Court of Appeal
Criminal Appeal No. 8 of 1981
June, 1981
ALASTAIR BLAIR-KERR, P.
P.T. GEORGE'S, J.A.
J.A. SMITH, J.A.

Criminal Appeal against conviction for manslaughter - Appellant alleging that he killed deceased in the course of trying to prevent occurrence of a crime - Section 33 of the Criminal Code.

J U D G M E N T

On February 24, 1980 an incident took place partly on the Punta Gorda/ San Antonio Road and partly in the yard of the house of Pancho which was set back a little way from that road. As a result of that incident Demetrio Smith was killed and the Appellant's father Nolberto Bardalez suffered severe injuries. The Appellant and his father were charged with murder. The father (referred to hereafter as "Nolberto" was acquitted and the Appellant was convicted of manslaughter and sentenced to 5 years imprisonment.

In the opinion of the Doctor, the deceased died from shot gun wounds but death could equally have been caused by a head injury. The shot gun wounds were on the left side of the chest to the back below the scapula. The Doctor found 40 puncture wounds with no exit marks. He extracted 14 pellets, two from the heart and two from the lungs. Because of the damage to the heart he thought that death would have been instantaneous and that the deceased could have walked no more than 4 or 5 yards after being struck.

The head injury consisted of multiple fractures of bones over the eyes with some pieces embedded in the brain tissue. Bleeding marks were present through the hole. In connection with that injury there was an incised wound across the root of the nose. There was also a superficial incised wound 7" in length over the front of the chest extending from the middle of the sternum to the left nipple and down across.

The Doctor also examined Nolberto. He was suffering from a long incised wound 12" by 1/2" deep extending from the left ear across the neck to the top of the sternum. There were two smaller wounds?one 2, " by 1/2" incised wound about the middle of the dorsal aspect of the right forearm and the other a I" by 1/2 incised wound over the lateral aspect of the upper eyebrow. The left eye was oedematous, the pupil dilated and not responding to light. There were no corneal reflexes. There was also a bruise on the front of his chest.

The deceased fell on the road almost directly in front of Pancho' yard and having regard to the nature of his injuries it would be reasonable to infer that he was shot as he was leaving the yard. There was blood at a spot 35' 3" from the body and a hat nearby indicating that a wounding may have taken place there.

Several witnesses gave evidence for the prosecution describing what they saw but the accounts do not explain the incised wounds suffered by the deceased or by Nolberto and the accounts are not easily reconcilable the with the other.

There was evidence from Assistant Inspector Lewis that when he asked the Appellant on the day of the incident what he knew of the matter the Appellant replied that he did not know anything, that he had been sleeping at the time, his little brother woke him and when he went out he saw his father (Nolberto) lying on the ground injured. He ran to the army camp to get assistance to take his father to the hospital. He was a member of the Belize Defence Force.

Next day Assistant Inspector Lewis had made up his mind to arrest the Appellant. He duly did so, formally charged him with murder and cautioned him. He made a statement which was admitted in evidence without objection. In that statement he described an incident on the road in which the deceased was beating Nolberto with a "matha stick" to the amusement of spectators. Nolberto as a result was "bleeding from a peel he had in his back. He took Nolberto from the scene going to their house. He then continued:

"Then Uncle Met (the deceased) ran home for his machete. Then I started to talk to my pa so that he could cool off. Then he cooled off and he said he was going to do some work at our house. My father told me to take the gun maby I might find an animal or piccarrie to shoot. And I picked up the gun and put the cartridge in a little Army bag. I and my father then left from home and went through Mr. Pancho's yard. Then Met was across by Alton Coye's house. Look like Alton told Met that my old man was going out. When I saw Met come running with the machete, and he came into Mr. Pancho's yard. Then he grabbed my pa in his shirt collar. Then my pa had his two hands free. Then he told my pa "I wa chop up you mada rass now." He chopped the machete in the ground. Then I threw down the gun to try to separate them, and my pa bend down and pick up the gun and loaded it. My pa held the gun and Met held it too. And then my pa shoot off the load. Then I hail for help in the Queen's Name but nobody came to help. On the roadside watching were Peter Williams, Patrick William, Alton Coye and Thomas Mangar (sic) looked at me and laughed. When they started to laugh they told me that a big B.D.F. like me cannot handle two men. I then picked up the gun and I walked back about fifty yards going back home when my brother Gilbert screamed, and I looked back and when I looked back I saw my father on the ground. I wanted to shoot Met on his foot when I get so excited and I shot him in his back. This time I did not know he was dying because I thought I shot him in his foot. Then I threw down the gun and then I rushed down to the Army Camp. Yet I did not know that he was dying because I thought I shot him on his foot."

The statement goes on to describe his state of shock as he got help to take his father to the Hospital and saw deceased lying on the ground. In fact he cried and then fainted. He said that he told a soldier at the barracks that he wanted to shoot the deceased on his legs but had shot him in his back.

