Court of Appeal
Criminal Appeal No. 13 of 1984

SIR JAMES SMITH P.
SIR ALBERT STAINE J.A.
KENNETH ST. L. HENRY J.A.

Mr. N. V. Dujon for Appellant
Mr. G. Gandhi of Public Prosecutions for the Crown

Court of Appeal - Conviction of murder and sentence of death - Prejudicial article published in newspaper - Whether Appellant had a fair trial - R v Malik (1968) 52 C.A.R. 140 - Danger of bias removed by warning to jury - Whether verdict unreasonable - Whether trial judge misdirected the jury - Palmer v R (`971) A.C. 814 - Provocation - Self-defence - Burden of proof with respect to self-defence - Fair presentation of the defence - Appeal dismissed.

J U D G M E N T

On October 23, 1984 the appellant was convicted of the murder of Robert Codd and sentenced to death. The charge arose out of an incident which occurred on July 4th, 1984. That night Francis Codd and his wife Dora the wife of the deceased were celebrating their twenty fifth wedding anniversary at a private party held at the Sueno Beliceño restaurant. The appellant entered the restaurant apparently for the purpose of purchasing a drink. He was told that a private party was in progress and that the restaurant was closed and was asked to leave. The deceased escorted him to the door and following him outside. Thereafter a struggle ensued between them during which the deceased was stabbed several times and died within minutes.

The first ground of appeal argued before us was that "a material irregularity occurred that there was a real danger that the appellant had not had a fair trial before the jury due to an article appearing in the local press concerning the incident". In support of this ground counsel for the appellant referred to an article appearing in the Amandala newspaper of July 6, 1984 in which it is suggested that the appellant is a "former mental patient" and "a user of heavy drugs" and "the assailant behaved like a drug crazed maniac". He cited R. v Malik (1968) 52 Cr. App. Rep. 140 in which the view was expressed that if the court felt that there was any danger that the appellant had not had a fair trial because of the prejudicial effect of an article about him appearing in the Sunday Times, they would without hesitation set aside the conviction. In that case however the article appeared some 10 days before the trial in a responsible newspaper, with a large circulation and contempt of court proceedings had been brought in respect of the article. In the instant case the article appeared over 3 months before the trial, contempt of court proceedings were never instituted because, we are told, the Director of Public Prosecutions was unaware of the publication of the article and counsel for the appellant was at the time of the trial himself unaware of the publication of the article. There is nothing before us to suggest the jurors were any more aware of the article or likely to be influenced by it. In the circumstances we cannot say that there was a danger that the appellant did not have a fair trial. Any danger in this regard would, we consider, have been removed by the warning which the learned trial judge gave early in his summing up to disregard anything the jurors may have heard or read outside of the trial.

The second ground of appeal was "The verdict was unreasonable and cannot be supported by the evidence". Counsel for the appellant submitted that on the evidence before them the jury ought either to have acquitted the appellant on the ground that he acted in self defence or, at worst, convicted him of manslaughter on the basis that in defending himself he used excessive force. Five members of the Codd family gave evidence for the prosecution in relation to the incident. Francis Codd stated that he saw the deceased talking to the appellant in the restaurant and then both of them moved in the direction of the doorway with the appellant backing out reluctantly. When they both went through the doorway he saw the deceased and the appellant facing each other about 12 feet from the door and almost immediately they clashed. He moved towards them with the intention of separating them and as he moved he heard the appellant say "I was only want buy one drink and now you going get your rass cut up". He went behind the appellant and tried to pull him away from the deceased but failed. He heard his wife screaming. The appellant shook him off, he fell backwards' and the appellant ran. Afterwards he found that he had received a cut in a finger of one hand and on his back. In cross examination he admitted that he had originally told the Police that he heard the appellant say "You mudder fucker I just want to buy and some other words that he did not make out, but he "remembered" the other words later and stated them at the preliminary inquiry and at the trial.

