Court of Appeal
Criminal Appeals 3 and 4 of 1990
8th February 1991
KENNETH ST. L. HENRY, P.
SIR DENIS E.G. MALONE, J.A.
DR. NICHOLAS J.O. LIVERPOOL, J.A.

Mr. B. S. Sampson, for Appellants
Mr. F. Lumor, for the Respondent

Appeals against convictions and sentences of death imposed for murder - statements made under caution - judge did not himself decide question of voluntariness but left it for jury to decide - voluntariness a matter for the judge - in abdicating function judge failed properly to exercise his discretion to admit the statements in evidence- appeals allowed - convictions and sentences set aside - new trial ordered.

J U D G M E N T

On October 22, 1990 the Appellants were convicted for the murder of Carlos Meza at Trial Farm Village, Orange Walk District on September 19, 1989 and sentenced to death. They have appealed against their conviction.

Evidence led by the prosecution at the trial indicates that on the evening of his death Carlos Meza was the sole attendant at a gas station owned by his sister's common law husband. At about 6.45 p.m. his sister, who lived nearby, called to him and gave him his supper in a food container. Shortly afterwards, she heard the sound of an explosion from the vicinity of the gas station and when she investigated she discovered the dead body of her brother sitting in a chair with his head leaning backwards and a large hole in his face on the right side. The medical evidence was that death was due to a gunshot wound which destroyed the right eye and penetrated the brain.

The prosecution's case rested almost entirely on statements allegedly given to the police by the appellants. The statement of the First Appellant is to the effect that he and the Second Appellant, who was armed with a shotgun, went "to rob the money from the gas station". He entered first followed by the Second Appellant who pointed the shotgun at a young man sitting behind a table eating and said, "Don't move, this is a hold up". A short time after he saw "fire was coming out of the barrel" of the shotgun and heard a loud sound. Looking then towards the young man who had been eating he saw blood coming from his eye.

The statement of the Second Appellant is to the effect that when he and the First Appellant entered the gas station there was a struggle behind the counter between the young man who had been seated at a table and the First Appellant and "like how they recognized him (the First Appellant) he told we shoot him and that shot went off and it hit the young man".

At the trial each Appellant made a statement from the dock. The First Appellant complained of being beaten and maltreated to give a statement and in relation to the shooting said simply, "it was not my intention to kill nor to assassinate anyone. The only reason was to steal". The Second Appellant also complained of being beaten to give a statement and in relation to the shooting said "I didn't go to the gas station to kill anyone. I went to steal. But the shotgun was knocked against the wall and it fired. I didn't point it to anyone. I didn't shoot at anyone. The shotgun was knocked and it fired."

The question which has most occupied our consideration is whether the learned trial judge properly exercised his discretion in admitting in evidence the statements allegedly given by the Appellants to the Police. In his detailed written ruling he clearly set out the Appellant's complaints of beatings and physical abuse by the Police to induce them to give statements; of breach of section 5 of the Constitution of breach of rules 2, 3, and 4 of the Judges Rules and paragraph 2 of Part III thereof and of section 88 of the Evidence Act, Chapter 75. But nowhere in the ruling does he record a finding in relation to the complaints of beatings and physical abuse prior to the taking of the statements. Instead the ruling deals with the absence of violence during the recording of the statements, the cautions administered before the statements were taken, the steps taken to have a justice of the peace and teacher and the clerk of the courts present when the statements were taken, and whether the questioning of the Appellants were in breach of the Judges Rules. The only statement which could be said to relate to the complaints of maltreatment is that in which the learned trial judge stated, "There is no evidence which I accept that anything was done to break their will.". But this statement appears in a portion of the ruling in which the learned trial judge was dealing with the actual recording of the statements and went on to indicate that "there was no questioning as in R. v. Bartolo Bardalez and Cornelius Bardalez and the cases are distinguishable to that extent".

When he came to sum up to the jury the learned trial judge said in relation to the statements:

"I admitted them into evidence and there are two positions I must make very clear to you as a result of my admission of those statements into evidence. Firstly as a matter of mixed law and fact I admitted both statements on the argument relating to compliance or non?compliance with the Judges' Rules and Procedures thereunder and similarly compliance or non?compliance with the provisions of the Constitution, Section 5, sub?section 2(b) and (c) by the police investigators."

