Mr. Simeon Sampson S.C., for the Appellant.
Mr. Adolph Lucas Sr., Director of Public Prosecutions for the Respondent.

Criminal Law - Murder - Self defence - Subjective test of what the Appellant honestly believed - Provocation - Burden and Standard of Proof on prosecution to disprove defences - Caution statement (mixed statement) - Directions by the judge - Good character directions when it is applicable.

J U D G M E N T

On the 12th day of May 1998 we dismissed this appeal and now give our reasons for so doing.

The Appellant had been indicted on two counts of murder which from the evidence arose out of the same incident. The particulars of the first count alleged that on the 4th July, 1996 he murdered Fitzgerald Mantock; and of the second count that on the same day he murdered Rudolph Bermudez, both offences taking place at Dangriga in the Stann Creek District. The circumstances leading up to the homicides reveal that they were concerned with a narcotics (cocaine) deal that went sour.

The prosecution evidence consisted of one eye witness and two statements that the Appellant gave to the police some two days after the incident, neither of which was challenged. The saga began on the 3rd July 1996 when at about 7:30 a.m. both the deceased were at the home of the witness Francis Moralez, whose nickname is Dread, at Dangriga. The deceased Rudolph Bermudez who was known as 'Kilo Boy' left and returned some ten minutes later with a box which contained several packages of a white substance which from the statement of the Appellant from the dock he expected to be cocaine but which Moralez and his friends knew was faked. Shortly thereafter the Appellant arrived and asked to see the stuff that he intended to buy. The deceased Bermudez used a nail to pierce one of the packets in the box and gave the Appellant a sample which he tasted. He then said he would get the rest of the fellows to taste the stuff and left. He returned with three others. The deceased Bermudez gave them a sample from the package from which he had taken the sample for the Appellant. They confirmed the genuineness of the substance. One of the men paid Bermudez three thousand dollars and they left taking with them the box and its contents to a motor car in which they had arrived. After the men had left Bermudez also left with the money. The next day Noralez went to Bermudez's home and while there the deceased Mantock and Gregorio, who is also called Condom, joined them. After taking part in a meal they all left in Mantock's motor car and eventually went to Sabal Street where the two deceased spoke to someone. They left Mantock's car with that person and took his motor van instead. Mantock was driving and whilst reversing the vehicle a grey Cherokee motor van pulled up behind it and blocked its path. Among the persons in the van was the Appellant and one Broaster. The deceased Mantock came out of his van. There were animated exchanges between him and those in the Cherokee, the gist of it being a demand by the latter for a return of the money that had been paid and Mantock's response that he did not have it. By this time the occupants of the Cherokee van had come out of it. One of them, asked for Kilo Boy. They surrounded the deceaseds' van. Broaster was armed with a gun and the deceased Mantock returned to the van and took out a gun which he cocked. Immediately there was a scrambling for it between Mantock and the men from the Cherokee. They got the better of it and the Appellant wrested the gun from Mantock. He then pointed it at him and shot him from a distance of five feet. Mantock ran but soon collapsed. At the time of the shooting Mantock was unarmed. Condom was ordered out of the van and the Appellant approached it, opened the driver's door, and shot Bermudez who was hiding in it, saying as he did so "Kilo Boy I have to shoot you." The Appellant then turned to Noralez and said "Dread I have to shoot you too." He shot the witness but not before the latter had lifted his hands to protect his face. The bullet struck and broke his hand.

When arrested on the 6th July, 1996 the Appellant made two statements to the police under caution. Neither these statements was challenged. In fact they formed an integral part of his defence, as indeed was his statement to his colleagues after they had left the scene and had gathered in the home of Terrylee Miguel. She testified that she had overheard his response to their enquiries as to his reason for shooting the men when what they desired was the return of their money. It was "if I never shot them they would have shot me first."

In his first statement to the police the Appellant stated that the visit by him and his friends to Noralezs home at Dangriga was for the purpose of purchasing cocaine. It was after he and his friends had parted company in Belize City after the purchase that he discovered from tasting some of the substance that had fallen onto his pants, that it was flour and not cocaine. He contacted his friends and they decided to return to Dangriga on the following day in order to obtain a refund of the money he had paid or genuine cocaine. On the 4th July he and his friends returned to Dangriga, borrowed a Cherokee van and went in search of the cheating dealers. He spoke of seeing them in a vehicle and the four of them leaving their van and approaching the vehicle. One of the four, Keith Flowers, tapped on the glass on the driver's side and asked for the person with whom they had made the bargain the previous day. He told the driver to ask his friend to come out of the van so that he could discuss his money. The person came out but the driver pulled a pistol from behind him and pointed it at the men inside. He struck his wrist and took away the gun. Another person in the van began to pull another gun while shouting "bust it, bust it". It was then, said the Appellant, that he cocked the gun that was now in his possession and fired a shot. He did this because he knew that he would have been shot had he not shot first. He then heard someone from the van say "shoot them" and he fired off another shot. The four then turned to go back to their Cherokee van when he heard someone say 'Look out'. On turning he saw someone coming out of the van and he fired a third shot. They then left in their vehicle for the home of a female whom he did not know. He later called for a taxi which drove him for about three miles and left him by the roadside where he hoped to obtain public transportation. During the journey he threw away the gun. While waiting for transportation a police vehicle came up and stopped. He was searched by a policeman and among the items in his possession was cannabis for which he was first charged. He further said in effect in his statement that he was forced in the circumstances which confronted him to take preemptive action in order to defend a perceived and immediate threat to his life. The second statement merely clarified and corrected certain details in the first statement and it is unnecessary to detail its content.