At the trial the Appellant made a statement from the dock. This reads -

"in the morning I was sleeping. My little brother woke me up. He told me uncle Met (the deceased) was beating up my father. I went to see what the trouble was?Uncle Met was beating up father. Uncle Met ran into Pancho's yard?came running with a machate in his hand. He grabbed my father by the collar and told him "I will chop your mother's rass now." Uncle Met and my father were struggling with a gun. I took away the gun from my father and fired it in the air I hailed for help in the Queen's name but nobody came to help me. The next thing I saw Uncle Met started to chop my father all over his face. My father fall to the ground. Uncle Met continued to chop. Uncle Met was going to kill my father. I had to do something to stop the murder. I wanted to hit Uncle Met on the foot with the gun. I then got him on the foot. I told the man at the Army Camp I had hit him on the foot. I did not tell anyone I had killed a man. Uncle Met was trying to kill my father. 1 was trying like a good citizen to prevent a crime."

The statements differ in crucial respects. In the dock he does not explain how his father came to have the gun. In his statement to the police he does and that explanation is not consistent with the account given from the dock. In the dock statement he is a witness to the machete attack on his father by the deceased. In his statement to the police he is not. He is walking away when he looks round because of a scream and sees his father on the ground. In his statement to the police he is aware that he has shot the deceased in the back. In the dock he insists, in the face of the medical evidence, that he shot the deceased in the foot.

Whatever may have been the discrepancies in the accounts given by the witnesses, none of whom deposed as a witness of the actual shooting, there was a clear admission by the Appellant that he had shot the deceased because the deceased had attacked his father, as far as the statement to the police goes and also because the deceased was about to kill his father, as far as the dock statement goes.

The trial judge correctly concluded that the facts raised a defence under section 33 of the Criminal Code and more particularly subsection (4) of that section. He dealt with the matter as follows?

"Now here I should refer to some matters of law, but in the first place I should refer you to Section 33 of Criminal Code which in effect provides for the prevention of or defence against crime. The section provides for the prevention of or for the defence of a person or any other person against any of the following crimes a person may justify any necessary force or harm; extending in cases of extreme necessity even to killing; that is to say where he apprehends murder, manslaughter and dangerous or grievous harm. So that in this regard you must give consideration to the apparent wounding of A2 by Smith and consider whether A2 was of the mind that such wounding caused him to feel justified in extending as in a case of extreme necessity even to killing if he himself apprehended his possible murder, manslaughter or dangerous or grievous harm. In this connection you should carefully consider the 2nd Accused's (Nolberto's) statement made to the Police which you will have with you, as well as the 1st Accused's (the Appellant) statement to the Police, and indeed you should also consider both Accused's statements from the dock which are, of course, not evidence, but are unsworn statements, but nonetheless should fall to be given consideration."

This can fairly be said to be the only passage in which the trial judge considers the applicability of section 33 of the Criminal Code to the facts of this case. In other passages he points out that proof of murder requires proof of intentional infliction of bodily hurt without justification stating that he would refer later to what constituted justification. In dealing with the burden of proof he stresses that the burden of negating self defence rests on the prosecution. But in neither of these references does he elaborate on what amounts to justification or what is self defence.

The grounds of appeal as originally framed were two in number - that the verdict was unreasonable and against the weight of evidence and that the sentence was unduly severe. At the hearing Mr. Godfrey for the Appellant sought and obtained leave to add a third ground ?

"That the learned Trial Judge erred in law in that he failed to direct the jury properly or at all with respect to the defence available to the Appellant under Section 33 (4) of the Criminal Code."

He then abandoned the ground of the unreasonableness of the verdict and argued the additional ground.

Mr. Godfrey contended that the direction under section 33 quoted above was not clear. The issue was central to the Appellant's defence. The trial judge should have stated specifically that they should acquit the Appellant if the evidence was such that they could not reject the view that the Appellant shot the deceased because the deceased was at the time attacking his father in a manner which reasonably raised the fear that the father would be killed or grievously harmed.

We agree that the direction lacked clarity. On the other hand it could not be said that it was confusing. The Appellant's statement from the dock ended with the statement that the Appellant was trying "like a good citizen to prevent a crime." The trial judge in his summing up did point out that the prevention of crime could justify a killing. Part of the criticism was that the passage seemed to concentrate unduly on Nolberto when the Appellant was the accused raising the defence of prevention of crime. There is merit in that criticism but on the other hand the Appellant was not ignored. The jury were instructed in that connection to consider his statement to the police and his statement from the dock.

Ideally in a summing up the trial judge should state principles of law to the jury; remind them of the salient pieces of evidence, and then illustrate what result the application of these principles to likely factual combinations would be. Here the trial judge set out the principle and he referred the jury to the parts of the evidence to which they were applicable. He did not go on to illustrate the effect of their application.

While he did not do all that could have been done we do not think that it can be said in this case that he had not done enough. Despite discrepancies of fact the central issue was extremely simple and once the jury was aware that prevention of crime could justify a killing they could not have failed to apply the principle correctly.

On the whole, therefore, we are of the view that the summing up was adequate. Had we thought that it fell short to some extent we would have had no difficulty in applying the proviso since on the Appellant's statement to the police a jury properly directed could not reasonably have concluded that the killing was justified.

The appeal against sentence was supported by the argument that usually a sentence for manslaughter returned on a charge for murder would be 7 years. In this case the mitigating factors were many and a reduction of 2 years did not adequately reflect them. We do not think that there is a usual sentence for manslaughter returned as a verdict on a charge of murder. The circumstances can vary far too widely. The sentence in this case could perhaps have been lighter?but violence resulting from quarrels among friends and family fired in part by drink are far too frequent and it cannot be said that the sentence errs in principle.

Accordingly the appeal must be dismissed and the conviction and sentence affirmed.

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