Peter Codd, the 13 year old brother of the deceased, stated that he saw the deceased "walk" the appellant to the door of the restaurant. He was about to follow when his father spoke to him and he sat down. His father went outside and shortly afterwards he heard his mother shouting. She was then at the door of the restaurant facing inwards. He ran outside to see his father holding the appellant from behind trying to get the appellant away from the deceased. The appellant managed to get away and ran past bumping but not injuring him.

Francis Codd, another brother of the deceased stated that when he heard a female screaming outside the restaurant he ran outside and saw the deceased struggling with the appellant. He rushed up to them and pulled the deceased away from the appellant at which point the appellant ran off. Dora Codd, the mother of the deceased stated that when out of the corner of her eye she saw movement outside on the lawn she went outside and saw the deceased and the appellant struggling. She went up to them and tried to pull her son away. She heard her husband call to her to move away and she ran back to the restaurant shouting for help. Others came out and when she returned she saw the deceased lying on the ground. Later she realised that she felt pain on her left side and realised that she had received a wound.

Therese Codd, a sister of the deceased stated that she saw the deceased follow a man to the door of the restaurant. The deceased did not follow the man outside. Some 10-15 minutes later she heard her mother screaming outside and when she ran outside she saw the deceased stumbling across the lawn and a man running off. Susan Codd another sister of the deceased did not give evidence She received a wound on the arm but there was no evidence from any of the witnesses as to how this came about. A written statement given by the appellant to the Police was put in evidence by the prosecution. In that statement the appellant said that the deceased shoved him inside the restaurant, followed him outside and continued to shove him. A fist fight between them started. About four other parsons came and to hassle" so he took out his knife and started to stab at anyone because he was desperate and wanted to get away, from the crowd because he "knew that these guys always carry guns". In an unsworn statement from the dock the appellant said that in addition to shoving him the deceased jumped on him when he turned to go and hit him in the face. Others rushed up and started to beat him. He heard one say, "Bust his rass, he had no right around here". He was confused by the beating and struck out with the knife to get away.

An accused person who elects to make an unsworn statement must always face the possibility of the jury attaching little or no weight to that statement. On the evidence of the prosecution witnesses it can hardly be said that the accused in producing a knife and stabbing indiscriminately was acting in self defence. None of the persons around him were armed, two were women and their efforts were directed to separating the appellant and the deceased rather than to attacking the appellant. Indeed it was never suggested to any of the witnesses in cross examination that anyone had struck the appellant or threatened him. Even if he may have become apprehensive at the approach of the other persons their actions as disclosed in their evidence were not such as to confirm that apprehension or justify the use of a knife. In the absence of evidence to the contrary from the prosecution witnesses the jury would have to assume that the deceased was the aggressor in the fight between the appellant and himself. But the decease was unarmed and the use of a knife by the appellant to defend himself would not be justified. If it was not justified by subsequent events then a finding by the jury of se1f defence would not be warranted, if the jury accepted the version of the accident advanced by the appellant they may well have concluded that having regard to the number of attackers and the inability of their appellant to escape the use of a weapon in self defence was justified. If however they rejected that version and accepted the evidence of the prosecution witnesses there was ample evidence to justify their verdict. It was open to the jury on the evidence to find that the appellant struck out but with no real intention to kill, or that he was attacked by the deceased and lost his self-control when the other persons came on the scene because he then was in terror of death or really serious harm. On either of these findings the proper verdict would be one of manslaughter. On the other hand Sgt. Jenkins gave evidence that when he approached the appellant on the day after the incident the appellant reached for a dagger and said "that he will get to us just like what he did last night". If the jury accepted that evidence or the evidence of Mr. Codd as to what the appellant said at the time of the incident they might well have concluded that the appellant had not lost his self control out of apprehension but acted deliberately and with an intention to kill In all the circumstances we cannot say that on the evidence before them the jury's verdict was unreasonable.

