Court of Appeal
Criminal Appeal No. 2 of 1983
25th May, 1983
SIR JOHN SUMMERFIELD P.
SIR JAMES SMITH J.A.
ALBERT L. STAINE J.A.

Criminal Appeal - Murder - Appeal against conviction - Burden and Standard of Proof - Whether the learned trial judge misdirected the jury on the burden and standard of proof that they had to apply in reaching their conclusion - Whether the trial judge misdirected the jury in the defence of provocation - Whether the trial judge misdirected the jury on the charges of lesser or alternative offences - Criminal Code - Appeal allowed - Order for a new trial.

J U D G M E N T

The Appellant appeals against his conviction for the offence of murder. The salient facts can be briefly set out.

On Wednesday 9th June, 1982, a prosecution witness, Julian Polanco, was at home in the evening, about 6:50 p.m. He heard a shot. He went to his back door. There he saw the Appellant who said that he wanted to tell Polanco something. He said that at about 6:00 p.m. someone came to where he lived and shot him with a sling shot. He said that that person was the deceased. Polanco asked him if he had seen the deceased and the Appellant said: "No, I did not see him but I know it was that son-of-a-bitch". He then went on to relate an earlier theft which he attributed to the deceased. Offering Polanco his gun to handle, the Appellant said: "Anyone that I will meet in that place, I will shoot him". He then left.

That evidence was led by the prosecution to establish bad blood between the Appellant and the deceased which might furnish a motive for what ensued. Of course, bad blood between two persons works both ways. Each may have a motive for revenge on the other. In an unsworn statement from the dock, the Appellant gave a slightly different version of those incidents wherein he alleged that the deceased threatened to kill him "at the least expected moment".

The following morning, around 7 a.m., the deceased came to where one Michael Scott, lived. Polanco was present. The deceased borrowed $20.00 off Scott for the purpose of reclaiming a shotgun he had pledged with the Appellant. He went off towards where the Appellant lived. Shortly afterwards a loud shot was heard. Scott and Polanco hurried to where the Appellant lived. Scott saw the Appellant come out of the house holding a shot gun "at the ready to fire position", in a threatening manner, and, apparently, "covering" Scott who decided, in consequence, not to go closer. According to Scott the Appellant looked "proud and happy". Polanco also saw the Appellant coming out of the house with a gun in his hands. According to Polanco he asked the Appellant what happened and the latter replied: "I kill the son of a bitch, he tried to assault me".

Polanco and Scott then went into the house and there found the deceased lying dead on the floor with a shot gun across his body. That shot gun was later found to have a live cartridge in it.

The cause of death was shock and profuse hemorrhage from gun shot wounds to the left side of the chest which damaged and destroyed the heart and lungs. The shot was obviously fired at close range having regard to the dimensions of the room in which the incident occurred. The Appellant then appears to have gone into hiding but was later flushed out by the Police at a friend's house.

In passing it can be noted that a great deal appears to have been attached by the prosecution, and also by the learned judge in his summing-up, to the position in which the deceased's gun was found lying across his body. Apparently, the deceased was left handed and the suggestion was that the gun could not have ended up in that position if he had been using it aggressively towards the Appellant. Apart from the conflicts in the evidence as to the exact position, it is difficult to understand how one can draw a rational inference from the position in which a gun has fallen; however it might have been held immediately before the incident, when a person has recoiled from a shot gun fired close to his chest and has dropped to the floor. To try to decide anything from the resulting position of the gun does not appear to be a fruitful exercise.

