Court of Appeal
Criminal Appeal No. 7 of 1992
12 February, 1993
KENNETH ST. L. HENRY, P.
SIR. LASCELLES ROBOTHAM, J.A.
P. TELEFORD GEORGES, J.A.

Mr. Ramirez for the Appellant.
Mr. Gamalath for the Respondent

Appeal - Criminal law - Murder - Misdirection by trial judge in respect of question of intention - Jury to take all circumstances into consideration in deciding question of intention - Intention to harm rather than kill - Appeal allowed - Conviction for manslaughter substituted.

R E A S O N S F O R J U D G M E N T

On February 9, 1993 we allowed this appeal, set, aside the conviction for murder and substituted therefor a conviction for manslaughter and a sentence of 10 years imprisonment. We promised to give written reasons for our decision and now do so.

On June 17, 1991 an altercation occurred between the Appellant and one Robert Tucker in the course of which the Appellant stabbed Tucker in the area of the chest with a broken bottle. The resulting wound penetrated the heart and proved fatal. The Appellant was convicted for murder on May 14, 1992 and sentenced to death. He appealed against his conviction.

The most important ground of appeal argued was that relating to the learned trial judge's directions in respect of the question of intention, and in particular to the following passage in his summing up:

"Now the law presumes a person to intend the natural probable consequences of his act. So you may feel that the natural and probable consequences of a stab wound on the left upper region part of the chest where vital organs are encased with some degree of moderate force and with a broken quart bottle with jagged edges or uneven branches is that the person becomes seriously injured and dies.

You have the evidence that the deceased, Robert Tucker, received two stabbed wounds to the upper part of his left chest with moderate force and without any other evidence, you may presume that the accused, Conorquie, intended to kill when he delivered the blow if you find he delivered the blow."

Unfortunately this passage contains the errors in respect of which in C.A. 2/92 Winswell Williams v. The Oueen we made the following observation:

"There was, however, in our opinion a real danger that the jury may have been led to believe, particularly by the second passage quoted above from the learned trial judge's summing up and the words "without any other evidence" that, without considering any other evidence they could presume an intention to kill from the act itself and its probable consequences. This in our view is contrary to the provisions of section 9. Certainly, unlike other jurisdictions, there is no provision to this effect in the Criminal Code of Belize. It is true that, as counsel for the Crown pointed out, the passages about which complaint was made appeared in a part of the summing up in which the learned trial judge was directing the jury ? correctly ? that they had to take all the circumstances into consideration in deciding the question of intention. It may also be that when he used the words "without any other evidence" he intended to say "in the absence of any other evidence to the contrary". However this may be, it was in our view preferable for him, consonant with section 9, to have told the jury that they were not bound to infer an intention to kill from the mere fact that death was in their opinion a natural and probable result of the Appellant's act, but that that fact was relevant to the question of intent and they would have to take it into account when considering all the evidence and the proper inferences to be drawn from that evidence. If, having considered all the evidence, including the medical evidence that a moderate degree of force only was required to inflict the fatal injury, the jury either considered that the proper inference to be drawn was that the Appellant did not intend to kill, or were in doubt as to whether this was the proper inference to draw, they would have been obliged to convict not of murder but of manslaughter. The effect of this error by the learned trial judge was therefore to deprive the Appellant of the opportunity of such a conviction."

Those observations apply with equal force to this appeal.. In addition, as counsel for the Crown quite properly pointed out, It may have been preferable in the circumstances of this case where there was an altercation between the parties for the judge to alert the jury's mind to the possibility that there may on the part of the Appellant have been an intention to harm rather than an intention to kill, in which event the proper verdict would have been a conviction for manslaughter rather than for murder.

For these reasons we allowed the appeal and substituted a conviction for manslaughter.

A number of other grounds were argued on behalf of the Appellant but without any disrespect to the industry of counsel we do not consider there was merit in them.

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