Court of Appeal
Criminal Appeal No. 9 of 1994
PROFESSOR TELFORD GEORGES, (P)
HORACE W. YOUNG, (J.A.)
SIR DENIS MALONE, (J.A.)

Mr. S. Sampson, for the Appellant
Ms. D. Gallimore, for the Respondent

Criminal Appeal against conviction for murder - Appellant sentenced to death when he was under the age of 18 years - Thereafter, Appellant's sentence changed to detention during Her Majesty's pleasure - Section 151 (2) of the Indictable Procedure Act - Whether section in contravention of the principle of separation of powers and, as such, unconstitution - Class A and Class B - Section 102 of the Criminal Code - Court having discretion to impose a sentence other than a death sentence for Class B murders - Court finding Appellant to have committed a Class B murder - Court finding the fact that Appellant was 18 years when the murder took place to be an extenuating circumstance - Court setting aside invalid sentence and substituting therefore sentence of life imprisonment.

J U D G M E N T

The Appellant, Marcos Melendez, was on October 6, 1994 convicted of the murder of Braulio Nicholson. He was on the return of the verdict of guilty sentenced to death. The record does not show that the Appellant was then asked whether or not there was any reason why sentence should not then have been passed on him according to law. The matter was relisted on October 8, 1994. The allocutus was then read and Mr. Sampson who had appeared at the trial submitted a certificate of registration of birth showing that the Appellant was born on January 15, 1978. This established that he was under 18 on July 24,1994 the date of the offence. The judge was satisfied that the Appellant was under 18 years at the date of the commission of the offence and in accordance with section 151(2) of the Indictable Procedure Code he was sentenced to be detained at her Majesty's pleasure. From that conviction and sentence he has appealed.

On the date of the incident the Appellant and three other young men entered Philander Bar at Ranchito Village, Corozal District. It was about 7:30 p.m. They ordered 4 beers which were served. A dispute arose over payment for the beers and they were taken back. The waitress Zenaida Fuentes testified that one of the party of four began throwing chairs at her. The deceased Braulio Nicholson, the watchman at the bar, came out with a cable in his hand moving towards the boys.

The Appellant threw a chair at the deceased who "lashed" the cable at him. Zenaida was not sure whether the accused was hit by the cable. The Appellant in Zenaida words ?

"went with his hands towards Braulio's abdomen. I then saw that Braulio's intestine were outside of his stomach."

She called the police. They duly arrived and found the deceased lying on the ground outside of the bar with a stab wound on the lower part of his abdomen. The post mortem later established that death was due to massive internal haemorrhage resulting from a penetrating stab wound of the abdomen with vascular injury.

The Appellant's version was given in a statement from the dock. He stated that he and his party were refused service at the bar. As they left, the women in the bar began throwing chairs at them from upstairs as they were going downstairs. He and two friends went upstairs to see what was happening. On reaching there they were stoned with bottles and chairs. The deceased came on top of him with a wire and was beating him with it. The wire fell and the deceased picked up a chair. At that moment he took out a knife. He was afraid he would be beaten. He had the knife but "was not holding it well". The weight of the deceased collided with him and that was how the deceased got harmed.

Ground 1 of Appeal was that the trial judge had failed to give any direction in relation to the effect of intoxication on the element of intention in the offence of murder. In his statement from the dock the Appellant did not state that he was intoxicated or indeed under the influence of alcohol. No cross?examination was directed to establishing the Appellant's intoxication. In answer to the jury Dr. Coleman who had examined the Appellant some 3 ½ hours after the incident stated:

"The accused was under the influence of alcohol."

Mr. Sampson cited from Augustine Achuzia Kachikwa (1967) Cr. App. R. 538 at p. 543:

"It is asking much of judges and other tribunals of trial of criminal charges to require that they should always have in mind possible answers, possible excuses in law which have not been relied upon by defending counsel or even, as has happened in some cases, have been expressly disclaimed by defending counsel. Nevertheless, it is perfectly clear that this Court has always regarded it as the duty of the judge of trial to ensure that he himself looks for and sees any such possible answers and refers to them in summing up to the jury and takes care to ensure that the jury's verdict rests upon their having in fact excluded any of these excusatory circumstances."

While this is so, the "excusatory circumstances" must not be merely "fanciful or speculative". There must be evidence from which a jury could reasonably infer that the defendant acted in a way which provided a defence in law - R. v Critchley [1982] Crm. L R 524, 525.

In this case the trial judge could correctly have concluded that there was no evidence from which intoxication could reasonably have been inferred. The accused had not said in his statement from the dock that he was under the influence of alcohol. He gave a reasonably detailed and coherent account of the events which climaxed in the stabbing of the deceased. Accordingly this ground of appeal fails.