The third ground of appeal was that "the learned trial judge misdirected the jury in that he did not adequately explain the circumstances under which the appellant would have been justified in using necessary force extending to killing". In the course of his summing-up the trial judge directed the jury as follows:

"The law says for the defence of himself against murder, man-slaughter, dangerous or grievous harm, a person may justify any necessary force or harm and even killing in case, of extreme necessity. So that a person may use any necessary force or harm and even kill in case of extreme necessity if violence is being used against him. But the law also says that force cannot be justified if it goes beyond the amount and kind of force that is reasonably necessary for the purp6se for which force is permitted. 'So everything depends on the circumstances, on the particular circumstances in which the accused was in.

So in this case I ask you to bear in mind that if a man reasonably believes that his life is in danger or he is in danger of receiving really serious harm he may use. such force or harm as on reasonable grounds he believes necessary to prevent or resist the attack on him. And if in using such force he kills his attacker he isn't guilty of any crime. And in deciding whether it was reasonably necessary to have used the force that was actually used, you have to consider all the circumstances of the case as put to you including whether the accused had an opportunity to retreat or retreated as far as he could without danger to himself or giving up anything that he was entitled to protect.

So I would ask you to consider these things when you go to consider the case. Look and see whether the evidence shows that there was an attack on the accused, whether as a result of that attack the accused reasonably believed that his life was in danger or that he was imminent danger of receiving serious bodily harm Whether the accused had no opportunity to retreat or retreated as far as he could; whether the force he used to protect himself from the danger or from reasonable, apprehension that he was in danger of receiving serious body harm. And whether ther accused believed on reasonable grounds, - whether he reasonably believed that the force he used was necessary to protect or resist the attack.

And bear in mind always that it is the prosecution who has to satisfy you that the accused was not acting in self-defence. And, if, after consideration of all the evidence you are left in doubt as to whether or not he was acting in self defence then you have to acquit him."

The burden of the complaint of counsel for the appellant as we understand it is that the learned trial judge ought to have referred the definition of "grievous harm" in section 92 of the Criminal Code Cap. 84 and not merely equated it to "really serious harm" or serious harm". Section 92 defines "grievous harm" as "harm which amounts to a maim or dangerous harm as here in after defined, or which seriously or permanently injures health or which is likely to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense". We wish to observe that the words "or which is likely to injure health" which appear in the definition, ought properly to read either "or which is likely so to injure health" or "or which is likely seriously or permanently to injure health" in order to bring the definition in conformity with the varying degrees of harm contemplated by and defined in the section. With this modification it appears to us that "grievous harm" as defined in section 92 may properly for the purpose of giving a simple explanation to a jury be equated to "really serious harm" or "serious harm". The explanation "really serious harm" received judicial approval in D.P.P. v Smith (1961); AC 290 at 334 per Viscount Kilmuir L.C. In the unreported case of R v McMillan October 10, 1984 and in R v Saunders unreported in the Times on February 8, 1985 it was held that there is no distinction between "really serious harm" and "serious harm". It is true that these cases were not dealing with a statutory definition of 'grievous harm' and that section 3 (e) provides that "In the interpretation of this Code, a Court shall not be bound by any judicial decision or opinion on the construction of any other statute or of the common law as to the definition of any crime or of any element of any crime." Nevertheless we are of the view that "really serious harm" or "serious harm" merely expresses in a compendious form the meaning of the expression "grievous harm" as defined in section 92. Consequently we do not consider that there was any misdirection by the learned trial judge in this regard.

The fourth and fifth grounds of appeal which were argued together were as follows:

"4. The learned trial judge failed to adequately direct the jury on the factors to be taken into consideration in determining whether the force used was too excessive.

5. The learned trial judge, in his summing up on the question of self defense, failed to adequately put to the jury the case on behalf of the appellant.

