Mr. Sampson for the Appellant
Mr. Lucas for the Respondent

Court of Appeal - Conviction for murder - Provocation - Misdirection of jury on question of provocation - Failure of trial judge to remind jury that witness never came face to face with the accused - Trial judge warned jury of the critical importance of matter of identification - Whether warning sufficient - Trial judge gave proper and adequate directions in relation to identification - Appeal dismissed,

J U D G M E N T

On February 8, 1993 the Appellant was convicted for the murder of Winston Moguel and sentenced to death. He appealed against his conviction.

The charge against the Appellant arose from an incident witnessed by one Norman Vernon which occurred on March 31st, 1992 at a garage where Mr. Vernon was employed as a body works man. According to Mr. Vernon a man on a small bicycle came to the garage at about 2.30 p.m. and an altercation occurred between the man and the deceased about the bicycle. The man left, but returned some 15 minutes later and kicked at the deceased who then held his foot. There was a struggle, the man produced a gun, shot the deceased and when the deceased fell, fired two more shots as he lay on the ground. The deceased died as a result of hypovolemic shock secondary to three gun shot wounds of the chest. Mr. Vernon could not identify the man but he described him as tall, thin, and red skinned. Another prosecution witness John Miguel, a brother of the deceased, stated that he heard the sound of gun shots from across the street and when he went in their direction he saw the deceased lying on the ground and the accused riding away on a small bicycle with a gun in his hand. He heard the accused saying, "I will kill you fucking rass next time."

The first ground of appeal argued is as follows.

"1. The Learned Trial Judge erred in law, in that:

(i) He misdirected the jury by describing DEPRIVAT10N OF SELFCONTROL BY EXTREME PROVOCATION as follows -?

(a) "You have to examine that whether his (that is to say the Appellant) actions were done at a time HE WAS OUT OF HIS MIND." This suggests insanity.

(b) "HE HAD LOST CONTROL OF HIS MIND BECAUSE OF
EXTREME PROVOCATION" ……… suggesting possible
Diminished Responsibility.

(ii) He misdirected the Jury on the Burden and Standard of Proof on the issue of Provocation; and failed to give a proper direction on the relevant provisions of Sections 116,117,118, and 119 of C.C. as applies."

In support of this ground counsel referred to the following passage in the learned trial judge's summing up.

"So you have to examine now if you believe that the accused is the person, then you have to examine that whether his actions were done at a time he was out of his mind, he had lost control of his mind because of extreme provocation which he had received at the hands of the deceased"

The learned trial judge undoubtedly erred in referring to the appellant being out of his mind or having lost control of his mind as being a relevant or appropriate consideration in relation to the question of provocation. However the offending passage appeared when the learned trial judge first mentioned the issue of provocation. Later in his summing up, as counsel for the Appellant quite properly stated, the learned trial judge correctly directed the jury on the law as to the constituent elements of provocation. These directions in our view corrected the earlier error.

The learned trial judge also directed the jury that the burden lay on the prosecution to negative provocation. This direction is contrary to the decisions
of this court in criminal appeals 13/84 Kent Bowers v. R, 2/83 Rivas v. R, 2/80 Taibo v. R. and 1/76 Carballo v. R. in which it was held or recognized that the burden of proving on a balance of probabilities the extenuating circumstances of extreme provocation lies on the accused. We agreed however with the submission of counsel for the crown that this direction could only operate to the benefit of the Appellant.

The second and third grounds of appealed which were argued together, are as follows:

"2. (a) The Learned Trial Judge failed to remind the jury of the specific weaknesses blatantly appearing in the evidence of alleged visual identification of the Appellant by John Miguel.

(b) In particular, the Judge failed to direct the Jury that the totality of this evidence of absolutely no face to face confrontation (nor eyeball to eye?ball.) was additionally very poor.... being of the fleeting?glance type lacking any corroboration adequately and properly in material respects.

(c) The Learned Trial Judge misdirected the Jury by directing that the testimony of Vernon on identification corroborated the evidence of Miguel also.

(d) He failed to give any, or any proper direction on the identifying evidence generally; further failed to direct as to how such evidence was to be assessed; and finally

(e) He erred in law when he failed to withdraw the case from the jury in consequence of the weaknesses complained against in the ground.

