Court of Appeal
Criminal Appeal No. 5 of 1983
17th November, 1983
J.A. SMITH Ag. P.
A.L. STAINE J.A.
K. HENRY J.A.

Mr. Dennis Barrow for the Appellant
Mr. G. Ghandi for the Respondent

Criminal Appeal against conviction and sentence - Manslaughter - trial judge misdirecting jury in summing up as to what constitutes manslaughter - Appeal set aside - conviction for causing grievous harm substituted.

J U D G M E N T

The Appellant was charged with the murder of Victor Milian and on April 15, 1983 convicted of manslaughter and thereafter sentenced to imprisonment for fifteen years with hard labour. This is an appeal against the conviction and sentence.

The medical evidence led by the prosecution indicated that Victor Milian sustained two separate gunshot wounds, one to the chest and one to his left elbow. Pellets from the cartridges penetrated his lung and fractured his elbow. He died as a result of shock and haemorrhage. Evidence led by the prosecution suggests that the killing was premeditated but the Appellant's case is that he fired the first shot in self defence and the second with the intention of warning the deceased, but with no intention to kill.

The principal ground of appeal argued before us was :-

"The learned trial judge erred in law and misdirected the jury in saying that manslaughter is killing of a person without the intention to cause death, the doing of an act which kills a person without intending to kill him."

In the course of his submissions counsel for the Appellant pointed to several passages in the summing up in which the learned trial judge dealt with the question of manslaughter in a somewhat confusing way.

The learned trial judge at the very end of his summing up, having recalled the jury in order to clarify his previous directions to them, summed up the possible verdicts open to them as follows: -

"So if I may sum up the possible verdicts for you-if you come to the conclusion that the first shot was self defence and that the second shot was fired at random and hit the deceased and that that shot could possibly have caused the broken elbow and that since he did not fire with the intention to kill but he fired in the direction of the deceased and did in fact break his elbow knowing that he could possibly cause harm to the deceased by firing in his direction you could find him guilty of the offence of maim. If you come to the conclusion that both shots were justifiable in the circumstances as self defence-it is something that the defence itself does not say, then of course you will find him not guilty. If you find that he fired the second shot not intending to kill and that he only possibly caused the injury to the elbow but that that injury contributed to causing death and that the first shot was in self defence then on the second shot you could find him guilty of the offence of manslaughter. If you find that he fired both shots without justification at an unarmed man you will find him guilty of the offence of murder."

In arriving at their verdict of guilty of manslaughter the jury must, following these directions, be taken to have found that the appellant fired the first shot in self defence and the second shot with no intention to kill but that the second shot caused the injury to the deceased's elbow and contributed to his death. There was however no real evidence that the injury to the elbow, if it was the second injury, could have contributed to the death of the deceased. The doctor's evidence was that death would have occurred within minutes of the injury to the chest. The evidence indicated that after the first shot was fired and the deceased retreated from his verandah into his house and, according to the Appellant, because the deceased was shouting he fired the second shot through the door of the room where the deceased was. It is true that the doctor in evidence said that the deceased "died of shock and haemorrhage due to gunshot wounds over chest and left elbow". But if the first injury was the one to the chest then the deceased must, having regard to the lapse of time, have been on the point of death when the second shot was fired. The injury to the elbow included fractures of it. Accordingly on what must be taken to have been the jury's finding the appropriate verdict would be one of causing grevious harm. There was ample evidence of which they could reach such a verdict. In the circumstances, we therefore allow the appeal, set aside the conviction and sentence for manslaughter and substitute therefore a conviction for causing grevious harm for which we impose a sentence of 5 years imprisonment with hard labour.

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