Court of Appeal
Criminal Appeal No. 15 of 1993
8th September, 1993
KENNETH ST. L. HENRY, P.
SIR LASCELLES ROBOTHAM, J.A.
PROFESSOR TELFORD GEORGES, J.A.

Mr. Wilfred Elrington for the Appellant
Mr. Ewan Thompson, Crown Counsel for the Respondent

Court of Appeal - Appeal against conviction for murder - Unsworn statement from the dock - Whether trial judge failed to instruct jury adequately on assessment of unsworn statement - Unsworn statement to be treated the same way as all other evidence - Failure of trial judge to direct jury on provocation - Appellant guilty only of manslaughter if Appellant acted under extreme provocation.

J U D G M E N T

The Appellant was convicted for the murder of Derrick Brown and duly sentenced to death.

The case for the Crown was that the deceased and the accused on May 15, 1992, rode from the area of Pinks Alley in Belize City to the stables area of the National Stadium in connection with a drugs deal. Eugene Neal, a friend of the deceased, had followed them on his bicycle. He had seen the deceased talking to the accused, had concluded that a drug deal was concerned and had followed in his language "to watch his [the deceased's] back because he is my friend."

When they reached the stables the accused told the deceased that he was going to get the thing. He dismounted and went behind the stables. He held on to a board in the area. He then hailed the deceased and Eugene saw the accused with a bag in his left hand and a gun in his right hand. As he hailed the deceased he shot at him three times. Neal who was a short distance away ran off only to realize that he was running to a dead end. He had to turn and run in the direction of the accused who fired at him twice. The first shot missed the second hit him on the left arm. He dropped and lay still as though dead. He heard the sound of two more shots. He remained still for some time. Eventually he got up. He did not see the accused. He saw the bicycles. He ran to the main road leading to the Stadium. He saw two persons getting into a vehicle and persuaded them to take him to the hospital where he later made contact with the police.

The Appellant did not give evidence on oath. He made an unsworn statement. His account was that the deceased and Neal had "drawn down" on him while he was riding his bicycle in an alley in Belize City. He had ridden in the direction of the Barracks Road but his bicycle chain had come off. `He had to fix that and while he was doing this the deceased and Neal had caught up with him. The deceased had shoved a gun in the area of his neck and back while Neal searched him. They then told him that they should go for the drugs as they knew the area where he had it.

He fixed his bicycle and the three of them rode down the Barracks Road to the Barracks. The deceased rode close besides him with Neal at the back. Neal had the gun in his hand covered with a white cloth. The Appellant said that he told them that there was no need to kill him for drugs. He had it and he would give it to them before they kill him.

They went into the area of the stables. Closely followed by the deceased and Neal he went to an area near the second paddock. He raised the zinc and took out half a kilogram of cocaine in a bag. Neal grabbed it and walked with the deceased to an area where there was more light to examine it. Neal said it was the real thing. The deceased was watching him, the Appellant, and as he stepped backwards the deceased fired a shot at him. At that moment the Appellant said he tripped and fell backwards. When he opened his eyes he saw stars. It took some time for him to recover and when he did he crawled behind a machine in the area. He had his gun in a bag. He unzipped the bag took out the gun, cranked it and fired some shots in the direction of the deceased. The shots did not appear to hit the deceased because he was still on his bicycle. So he fired some more shots and then the deceased dropped. When the deceased dropped Neal turned to run. He fired a shot at him which caught him. Neal let go the bag and ran. The Appellant then picked up the other gun which was on the ground and the half kilo of cocaine, mounted his bicycle and rode off. He threw the two guns at separate points in a creek, rode into town, sold the drugs and made enquiries as to where he could buy a gun. On his way to follow that lead he saw a police vehicle and he gave himself up.

The first of the two grounds of appeal was that the trial judge had failed to instruct the jury adequately on the proper approach to the assessment of the Appellan's unsworn statement from the dock. The criticism is justified but the failure was unduly favourable to the Appellant.

Having reviewed the evidence for the prosecution the judge stated that he would "sum up the case for the Defence and analyse the evidence." He then stated -

"Now you will recall Mr. Foreman and Members of the Jury, that the accused elected to give a statement from the dock... Now let me tell you straight away that the accused need not have even to do that. The accused of course could have elected to give evidence and be cross-examined like any other witness and yourself (sic) would have been able to ask him questions and I could have asked him questions also. You will recall I spoke to him but only to get from him to repeat what was not audible to me but the accused need not have done that. He could have elected to sit where he is right now and said nothing. That is his legal and constitutional right. You see Mr. Foreman and Members of the Jury, the accused is presumed to be innocent as I said earlier, until proven guilty. It is for the Prosecution to prove the case against him...

Now the accused in his statement from the dock raised what we call the defence of self defence...

Now Mr. Foreman and Members of the Jury, the accused's account of what took place that caused him to shoot the deceased is as follows...

The trial judge then proceeded to give a summary of what the Appellant had said without comment or criticism.

We are satisfied that the manner in which the trial judge treated the statement was such that the jury could only have concluded that they were to treat it in the same way as all the other evidence in the case, a review of which the judge had just concluded. This was decidedly favourable to the Appellant.

The second ground was that the trial judge had failed to leave the issue of provocation to the jury.

The case for the Defence rested squarely on self-defence. The record of the speech by defence counsel makes no mention of provocation. After the summation was concluded the jury were excused and Crown Counsel raised an issue as to the judge's direction on intent and Defence Counsel noted that the judge had not directed the jury on the issue of provocation. The jury were recalled and further directions given but not on provocation.

We are satisfied that this was a case in which such directions should have been given. The jury may well have accepted the Appellant's version of the incident but may also have been satisfied that the force used was manifestly excessive and for that reason rejected the defence of self-defence. In that situation, however, it would have been open to them to find that the Appellant was guilty only of manslaughter by reason of his having acted under extreme provocation.

If it is accepted that the deceased did shoot at the Appellant, that would have been in the words of section 117 of the Criminal Code -

"An unlawful assault... comitted upon the accused person by the other person"

It would clearly be an assault of a violent nature such 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 powers of self control."

Whether the Appellant did in fact lose his self control would be a matter for the jury but it was not left to them.

For these reasons we allowed the appeal quashed the conviction and sentence, substituted a conviction for manslaughter and imposed a sentence of 10 years imprisonment.

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