The basis of the second ground of appeal was that at the end of the summing up, after the trial judge had quite fairly summed up the case for the defence, he stated,

"And as I have said if you accept the accused's version then you will return a verdict of Not Guilty. And if the version of the accused causes you to entertain doubt you will also return a verdict of Not Guilty."

Mr. Sampson contended that a verdict should be returned only on the totality of the evidence. On reflection he did not press this ground since he accepted that the formulation used by the judge must necessarily be more favourable to the accused.

Ground 3 raised the issue of the adequacy of the direction on provocation. The trial judge began his directions on the issue of provocation with what purported to be a definition of provocation. He stated ?

Provocation is some act or series of acts done which causes a person to be terrified of immediate death or grievous harm or words spoken which causes the accused a sudden and temporary loss of self-control and which would cause a reasonable person to lose his self control and to behave as the accused did.

This was flawed. There was an unpermissible intermingling of section 116 (b) of the Criminal Code (the Code) and section 117 of the Code. Section 116 (b) does not deal with provocation. It deals with the use of excessive infliction of harm in a situation in which the infliction of some harm was justified and makes available a verdict of manslaughter where the excessive harm was caused because the person ?

"acted from such person of immediate death or grievous harm as in fact deprived, for the time being of the power of self control."

This deals with a situation in which an accused person uses excessive force in a situation in which the defence of self defence would otherwise be available as a complete defence.

Provocation is dealt with in section 116(a) and the matters constituting it are set out in section 117 of the Code.

Immediately following the flawed definition the trial judge did, however, go on to review the facts and direct the jury adequately on how provocation as set out in section 117 would operate in the context of the facts. Thus he stated ?

"Now in this case the evidence from the Prosecution is that the accused was lashed with the cable wire and then the accused used the knife. According to the Defence the deceased hit him with the cable and then he hit him again with a chair this time. That is when the accused suddenly lost his control or suddenly and temporarily lost his self control and took out his knife with the result that the deceased got the injury. If you believe the evidence of the Prosecution or if you accept the version of the accused and you find that he was provoked you will bring a verdict of manslaughter, if you find and you are sure that the accused was provoked as I said you will bring a verdict of manslaughter."

The summing up as a whole was satisfactory and this ground must fail.

Ground 4 raised criticisms of the judge's direction on self defence. In dealing with this issue the trial judge was admittedly attempting to reduce the definition [in the Code] in layman's language. Mr. Sampson contends that his attempt resulted in a misdirection. The trial judge stated:

"The law says that an assault or killing is lawful self?defence ? sorry, the law says that an assault or killing in lawful self defence is a complete defence. That you have to remember. Self defence is lawful when it is necessary to use force to resist or defend yourself against an assault or a threatened attack which a person honestly believes he is about to suffer and when the amount of force used is reasonable and what is reasonable force depends on all the facts, for example, the nature of the attack, whether or not a weapon was used and if it was, how and what kind of weapon it is and whether or not the attacker is on his own. In other words whether Braulio, on that night was on his own. However, and I go on, a person defending himself cannot be expected to weigh precisely the exact amount of defensive action which is necessary. If, therefore, the accused did no more than what he instinctively thought was necessary that is very strong evidence that the amount of force was reasonable and necessary".

Mr. Sampson submits that as required by section 35(4) of the Code the jurors should have been told that if the accused was in a situation in which he was defending himself against possible dangerous or grievous harm or preventing the infliction of such harm on himself he could use necessary force or harm extending in case of extreme necessity even to killing.

The provisions of section 31 of the Code must, however, also be applied in a self defence situation. This states ?

"Notwithstanding the existence of any matter of justification for force, force cannot be justified as having been used in pursuance of that matter...

(b) which in any case extends beyond the amount and kind of force reasonably necessary for the purpose for which force is permitted to be used."

The element of reasonableness is overriding. The trial judge could not be found at fault for stressing that element of reasonableness. The trial judge did not state that in an extreme case the force used in self defence could extend even to killing. It would have been preferable had he done so. He did, however, state that if the jury thought that the force used by the accused was reasonable then they should acquit him. The charge was one of murder. The implication seems inescapable that even killing was excusable if the force used was in the circumstances reasonable. Viewed as a whole the summing up on this issue was satisfactory.

The fifth ground of appeal raised a serious constitutional issue. As has been mentioned, after the verdict of guilty was returned, the Appellant was sentenced to death. Subsequently it was discovered that he was under the age of 18 years at the date the offence was committed and the trial judge recalled the matter, reviewed the evidence of the Appellant's age and stated?

"The sentence of death passed on 6/10/94 is therefore varied to be a custodial one.