In support of these grounds counsel argued that the learned trial judge ought to have put the stabbing by the appellant in its context of the entry on the scene of other members of the Codd family and the apprehension which the appellant would have felt upon being surrounded by hostile persons. He further submitted the learned trial judge ought to have given directions along the lines of those suggested in Palmer v R (1971) A.C. 814 at 832 indicating that "If there has been an attack so the defence is reasonably necessary it will be recognised that a parson defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken".

In addition to the passage referred to in relation to the third ground of appeal the learned trial judge dealt with the question of excessive force in the following way:

"Then you ask yourself. Was the force used to protect himself from the danger or from reasonable apprehension that he was losing his life or about to suffer serious bodily harm? Did Kent Bowers reasonably believe that the force used was necessary to prevent or resist the attack such as you may find to have occurred. You have the facts and circumstances, you consider them

But I think that one question you have to ask yourself is this:

Was it reasonable for Kent Bowers to believe that stabbing Robert Codd in the left side of his chest in such a way as to damage two ribs and also stab him in his belly by sending the knife in deep to puncture the small intestine and bring out the fatty substance, was necessary to prevent or resist the attack on him such as you may find."

As regards the possibility of retreat he said:

"Was he able to retreat or retreated as far as he could in the circumstances I am outlining to you. The question hardly arises because if you are acting on what he is saying, he is fighting, this danger arises and they are all on him. Bobby holding on to him having a fist fight, a fist fight and four others. So according to him it was not a question of his being able to retreat or he had no opportunity to retreat."

As regards intention he said:

"You also have to consider a statement which the accused made to the police under caution. You will find that in that statement under caution he said "I started to stab because I was desperate and wanted to get away from the crowd. I did not want to kill any of them". If you are acting on that statement given under caution you will find that that statement by the accused as to his own state of mind. And that statement may help you to decide what was the accused's intention when he stabbed Bobby Codd.

You also have to consider other circumstances. A statement he made to you here from the dock. I didn't juck them to hurt them to any extent. Just to get away from them". Similarly that is a statement by the accused, if you are acting upon it, as to his own state of mind and it may help you to determine what was his intention at the time he stabbed."

He also dealt with the issue of provocation as we shall indicate in relation to grounds 10 to 12. In our view these directions put the appellant's defence fully and fairly to the jury. Throughout the summing up the learned trial Judge made it clear to the jury that the onus was on the prosecution to negative self defence and at the very end he told them:

"On the other hand, if you find that bowers killed Codd but was acting in self defence or you are left in reasonable doubt as to whether or not he was acting in self defence then the verdict would be not guilty."

We do not consider there is merit in these two grounds of appeal.

The sixth ground of appeal is that the learned trial judge misdirected the jury as regards the burden of proof as it affects the question of self defence. In support of this ground counsel for the appellant while conceding that elsewhere in the summing up the trial judge gave proper directions in this regard, complained about the following passage in the summing up:

"Now if you find that Kent Bowers was not acting in self defence, that is if he inflicted injuries on Bobby Codd without justification, then you go on to consider whether at the time Kent Bowers had the intent to kill." "

In our view this passage had nothing to do with the burden of proof. The learned trial judge was simply indicating to the jury that if they rejected self defence they would go on to consider the question of the appellant's intention. This ground of appeal therefore fails. Ground 7 which also complained in relation to this passage that the leaned trial judge was wrong in giving those directions, also fails.

Ground 8 was as follows:

"8 the leaned trial judge in his summing up was wrong in not having left for the juries' consideration, the fact that the appellant could have had the intention to kill but have committed no crime or have used excessive force and be guilty only of manslaughter."

In relation to this ground counsel referred to the following passage in summing up:

"Draw your inferences and come to your conclusions and see whether they lead you in one direction. And if the inferences you draw lead you in one direction that the accused had the intention to kill, well then you can hold that the accused had the intention to kill and the prosecution would establish this element of intent to kill and so would have established murder against the accused."

