CRIMINAL APPEAL NO. 6 OF 2001

____

BEFORE:

The Honourable Mr. Justice Mottley - Justice of Appeal
The Honourable Mr. Justice Sosa - Justice of Appeal
The Honourable Mr. Justice Carey - Justice of Appeal

APPEARANCES:

Mr. Kirk Anderson for appellant
Mr. Rory Field, Director of Public Prosecutions and
Miss Cheryl Lyn Branker-Taitt for Crown

_____

13 June & 25 October, 2001

JUDGMENT

CAREY, JA:

1. The Court on 13 June 2001 allowed this appeal, quashed the conviction, set aside the sentence and entered a verdict and judgment of acquittal. We promised then to put our reasons in writing. These now follow.

2. The appellant who was charged with murder of Edward Figueroa was convicted of manslaughter and sentenced to twenty (20) years' imprisonment.

THE PROSECUTION CASE:

3. There were no eyewitnesses to the killing. The prosecution case depended entirely on the evidence of Cherrymae Howard who testified that the appellant had told her that "he jukked the bwoy (i.e. Figueroa) three times." The case was however fleshed out by the evidence of Cherrymae herself and Miguel Heredia. In summary, they said that in the early morning of 4 July 1999, there was a fight between Kevin Sutherland and Edward Figueroa in which Heredia intervened by breaking a bottle on Sutherland's head. Heredia ran off. Figueroa chased Cherrymae and her cousin, the appellant, with a big stick. At this point, there was a gap in the evidence, for in the next scene (described by Cherrymae), Figueroa is seen lying on the ground with this "big and heavy stick" resting on top of him. She saw the appellant and Sutherland talking to Figueroa. Thereafter, all three walked away. Cherrymae testified that it was at this time that the appellant made the admission which we previously mentioned, that he stabbed "the bwoy".

4. The medical evidence revealed that the victim had suffered two stab wounds to the abdominal area, which punctured the upper region of the liver in two places. The cause of death was stated to be "hypovolemic shock as a consequence of internal injuries caused by stabbing wounds."

5. The appellant did not choose to give sworn evidence nor did he call any witnesses.

6. He told the jury that - "I did not tell Cherrymae nothing and nobody else."

7. Mr. Kirk Anderson filed a number of grounds which he argued with characteristic verve but at the end of the day we did not think they has substance. We propose to deal with them briefly lest it be thought we were summarily dismissing his efforts. But in our opinion, there were real matters of substance which we thought seriously affected the outcome of the case and which were not touched upon in the grounds of appeal submitted and which could therefore not be ignored by the court.

8. He complained that the trial judge's directions on the issue of self-defence were confusing and/or conflicting and wrong. We were directed to pp. 207 - 208 of the record. There the trial judge is reported as giving the following directions:

" . . . I must therefore, review some direction on self-defence. An assault even killing in lawful self-defence is no offence. I repeat that an assault even killing in lawful self-defence is no offence. Self-defence is lawful when it is necessary to use force or to defend yourself or any other person against an attack or threatened attack and when the amount of force used is reasonable. What is reasonable depends on all the facts. For example, the nature of the attack whether or not a weapon is used and if it is how and what kind of weapon it is and whether or not the attacker is on his own. But a person defending himself cannot be expected to weigh precisely the exact amount of defensive action which is necessary. If therefore, the defendant did no more than what he instinctively thought was necessary that is very strong evidence that the amount of force was reasonable and necessary. A man who is about to be attacked does not have to wait for his assailant to strike the first look or the first shot. Circumstances may justify what we call a pre-emptive strike. In other words if a man is coming to inflict bodily harm on you and if you fear he is going to kill you the law gives you the right to strike him in certain circumstances before he strike you. This is the law . . ."

9. Having regard to the facts and circumstances in the case, which gave rise to the issue of self defence, we were of opinion that these directions were tailor-made to bring home to the jury what their approach should be in the case before them. It is, we think, right to say that any direction as to reasonableness or otherwise of the appellant's belief would have been of academic interest only. Mr. Anderson was critical of the directions because of the failure of the trial judge to mention the concept of honest belief. In Beckford v R (1987) 36 WIR 300, the Privy Council was able to find facts in that case which constrained the trial judge to give a direction that, on the issue of self defence, where there was a possibility that the appellant mistakenly believed an attack on him was imminent, the appellant was to be judged according to his mistaken view of the facts, whether or not the mistake was, on an objective view, reasonable or not. In Shaw v The Queen (unreported) P.C. #58 of 2000, 24 May 2001, also cited by Mr. Anderson, the trial judge's directions were faulted because, the jury were not told to assess the situation as it appeared to the appellant.

10. But we note, that, at the suggestion of counsel for the Crown at this trial, the trial judge did give such directions at pp. 213 - 214:

". . . In other words you have to deal with this matter of self-defence of objective rules. If it is what the accused felt at the time because when you are under attack you have to act instinctively and therefore he must be judged if he may have been mistaken as to the facts . . . "

It seems to us that the misgivings voiced by Mr. Anderson are really unwarranted.