The accused Melendez is sentenced to be detained during Her Majesty's pleasure."

In so doing he was acting under the provisions of section 151(2) of the Indictable Procedure Code which reads?

"Sentence of death shall not be pronounced on or recorded against a person convicted of a crime if it appears to the court that at the time when the crime was committed he was under the age of eighteen years, but in lieu thereof the court shall sentence him to be detained during Her Majesty's pleasure and if so sentenced he shall be liable to be detained in such place and under such conditions as the Governor may direct."

On behalf of the Appellant it was submitted that this section was unconstitutional. In the supplementary grounds of appeal the invalidity was said to arise from its "contravention of section 6(2) of the Belize Constitution".

Subsequently the ground was amended to include an alternative basis ? that the section was "contrary to the principle of separation of powers which is inherent in the Constitution of Belize."

Section 6(2) of the Constitution provides ?

"If any person is charged with a criminal offence, then unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."

The submission is that the determination of guilt and the assessment and passing of sentence are both part of the process of "hearing" of a criminal case. Determination of guilt and of sentence must both be carried out by an "independent and impartial court established by law." Section 151(2) obliges the trial court in effect to delegate the determination of the length of detention of the convicted person to the Governor?General ? the executive authority provided in the Belize Constitution and clearly not "an independent and impartial court established by law."

Alternatively, applying the reasoning underlying Moses Hinds and others v Director of Public Prosecutions and another [1975] 24 W.I.M 326 to the Belize Constitution it is clear that the principle of separation of powers applies to that Constitution. A provision of the law which obliges a court to delegate to the executive the power to determine the length of detention of a convicted person is a patent infringement of that principle.

On behalf of the Crown emphasis was placed on section 34(2) of the Belize Constitution. This states:

"Any reference in this Constitution to the functions of the GovernorGeneral shall be construed as a reference to his powers and duties in the exercise of the executive authority of Belize and to any other powers and duties conferred on him as Governor?General by or under this Constitution or any other law."

It was pointed out that the Constitution itself in section 52 vests in the Governor?General certain powers in relation to sentences. The marginal note to that section reads "Prerogative of mercy" and the powers there conferred are precisely of that nature. Without citing that section in full it is enough to say that each subsection authorises interference with a penalty, already imposed, by way of pardon, respite of execution of any punishment, substitution of a less severe form of punishment or remission of the whole or a part of any punishment. Inevitably the exercise of any of these powers could result in a decision as to the length of a sentence of detention but it would not be an original determination of the length of such sentence as would be the case where the court orders that a person be detained at Her Majesty's pleasure.

It is noted that section 151(2) appears to make a distinction in so far as it speaks of detention during "Her Majesty's pleasure" and thereafter states that such detention shall be "in such place and under such conditions as the Governor may direct" (emphasis supplied). For "Governor" should be read "Governor-General". There is, however, no distinction. Her Majesty exercises no executive power in Belize except through the Governor?General.

It was urged that section 34 contemplates that "any other law" may vest additional powers in the Governor?General. Plainly this can be done but such other law must be a law valid under the Constitution. If the law offends section 2 of the Constitution or the principle of the separation of powers it would not be valid.

I understood it to be suggested on behalf of the State that the determination and imposition of sentence was not part of the "hearing" of a criminal offence within the meaning of section 6(2) of the Belize Constitution. This is plainly not so. It is, of course, perfectly proper to be tried by one court and sentenced by another. Not infrequently a lower court is authorised to remand a person convicted in that court for sentence in a higher court. In such a case the authority to which that accused person is remanded must be such as to conform to the requirements of section 6(2), that is, it must be independent and impartial.

It should be noted that under section 34 of the Belize Constitution the Governor?General in the exercise of his function?

"shall act in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet except in cases where he is required by this Constitution or any other law to act in accordance with the advice of, or after consultation with, any person or authority other than the Cabinet or in his own deliberate judgment."

Section 151(2) does not authorise the Governor?General to act in his own deliberate judgment. In the exercise of his powers under section 52, the Prerogative of Mercy, the Governor?General must act in accordance with the advice of the Belize Advisory Council. In determining the length of detention under section 151(2) of the Indictable Procedure Code the Governor?General would be acting in accordance with the advice of the Cabinet.

In support of his proposition Mr. Anderson referred to passages in the well-known case of Hinds v D.P.P. (supra). That case concerned the creation by the legislature of Jamaica of a court called the Circuit Court for the trial of offences relating to the possession of guns. In the case of certain offences the Court was empowered to impose a mandatory sentence of detention at hard labour from which the detainee could only be discharged at the direction of the GovernorGeneral acting in accordance with the advice of a Review Board, a non?judicial body established by the Act.