The passage must however be considered in its context earlier in his summing up the learned trial judge had indicated to the jury the elements of murder which the prosecution would have to establish. He had dealt with the fact of death, the cause of death, the author of the harm which brought about death and the issue of justification. In relation to that issue of justification he had told the jury on the possible verdicts open to them if they found that the appellant acted, in self defence or used excessive force. Then he turned to the issue of intention which the jury would only consider if they found that the harm which resulted in death was without justification. It is in relation to that is sure that the passage about which complaint is made occurs. In that context the passage contains no misdirection because the jury would be considering intention only if they had rejected self defence and either acquital on that basis or a manslaughter conviction on the basis of the excessive use of force. Accordingly this ground also fails.

Ground 9 was as follows:

"9. The summing up was inadequate in that the learned, tria1 judge did not analyze or sufficiently analyze the evidence of FRANCIS CODD SR. relating in particular to what, the appellant was supposed to have said."

The gravamen of the complaint in this ground was that the learned trial judge failed to point out to the jury specifically the impossibility of a person remembering words that he had not clearly heard in the first place. It is true that the learned trial judge did not do so, but he placed the issue squarely before the jury in the following words:

"As regards' Francis Codd Sr., here in Court to you he said in his evidence that the accused whilst struggling said "I only wanted to buy one drink and now you are going to get your rass cut up. And it is shown that he also said that before the Magistrate, when he was under oath at the preliminary investigation.

But it was also brought out that previously, to the police on the morning after the incident he told the police that he heard the accused said "You madder fucker. I just wanted to buy a drink and some drink and some other words I did not make out". Mr. Codd explanation is that the words "And now you are going to get your rass cut up", he remembered is what the accused said. And that is why he brought it out before the Magistrate and that is why he said it here to you in Court,

So you decide for yourselves if you find there is a variation. If you find a variation, do you accept the explanation. And how does this affects Mr. Codd's evidence. You as Members of the jury will determine what you are going to do with Mr. Codd's evidence. Does it affect Mr. Codd's evidence that he went and held on to the accused by his shoulders and tried to pull him off? Does it affects his evidence only on the point as to what the accused said? And you determine for yourselves what it is the accused a said."

We do not consider that there is merit in this ground of appeal.

Grounds 10, 11 and 12 were argued together and are as follows:

"10. The learned trial judge misdirected the jury on the burden of proof as regards the question of provocation.

11. The summing up was inadequate in that the learned trial judge did not or did not properly indicate to the jury the possible sources from which provocation could emanate.

12. The learned trial judge in his summing up on the question of provocation failed to fairly and adequately put to the jury the case on behalf of the appellant."

In support of these grounds counsel argued that, whatever may have been the position prior to the introduction of section 118 into the Criminal Code, once that section was introduced its wide provisions as construed in Davies (1975) 60 Cr. App Rep. 253 at 258 ought to be regarded as providing that acts or words otherwise to be treated as provocation are not to be excluded from such consideration merely because they emanate from someone other than the victim. Consequently, it: was argued, the learned trial judge was in error when he directed the jury to confine their consideration in this regard to the words and acts of the deceased. We do not accept this submission. Section 116 of the Criminal Code provides:

"A person who intentionally causes the death of another person by unlawful harm shall be deemed to be guilty only of manslaughter, and not of murder, if either of the following of extenuation be proved on his behalf, namely-

(a) that he was deprived of the power of self-control by extreme provocation given by the other person as is mentioned in section 117,"

Section 117 provides:

"The following matters may amount to extreme provocation one person to cause the death of another person, namely-

(a) an unlawful assault or battery committed upon the accused person by the other person, either in an unlawful fight or otherwise, which is of such kind either in respect of its violence or by reason of words, gestures or other circumstances of insult or aggravation, as to be likely to deprive a person, being of ordinary character, and being in the circumstances in which the accused person was, of the power of self-control"

(b) the assumption by the other person, at the commencement of an unlawful fight of an attitude manifesting and intention of instantly attacking the accused person with deadly or dangerous means or in a deadly manner;"

Furthermore section 121 provides:

"Where a sufficient provocation has been given to the accused person by one person and he kills another person under the belief on reasonable grounds that the provocation was given by him, the provocation shall be admissible for the crime to manslaughter in the same manner as if it had been given by the person killed, but except as in this section mentioned provocation given by one person is not a provocation to kill a different person."

