Court of Appeal
Criminal Appeal Nos. 8 and 9 of 1983
23rd November, 1983
SIR JAMES A. SMITH Ag. P.
ALBERT L. STAINE J.A.
KENNETH ST. L. HENRY J.A.

Messrs. H. Elrington and Dean Barrow for Appellants.
Mr. G. Gandhi D.P.P. and Mr. T. Gonzalez for the Respondent.

Appeal against convictions and sentences of 2 years imposed for manslaughter - power of a private person to arrest only arises when the relevant felony has been actually committed or attempted - intention required for manslaughter - manslaughter an offence of basic intent - no misdirection by judge - sentences not manifestly excessive but distinction to be drawn between superior officer giving order to fire and implications for inferior officer failing to carry out order - appeals against conviction dismissed - superior officer's appeal against sentence dismissed - inferior officer's appeal against sentence allowed - sentence varied to 9 months imprisonment.

J U D G M E N T

This is an appeal against conviction and sentences of the appellants for manslaughter arising out of the death of one Edelmiro Witzal. The charge was laid under Section 113(1) of the Criminal Code.

The appellants are members of the Belize Defence Force. On the night of November 13, 1982 they were members of a group of persons from that Force who set up a series of road blocks in Orange Walk. From the evidence it appears that the object of the road blocks was to intercept traffic in marijuana between Orange Walk and Corozal. The first appellant was the officer in charge of the group. At about 1:30 a.m. on November 14, 1982 a car driven by the deceased approached a road block which had been set up on the Corozal Road. Maria Mendoza was a passenger in that car. According to her evidence she had in any event intended to turn back because she had not obtained permission to go to Corozal. At any rate when they came within sight of the road block the deceased stopped the car and reversed towards his left with the apparent intention of turning back. The first appellant upon seeing the apparent maneuver to evade the road block, ordered the second appellant to fire. There is a conflict of evidence as to the terms in which this order was given. One prosecution witness said that he heard an officer shout "Fire, don't let the bitch get away". The first appellant in his evidence said that although he could not remember the exact words in which he gave the order he had ordered the second appellant to fire to his right. In his statement from the dock the second appellant confirmed this. At all events the second appellant fired and the shot hit the car which the deceased was driving and entered his body, killing him.

In relation to the appeal against conviction three grounds of appeal have been argued. The first is as follows:

"(a) There was an error in law in that the learned Trial Judge wrongly held that in the circumstances of the case, the Appellants had no legal powers of detention and arrest.

(b) There was an error in law in that the Learned Trial Judge wrongly withdrew the question of justification from the Jury."

In support of this ground counsel for the appellants submitted that although the appellants, as members of the Belize Defence Force, had no special powers to detain and search, as private individuals they had the common law power to arrest on suspicion that a felony had been committed. He further submitted that this power could be exercised in relation to the offence of possession of dangerous drugs and that the jury ought therefore to have been asked to consider whether in exercising that power the appellants used excessive force. In relation to the power of arrest he referred to a passage from Halsbury's Laws of England 2nd Edition Volume 9 paragraph 113 which reads as follows:

"113. At common law the power of a private person to arrest is limited to cases where treason or felony has been actually committed or attempted, or where there is immediate danger of treason or felony being committed, or where a breach of the peace has been actually committed or is reasonably apprehended. The onus of providing the commission of an offence, or reasonable aprehension of it, is on the person making the arrest."

It is clear from the passage quoted that the power of a private person to arrest only arises when the relevant felony has been actually committed or attempted. In the instant case there is no evidence that the offence of possession of dangerous drugs had been committed: there being no evidence that the substance which Insp. Rowland found in the car and which he "suspected to be a small quantity of dangerous drugs" was in fact dangerous drugs. In the circumstances we do not consider that on the evidence it can be said that the appellants were exercising a lawful common law power of arrest and that therefore a question of justification arose. This ground of appeal therefore fails.

The second and third grounds of appeal may conveniently be dealt with together and are as follows:

"2. (a) There was an error in law in that the learned Trial Judge omitted to tell the Jury that if the unlawful harm which had caused the death of the Deceased had been negligently rather than intentionally caused, the Appellants would be guilty of manslaughter by negligence.

(b) There was an error in law in that the Learned Trial Judge omitted to direct the jury as to the intention that was requisite before a verdict of guilty of Manslaughter could be returned.

3. There was an error in law in that the Learned Trial Judge wrongly directed the Jury to the effect that the Appellants would be guilty of manslaughter even if there had been no intention to hit the Deceased with the bullet which was fired."

The principal submission made in relation to these grounds is that, by virtue of sections 5, 6, 93 and 113 of the Criminal Code, the offence of manslaughter other than by negligence includes as a necessary ingredient a specific (as distinct from a basic) intention on the part of the accused person to cause harm. The relevant portions of these sections are as follows:

"5- (1) A court or jury in determining whether a person has committed an offence which employs one of the words specified in sections 6, 7 and 8 of this Code shall use the standard tests under sections 6, 7 and 8 of this Code for which that key word is appropriate when answering any question relating to him specified in subsection (2) below, unless the provision creating the offence decides that the test is not to be used."

(2) The questions mentioned in subsection (1) above are

(a) the question of intention; …..

(3) In relation to any person -

"the question of intention" means the question whether he intended a particular result of his conduct;

(4) The standard tests for the questions specified in subsection (2) above are respectively specified in sections 6, 7 8(1) and 8(2) below.
6. (1) The standard test of intention is -
Did the person whose conduct is in issue either intend to produce the result or have no substantial doubt that his conduct would produce it?
(2) The appropriate key words are -
(a) the verb "to intend" in any of its forms; and

(b) "intent", "intention", "intentional" and "intentionally".