In his defence the Appellant, who made a statement from the dock, gave a somewhat different version of events. He commences by saying that he was never in trouble before ? never arrested or convicted in any court. And his statement continued that on the 3rd and 4th July 1996 he had gone to Dangriga Town not to kill or to hurt anyone. On the earlier date by pre?arrangement he and friends had gone there to purchase cocaine from the two deceased Mantock and Kilo Boy. He said he knew the types of persons he was dealing with, viz. jackers, i.e., persons who hold up others. But despite this knowledge and his admitted fear of them, he said that he trusted them. They returned with their purchase to Belize City only to discover that it was flour. Accordingly they returned to Dangriga with the intention of getting back their money or genuine cocaine. There he saw the deceased persons Rudolph Bermudez and Fitzgerald Mantock who were in a van in Sabal Street. He asked Mantock for Bermudez but Mantock denied that Bermudez was in the vehicle. Mantock then left the vehicle but as he was leaving Bermudez gave him a gun which he cranked when he got out of the vehicle and pointed at him. He jumped at him and while they were wrestling for the gun it went off. He also said that it went off whilst he was trying to regain his balance during the wrestling for the gun. During this struggling he had heard Mantock say "Bust him Kilo Boy." He then said Kilo Boy, i.e. Bermudez, appear through the same door through which Mantock had exited the van. He appeared to be doing something and he the accused fired two more shots all by way of self defence. He did not know whether either of them did any damage. Further he said he believed that in the situation that prevailed, if he did not take pre?emptive action he would have been killed by someone in the van.

The statements to the police, while admitting involvement in the killings sought to exculpate the Appellant from its consequences, and in accordance with the decision in R v Sharp 11988] 1 WLR 7 the learned judge left both the inculpatory and exculpatory parts to the jury for their consideration. He directed them as follows:

"Mr. Foreman and members of the jury, I have read the caution statements here to you. There was no objection to this caution statement by the Accused or his counsel. So you will find as judges of the facts that there is no threat to the accused, he wasn't beaten to make this caution statement or any favour offered to him. You may find as judges of the facts that he made it of his own free will. Now you will have to consider the whole of the statement in deciding where the truth lies and you will have to give it the weight that you think it merits. You will note as I have said that the statement was made on the 6th July 1996, two days after the incident. You will also observe that the accused admits in the statement that he and three others approached Mantock's vehicle, and you will see that this confirms what Noralez's evidence is. You as judges of the facts may find that the same thing Noralez is saying that the accused was with three others, three others in this Cherokee van. And you may find as judges of the facts when you read the statement that the accused alone fired the shots. You will also observe that he makes no mention in this statement made on the 6th of July of his travelling backwards trying to regain his balance when the gun went off as he stated in his unsworn statement. Bearing in mind this was recorded on the 6th of July two days after the incident when these events would have been fresh in his mind . . ."

The jury convicted him on both counts and he was sentenced to death. In his appeal before us counsel on his behalf argued three grounds. These were:

(1) the learned trial judge misdirected the jury as regards the subjective test required in the law of self defence;

(2) the learned trial judge omitted to give any good character directions;

(3) the learned trial judge omitted to give directions on provocation when there was ample evidence to justify the giving of such directions.