The Appellant admitted that he shot the deceased but, in his unsworn statement, he claimed that he was acting in self defence. More particularly, he said:

"I then went back home and at about 7 or 8 a.m. I was at Walters' house when Thomas (the deceased) arrived at the house where I was. Because I had previously loaned him forty dollars and on a previous occasion he had paid me $20.00 back, when he came there he said he wanted his gun. I then answered saying "Let me have the $20.00 you owe and I will return the gun". I then handed him his gun. He then said "Let me check it to see if it is in good order". While having it in his hand he pulled the trigger. He then broke it, took out a cartridge and placed it in the gun. He then told me "you son of a bitch, for what you told me I am going to kill you". I then threw myself on him. We started to struggle. It was while we were struggling he fell to the ground and I ran. I ran to get my shotgun. When I came back he was aiming the gun at me. Because he had threatened to kill me, I had no alternative but to raise my gun and shoot at him. I was scared. If I had not done so he would have killed me. He fell in the bathroom in front of the toilet bowl and I came out of there."

He had a different version of what he told Polanco, namely:

"Some minutes later Mr. Polanco arrived. Polanco then asked me what had happened. I replied telling him that that fellow came to kill me and I had to defend myself."

That was a factor the jury could have considered. Finally, after explaining his capture by the Police, he said:

"They told me that they had captured me because I had shot Thomas. I then told them that I had done so because I was scared that he would kill me. Because I was afraid that he would kill me, I had to shoot him first. That is all."

Having admitted shooting the deceased two main issues had to be considered by the jury. (It is not proposed to consider the submission that provocation should have been put to the jury). Those issues were (a) whether the Appellant had an intention to kill at the relevant time and (b) whether he was acting in self defence.

As to an intention to kill, the evidence was strong and one would not have been surprised had a jury, properly directed, concluded that there was such an intention.

As to self defence, several points can be made. First, the learned trial judge elevated the unsworn statement of the Appellant to the status of "evidence". He referred to it as the Appellant's evidence. That was unduly favourable to the accused person. It is not, of course, evidence in the sense of being sworn testimony tested by cross-examination. Its evidential status is set out in Archbold 40th Ed. Para. 583 and need not be elaborated on in this judgment. The jury had to attach to it such weight as they thought fit and had to take it into consideration in deciding whether the prosecution had proved its case beyond reasonable doubt. The Appellant was entitled to have the jury do this and the jury should have been so directed.

Secondly, the learned trial judge explained the defence of self defence in the most general terms. He told the jury that if they believed the Appellant's evidence that would constitute complete justification and that they should acquit. That again might have been unduly favourable to the accused person in the circumstances of this case and so no complaint can be made about that. The correct course, however, is to explain accurately to the jury what constitutes self defence (by reference to such of the provisions of section 29 to 35 of the Criminal Code, or such part of them, as may be appropriate) and allow them to apply the facts as they find them accordingly. It is impossible to generalize on such a matter, but those provisions of the Criminal Code are very clear and those applicable to the particular case need only be explained in clear terms, elaborating as necessary in the context of the particular case. Clearly section 35 is the key section and should be carefully explained to the extent necessary; for example one would omit any reference to treason or piracy or robbery etc. in this particular case.

One does not wish to digress too far from the circumstances of this particular case but it might be helpful to observe that, in dealing with the defence of self defence a trial judge should also bear in mind the question of whether it becomes appropriate to take the matter further in terms of section 116 (b).

Thirdly, although (as will appear later) there was a general direction as to the burden of proof, including the issue of self defence, at the beginning of the summing up, but the defence of self defence was dealt with at a much later stage. The correct place to deal with the burden of proof in relation to self defence is when that defence is being explained. The general direction at the beginning is helpful but juries do not have tape recorder memories and may overlook general directions when specific ones are being considered. Whether or not there has been an earlier general direction embracing this defence, when this defence is being explained the burden of proof should also be explained in the context of this defence. The jury should be told that the burden of proof remains on the prosecution; that the defence does not have to prove that the accused was acting in self defence; that the prosecution must negative that possibility and must do so beyond reasonable doubt. Above all, and this was not done in the general direction in relation to this defence or anywhere else specifically in relation to this defence (although the defence put forward by the Appellant, and whether it was believed, was adverted to several times in the summing up), it must be explained that if the jury have any reasonable doubt as to whether or not the accused was acting in self defence they must resolve that doubt in favour of the accused and acquit.

