CRIMINAL APPEAL NO. 1 OF 2001

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BEFORE:
The Honourable Mr. Justice Ira Rowe - President
The Honourable Mr. Justice Elliott Mottley - Justice of Appeal
The Honourable Mr. Justice Boyd Carey - Justice of Appeal

APPEARANCES:
Mr. B. Simeon Sampson, S.C. for Appellant.
Mr. Rory Field, Director of Public Prosecutions, assisted by
Mr. Rohan Phillips for the Crown.

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2001: June 19 and October 25.

JUDGMENT

ROWE, P.

1. At the conclusion of the submissions by counsel, we dismissed the appeal against conviction of manslaughter, allowed the appeal against sentence and substituted a sentence of 10 years imprisonment for that of 15 years imprisonment imposed by the trial judge. As promised we now set out our reasons.

2. Devon Velasquez, popularly known as "Happy Cow", died on 26 September 1999. The post mortem examination revealed that externally he had 16 stab wounds located at different regions of his body ranging from 4 mm to 2" in length. There were three wounds on the occipital region; six on the left upper limb from the shoulder to the hand; three on his back; one on his chest, two on the left shoulder and the largest wound was located on the left lower lateral region of the abdomen, that is to say, immediately above the hip on the left side. The wound to the chest penetrated the chest cavity by the sixth intercostal space and caused multiple injuries to the right lung. The stab wound to the abdomen went inside the belly to the false ribs and injured the colon and the upper part of the left kidney. A sharp blade instrument such as a machete could cause the injuries in the opinion of the doctor. Death was due to traumatic asphyxia as a consequence of the stab wound to the chest. The other stab injuries contributed to the cause of death.

3. The deceased was approximately 5' 11" tall and weighed about 180 lbs. The appellant is 5' 4" tall and weighs 135 pounds. The disparity in sizes of the two men was adequately referred to the jury by the trial judge at page 104 of the trial transcript.

4. No eye witness was called by the prosecution. There was a hue and cry at the injury site and when the witness Mirata Lamb Hamilton responded to the scene she observed the appellant, with a machete in his hand, standing over the deceased who was lying on the ground, and she heard the appellant say:

"I got a great mind to chop off your neck."

5. The appellant then left the scene, still carrying the machete, on a bicycle. The appellant was arrested and he gave a statement to the Police under caution. At the trial the appellant did not challenge the circumstances under which that statement was taken and it was admitted into evidence without challenge. In that caution statement the appellant said that Happy Cow had accused him on 25 September 1999 of stealing his Walkman radio and was demanding its return. They met in the late afternoon of September 26, 1999 and Happy Cow punched him in his face so that he fell in a nearby drain. He was getting up when Happy Cow, his assailant, drew a machete from his pants side and chopped the appellant on his left leg. Then the appellant continued:

"He was about to chop me with the machete again but Kevin Myvette held on to Devon from behind and I held on to his pants so that he could not chop me. Myvette and myself fought Devon for the machete and we got it away from him eventually. I had got the machete away from him but he was still coming at me and the only thing that I could think about was to chop him as well and so I did. The first chop I gave him was somewhere his neck and shoulder. Devon kept coming at me and eventually he got the machete away from me again. I then went behind him and held onto him around his waist so that he could not hurt me anymore. By this time both Devon and I began to weak and he fell on the side of the street where I took the machete from him. I then told Kevin to take me home which he did on his bike."

6. The appellant continued by saying that he gave Kevin Myvette the machete and that he did not know how many chops he delivered to Happy Cow in that encounter.

7. At trial the appellant made an unsworn statement from the dock. He said:

"I did not stab Velasquez at all. That night I was along with Kevin Myvette. I was not bothering no one. The deceased approached us. He immediately offered violence to me from the previous day about a Walkman. He punch me in my face and I fell on the ground. I was trying to get up he pulled a machete from his pants and chopped me on my left leg. He was about to chop me a second time but Kevin Myvette grabbed him from the back. I held on to his pants in which the machete was in so he could not chop me. We struggle but he is so big and strong. Eventually I got the machete from him and the deceased - I tried to swing two chops with the machete but the chop on my leg was so painful it made me so weak that I fell on the ground. The deceased got the machete from me. Kevin Myvette rushed up to him throwing stabbing motions on Velasquez with the knife. I then saw the deceased let go of the machete which fell. I saw Velasquez fall on the ground. I picked up the machete from off the ground and told Kevin Myvette to take me home which he did on his bicycle. He told me that there were friends of Velasquez and they were going to hurt me so I went to P.G. where I was at the hospital."

