Court of Appeal
Criminal Appeal No. 6 of 1986
13th March, 1987
SIR JAMES SMITH P.
SIR ALBERT STAINE J.A.
KENNETH G. SMITH

Appeal against convictions for attempted murder, use of deadly means of harm and grievous harm - Standard of proof - Judge directing the jury that they must be "satisfied" and that they must be "sure", but not linking the two - Danger that jury may have thought that once they were "satisfied", though not necessarily "sure" they could find the accused guilty - Intention required to establish offence of attempted murder is the intention to kill - Reckless conduct does not arise - Section 92 of Criminal Code - Definition of grievous harm - Phrases not disjunctive - Each part of definition related to each other and should be read together - Firstly the offence of serious or permanent injury to health and secondly the lesser offence of the likelihood of such serious or permanent injury - appeal allowed - Convictions and sentences set aside - new trial ordered.

J U D G M E N T

The Appellant, Aquino was charged and convicted in the Supreme Court of the offences of attempted murder, use of deadly means of harm and grievous harm contrary to sections 103, 79(c) and 77 respectively of the Criminal Code and sentenced to imprisonment for terms of 7, 5, and 4 years to run concurrently. He has appealed against those convictions all of which arose out of the same incident. He has abandoned his appeal against sentence. It is to be observed that in this case the jury were asked, and did, bring in verdicts on each of the three counts. It is more usual and preferable to charge those offences in the alternative when they are all based on the same facts. (See the judgment of this Court in Criminal Appeal No.18 of l983, Irwin de Jesus Silva v. The Queen).

In the present case there was a single incident which occurred at Trial Farm, Orange Walk on 9th March 1986. According to the prosecution evidence Cristobal Palencia nicknamed "Colon" and his friend Carlos Larios were returning home about 7:30 p.m. and on reaching Cristobal's house, stood talking near a coconut tree in the yard when they heard a voice which each of them recognised as that of the appellant saying, according to Cristobal "Colon is not here" and according to Larios "where is Colon". Cristobal moved towards the fence and noticed the man was holding what appear to Colon to be a stick. It was dark with no lights in the area but it was a clear night. When Cristobal was within 3 yards of the appellant and on seeing the stick he turned back. A shot gun was fired; Cristobal was hit in the left shoulder and fell down. He heard three more shots. Larios had disappeared. Cristobal got up and went to his neighbour Carvaja who administered first aid and took Cristobal to hospital where he was x-rayed, the x-ray photo showing he had apparently "fractured the humerus and arm" (sic).

The incident was reported to the police, P.C. Castellanos went to the scene and found four empty 12 gauge cartridges smelling of fresh gunpowder near the fence of Cristobal's house and took possession of them.

On 12th March the appellant was arrested and made a recorded confession under caution to P.C. Castellanos admitting the shooting and saying he had handed the gun to one Rene to be sold. It appears the shotgun was purchased by the witness Linares and handed over by him to P.C. Castellanos who in turn handed the shotgun and two of the empty cartridge cases he had recovered from the scene to Cpl. Belisle, a ballistics expert, who after making tests declared that the cartridges from the gun.

In his summing up the trial judge read the appellant's statement to the jury and commented "So you get the connection of the gun through the accused's own mouth". However the learned judge did not draw the attention of the jury to section 89 of the Evidence Ordinance (Cap. 75) which reads:

"If an accused person, after having made any confession or admission that he had committed a crime or offence, pleads not guilty at his trial, he shall not be convicted on such confession or admission alone without such confirmatory evidence as the court thinks sufficient."

It will be observed a confession by an accused needs to be confirmed. This Court said Absolom Neal Cowo v. The Queen (Criminal Appeal No.13 of 1979 dated 20th February 1980) that section 89:

"clearly requires that the judge should warn the jury that they ought not to convict an accused person if the only evidence on which that conviction can be based is a confession. There must be confirmatory evidence."

and went on to explain what was "confirmatory evidence

The appellant's defence consisted of an unsworn statement from the dock in which he made no mention of his statement to the police. He called no witnesses.

The grounds of appeal argued by Mr. Sampson for the appellant fall into three groups. Grounds (i) and (ii) may be considered together as they are based on the standard of proof: grounds (iii) to (v) dealth with the "intent" required to be proved to establish each of the offences charged and ground (vi) turned on the meaning of "the kind of harm which is likely to injure health" as defined in Section 92 of the Criminal Code.

As to the standard of proof Mr. Sampson drew attention to the following passages of the summing up.

p. 19:- "The third thing I must tell you is this: you as ordinary men and women of this world must be sure, must be satisfied that the accused before you is guilty of the crimes or any one of them on which he has been indicted. If you are not sure or you are not satisfied then it is your' duty to give him or her the benefit of the doubt and return a verdict of not guilty".

p. 26:- "In this case death did not occur but although one shot hit Cristobal, nevertheless to convict of attempted murder you must be satisfied, you must be sure that death was the accused's intention."

p. 28:- "I will repeat just again that you have got to be sure, satisfied of this man's guilt, not in isolation but taking the whole evidence that you have heard."

Mr. Sampson submitted that the effect of these expressions was to indicate a double standard of proof, that the jury was being told they could convict if on the evidence as a whole they were either satisfied or sure of the guilt of the accused. Counsel relied on the decision in Hepworth & Fearnley v. The Queen (1955) 33 Cr. App. Re 152 where it was held that to tell the jury that they must be satisfied by the evidence so that they can feel sure that the prosecution has established the guilt of the prisoner is appropriate. But to tell the jury they must be satisfied with regard to the prisoner's guilt is insufficient.