The main ground of appeal was that the learned trial judge misdirected the jury as to the standard of proof. There was some criticism of the word "think" in relation to introductory words used by the learned trial judge in explaining to the jury their role as judge of the facts but there was no merit in that criticism having regard to the context in which it was used.

When explaining the burden and standard of proof the learned trial judge had this to say:

"The 'prosecution must prove the case. In our judicial system an accused is presumed to be innocent until you have satisfied that he is not innocent. And it is for the prosecution to prove that he is not innocent. The accused does not have to do anything but merely stand mute saying nothing; or say "now you think I have committed the offence you prove that" and it is for the prosecution to prove that. It is for the prosecution to prove every part of the offence. The prosecution must also prove that the circumstances of the case, the circumstances in which the incident occurred, do not permit of any extenuating factor such as self defence. So it is for the prosecution to prove that what happened happended in circumstances that would not justify you in believing that it was a matter of self defence. The defence does not have to prove that it was self defence. The prosecution must prove it was not.

Now, when I say the prosecution must prove their case they must prove it beyond a reasonable doubt. Obviously in this sort of matter it is highly unlikely that you will have a hundred percent proof of what happened. So what the prosecution will seek to do is to produce proof which will leave you reasonable sure of what happened. So if at the end of the prosecution case you have any reasonable doubt, not any fanciful doubt but any reasonable doubt, any doubt which in the ordinary course of your life will prevent you from taking a certain course of action, then you will give the benefit of that doubt to the accused.

If for example you have to decide whether you are sufficiently ill as to need a doctor and there are factors which might explain that your feeling feverish is not a consequence of a fever but a consequence of the temperature outside, and you say to yourself "well maybe I do not have a fever because it is a hot day today". Now that would be a reasonable doubt because then you would not proceed to see a doctor, you will put it off because you're not sure that you have a fever; but if in the same circumstances you really had a fever but you just feel that maybe the doctor will not be at home and whether if you set out to see the doctor you might be run down by a car on the road; that would be a fanciful doubt. It is a doubt which would not cause you to desist from setting out to see the doctor. So it must be a doubt that will stop you from taking a certain course of action. Not a doubt which you manufacture or think up, but a doubt which becomes apparent when you examine the facts".

It is conceded that the use of the expression "reasonably sure" to explain the standard of proof is a misdirection. That is well settled: R. v. Head and Warrener 1961 45 Cr. App. R. 225. It was contended, and it is certainly the case, that the summing up must be looked at as a whole and there are, indeed, other passages in the summing up to be considered.

Dealing with the above passage it is, perhaps, unfortunate that the jury were directed that the prosecution had to prove that the Appellant was "not innocent". What the prosecution had to prove is that the accused is guilty of the offence or offences charged or some alternative on which he can be convicted. It is not a question of being satisfied" that he is not innocent". They must be sure of his guilt.

As to the illustrations given of what might constitute a reasonable doubt they are not, with respect, very apt. For example, it would not appear to be a sound choice to suggest that anyone could visit his doctor at any time he chose and have no reasonable doubt that he would always be at home. It is not a fanciful doubt to assume that a doctor might be away from home at times for a variety of reasons

Apart from the examples given which could be misleading most of the direction is sound enough. But it has been diluted by the reference to being "reasonably sure of what happened". One can only hazard a guess at what the overall impression left with the jury might have been. This is a charge of murder. The standard of direction does not vary with the gravity of the charge. But the gravity cannot be disregarded.

The modern tendency is to avoid the use of analogies to explain a reasonable doubt. In Walters v. R. 1969 2 A.C. 26 the Judicial Committee sanctioned the practice, but it must be recognized that it is easy to be critical of examples chosen and to suggest that they dilute the true standard. The head note in Walters case aptly sums up the position thus:

"Where in a criminal trial for murder the judge in the course of his summing-up directed the jury that a "reasonable doubt is that quality and kind of doubt which, when you are dealing with matters of importance in your own affairs, you allow to influence you one way or the other" and the Court of Appeal of Jamaica confirmed the conviction and refused the petitioner leave to appeal against his conviction for murder.

