Court of Appeal
Criminal Appeal No. 5 of 1998
28th June, 1999
THE HON. KENNETH GEORGE, P
THE HON. NICHOLAS J.0. LIVERPOOL, J.A.
THE HON. ELLIOTT D. MOTTLEY, J.A.

Mr. K. Anderson for Appellant
Mr. A. Lucas Sr., Director of Public Prosecutions for Respondent

Court of Appeal - Appeal against manslaughter - Whether trial judge erred in leaving the issue of manslaughter to the jury for their consideration - Section 114 of the Indictable Procedure Act - Degree of mens rea - Culpable homicide - R v Baxter (1913) 9 Cr. R. 60 - DPP v Nasralla (1967) 2 All E.R. 161 - Once the fact of killing established, presumption is that it is murder unless the jury finds it to be manslaughter or accident.

J U D G M E N T

The Appellant who was indicted for the murder of Marcus Melendez on the 28th March 1995 was found guilty of manslaughter and sentenced to eighteen years imprisonment follow on the term of imprisonment that he was then serving.

The facts of this case are uncomplicated. The Appellant and four others were prisoners serving long terms of imprisonment at the Hattieville Detention Centre. They were all confined in a cell - Cell No. 41 - in the maximum security wing of the prison. The cell had one door and one window, both of which were constructed of iron bars placed at intervals. Beds were not provided for the inmates. They slept on a sheet that was spread on the floor and apparently each was provided with a covering. About 2:30 in the morning of the 28th March, 1995 whilst prison officer Neal was making his rounds of the block of cells of which cell 41 formed a part, he shone his torch into the cell. He saw four bodies lying on the floor when he knew there should have been five. This aroused his suspicion. A more careful examination of the cell revealed the fifth inmate hanging by the neck by a piece of cloth that was attached to one of the bars which formed the only window of the cell. He kicked on the door to awaken the other inmates and raised an alarm. Other members of the prison staff arrived and the cell door, which was locked, was opened and the man who was hanging, Marcus Melendez, was examined and pronounced dead. The evidence of the happenings which led to his death was given by one of the cellmates Michael Lizama. He said that two weeks before the incident the cell had three occupants, viz., he, the deceased and Fernando Elijio. It was then that Julian Bush and the Appellant joined them. The immediate motive for the murder is somewhat obscure, as for some inexplicable reason the trial judge excluded conversations among the inmates that had taken place earlier in the night. It would appear, however, that Bush had expressed his disgust and abhorrence for police informers and there was some suggestion that the deceased fell into that category of person. But, be that as it may, about 2 a.m. on the 28th March, 1995, whilst Bush and the deceased, who was a smaller person, were standing the former went behind him and began to choke him and he called the Appellant to cover the deceased's head with one of the coverings. This he did. Bush then choked him into unconsciousness and the deceased fell face downward on the floor of the cell with Bush over him. Bush placed his head on the deceased's chest and remarked that he was still breathing. He lifted the upper portion of his body and resumed the choking. He also asked the Appellant to strip a portion of one of the coverings. This he did and handed the strip to Bush. Bush tied one end to the deceased's neck and enlisted the Appellant's help to take the deceased's inert body towards the iron barred window at the back of the cell. He assisted in holding the deceased's feet while Bush held him around his shoulders. They lifted the body and Bush tied the loose portion of the strip to one of the bars thereby leaving the deceased's body dangling a few inches from the floor of the cell. It was in this position that prison officer Neal found him some fifteen minutes later. In the meanwhile Bush had counsel his fellow inmates that they should all say that they were asleep and did not know how the deceased came to be hanging. Thereafter they all lay down and when the prison officer 'awakened' them, they all said that they were asleep and did not know how the deceased came to his death. However, some three days or four days later Lizama recanted. In cross-examination he agreed that the police had promised him a reduction in his sentence and to relocate him to a medium security part of the prison if he told them the truth and that this was part of his reason for telling them what he knew. The other inmate of the cell testified that it was the deceased Bush alone who killed Melendez and that the Appellant played no part. He was deemed a hostile witness and his statement to the police in which he had stated that both the Appellant and Bush had committed the act was put to him. He insisted that he never told this to the police.

In his defence, which took the form of a statement from the dock, the Appellant said that at all material times he was asleep and had no knowledge of how the deceased came by his death, i.e. whether he had committed suicide or had been murdered. He gave some explanation as to how the deceased may come by at least one of the injuries other than those directly related to the hanging. He said that about two and one half weeks before his death, i.e. on the 8th March, 1995, he had seen the deceased and the witness Michael Lizama attempt an escape from the prison by climbing a high fence. The deceased fell and bruised his face and other parts of his body. It would appear that the explanation was given in an attempt to explain the several injuries unrelated to the hanging that the pathologist, who had examined the deceased both at the cell on the morning of the 28th and on the 29th March 1995, had found. These included abrasions to the deceased's face, body and knees. But in addition to the fact that the pathologist found these injuries to be fresh, he found additional injuries such as dislocations to the left and right mandibles and contusions at the level of the fifth cervical and fourth dorsal in the region of the back and chest, as well as bruises to the neck which were unconnected with the hanging. There was also a contusion on the right side of the diaphragm. His evidence, if believed, would clearly negative any suggestion of suicide and tended to support Lizama's evidence as regards the assault to the deceased's person before the hanging.