As regards the first ground of appeal counsel contended that the learned trial judged put the issue in the abstract and did not explain to the jury that the Appellant only acted instinctively as he assessed the situation. The law is now well settled that if an accused person was labouring under a mistake of fact when he committed the offence his action must be judged according to his mistaken view of the facts regardless of whether his mistake was reasonable or unreasonable. Such was the decision in R v Williams (1987) 3 All ER 411. In that case the Appellant was convicted of the offence of assault occasioning grievous bodily harm. The facts briefly were that he had seen the victim maltreating a youth on the road and felt that he should intercede on the youth's behalf. In the ensuing struggle the victim sustained injury to his face, loosened teeth and bleeding gums. Unknown to the Appellant the victim had seen the youth seize a woman's handbag and run away with it. He caught up with the youth and held him intending to take him to the nearest police station. The youth had broken away but the victim caught up with him, knocked him to the ground and was holding his hand behind his back despite his loud protestings, when the Appellant intervened. It was a case in which the defence did not deny the prosecution facts, but contended that in the circumstances the Appellant's actions were excusable. In his summing up to the jury the learned recorder told them inter alia:

"If you come to the conclusion that the defendant. . . had a belief, had the honest and genuine belief (and one could use all sorts of adjectives before the word 'belief but I am not sure they add much,) had the true belief and the reasonable belief, that is to say belief based on reasonable grounds that Mason was acting unlawfully, then [this] use of force would be excused provided again that it was in all the circumstances reasonable and directed to preventing crime, namely the assault of the youth and directed to no more than that in the way that I have explained."

In their comment on the above excerpt the court of appeal noted at p. 413 that the "directions failed to make clear to the jury that it was for the prosecution to eliminate the possibility that the Appellant was acting under a mistake of fact." The nearest that the judge got to such a direction was where he had been asked by the jury for further directions and he said:

"If you think that the position is, or the position may be, that the defendant Mr. Williams had such an honest and genuine belief based on reasonable grounds that Mason was acting unlawfully, then you go on to ask yourselves, was Mr. Williams' use of force to be excused because, in all the circumstances, it was a reasonable use of force and directed to no more than preventing the commission of crime."

The court also noted that the words "or the position may be" did not cure the earlier defect.

Another ground on which the appeal was allowed was the recorder's directions as to the reasonableness of the Appellant's belief. In answering this question the court prefaced its remarks by observing that the intent required to prove the offence must be an intent to inflict some unlawful force to the victim. And the court held following DPP v Morgan (1975) 2 All ER 347 and R v Kimber (1963) 3 All ER 316 that "if the belief was in fact held its unreasonableness, in so far as guilt or innocence is concerned is neither here nor there" and the court continued:

"…..the jury should be directed first of all, that the prosecution has the burden or duty of proving the unlawfulness of the defendant's action, second, that if the defendant may have been labouring under a mistake as to the facts he must be judged according to his mistaken view of the facts and third, that that is so whether the mistake was on an objective view a reasonable mistake or not."

In Beckford v R (1987) 3 All ER 424 the Privy Council approved of R v Williams (supra) Lord Griffiths who delivered the judgment said at p. 431 in relation to DPP v Morgan (supra):

"If then, a genuine belief, albeit without reasonable grounds, is a defence to rape because it negatives the necessary intention, so also must a genuine belief in facts which if true would justify self?defence be a defence to a crime of personal violence because the belief negatives the intent to act unlawfully."

His lordship then went on to refer with approval to certain passages from the judgment of Lane, CJ in R v Williams.

In the present case self?defence arose from the statements of the Appellant and in his defence. There was nothing in the prosecution case from which it could be said that this issue arose. In addressing the jury on self?defence the learned judge said:

"And now for the defence of self?defence. The accused alleges that having struggled with Monger, that is Mantock, and having taken away the gun struggling backwards he heard Mantock say "Bust him Bust him Kilo Boy" and while trying to regain his balance the gun, went off accidentally, and then he saw Kilo Boy through the door that Mantock had left open, going down for something and he fired then two more shots in the vehicle not knowing the damage it would cause, as he said "I had to defend myself. I think the situation I was in if I didn't fire the fellow would have killed me". Therefore I said you may find as judges of the facts that this raised self-defence. The legal burden of proof in regard to the defence of self-defence remains throughout on the prosecution. The accused does not have to prove his innocence, he is presumed innocent until he is proven guilty. It is not for the accused to prove that he was acting in self-defence.

The prosecution must satisfy you beyond reasonable doubt that the accused was not acting in self?defence. The law justifies the use of necessary force or harm extending in the case of extreme necessity to killing in cases where grievous or dangerous harm is imminent. It is for the prosecution to prove that the accused was not in imminent danger of dangerous or grievous harm which justifies the use of necessary force or harm by the accused in inflicting the gun shot wounds to Bermudez as well as to Mantock.

The law sets out certain limits on the use of justifiable force and states that force cannot be justified if it extends beyond the amount and kind of force reasonably necessary for the purpose for which force is permitted. Mr. Foreman and members of the jury the question is did the accused use greater violence than was justified in lawful self?defence? Was he acting in lawful self?defence in the circumstances of this case? Did he use greater violence than was justified in lawful self?defence?