"I found that this was not a case in which the statements were recorded through conduct of which the prosecution ought not to take advantage. This is in relation to the second accused's constitutional right to have a parent or guardian present at the recording of the statement. The Justice of the Peace's presence after inquiry by the investigators as to the whereabouts of his parents or guardian shows the efforts to comply with the Constitution. Then in relation to the first accused there is evidence that he was asked if he wanted to contact an attorney under the constitution. But even if it was not complied with again efforts were made to record the statement in the presence of a neutral person, the Clerk of Court, Miss Marina Gongora."

"So what I have said is this, my directions to you as a matter of mixed fact and law is that the two statements were admitted as part of the evidence from the point of view of Section 5(2) (b) and (c) of the constitutional point of view.

Now the second approach. Now from the other point of view you have the right and are required to look at the circumstances under which each statement was taken to ascertain whether or not each was given voluntarily by the particular accused, if it was given freely and voluntarily that is for you to decide, that is another matter. This is where Section 7 of the Constitution cited by Mr. Sampson comes into play because that section says no person is to be subjected to torture or inhuman or degrading treatment. You are to look at the circumstances and to see whether they were in fact beaten, if they were, as they alleged beaten with the gun butts or what not. If you find that they were gun butted and feared that they would suffer gun butting if they refused again then that is the type of thing you have to consider as judges of the fact, that one is left for you to consider because it would affect whether or not the statements were freely and voluntarily given and so be used as evidence against them."

"So you are to determine whether the statements were freely and voluntarily given without being put in fear or threats or promises of favour or advantage held out to any of them for them to make those statements. Look at the conditions under which they were given as you find them and you will be able to better determine the weight to be given to the particular statement; how best to deal with it given the circumstances under which they were recorded".

In our view it is apparent from these, passages and from the silence in the written ruling as to the alleged maltreatment that the learned trial judge did not himself decide the question of voluntariness in so far as the alleged maltreatment is concerned but left it for the jury to decide. Voluntariness is the test of admissibility and is clearly a matter which a trial judge must decide. In abdicating function as we find that he did the learned trial judge failed properly to exercise his discretion to admit the statements in evidence. As we have previously indicated the prosecution's case rested almost entirely on the statements. In the circumstances we are obliged to allow the appeals and set aside the convictions and sentences. In the interest of justice however we order that there be a new trial. This is sufficient to dispose of the appeal but we will nevertheless deal with other matters raised in the grounds of appeal.

The first ground of appeal argued before us is that "the learned trial judge failed to give any proper direction on behalf of the defence ?

(a) on the defence of accident, and

(b) on the burden and standard of proof, and

(c) that if the jury found themselves in a state of reasonable doubt on the issue of accident, the appellants should be acquitted.

(d) in particular, he omitted to direct the jury on the evidence most favourable to support the defence of accident."

In our view if the killing of the deceased resulted from an unintentional firing of the shotgun carried by the Second Appellant this would be a fact to be considered by the jury in deciding whether there was an intention on his part to kill. It could not however be regarded as an "accidental" killing justifying his acquittal in circumstances in which the Second Appellant had taken a loaded shotgun with him with the intention of stealing. In support of his submission to the contrary counsel for the Appellants relied on the decision of this court in Criminal Appeal 14 of 1983 Santiago Chub v. R. In that case however the evidence on which this court held that the defence of accident ought to have been dealt with by the trial judge in his summing up is set out in the judgment as follows:

"The Appellant gave evidence on oath. He said that Alfonso Kib had threatened to shoot him if he did not kill Alberto Maas. Kib gave his a gun, pushed him up a ladder which apparently led into the deceased's house threatening that if he did not kill the deceased Kib would kill him, his wife and children and burn his home. He went up the ladder trembling and as he did so the gun went off. When he went up the ladder he "had no bad intention in mind", and "did not know whether the gun was cocked or not". He did not pull the trigger of the gun."

Those facts are clearly distinguisable from the facts in the present case. We see no merit in this ground of appeal.