In sum the prosecution case was that the two men were acting in concert to bring about Marcus Melendez's death by hanging; whilst the Appellant in his defence distanced himself from any implication in the hanging by asserting that he had been asleep at all material times. The learned trial judge's directions as to the law relating to the intent required for the offence of murder as well as the law relating to acting in concert were adequate and have not been challenged. The evidence of Lizama was that the acts of the two men formed one continuous behaviour pattern the effect of which was to inflict grievous bodily harm to the deceased which culminated in his death, or to kill him. Both the prosecution and the defence were ad idem on the issues to be determined by the jury, viz. either the Appellant was acting in concert with Julian Bush to murder the deceased, or he was asleep and had no part in the homicide. The issue of manslaughter did not arise. However, in his summing up to the jury the trial judge did leave that issue for their consideration. He said:

"Now members of the jury there is a section of the law that I must direct your attention to. It is the section 131 of our Indictable Procedure Act which states that, upon an indictment charging an accused person with murder, if the prosecution fails to prove that the accused person intentionally caused the death of the deceased, but the jury is satisfied that the accused person caused the death of the deceased by unlawful harm, the jury shall find the accused person not guilty or murder but guilty of manslaughter. This is an alternative verdict I must put to you for consideration. The one element that separates the crime of murder from that of manslaughter is that of intent. If you the jury are satisfied that the accused willingly participated in the death of Marcus Melendez but that at the time he did not intend that Marcus Melendez should be killed, then your duty is to find the accused guilty of manslaughter, not of murder, because in that case, you would not have found it proved that he intended to kill Melendez. Of course if you find that he did not participate then you will acquit him of everything, murder and manslaughter; if he did not participate.

And after reminding them of the burden on the prosecution, the learned judge continued:

"If you have reasonable doubt as to any of the ingredients of the charge of murder, however, your duty is to find him not guilty of murder, but if you entertain no doubt or reasonable doubt your duty is to find him guilty of murder; and if you find that he did participate in the act but that his intention was not to kill then of course your duty is to find him guilty of manslaughter."

The only ground of appeal argued by counsel centered on the above passages. He submitted firstly, that the case proceeded on the assumption that it was one of murder or nothing at all. Either the Appellant was particeps criminis with Julian Bush or he was asleep. And if the learned judge desired to raise manslaughter as an issue he should have followed the time honoured practice and intimated this to counsel and so obtain their views, and in any event, allow them an opportunity to address the jury in that regard if they thought fit. Secondly, and in any event, he contends, this was a case in which manslaughter did not arise and accordingly the trial judge erred in leaving that issue to the jury for their consideration. As regards the first complaint it is now conventional wisdom that where a judge is of the view that a certain issue arises on the evidence for which neither counsel contend he should direct their attention to it and invite their observations. (see R v Gregory Cr. App. R. 41; R v Lamb 59 Cr. App. R. 196). But counsel has in no way shown that the omission of the trial judge to do so has made the conviction unsafe or unsatisfactory. (see R v Oakwell (1978) 1 WLR 32). Therefore in my opinion in the circumstances of the present case, the omission of the trial judge could not be a sufficient ground on which to allow the appeal.

As regards the second complaint the first observation is that although the trial judge was in effect reciting the provisions of section 114 of the Indictable Procedure Act he omitted to direct them that before they could convict of manslaughter there must be evidence of an intention to cause some unlawful harm to the victim albeit not bodily serious harm. In other words there must be some degree of mens rea (see R v Church) (1965) 2 All ER.

But counsel for the Appellant contended and rightly so in my opinion, there was no evidence upon which the issue of death resulting from an unlawful act could have been left to the jury. The only possible way in which this could have been done was to truncate the incident as was done in Shoukatallie v R (1961) 3 All ER 996, and then if the Appellant believed that he was dead before they hung him and that he was merely assisting in hanging a dead man, then he would not be guilty of any offence unless his acts amounted to criminal negligence. But in this case, as counsel for the Appellant contends, that the homicide consisted of a series of acts which formed a continuous whole leading to the death of the victim and the intention to kill him should have been obvious to all who were present in the cell and witnessed what transpired. There was placing of the covering over his head, the choking by Bush, the body going limp in his hands and falling to the floor of the cell, the action of Bush in listening for signs of breathing from the inert body, his further attempts to strangle the deceased and the active assistance and participation of the Appellant in hanging him. In this regard the case of Thabo Meli v R (1904) 1 All ER 373 is very enlightening. The facts which are set out in the head note were as follows:

"The Appellants, in accordance with a preconceived plan, took a man to a hut, gave him beer, so that he was partially intoxicated and then struck him over the head. They then believing him to be dead, took his body and rolled it over a cliff, dressing it up to make it look like an accident. In fact the man was not then dead, it being established from evidence that the final cause of death was exposure when he was left unconscious at the foot of the cliff. On their trial for murder the Appellants contended that the two acts were separate acts, and that, while the first act was accompanied by mens rea it was not the cause of death but that the second act, while it was the cause of death, was not accompanied by mens rea, and that, therefore, they were not guilty of murder."