The judgment of the Privy Council read by Lord Diplock stated at pp 341 ? 342?

"Thus Parliament, in the exercise of its legislative power, may make a law imposing limits upon the discretion of the judges who preside over the courts by whom offences against that law are tried to inflict on an individual offender a custodial sentence the length of which reflects the judge's own assessment of the gravity of the offender's conduct in the particular circumstance of his case. What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose members are not appointed under Chapter VII of the Constitution, a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders. Whilst none would suggest that a Review Board composed as is provided in s. 22 of the Gun Court Act 1974 would not perform its duties responsibly and impartially, the fact remains that the majority of its members are not persons qualified by the Constitution to exercise judicial powers. A breach of a constitutional restriction is not excused by the good intentions with which the legislative power has been exceeded by the particular law. If, consistently with the Constitution, it is permissible for the Parliament to confer the discretion to determine the length of custodial sentences for criminal offences upon a body composed as the Review Board is, it would be equally permissible to a less well intentioned Parliament to confer the same discretion upon any other person or body of persons not qualified to exercise judicial powers, and in this way, without any amendment of the Constitution, to open the door to the exercise of arbitrary power by the Executive in the whole field of criminal law.

In this connection their Lordships would not seek to improve on what was said by the Supreme Court of Ireland in Deaton v. Attorney General and the Revenue Commissioners (5), ([1963] I.R. at pp. 182, 183), a case which concerned a law in which the choice of alternative penalties was left to the Executive.

"There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case... The Legislature does not prescribe the penalty to be imposed in an individual citizen's case; it states the general rule, and the application of that rule is for the courts... The selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the Executive ......

The principle is directly applicable to the situation created by section 151(2) of the Indictable Procedure Code. The fixing of the sentence of the Appellant has been "committed to the hands of the Executive."

Accordingly the section is invalid and the sentence passed under the authority thereof is also invalid and must be quashed. Mr. Anderson has submitted that recourse should be had to section 134(l) of the Belize Constitution. Section 151(2) of the Indictable Procedure Code should be construed with:

"such modifications, adaptations, qualifications and exceptions as may be necessary to bring them in conformity with this Constitution."

He referred to Vasquez v The Queen Privy Council Appeal No. 8 of 1993 in which the Judicial Committee construed section 116(a) and 119(l) in such a way that there would no longer be a burden on the accused person to prove provocation. In doing this their Lordships pointed out ?

"This conclusion will bring Belize into line with the other Commonwealth countries of the Caribbean in all of which the onus of proof of unprovoked killing is placed upon the prosecution either by statutory construction as in Grenada and the Bahamas or by practice as in St. Lucia."

Similarly in San Jose Farmers Cooperative Society Limited v The Attorney General Civil Appeal 3 of 1991 the Land Acquisition (Public Purposes) Act Chapter 150 of the Laws of Belize was interpreted to make it conform to criteria prescribed in the Constitution of Belize.

The area of punishment is quite different. There is no clear principle of the common law or constitutional criterion to chart the path for one seeking to amend with modifications. It remains very much a matter of social policy.

Fortunately the existing law of Belize provides what appears to us a clearly defined provision which deals with the situation.

One can turn to section 102 of the Criminal Code. This has recently been amended and reads ?

"Every person who commits murder shall suffer death.

Provided that in the case of a Class B murder (but not in the case of a Class A murder), the court may, where there are special extenuating circumstances which shall be recorded in writing, and after taking into consideration any recommendations or plea for mercy which the jury hearing the case may wish to make in that behalf, refrain from imposing a death sentence and in lieu thereof shall sentence the convicted person to imprisonment for life."

Class B murder is defined as any murder which is not a Class A murder.

Class A murder means:

The murder in this case is a Class B murder. The court has a discretion to impose a sentence other than the sentence of death. The provisions of section 151(2) of the Indictable Procedure Code make it clear that the fact that an offender was under the age of 18 years when the killing took place was a special extenuating circumstance which make it inappropriate to pass a sentence of death. We find that the fact that the Appellant was under the age of 18 at the time he committed the murder is a special circumstance within the intent of the proviso to section 102 of the Criminal Code as amended. Accordingly we impose a sentence of life imprisonment.

While this path is available in the particular circumstances of this case, it would not be available if a person under the age of 18 years is convicted of a Class A murder when a death sentence is mandatory. The authorities should give urgent attention to this matter by enacting an appropriate amendment of section 151(2) of the Code for the guidance of the Courts.

In the result the appeal against conviction is dismissed and a sentence of life imprisonment imposed to replace the invalid sentence of detention at Her Majesty's pleasure imposed at the trial.

------------- OO ------------