Held, dismissing the petitioner's petition, that in the context of "doubt", which could not be other that personal to the doubter, it was meaningless to talk of doubt as "objective" and otiose to describe it as "subjective"; that it was best left to the judge's discretion to choose the most appropriate set of words in which to make the jurors whom he had had an opportunity to observe, understand that they must not return a verdict against a defendant unless they were sure of his guilt; and that it was the effect of the summing-up as a whole that mattered and not the particular formula of words used by the judge in his direction to the jury."

It would seem, therefore, that it must be made plain to the jury, whatever phrases are used, that they must be sure before they can convict. Indeed, a common modern approach, after explaining where the burden lies, is to state simply that, before they can convict, the jury must be satisfied so that they feel sure of the accused's guilt and that that is what is meant by proof beyond all reasonable doubt. A simple direction in such terms is unassailable. It is unassailable because it can leave no doubt in the minds of the jury about the standard of proof to apply. And a court of appeal must be satisfied that the direction given leaves no doubt in the minds of the jury as to the correct standard to apply. The matter is dealt with very helpfully in Archbold 40th Ed. paragraphs 598, 598(a) and 598(b) and needs no further elaboration. It should, however, be remembered that the onus in relation to certain defences differs from that in England e.g. the defence of provocation: see Belize Court of Appeal case No. 1 of 1976 Carballo v. R.

Further passages in the summing up to determine the overall effect in the mind of the jury should now be considered.

When dealing with the question of intent to kill the learned trial judge asked the rhetorical question: "Does a man who shoot another in the chest have any substantial doubt in his mind that that will result in death?" From an earlier reference to reasonable doubt in the general direction a new element of substantial doubt is introduced. That can only further confuse a jury. Not that an isolated sentence of that nature in the course of a summing-up would, of itself, necessarily undermine a proper direction; it is merely an element to take into account in assessing the overall effect.

Much of the summing up is sound. It is mainly in relation to the standard of proof that difficulties arise. A recurring theme in the latter part of the summing up (using slightly different wording on each occasion) can be found in the following representative passage:

"If you believe the prosecution evidence then necessary of course you disbelieve the accused. But as I said, you must come back to the prosecution evidence after you have considered the accused's evidence to see whether you believe him because if you believe him you need no longer bother to consider the prosecution's case, but if you do not believe him you will still test the prosecution to see whether all the facts that the prosecution has proved lead you to the conclusion that the accused shot the deceased with an intention to kill at a time when he was not himself being threatened."

That is sound enough as far as it goes. But it does not go far enough on any of the occasions when the point was made. At some stage when that point is made it should also be made clear to the jury that if they are left in reasonable doubt, by reason of his explanation or otherwise, as to whether the Appellant was acting in self defence that doubt should be resolved in his favour and that they should acquit.

The concluding words the learned trial judge left with the jury on this aspect left the matter in a still more unsatisfactory state. He told them:

"So finally if I may sum-up; if you feel that the accused acted in self defence you will find him not guilty of murder. If you feel from the evidence that he was provoked, lost his self control, and shot the man you will find him not guilty of murder but guilty of manslaughter. If you feel that he was not provoked and that he was not defending himself when he shot the deceased and that he shot the deceased with an intention to kill him you will find him guilty of murder."

At that stage, at least, the jury should have been directed as set out above in relation to any reasonable doubt on the issue of self defence. Equally unacceptable is the use of the expression "feel" holding that out as the standard, or so a jury might think. That dilutes the standard beyond acceptability. This is clear from the Belize Court of Appeal case No .3 of 1978 Reynolds v. R. Coming as this direction does at the end of the summing up following a number of less than satisfactory directions on the standard of proof this court is forced to conclude that the jury had not been properly directed on the high standard of proof they had to apply in reaching their conclusions on the major issues before them and that they could well have applied lower standards.

That is sufficient to allow the appeal.

Although this judgment may appear to be critical in many respects, that is unavoidable in the circumstances. It is also intended to be helpful and, in that spirit, the following observations are made.

