Supreme Court
Inferior Court Appeal No. 2 of 1983
22nd April, 1983.
Moe, C.J.

Mr. H. Elrington for the Appellant.
Mr. G. Quallo for the Respondent.

Inferior Court Appeal - Appeal against conviction and sentence - Charge of intentional and unlawful wounding - Sentence of 3 months imprisonment - Elements of charge of wounding - Mens rea required in proof of offences created by sections 75 to 79 of the Criminal Code, Chapter 84 of the Laws of Belize, Revised Edition 1980-1990.

J U D G M E N T

The Appellant was convicted before the Magistrate for the Belize Judicial District for that he on the 9th day of November 1982 intentionally and unlawfully caused a wound to Elizabeth Belisle and sentenced to 3 months imprisonment. He appealed against the conviction on four grounds and against sentence on the ground that it was unduly severe.

At the hearing of the appeal, the four grounds filed were not argued but it was contended that the prosecution had not established one of the elements of the charge namely: intention to cause a wound, there being no evidence to ground a finding of fact that there was such an intention. Counsel for the Respondent accepted that an element of the charge is intention to cause a wound but argued there was evidence to ground a finding of such intention.

There was clearly a misunderstanding of the requirement of the relevant section of the Criminal Code. Guidance on the matter is to be found in a ruling delivered by Chief Justice Malone as he then was in Regina v James Bradley 1977. He therein considered certain provisions of the Criminal Code then being sections 73, 74, 75, 76 and 77 thereof. The provisions of those sections are in identical terms with sections 75, 76, 77, 78 and 79 of the present code. I agree with what Chief Justice Malone had to say and adopt his ruling for the purposes of this decision. A reference to the relevant sections of the present code having been substituted for the reference to sections of the previous code the relevant portion of the ruling would then read - "Then there are sections 75, 76, 77, 78 and 79 of the Code. The first four of those sections begin with the words:

"Every person who intentionally and unlawfully causes ……" then each goes on to create a different offence. Section 75 creates the offence of intentional harm. Section 76 the offence of wounding. Section 77 the offence of grievous harm and section 78 the offence of maim and dangerous harm. Section 79 in relation to certain weapons and other instruments and things that may occasion injury or cause destruction also creates offences of harm, wounding, grievous harm, maim and dangerous harm, but its opening words are:

"Every person who uses a sword etc. shall

(a) if he does so with intent……"

It would be to say the least odd if 'intentionally" in sections 75, 76, 77 and 78 had precisely the same meaning as the words "with intent" in section 79. A wound for example can be caused by a sword. If the words had the same meaning and two men each on separate occasions wounded others in precisely the same circumstances and one was charged under section 76 and the other under 79 (b) (which deals with wounding) the situation would be that the one charged under section 76 would face a maximum penalty of 2 years but the other charged under section 79 (b) would face a maximum penalty of 10 years. If, on the other hand, "intentionally" in sections 75, 76, 77 and 78 is given the meaning of an intention to do the act which constitutes the crime, everything falls into place even including the marginal note to section 75. Sections 75, 76, 77 and 78 will be limited to offences where the injury occasioned was done by an intentional act and section 79 to offences occasioning like injuries but where the act was not only an intentional act but was done with an intent to cause the injury that if act was cause. It is the distinction which in English law was drawn between simple wounding and wounding with intent."

The magistrate stated "There are four ingredients to this charge, all of which the prosecution must satisfy the court beyond a reasonable doubt. These are 1. That Elizabeth Belisle suffered injuries. 2. That these injuries were caused by William Garcia, 3. That the injuries were intentionally caused, and 4. That the injuries were unlawfully caused." It is not being questioned that by using the term injury in his Statement of reasons the magistrate did not advert to the requirement of proof of infliction of a wound. It is clear from the record that the magistrate adverted to the question of a wound and found as a fact that a wound was inflicted. The magistrate adequately directed himself as to the elements of the charge to be established by the prosecution and there was ample evidence on which he could have come to his findings of fact. They must be supported.

The appeal against conviction fails.

Turning to the matter of the sentence imposed for the offence, Counsel for the Appellant drew attention to certain circumstances appearing in the record which ought to have been taken into account. Matters concerning the inured person in her relation, attitude and behaviour towards the Appellant and those concerning the Appellant in his relation, attitude and behaviour towards the injured person including two previous convictions for offences against her. The magistrate clearly adverted to the latter set of circumstances but the record does not show that he considered the matter in the light of the other set of circumstances. I take the view that had the magistrate considered those circumstances he may very well have dealt with the matter differently. In the circumstances the court will set aside the sentence and order that the Appellant pay a fine of $300.00 in one month in default three months imprisonment and also enter a recognizance in the sum of $300.00 to be of good behaviour for one year in default 3 months.

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