In the light of these specific provisions we do not consider that the introduction of section 118 could without specific amendments to sections 116, 117 and 121 alter the clear provisions of these sections. Nor would the interpretation given to section of the United Kingdom Homicide Act, 1957 on which section 118 is based affect the situation having regard to the provision of section 3(c) of the Criminal Code to which we have earlier referred. We need only add that in Belize Court of Appeal cases 2 of 1983 Rivas v R. 2 of 1980 Taibo v R 1 of 1976 Carballo v R it has previously been held or recognized that the burden of proving on a balance of probabilities the extenuating circumstances of extreme provocation lies on the accused.

In our view the learned trial judge correctly directed the jury on the burden of proof in relation to the issue of provocation. He put the defence in the following terms:

"I think the following matters which emerged from the statement which the accused gave to the police and from what he said to you here in the dock and matters which you are to consider on this issue. He said, and raises for consideration, that after he the accused went outside of the restaurant the deceased, Bobby Codd, came behind him and continue to shove him."

"The deceased Bobby Codd continues to shove him and he puts for consideration, and it is for you to determine whether you accept it or not but it is for you. It is put for consideration. He turned to go away and the dead person Bobby Codd jumped on him, held him back way, from behind. So if you accept that, that is, if you accept that, you may feel that such an assault was unlawful. He was asked to go. He turned to go and while going away the man jumped on him. There was no reason for jumping on him and according to the accused then, from then on there is a first fight between the two of them.

And if you accept what he is saying this assault is aggravated by other people coming and beating him. And during this, shout, "Beat his rass, he had no right round here".

This issue is raised if you are acting on what he said and accept what he said. But I want you to note that in the statement to the police under caution he doesn't say the dead man caused him any injury or does anything to him but fight with his fists. And here in the unsworn statement from the dock to you he doesn't say that the dead man does anything to him but hit him in the face. So if you are going to consider this issue, if on what he has raised, you have to ask yourselves, if even accepting what he said happened, would be a reasonable person lose self control through a person fighting him with his fists? Would there be a loss of self control through other people coming and joining in?

Those are the matters put to you for the consideration for this. So you have to consider whether the matters put before you disclose an assault on Bowers as would cause in any reasonable person a loss of self control. If you find that what happened would cause in any reasonable person a loss of self control you then look to see whether in the circumstances Bowers did in fact lose self control and if you feel sure that he did not lose self control then this matter of provocation does not avail him and the crime still be murder.

But if you are left in reasonable doubt as to whether he lost self control, assuming that there is extreme provocation, as you find, then you must return a verdict of manslaughter.

But if you come to the conclusion there was extreme provocation and Bowers did in fact lose self control, you still have to consider whether the accused Bowers exceeded what an ordinary person deprived of self control in the circumstances would have done.

So you will consider the provocation received and the manner of retaliation and ask yourselves whether an ordinary person provoked in the way the accused was provoked would retaliate in the way the accused retaliated.

So if you find that there was extreme provocation and the accused did in fact lose self control in the circumstances he was in but exceeded what an ordinary person losing self control in those circumstances would have done, then the defence of provocation cannot avail the accused and the crime would still be murder.

But if you find that there was provocation and the accused did lose self control and acted as an ordinary person would have done in the circumstances than you will acquit of murder and return a verdict of manslaughter. Or even if you are left in reasonable doubt as to whether there was extreme provocation or you are in reasonable doubt on any aspect of this issue you will also consider a verdict manslaughter."

This was an eminently fair presentation of the defence. In our view these grounds of appeal also fail.

For these reasons the appeal is dismissed.

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