In rejecting this effort to divide what was in fact one continuous escapade Lord Reid who delivered the judgment of the Board, said at p. 374:

"The point of law that was raised in this case can be simply stated. It is said that two acts were done:- first the attack in the hut; and, secondly the placing of the body outside afterwards - and that these were separate acts. It is said that while the first act was accompanied by mens rea, it was not the cause of death; but that the second act, while it was the cause of death, was not accompanied by mens rea; and on that ground, it is said that the accused are not guilty of murder, though they may be guilty of culpable homicide. It is said that the mens rea necessary to establish murder is an intention to kill, and that there could be no intention to kill when the accused thought that the man was already dead, so their original intention to kill had ceased before they did the act which cause the man's death. It appears to their lordships impossible to divide up what was really one series of acts in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan, and as part of their plan; and it is much too refined a ground of judgment to say that, because they were under an apprehension at one stage and thought that guilty purpose had been achieved before, in fact, it was achieved therefore they are to escape the penalty of law."

A similar view was expressed in the case of R v Le Brun (1965) 2 All ER 672 where there was a separation of events that formed part of the same transaction. At p. 677 Lord Lane CJ said:

"It seems to us that where the application of force and the eventual act causing death are parts of the same sequence of events, the transaction, the fact that there is an appreciable interval of time between the two does not serve to exonerate the defendant from liability. That is certainly so where the Appellant's subsequent actions which caused death, after the initial blow are designed to conceal his commission of the original assault."

As I have said I agree with the conclusion of counsel that the evidence disclosed a series of events culminating with the death of Melendez and that the intention was to kill him, and that the Appellant was acting in concert with Julian Bush and was a principal in the first degree in the murder of Marcus Melendez. But counsel argues that as the prosecution evidence left no room for a conviction for manslaughter and as the Appellant was found not guilty of the only offence for which he could have been convicted, viz., murder, this court should now vacate his conviction and set him free. A similar argument was made in the case of R v Baxter (1913) 9 Cr. R. 60. That was a case in which the evidence led could have accommodated only two verdicts, murder or accidental killing. For some inexplicable reason the trial judge left manslaughter for the jury's consideration but gave them no definition except to tell them that provocation would reduce the offence to manslaughter but there was no evidence of provocation. The jury found the Appellant guilty of manslaughter. On appeal counsel contended, as in the present case, that as the prosecution evidence pointed to murder and there was no evidence to support the conviction of manslaughter the court should allow the appeal. In dismissing his appeal Darling J. said at p. 62:

"It is plain that as an advocate Mr. Marshall Hall might well complain of this. The jury might have thought that the deceased was a man of whom the world was well rid of, and so have sympathised with the Appellant, and Mr. Hall may have hoped for an acquittal which he ought not to have got. The question is whether there is any ground on which we can quash the conviction. Mr. Hall says there is no evidence that she fired the shot at all; we think there were plenty; what he said, the circumstances of Hall's death, the wounds and the bullet marks are all satisfactory evidence to show that it was her firing the pistol that killed him. Then what is the law- It is well settled that homicide is murder unless it is shewn to be something else. Once the fact of killing is established, the presumption is that it is murder unless the jury find it to be manslaughter or accident. They are bound, if there is doubt, to resolve it in favour of the prisoner. We must take it that the jury were satisfied that the Appellant killed the deceased: if they were wrong it was in giving the benefit of the doubt when she ought, by strict law to have established it by manslaughter. They found that Hall died of shots fired by her so it was at least manslaughter, for it was not excusable or justifiable; …"

In the present case on the evidence the jury had two options either to find the appellant guilty because he actively assisted in the killing of the deceased or to acquit him because he was asleep and therefore could not take part. By finding him guilty of manslaughter they were in effect rejecting his defence and holding that he was a participant and therefore guilty of homicide. The decision to find him guilty of manslaughter rather than of murder represents a classic case of a jury taking a soft option but its effect was that he was guilty of culpable homicide.

As far as I am aware the decision in Baxter's case has not been overruled. Indeed it was referred to with approval in the case of DPP v Nasralla (1967) 2 All ER 161 at p. 172. 1 would accordingly dismiss the appeal and confirm the sentence imposed.

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