The D.P.P. Mr. Singh drew attention to the words of Fenton Atkinson L.J. in R v Allan (1969) 1 All E.R. 91 at p.92:-"It has been said in cases a good many times-and it is not necessary to cite them - that merely to say that the jury must be "satisfied" without any clear indication of the degree of satisfaction required is an inadequate direction. But equally it has been said a good many times that it is not a matter of some precise formula or particular form of words being used. The important question is whether the direction as a whole was such as to bring to the minds of the jury that they must be sure of the guilt of the accused."

The D.P.P. went on to submit that the summing up should be looked at as a whole and that in the instant case the directions of the trial judge to the jury on the burden of proof were adequate.

At the beginning of his summing up the learned Chief Justice said:

"I must tell you that in our law the burden of proof, that is the burden of satisfying you of the guilt of the accused lies with the Crown. There are a few exceptions but this case is not one of the exceptions. The Crown must discharge this burden before you can convict on one or any of the acts of the counts."

Then followed the passage on p.19 to which counsel referred as set out above. In regard to this passage, by saying "you, as ordinary men and women of this world must be sure, must be satisfied that the accused before you is guilty" the learned judge appeared to be implying two standards, "you must be sure" and "you must be satisfied" stated disjunctively. He then went on to say "if you are not sure or you are not satisfied" again implying two standards of proof. Nowhere in this summing up did he link them together to say "you must be satisfied on the evidence so that you can be sure" or some similar expression. There was thus the danger that the jury were led to think that to be just 'satisfied' with the guilt of the accused would suffice without necessarily being 'sure'. We think therefore that we should allow the appeal on this ground.

As to the question of intent to commit the offences charged, the intent required to establish an attempt to murder as in Count 1, is an intent to kill. Section 114 of the Criminal Code provides:-"Every person who intentionally causes the death of another person by unlawful harm is guilty of murder", and thus the necessary intention to be proved to establish the offence of attempted murder is likewise an intent to kill. Thus far in his summing up to the jury the learned Chief Justice was correct in saying that to convict of attempted murder it had to be established that death was the accused's intention. However the learned judge went on to say, 'that he intended to produce a particular result by his conduct or was reckless as to whether his conduct would produce a particular result". Reckless conduct in that sense never arises when considering the offence of attempted murder: what is required to be proved is an intention to kill as stated in section 114 supra.

When considering as in the second count, 'using deadly means of harm' in the context of section 79(c) of the Criminal Code in the present case it means the use of a firearm with intent to maim or cause dangerous harm to a person. The learned trial judge told the jury that the intent in count 2 was the same as the intent in attempted murder, This should we think, have been elaborated and explained in relation to sec. 79(c) of the code.

This point came up in the appeal to this Court of Roy Reuben Zelaya v. R. Criminal Appeal No.2 of 1977 and was referred to again in the appeal of Ab6olom Neal Cowo v R (No.13 of 1979 supra). In Zelaya, the accused was convicted on two counts, firstly for using deadly means of harm with intent to wound Zelaya and secondly for intentionally and unlawfully causing dangerous harm to him. The second count is a nalogous to Count 2 in the instant appeal where the appellant is charged with using a firearm "with intent unlawfully to cause dangerous harm to Cristobal Palencia".

The following citation from Zelaya's case was approved in Cowo:

"In Roy Reuben Zelaya v R……. this court considered section 77 of the Criminal Code (now Section 79) which reads----

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

At p.3 of the judgment the following passage appears-

"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 that 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. as requiring an intention to cause death.

In Zelaya the Court went on to point out that "the intention to cause death encompasses the intention to cause harm or bodily hurt"."

We have referred to the cases of Zelaya and Cowo as guidance for the future. There is also a concurring judgment on the same point in Irwin de Jesus Silva.

Lastly there is the question raised as to the definition of grievous harm in count 3. The learned Chief Justice told the jury to convict of greveous harm there should be intention coupled with unlawfulness and that grievous harm is the kind of harm which is likely to injure health.

Grievous harm is defined in Section 92 of the Code as follows:

"grievous harm" means any harm which amounts to a maim or dangerous harm as hereinafter defined, or which seriously or permanently injures health, or which is likely to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense".

It was submitted by Mr. Sampson that "harm ………. which is likely to injure health" in the definition should be read as follows -

harm which seriously or permanently injures health or which is likely seriously or permanently to injure health'.

He also argued that "harm likely to injure health" taken alone means no more than the definition of harm simpliciter, that is "Harm" which is defined in the same section as "any bodily hurt, disease or disorder whether permanent or temporary".

The Director of Public Prosecutions submitted the opposite view stressing that the phrases harm which seriously or permanently injures health or which is likely to injure health are disjunctive and the latter need not be serious or permanent.

We think that as each part expressly deals with health they are to be read together as being related to each other, firstly the offence of serious or permanent injury to health and the lesser offence of the likelihood of such serious or permanent injury to health.

However the learned Chief Justice put to the jury the view supported by the Director of Public Prosecution.

In the result we allow this appeal set aside the convictions and sentences and direct there be a trial de novo. The appellant is to remain in custody until otherwise ordered by the Supreme Court.

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