3. The Learned Trial Judge erred in law in that??

(a) He directed the Jury in such a manner especially on the issue of Provocation and Self?Defence as if the identification of the Appellant as being the assailant had been absolutely proven; and as if no other defence was available;

(b) From the beginning to the end of the summing?up the Learned Trial Judge put before the Jury exclusively and most repetively only the prosecution evidence against the Appellant; and

(c) He failed to give any, or any proper direction on the defence of mistaken identity, as he was legally obliged to do in the appellant's favour."

The essential complaint in relation to these grounds is that in dealing with the question of identification the learned trial judge failed to point out to the jury that the witness who identified the Appellant as the person with a gun riding a small bicycle away from the scene never came face to face with that person. This was particularly significant, counsel submitted, since the eyewitness Vernon who had a greater opportunity for observing the person on the two occasions when he came to the garage, failed to identify the Appellant as that person.

At the close of the prosecution's case there was, at the jury's request, a visit to the locus in quo during which Mr. Miguel pointed out where he was when he saw the person on the bicycle and where that person was. In the course of his evidence he had described the route taken by that person ? from Ebony into Mayflower Street. The learned trial judge repeatedly warned the jury of the critical importance of the matter of identification. He also told them, in keeping with R. v. Turnbull (1976) 65 Cr. App. Rep. 242:

"I must advise you, I must warn you, that witnesses have been known to make very serious mistakes about the identity of other persons for as you well know people look alike and it is always possible for people to make mistakes about others so you got to bear that in mind and honest and convincing witnesses can be very mistaken witnesses. Witnesses can appear to be very honest and they are in fact honest but it is just that they are mistaken in what they thought they saw so honest and convincing witnesses may be very mistaken witnesses. Furthermore more than one witness can be very mistaken about what they think they saw. Two, three, four witnesses can be mistaken. So it is important that before you decide to convict an accused person based on identification evidence you must be satisfied so that you feel sure that the identification is a sound one. In arriving at your decision as to whether the identification is a correct one you may want to consider the circumstances in which the identification was made.

... So the length of time the witness had the person under his observation... The distance they were apart from each other, the nature of the lighting in the area in which the identification was made, you saw the area, we all have acknowledge, at the least the witness said it was clear afternoon and you all know what the situation is like in Belize in the month of April, May, late May, April, what type of weather we had that afternoon.

"The issue as to whether there was any obstruction blocking the view of the witnesses. They said there was none, when we went to the locus we were told that the fence that is now there was not there, it was open space. The length of time that had elapsed between the original observation and the subsequent identification to the police. I must also warn you that mistakes in the recognition of close relatives and friends have been known to have been made from time to time, grave mistakes. I am warning you to be careful in this matter of identification notwithstanding the fact that the witness John Miguel said that he grew up from childhood with the accused, that there was nothing impeding his vision of the accused on the afternoon, that he was relatively close to the accused when he made the identification of the accused. He said eight feet but he points to a distance between that wall and that wall which is substantially more than eight feet. We also went to the locus and he pointed it out."

In the circumstances we do not consider that the failure of the learned trial judge specifically to remind the jury that the witness never came face to face with the person on the bicycle is fatal to the conviction. It is a matter which must have been well in their minds, as was the fact that Mr. Vernon had not identified the Appellant.

The other complaint is that the learned trial judge told the jury that Mr. Vernon's evidence corroborated that of Mr. Miguel on the identification of the Appellant. What the learned trial judge in fact told the jury was that they could consider the description of the person given by Mr. Vernon in evidence and see whether the person identified by Mr. Miguel fitted that description. We do not consider that this was a misdirection. Nor do we consider that there is merit in the other complaints made in the grounds of appeal. The learned trial judge, as we have indicated, gave proper and adequate directions in relation to identification. In dealing with provocation and self defence he repeatedly told the jury that these were for consideration only if they were sure that the Appellant was the person who had shot the deceased. Although it was suggested to Mr. Miguel in cross examination firstly that he did not see anybody with a gun turning in Mayflower Street, and secondly that if he did see somebody he could not have seen who that person was, these suggestions were rejected by him. The Appellant did not give evidence, make an unsworn statement or call witnesses. There was therefore no evidence other than that of the prosecution witnesses to which the learned trial Judge could refer the jury. If the jury accepted the evidence of Mr. Vernon and Mr. Miguel it was clearly open to them to convict the Appellant. The identification by Mr. Miguel was of a person known to him since childhood whom he saw in broad daylight a short distance away, although admittedly for a brief period. We do not consider that it can be said that the quality of the evidence of identification was so poor that the learned trial judge ought to have withdrawn the case from the jury.

For these reasons we dismiss the appeal and affirm the conviction.

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