8. Corporal Ernell Dominquez went to the Punta Gorda Hospital on September 27, 1999 where he saw the appellant who then had a wound to his left thigh.

9. The first ground of appeal was that the trial judge erred in that he failed to give the jury any directions on the defence of accident when there was some evidence that the deceased could have impaled himself on the machete when it was in the hands of the appellant. In the course of cross-examination, Dr. Estradabran had agreed that some of the injuries to the deceased could have been caused during a fight with a big man impaling himself on the weapon held by the other party to the fight. The learned trial judge reminded the jury of this evidence and dealt extensively with the probabilities of a frontal confrontation and the causation of a lateral injury to the abdomen from such a frontal confrontation. In our view, if the learned trial judge had embarked upon a defence of accident it would have had the tendency to erode the primary defence of the appellant which was self defence and/or provocation. In Smalling v The Queen, Privy Council Appeal 45 of 2000 (a case from Jamaica), Lord Bingham of Cornhill, said that:

"Justice requires that consideration be given to a possible defence disclosed by the evidence even if, for reasons good or bad, the defendant chooses not to advance it".

10. Lord Bingham was speaking against the background of a case in which provocation that can reduce murder to manslaughter is not specifically raised by the defendant and the defence actually raised would if successful lead to a clean acquittal. It would be most unusual for a defendant who has a defence of accident, which could lead to a verdict of not guilty, not to raise that defence before the jury. On the facts of this case, however, we did not think that there was any room for a specific direction to the jury on the defence of accident and therefore that ground of appeal failed.

11. Mr. Sampson filed and argued the ground of appeal that the learned trial judge erred in that he failed to direct the jury that they were required to assess the actions of the appellant on the facts as he honestly believed them to be rather than as they actually were. Mr. Sampson relied on the decisions of the Privy Council in Beckford v R [1987] 3 All ER 425 and Norman Shaw v The Queen, Privy Council Appeal 58 of 2000. In Norman Shaw the Privy Council has laid it down that two essential questions must be posed to juries in self defence cases:

(a) Did the appellant honestly believe or may he honestly have believed that it was necessary to defend himself?

(b) If so, and taking the circumstances and the danger as the appellant honestly believed them to be, was the amount of force which he used reasonable?

12. In this case the trial judge was at pains to point out to the jury the facts stated in the two statements given by the appellant. In the first statement that he gave to the police under caution shortly after his arrest, he seemed to have accepted that he inflicted the injuries that caused the death of the deceased. He described his acts as "chops". Dr. Estradabran demonstrated that the injuries to the chest and abdomen of the appellant were not "chops" but were "stabs". In the dock statement made by the appellant at trial, he attributed the fatal injuries to the appellant to Kevin Myvette. The learned trial judge was therefore entitled to concentrate his directions to the jury on the injuries which were inflicted upon the deceased, the conflicting statements given by the appellant and the overall circumstances of the case from which evidence they could make their determination whether the force used by the appellant was reasonable having regard to the circumstances as he subjectively believed them to be. The deceased received 16 stab wounds, all consistent with infliction by a large blade instrument like a machete. There was only one machete on that scene. The deceased was stabbed frontally, from the side and from the back. One prosecution witness heard the appellant say that he had a good mind to chop off the deceased's neck even as the deceased lay prone on the ground.

13. Although the language used by the trial judge in this case was in some respects similar to the direction given by the trial judge on self-defence in the case of Norman Shaw the facts and circumstances of this case are so different from that earlier case, that the directions given in this case were adequate to meet the issues on self defence that were pertinent for the determination of the jury. We did not find merit in this ground of appeal.

14. We wish, however, to draw specific attention to the decision of the Privy Council in Norman Shaw v The Queen (supra), not only because it is a decision of the Privy Council from this jurisdiction in which the law of self-defence has been clearly expounded but to alert trial judges to the pitfalls of using formerly hallowed language in self defence cases. Judges should now conform to the Norman Shaw standards and no other.

15. The learned trial judge was very concerned with the level of violence in Belize and rightly so. However, in passing sentence the facts and circumstances of the particular case must be given full weight. On the acceptance by the trial judge at page 128 of the Record that it was the deceased who had the machete and who initiated the violence by chopping the appellant with that machete, the learned trial judge failed to give the appellant the benefit of the extreme provocation under which the appellant laboured at the time of the commission of the offence. We therefore reduced the sentences to one of ten years imprisonment.

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ROWE, P.


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MOTTLEY, J.A.



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CAREY, J.A.