Polanco was allowed to say in evidence in chief that, when he heard the loud shot on the morning of the 10th, he said to Scott:

"Mike you know what, I think that bastard (meaning the Appellant) shot Tom (meaning the deceased)". He was also allowed to say in chief that when he saw the deceased lying dead, he said: "Man, that the cold-blodded murder." These statements were not made in the presence of the Appellant.

Polanco's intiutive assessment of any situation or his opinion based on spontaneous inference had no relevance to what the jury had to decide. Those opinions were not, therefore, admissible. In so far as they might have influenced the jury in their deliberations the trial judge should have warned them to completely disregard that evidence. That was not done. In fact these remarks were referred to uncritically in the summing up.

Towards the end of the summing up there was what one might call a perfunctory direction on the defence of provocation. In dealing with it the learned trial judge remarked:

"There is no evidence here in this case that the accused was provoked to the point where he lost his self control, where he became enraged. But if you feel from this evidence, that there was provocation you can still come to that conclusion because you are the judges of fact. If he was provoked into shooting he would only be guilty of manslaughter."

Several point should be made.

A trial judge should decide whether or not the defence of provocation should be put to the jury. If he decides that the evidence does not warrant putting that defence to the jury he should not put it. He can, of course, say why he is not putting it to them. If he decides that the evidence warrants putting this defence to the jury then he should put it fully. Again, if he wishes, he can explain why.

To put the defence fully a number of aspects have to be covered. It should be noted that the expression used in section 114 and 116 is "extreme provocation".

It is not intended to try to give a rule of thumb approach to this defence or in any way fetter the way in which the trial judge thinks it appropriate to deal with the defence but the aspects to be covered obviously include the following:

The jury should have explained to them what may constitute extreme provocation in terms of section 117 as may be appropriate to the facts of the particular case. It is for the jury to decide if the facts do amount to extreme provocation.

The jury should be told (or reminded) of the burden of proof and standard of proof that rests on the prosecution to establish its case before the question of extreme provocation arises. The prosecution must establish beyond all reasonable doubt that the accused intentionally caused the death of the deceased by unlawful harm. Unless they are sure that those ingredients have been established the defence of extreme provocation does not fall to be considered. If they have any reasonable doubt in relation to any of those ingredients the defence of extreme provocation does not fall to be considered.

If, however, they are sure that the accused intentionally caused the death of the deceased by unlawful harm then (it should be explained) he will be deemed to be guilty only of manslaughter, and not of murder, if the extenuating circumstances of extreme provocation are proved on his behalf, namely, that he was deprived of the power of self control by such extreme provocation given by the deceased as explained.

It should be pointed out that this involves a shift in the burden of proof to the accused. It should be explained what the accused has to prove to establish the defence of extreme provocation. Above all it should be explained that the standard of proof required to establish this defence is far lighter than that of the prosecution to establish its case; that it turns on the balance of probabilities which can be explained as being more probable than not that he had been deprived of the power of self control by the extreme provocation given by the deceased.

The jury's functions in terms of section 118 should be explained.

There should also be a direction in term of section 119 so far as any part thereof may be appropriate in the circumstances of the case.

The foregoing is not intended to be either exhaustive or restrictive. Each judge has his own style. But the law does require certain matters to be covered adequately in order to be fair to the accused and to the prosecution.

The direction given on provocation in this case fell far short of covering all the ground adverted to above.

One final point, where a jury is invited or directed to consider conviction on an alternative or lesser offence the ingredients of that alternative or lesser offence should be explained to them e.g. in the case of manslaughter, as in this case, in terms of section 113, subsections (1) or (2), as may be appropriate, That was not done in this case.

For the foregoing reasons the appeal is allowed, the conviction quashed and the sentence is set aside. In all the circumstances this court considers that the interest of justice require that there be a new trial. A new trial is accordingly ordered.

The Appellant will remain in custody pending the outcome of the new trial subject to any direction or order of the Supreme Court.

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