93. Harm is unlawful which is intentionally or negligently caused without any of the justifications mentioned in Title VI of this Code.

113. (1) Every person who causes the death of another person by any unlawful harm is guilty of manslaughter.

(2) If the harm was negligently caused, he is guilty only of manslaughter by negligence."

In essence the submission was that manslaughter is the causing of death by unlawful harm and unlawful harm must be either intentionally or negligently caused. "Intentionally" it was submitted, in this context means with the intention of causing harm and this specific intention must be proved where the offence in charged under section 113(1).

In reply the Director of Public Prosecutions submitted that manslaughter is a crime of basic intent equivalent to voluntary manslaughter in English law and that the only intention required is an intention to do the act which caused the harm. He relied on a decision of the Supreme Court in R. v. James Bradley. In that case the learned judge after a careful analysis of the relevant sections of the Criminal Code, Cap. 21 and of the English law reached the conclusion for which the Director of Public Prosecutions contended.

The Criminal Code Cap. 21 contained no provisions similar to these contained in sections 5 and 6 of the Criminal Code which in 1981 replaced it. It in therefore necessary first to consider the effect or these sections. A careful reading of them indicates that they do no more than prescribe the standard test to be applied in determining intention where that element falls to be determined in relation to an offence. Similarly section 7 and 8 in conjunction with section 5 prescribe the standard tests to be applied in determining knowledge and recklessness respectively where each of those elements falls to be determined in relation to an offence. The sections do not alter the law in so far as it relates to the classification of crimes of basic intent and specific intent.

The next question to be considered therefore is whether in Belize as in England, involuntary manslaughter is a crime of basic intent. In our view it is. It should be observed that in England involuntary manslaughter includes cases where death has resulted from an unlawful act as a result of which some degree of harm is intended or contemplated as well as cases where death has resulted from a high degree of negligence on the part of the defendant (vide Archbold Criminal Pleading and Practice 38th Ed. paragraph 2531). These two cases would seem to fall within the ambit of the two offences of manslaughter created by section 113 of the Code. Section 113 does not include in its definition of manslaughter any mention of specific intent. The section does contain a reference to unlawful harm and when the definition of unlawful harm is imported into the section it reads:-

"(1) Every person who causes the death of another person by harm which is intentionally or negligently caused without any of the justifications mentioned in Title VI of the Code is guilty of manslaughter.

(2) If the harm was negligently caused, he is guilty of manslaughter by negligence".

The introduction of the word "intentionally" into the definition of manslaughter may at first appear to indicate that a specific intention is part of the offence, but upon analysis it becomes clear that the words "intentionally or negligently" are intended merely to indicate the mens rea or basic intent required for a criminal offence. The words simply provide that harm cannot in any event be unlawful and therefore subject to criminal sanction unless it is cause by an act which is not merely accidental or inadvertent, but, is either voluntary and deliberate or the result of a grave lack of care. Thus in R. v. Majewski (1977) A.C. 443 at page 480 Lord Salmon states:-

"It has long been established that except for special cases in which crimes of absolute liability are created by statute, no one can be convicted of any crime unless he has guilty mind (3 Coke's Institutes, 6). The elements constituting a guilty mind naturally differ widely from crime to crime just as the elements constituting different crimes themselves necessarily differ widely. In cases such as assault and assault occasioning actual bodily harm, the accused is not guilty unless it is proved beyond reasonable doubt that he intended to do what he did i.e., commit the assault or was recklessly indifferent as to whether or not what he did might amount to an assault. It is not necessary to prove that he intended to cause the bodily harm which resulted from the assault."

Counsel for the appellants is correct when he submits that it must be established that the harm was not caused by mere accident. There is however no evidence in this case to suggest that the firing of the gun was an accidental and not a deliberate act. It was, in addition, an unlawful act. The soldiers were, it is true, engaged in an operation, which was designed to assist the police in their duties of law enforcement. There was however no lawful justification for discharging a firearm in the circumstances, and to fire in the general direction of, even if not directly at, a moving vehicle was a dangerous act in relation to the occupants of that vehicle. In R. v. Larkin (1942) 29 C.A.R. 18 it was stated at page 23 that:-

"Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently the doer of the act caused the death of that other person by that act, then he is guilty of manslaughter."

This dictum was approved by the House of Lords in D.P.P. v. Newbury (1977) A.C. 500. Ground 3 of the grounds of appeal cannot therefore be sustained. In so far as ground 2(a) is concerned, negligence could only arise if the act of the appellant was a lawful act performed in a grossly negligent manner. But, as we have indicated, the act of the appellants was an unlawful act. This ground therefore must also fail.

In so far as the sentences is concerned we cannot say that in all the circumstances a sentence of two years imprisonment was manifestly excessive. In dealing with the question of sentences we have considered inter alia the submissions of counsel to the effect that the appellants were placed in an impossible situation by the authorities who employed them in what should have been exclusively Police work and thereby obliged them to engage in an operation which was perhaps illegal ab initio. If the Excutive considers itself ultimately responsible in this way, then the Executive will no doubt consider the advisability of action being taken pursuant to section 52 of the Constitution. We do not however consider that we can take this into account because the appellants' actions cannot be said to be the direct result of the arrangements made by the authorities although they may be consequential on those arrangements. We would however make a distinction between the second appellant who faced military sanctions if he failed to carry out the order of his superior officer to fire and the first appellant who gave the order. The sentence of the second appellant is therefore set aside and a sentence of twelve months imprisonment substituted therefor. The appeals against conviction and the first appellant's appeal against sentence are dismissed.

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