11. Another criticism made by counsel on behalf of the appellant related to the trial judge's directions with respect to the drawing of inferences. It was said that the trial judge failed to give any correct direction in a case which was based on circumstantial evidence only.

12. This ground was, in the event, not pressed when counsel accepted that the prosecution case did not rest on circumstantial evidence but on the evidence of Cherrymae Howard of the appellant's admission to her that he was responsible for the stabbing of the deceased. In the circumstances of the case, no detailed directions is regard to inferences would be called for. A trial judge is only obliged to give such directions as will enable a jury to fully understand the issues on which they are called upon to adjudicate. The fact of the matter is that the trial judge in dealing with the specific intent which the prosecution was required to prove on the charge preferred, said this at p. 198:

". . . You may gather his intention by drawing inferences from all the circumstances presented to you. You must consider what he said at the time of the incident. You must consider the act in question. You must consider the various wounds to Eward Figueroa. You must consider the instrument that was used - the weapon that was used and from all these facts and circumstances as reasonable persons you can draw inferences and come to your conclusion . . ."

13. We see no reason to suggest that a jury should be told as a formula that, where it is possible for jurors to draw more than one reasonable conclusion or inference, the inference or conclusion which is to be drawn, is always the one which is more favourable to the accused. Mr. Anderson relied on Irwin de Jesus Silva v R (unreported) C.A. 18/83, a decision of this court. But we do not think the court was endeavouring to lay down any such rule. Their Lordships were endeavouring to point out that in the particular case before them such a direction would have been helpful where the intent could have been to kill or subdue or to harm, the allegation being of a stabbing in furtherance of a robbery.

14. We think that it is enough if a jury are told that they are entitled to draw inferences from proved facts if those inferences are quite inescapable, but that they must not draw an inference unless they are quite sure it is the only inference which can reasonably be drawn.

15. There were two other matters canvassed by Mr. Anderson. With respect to the first, it was urged that the trial judge failed to direct the jury that in relation to the admission allegedly made to Cherrymae Howard by the appellant, they had to consider whether it had in fact been made and further, whether it was true or false, therefore its probative effect.

16. The learned trial judge dealt with this matter at two places in the summing up. At pp. 206 - 207 he is recorded as saying:

". . . The only evidence linking the accused with the stabbing or bodily harm is Cherrymae's evidence if you accept it that he, the accused, admitted to her that he juke the boy three times. If you accept this evidence you may find that it was an admission by him that he stabbed this man . . . "

and p. 211

" . . . If you accept the evidence, therefore, you may find that he did inflict the wounds to the deceased . . ."

We are reluctant to believe that twelve reasonable Belizeans on the jury would fail to understand from these passages that if they were minded to convict, they could do so, if and only if they accepted that the words were used and they were true. We are of the view that these directions cannot be faulted.

17. As to the second matter, there was a complaint that the trial judge did not inform the appellant before he presented his defence, that a dock statement does not carry as much weight as sworn evidence.

18. We are quite unaware of any such requirement. No such obligation is imposed on a trial judge when he informs an accused of his rights to make a defence. Mr. Anderson did not venture to assist by the production of any authority which his researches might have brought to light. In the instant case, we could not conceive of an experienced defence counsel with the rank and status of Senior Counsel not advising his client of the options available and their advantages and disadvantages. As there was no ground of appeal impugning the conduct of the case by Senior Counsel who appeared, we must assume that all things were done which ought to have been done by him.

19. Counsel acknowledges in his skeleton arguments that the directions by the trial judge on the value of an unsworn statement were unexceptionable. That being so, there was no irregularity in the proceedings and accordingly the submissions in this regard cannot be sustained.

20. This brings us to the matter of concern. It did not appear to us that at the end of the Crown's case, there was any case fit to be left to the jury because self-defence which arose on the Crown's case had not been negatived. It was stated in Beckford v R (supra) at p. 307 as follows:

". . . It is because it is an essential element of all crimes of violence that the violence or the threat of violence should be unlawful that self-defence, if raised as an issue in a criminal trial, must be disproved by the prosecution. If the prosecution fails to do so, the accused is entitled to be acquitted because the prosecution will have failed to prove an essential element of the crime, namely that the violence used by the accused was unlawful . . ."

It cannot now be doubted that the onus is always on the prosecution on a charge of murder to negative self-defence. The prosecution case in which self-defence arises cannot for that reason be left to the jury in that state. It contains the seed of its own destruction.

21. As we had earlier indicated, the Crown relied on the fact of the admission by the appellant that he had inflicted the injuries to connect him to the crime. But there was no clear narrative of events with respect to the event of the stabbing. Such as there was, showed that the aggressor had been stabbed, and at some prior point in time, he had been chasing the appellant and Cherrymae Howard. Thus the case of murder had not in our opinion been made out.

22. The learned Director of Public Prosecutions although conceding the undoubted sparsity of evidence, nevertheless did try valiantly to support the conviction.

23. In those circumstances, the result which is stated at paragraph 1 was inevitable.

________________
CAREY, J.A.


________________
MOTTLEY, J.A.


________________
SOSA, J.A.