The second ground of appeal is that "the learned trial judge failed to give any, or any proper directions to the jury on the specific intention to kill which requisite to establish the crime of Murder; (a) and in particular, the relevant provisions of Sections 5(3), 6(1) and 9 of the Criminal Code (b) he failed to adequately direct that Recklessness in Section 8 of the Code does not necessarily constitute intention to kill." Counsel for the Appellants submitted that the directions to the jury were so long and confused that the jury could not have grasped the nature of the task they were undertaking. He referred to the following passage in the summing up and submitted that the jury way well have been led to believe that an intention to "cause serious injuries" was sufficient to ground a conviction of murder:

"Now in considering intentions, the law requires that you ask yourselves certain questions and in particular this question ? Did Rivera either intended to produce Carlos Meza's death or he had no substantial doubt that the act of shooting as you may find it proved would produce his death or cause serious injuries, that is a question you have to answer. I also want you to consider that it is, that you should consider that the fact that Carlos Meza was injured and that that was the natural and probable result of the act of shooting allegedly done by Rivera are to be treated as relevant factors as to whether Rivera acting in consort with Marroquin intended to cause Carlos Meza's death or was it to cause injuries to overcome Meza's, to overcome Meza and facilitate the act of robbery or was it an accident which was foreseeable or unforeseeable?

The passage referred to is one in which the learned trial judge was directing the jury's attention not so much to the specific intention to kill which was the necessary element in murder as to the possible conclusions they could reach on the question of intention. He went on to point out to the jury various matters they could consider in determining intention and concluded.

"So you consider these as to the intention of the two accused, if you find that the intention was to cause Carlos Meza's or any other attendant's death by intentionally inflicting unlawful harm and that the two accused acted in consort on a joint enterprise then your verdict should be guilty of murder if the other elements are proven."

Here and elsewhere in his summing?up the learned trial judge made it clear that an intention to kill was essential to ground a conviction for murder. We do not therefore accept that the learned trial judge was suggesting to the jury that an intention to cause serious injuries was sufficient.

In view of the course we have adopted we do not consider it desirable to analyse the evidence in any detail. It may however have been more helpful in summing?up to the jury to deal separately with the evidence against each Appellant. On the question of intention the jury could have been invited to consider to what extent they accepted as true the statement given to the Police by the Second Appellant or the unsworn statement from the dock, having regard lo the position in which the body of the deceased was found, the nature of the injury and the general surroundings. These were factors which were relevant to the determination of the Second Appellant's intention. The First Appellant's intention on the other hand would primarily have to be determined from his statement and by application of the doctrine of common design which would have to be explained to the jury. One of the questions the jury would have to consider in relation to common design was whether the shooting of the deceased was in furtherance of any such common design. In so far as the First Appellant is concerned it was therefore important for the jury to bear in mind that in deciding this question they could not consider the Second Appellant's statement to the Police. Counsel for the Crown very properly conceded that in the following passage this may not have been made clear to the jury:

"Earlier on I dealt with the principles applicable to joint enterprise. I now come to evidence you may consider. Firstly, each accused's caution statement insofar as it puts the particular accused on the scene and any preparation for stealing from the gas station of its receipts, the leading of Sgt. Rodriguez and his party to the recovery of the 16 gauge shot gun by the second accused and the recovery of the 12 gauge pump action shot gun and the blue coat and hood by the first accused."

At the same time the jury would have to consider whether it was within the contemplation of the First Appellant that in carrying out any joint enterprise to which he was a party the loaded gun which the Second Appellant carried might be used with the intention of killing.

We have mentioned some of the matters which the jury would have to consider but we do not propose to lay out any guidelines as to the directions to be given to them.

The last ground of appeal is that the Learned trial judge erred in law in that he failed:

(a) adequately to direct the jury on the essential ingredients of Manslaughter (vis?a?vis Murder); and in particular the provisions of Section 131 of the Indictable Procedure Act, Chapter 93.

(b) to direct the jury that if they were left in reasonable doubt about the accused' intention the verdict should be Manslaughter.

In so far as this ground is concerned Counsel for the Crown conceded that the learned trial judge failed to tell the jury that if they were in doubt as to whether there was an intention to ki11, but the other elements of murder had been established, their verdict ought to be a conviction for manslaughter.

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