Court of Appeal
Criminal Appeal No. 8 of 1994
8th September, 1994
KENNETH ST. L. HENRY, P.
SIR LASCELLES ROBOTHAM, J.A.
HORACE W. YOUNG, J.A.

Mr. Y. Gaznabbi for the Appellant
Mr. S. Gamalath for the Respondent

Appeal against conviction for murder - No direction on provocation given to jury - Crown submits that while open to jury to find act of extreme provocation there was no evidence that appellant lost his self control as a consequence - Question for jury to decide - Judge obliged to give direction on provocation - Appeal allowed - Conviction for murder set aside - conviction of manslaughter substituted - Sentence of 25 years imprisonment imposed.

J U D G M E N T

This Apellant was convicted by a Jury on the 6th July, 1994, for the murder of Police Constable Sydney Nunez and sentenced to death. From this conviction he has appealed.

The facts briefly are that on 18th August, 1993, Constable Lino and the deceased were on mobile patrol at about 10:30 a.m. along old Water Hole Road when he saw two men, one of whom was the Appellant stooping down by an electric post. The vehicle was brought to a stop, and the two policemen alighted. Constable Lino approached the Appellant and his companion, and the Appellant ran down the hill. Constable Nunez gave chase of the Appellant on foot, whilst the other was held and placed in the police vehicle by Constable Lino.

After this person was secured in the vehicle Constable Lino went in the direction in which the deceased had gone with the intention of giving him assistance. When reaching about 15 feet from where some cement blocks were stacked, he saw the deceased staggering up the road towards him with his shirt from soaked in blood. The deceased was placed in a passing vehicle and taken to the Mopan Clinic where he was pronounced dead. The Appellant was apprehended by members of the public and handed over to the Police

The only eye witness to the fatal stabbing of the deceased was Benedicto Mengivar who was working on top of a house nearby and thus had a clear view of what transpired that morning between the deceased and the Appellant.

He told the Court that he saw when the Police jeep stopped with uniformed police therein, he saw also when the deceased went after the Appellant who ran behind some cement blocks. As they both got behind the blocks, he saw the deceased take a knife from his pants waist and stab the deceased in his chest. The deceased had nothing in his hands. The morning was bright and sunny and he could clearly see what happened. He alighted from the roof of the house and with the assistance of others the Appellant was pursued and apprehended. At the trial he identified the knife which the Appellant used to stab the deceased.

In cross?examination at the trial it was suggested to him, that there was a fight or struggle between the Appellant and deceased but he refuted these suggestions and reiterated that the deceased had nothing in his hands at the time he was stabbed.

The Appellant gave a statement under caution to the Police and this was admitted in evidence at the trial. The relevant portion reads as follows:

"I and Carlos then sat down to rest for about five minutes when I saw a patrol vehicle passed infront of me and stop about 3 metres and then reverse where we were and two of them came out the vehicle. Upon seeing the police I grab my kit bag and run down a hill and then took a bush, where I hide myself behind some blocks, because a police was following me. The Police came out infront of me and saw me and upon seeing that he saw me, I took out a knife that I had in my pants waist and stab him in his stomach and he then turn back and I continued running where I cross a street and enter a lot and then to a next lot where I met a person in short pants who identified himself as a police officer with a machete and I raise my hands and give up myself."

If this was all the evidence adduced on behalf of the appellant it could be argued that there was no room for the issues of self-defence or provocation being left to the Jury. However at the trial he gave an unsworn statement from the dock which reads as follows:

"I committed that crime for my own self defence, because he was beating me, so I had to defend myself because I had already handed over myself and then he started beating me, that's why I did it. I wish that they have some consideration for me because I am an only son. I did not enter here with any bad intention, only to look for work, and I repeat that I committed this crime because he was beating me with a stick with the baton that he had. That's all."

Counsel for the Crown submitted that although on the basis of this statement it was open to the Jury to find that there was an act of extreme provocation by the deceased, there was no evidence that the appellant had lost his self-control as a consequence. In our view it was for the jury to decide whether from the evidence adduced loss of self-control could be inferred. Clearly therefore there was an obligation placed on the trial judge to direct the jury not only on the law of self- defence but also on provocation. It is well established law that the same evidence which is adduced in an attempt to establish self-defence, can be prayed in aid to support provocation. In this case the judge gave directions on self-defence, but omitted to give the jury any direction or assistance on the law of provocation. On this he was clearly in error. However, we have due and anxious consideration to the question whether a new trial should be ordered, or whether a verdict of Manslaughter should be substituted. We think the ends of justice will be served by allowing the appeal, setting aside the conviction for murder and substituting therefor a conviction for manslaughter, for which we impose a sentence of 25 years imprisonment.

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