question but need no further elaboration."

This Court also dealt in Aquino's case with the intent necessary to establish a charge of "using deadly means of harm" in the context of section 79(c) of the Criminal Code.

The Director of Public Prosecutions argued that although the learned trial Judge may not have complied strictly with the provisions of sections 5, 6, and 9 Criminal Code in his charge to the jury, the important question to be answered is: "Did the learned trial Judge by his directions make the jury aware that before they could convict on counts 2 and 3, they had to find that the Appellant had committed the offences with the requisite intention, namely, the intention to cause dangerous harm and the intent to use dangerous means of harm"? And he pointed to sections of the learned Judge's summing up in which he thought that this had been done in respect of the charge laid in the second count.

In our view the learned trial Judge dealt adequately with the question of intent in relation to the count of intentionally and unlawfully causing dangerous harm, although the same cannot be said in respect of the count of use of deadly means with intent to cause dangerous harm.
On the charge of dangerous harm the learned trial Judge pointed out to the jury what the ingredients of the charge were in these words:

"On the charge of dangerous harm the prosecution must prove the following ingredients. Dangerous harm is harm endangering life. The prosecution must prove that the accused unlawfully caused the dangerous harm which endangered life, that means he must commit an unlawful act, that is, an act without justification or lawful excuse which results in the dangerous harm and he did so with the basic intention of committing that unlawful act. At the same time he must have the specific intention of causing dangerous harm or have no substantial doubt that his conduct would cause that dangerous harm."

These words were used immediately after he had given them what is generally accepted to be an adequate description of intention in respect of the charge of attempted murder. He stated there:

"In determining a person's state of mind one is usually driven to reliance on inferences drawn from what the person did or said and all the surrounding circumstances but before you can draw an inference which is adverse to the accused person it must be the only reasonable inference to draw from proven facts. The facts must point irresistibly to the inference drawn if it is adverse to the accused person. I shall be dealing more with this intent as we go into the evidence."

In dealing with the evidence later the learned trial judge invited the jury to consider the conduct of the accused in relation to his intent. He said:

"And then you come to consider what he did after having dashed Morgan against the hearth and Morgan was on flames, on blaze, he took no steps whatsoever to try to put out the flames. He left Morgan in flames. If he did that you may consider that the accused was indifferent to what happened to Morgan. You will have to consider that particular aspect of the case when you are dealing with this question about intent."

And finally; he told the jury:

"In dealing with the charge of dangerous harm if you find that the accused was the one who deliberately without justification set fire to this man, to Morgan, with the intent to cause the dangerous harm then your duty is to bring him guilty on that charge."

In our view this was sufficient to bring home to the minds of the jury the question of intent in respect of the charge on the second count. We find, however, that in respect of the charge laid in the third count the learned trial Judge did not at the end of his summing?up as he did in relation to the two other charges, refer to the specific intent required to constitute that offence.

For these reasons we would allow the appeal against the conviction and sentence on the charge of use of deadly means of harm, but would uphold the conviction and sentence on the charge of intentionally and unlawfully causing dangerous harm. In view of the provisions of section 2 of Act 6 of 1984 we would omit the reference to "hard labour" in the Appellant's sentence.

---------- OO ----------