What is reasonable force depends on all the facts, for example the nature of the attack, whether or not a weapon is used, and if it is used and what kind of weapon and whether or not the attacker was on his own. But as person defending himself cannot be expected to weigh precisely the exact amount of defensive action which is necessary. If therefore the defendant did no more than he instinctively thought was necessary that is very strong evidence that the amount of force was reasonable and necessary because the prosecution must prove the defendant's guilt. It is for the prosecution to make you feel sure that the defendant was not acting in necessary self?defence. If you conclude that he was or that he may have been acting in necessary self-defence then you must acquit him. If you are in doubt whether the accused was acting in self?defence you must acquit him."

And later he said:

"But again dealing with the question of self?defence, as I told you earlier a person defending himself cannot be expected to weigh precisely the amount of defensive action which is necessary, sometimes he is permitted to take what is called pre-emptive strike. If therefore the defendant did no more than what he instinctively though was necessary that is very strong evidence that the amount of force used was reasonable and necessary."

The present case did not, however, as counsel seemed to argue, involve the issue of the reasonableness or otherwise of the Appellant's belief as regards the intention of his victims. That never arose as an issue. The trial judge seems to have left the case to the jury on the assumption that if the facts narrated by him were true and their only consideration was whether they warranted the reaction as stated by him or were left in doubt about that conclusion. This direction cannot be faulted and in our opinion the Appellant's first ground of appeal must fail.

The second ground challenged the omission of a good character direction from the summing up. That a judge is required to give such a direction when the facts so warrant is now trite law. See Berrada 91 Cr. App. R. 131 where Woodhouse, J. said at p. 134 1f good character is raised by the defendant it should be dealt with in the summing up" and also R v Vye (1993) 3 All ER 149. In the present case counsel referred to that part of the Appellant's dock statement in which he said 1 Norman Shaw have never been in trouble, 1 was never arrested or convicted in any court." We agree that in ordinary circumstances this statement should have evoked some direction by the trial judge that the Appellant's statement of his good character should be taken into account in his favour in deciding on his credibility as it related to his version of the events. But his statement as regards his good character rang hollow when regard is had to his own admission in his first caution statement that when he was first apprehended on the 6th of July 1996 among the items he had in his possession was cannabis a prohibited drug and that he was charged, no doubt, with the offence of possession of such a substance. Secondly in his statement he confessed to being a narcotics dealer and the only reason for the events that followed upon the drug transaction was the trick that had been played on him and his friends by the deceased person. In the case of R v Aziz (1995) 3 All ER 41 Lord Steyn who delivered the judgment of the House of Lords said at p. 58:

"A good starting point is that a judge should never be compelled to give meaningless or absurd direction. And cases occur from time to time, where a defendant, who has no previous conviction, is shown beyond doubt to have been guilty of serious criminal behaviour similar to the one charged in the indictment. A sensible criminal justice system should not compel a judge to go through the charade of giving directions in accordance with R v Vye."

In our opinion the above principle is not limited to confession of similar behaviour to that charged in an indictment. In the present case the Appellant's criminal behaviour and/or propensity is so interwoven with the offences of which he is charged that it would be indulging in the highest sophistry to attempt a distinction. In our view therefore the submission that the trial judge ought to have made reference to his assertions of good character, when in statements emanating from him he confessed to being a person of bad character is unfounded and must be rejected.

Additionally it would seem doubtful whether an accused person should be accorded the benefit of a good character direction if he chooses to raise the issue of his character in a statement from the dock having regard to the inherent deficiencies that such a statement is subject to. For example in Joseph John Coughlan 63 Cr. App. R. 11 at 17 the Court of criminal appeal said of a statement from the dock:

"What is said in such a statement is not altogether to be brushed aside but its potential effect is persuasive rather than evidential. It cannot prove facts not otherwise proved in the evidence before the jury, but it may make the jury see the proved facts and the inference to be drawn from them in a different light. Inasmuch as it may thus influence the jury's decision they should be invited to consider the contents of the statement in relation to the evidence in the strict sense. It is material in the case. It is right, however, that the jury should be told that a statement not sworn to and not tested by cross examination has less cogency and weight than sworn evidence."

But this question was not argued before us and we make no final pronouncement on it.

The final ground of appeal complained of the failure of the trial judge to leave the issue of provocation to the jury at least in the case of the deceased Mantock. In this regard counsel pointed to the evidence of Francis Noralez that the deceased Mantock after having had heated words with the four men outside his van went to van and took out a gun which he cocked. But his further evidence was that thereafter the men wrested the gun from him and he was shot whilst disarmed and not in an aggressive posture. In our opinion these facts did not amount to evidence of provocation and should not have been commended to the jury as such. Nor was there any other evidence whether coming from the prosecution or the accused, who at all times maintained that the shot that killed Mantock was fired by accident, from which the judge could have left the issue of provocation to the jury.

For the above reasons we dismissed the appeal and therefore confirmed the sentences of death.

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