Court of Appeal
Criminal Appeal No. 1 of 1994
8th September, 1994
KENNETH ST. L. HERNY, P.
SIR LASCELLES ROBOTHAM, J.A.
HORACE W. YOUNG, J.A.

Mr. R. Bradley for Appellant
Mr. S. Gamalath for the Respondent

Appeal against conviction for murder and sentence of death imposed - Provocation - Section 116(ii) of the Criminal Code - Burden of proof lies on the Crown and not on accused - Judge therefore misdirected the jury - Self defence - No specific directions given to jury on burden of proof - Possible prejudice to appellant - Appeal allowed - Conviction and sentence set aside - New trial ordered.

REASONS FOR JUDGMENT

On September 5, 1994 we allowed this appeal set aside the conviction and sentence of the Appellant for murder and promised to put in writing the reasons for our decision. We now do so.

The Appellant and the deceased Manuel Ramos, lived together as man and wife in the home of the Appellant's mother, Dolores Garnett. On the night of March 26, 1993 they went out together, leaving their two children with the Appellant's mother. Upon their return Dolores said she "heard the noise of Lorna bawling" and when she enquired what was the matter Lorna, who was crying, told her that "Manuel just beat she up and kick she under her belly." Manuel told her, "Its a family affair." They entered the house and later she heard Lorna saying, "behave, behave, behave." She again investigated, looking into the room where she "saw Manuel and Lorna, with his hand choking Lorna." She asked Manuel what he was doing and he told her he got jucked.

Manuel in fact received two stab wounds to the back, one of which penetrated the chest and resulted in his death.

The Appellant gave an unsworn statement in which she said:

"I had to defend myself. Manuel was going to kill me. He said he was going to kill me, I believe he was going to kill me, I did not wanted to die. He beat me, cursed me, punched me and kicked me up. All the way from Daly Street until I got home. He attacked me to kill me with his knife."

In the light of this statement and the evidence of Dolores Garnett the learned trial judge left for the jury's consideration the issues of self-defence and provocation.

In respect of the issue of provocation the 1earned trial judge told the jury:

"What the law says, "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 it is pleaded on his behalf or if it is proved that he was deprived of the power of self control by such extreme provocation given by the other person."

This was a reference to section 116(ii) of the Criminal Code which had always in Belize been construed as imposing, on an accused person the burden of proving provocation. In Privy Council Appeals 8 and 9/93, Vasquez v. R; O'Neil v. R. however the Privy Council has subsequently held that although that is a correct construction of the section as it stands, the section must be modified to conform with section 6(3)(a) of the Constitution and construed as if it read:

"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 there is such evidence as raises a reasonable doubt as to whether he was deprived of the power of self control by such extreme provocation given by the other person as is mentioned in section 117; or "Accordingly, there was a misdirection by the learned trial judge as a consequence of which the appeal ought to be allowed."

As regards the issue of self defence counsel for the Crown conceded that although the learned trial judge gave general and correct directions on the burden of proof, he did not give specific directions in relation to the issue of self defence. In circumstances where during the summing up reference was made to the "defence of self-defence" and to a person justifying the use of necessary force, the jury may well have been left in doubt as to where the burden of proof lay in relation to the issue of self defence and the Appellant may therefore have been prejudiced. On this ground also the appeal must be allowed.

There was however other evidence which did not support the Appellant's unsworn statement. The offence is a most serious one but the previous trial, although lasting for some two weeks, was not complex. The Appellant will undergo the ordeal of a second trial but in the interest of justice we accepted the submissions of both counsel that a new trial should take place.

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