Kirk Gordon v The Queen (Belize)

On 14 July 2006 the appellant was convicted of murder after a trial in the Supreme Court of Belize before Mr Justice Gonzales (‘the judge’) and a jury. On the same day he was sentenced to life imprisonment. He appealed to the Court of Appeal in Belize but his appeal was dismissed on 8 March 2007, full reasons being given on 22 June 2007. On 17 November 2009, the Board granted special leave to appeal against his conviction.

Four grounds of appeal are advanced against the conviction:

The deceased was Arthur Ellis. The appellant was alleged to have killed him at about 1130 pm on 14 November 2003 by striking him a number of times with a piece of wood. In short, four police officers were in a marked police car when they saw the appellant about 600 feet away just in front of 21 Kraal Road in Belize City, which was his home address. He was hitting a motionless body on the ground with a one foot by three foot piece of wooden board. He was observed to be bending over, holding the piece of wood with both hands and hitting the man on the ground to the face and head as he lay on his back on the ground.

The evidence of the four police officers was shortly to this effect, so far as relevant to this appeal. Before the police car stopped Corporal Aldana saw the appellant strike the deceased with four or five blows. After the car stopped he got out, drew his revolver and ordered the appellant to stop. The appellant initially refused, still holding the board, but after Corporal Aldana had given a second warning he dropped the board. After a struggle, the appellant was handcuffed, arrested and put in the police car, where he was cautioned. He said “If unu neva reach in time this would have been a straight murder.” No contemporaneous note was made of that comment. Corporal Aldana could smell alcohol on the appellant’s breath and formed the view that he was under the influence of alcohol. There was no sign of injury to the appellant except for a cut lip sustained in the struggle with the police. On the other hand, the deceased had face and head injuries and was bleeding from his mouth and nose. Corporal Aldana also described a groaning or gargling noise coming from his throat. PC Tillett retrieved the board from where it lay about four feet from the deceased. It had two nails embedded at the centre and end of it. Corporal Aldana saw PC Meighan pick up a knife with a blade measuring about six and a half inches in length. It was on the pavement about nine feet from where the deceased was lying. Corporal Aldana denied that, when he approached, the appellant said that he had been attacked by the man on the ground with a knife and that he had retaliated with a stick.

PC Meighan’s evidence was to much the same effect, although he said that he saw the appellant hit the man on the ground about seven times. He described the latter as lying on the ground, apparently motionless in a pool of blood, bleeding from his face and head. He saw the knife when a van was moved so that they could gain access to the man on the ground. The knife was about six feet from the man on the ground. It was a shiny stainless steel knife with a pointed blade about four to five inches in length and a handle about three to four inches in length. It was put to him in cross-examination: ‘… you cannot say that this thing was not in his hands. You cannot deny it?’ and he said ‘No, sir’. The judge then said: ‘What you are saying in effect is that – did you see that knife in his hands?’ and the witness replied: ‘I did not see it, my Lord.’ He described the board much as the others had but also said that it was bloodstained.

DC Tillett gave evidence to similar effect. He described the appellant as using obscene language and being disorderly. SC Banks, who was driving the police car, also described what she saw, albeit more briefly. She described the appellant with an object in his hands ‘whopping down’ on a man on the ground whom she identified as Arthur Banks. The appellant did not reply when cautioned.

There was expert evidence that there were two large stains of human blood on the board. A pathologist gave evidence that, in his opinion, death was caused by traumatic asphyxia. More than one blow had been delivered to the face by a blunt instrument. The lower mandible of the deceased had been fractured, which would have required heavy or strong force using the board which had been retrieved from the scene. The deceased had a wide contusion on the left pectoral muscle. The pathologist expressed the view that the deceased had received a blow to the major pectoral muscle and a blow to the face whilst facing the appellant. His opinion was that those two blows were likely to have been inflicted while the deceased and the appellant were standing face to face.

The appellant made a statement under caution followed by a police interview in which he said that he had been threatened by a knife, whereupon he picked up a nearby piece of board and hit the deceased. Neither the statement nor the contents of the interview was adduced in evidence at the trial.

At trial the appellant elected not to give evidence but made an unsworn statement from the dock. It was in these terms:

The appellant also said that he later told the police and a JP that he was defending himself in a life and death situation. In short, the appellant admitted ‘whopping’ the deceased with the board but said that he only did so because he had been threatened with a knife. Moreover, even after the deceased had fallen or been knocked to the ground, he still had the knife in his hand and was still trying to attack the appellant with it and trying to get off the ground; so he kept on whopping him. Even after the knife flew out of his hand he was still trying to get up; so he whopped him again.

Sections 117, 119, 120 and 121 of the Criminal Code of Belize provide, so far as relevant, as follows:

By section 30, Title VI of the Criminal Code sets out the limits in which force or harm is justifiable and constitutes a defence to a criminal charge. Section 31(f) provides that one such circumstance is “the necessity for prevention of or defence against crime”. That expression is amplified inter alia by section 36(4) and (6), which provide, so far as relevant:

As appears above, in Belize the offence of murder requires proof of an intention to kill. An intention to cause really serious harm is not enough. There is nothing in the unsworn statement (or elsewhere) which amounts to an admission that the appellant intended to kill the deceased. It was therefore for the prosecution to prove it. Counsel for the prosecution recognised that that was the position and in the course of her final speech, from pages 209 to 215 of the Record, addressed the jury at some length on the relevant facts. She naturally stressed the size of the board, the fact that the board had two nails in it, the considerable force which must have been used and the persistent way in which the appellant continued whopping the deceased after the deceased was on the ground and, on his own case, even after the knife had flown out of his hands.

Counsel for the defence did not refer to intention to kill in the course of his final speech. However, no admission of intention to kill was made, so that the jury had to be sure that the appellant intended to kill the deceased before they could return a verdict of murder. Mr Bogan, who (like Ms Corrin) did not appear for the appellant in the courts below, submitted that the judge wrongly withdrew the issue of intention from the jury by telling them that the appellant accepted that he had an intention to kill.

Mr Bogan relied upon a number of specific passages in the summing up, while at the same time correctly accepting, both that the summing up must be considered as a whole, and that the judge also summed up the issue of intention to kill at some length. The summing up spans 59 pages of the transcript from pages 186 to 243 of the Record. It is true that there are some passages which are not entirely clear.

At page 195 the judge quoted section 117 of the Criminal Code and then said this in a passage relied upon by Mr Bogan:

Mr Bogan stressed the fact that the judge said that ‘they (ie the defence) could not care less about anything else’, by which he meant that the defence did not care about anything other than whether the killing was unlawful. The judge then referred at page 196 to the partial defences in section 119 of the Criminal Code which would reduce murder to manslaughter. He returned at page 197 to section 117 and made it clear that the prosecution must prove that Mr Ellis was dead, that he died as a result of harm inflicted on him and that the appellant killed him. Those were the first three of the five elements or ingredients of the case against the appellant. The judge then turned to the other two at pages 197 to 199:

Immediately after the passage just quoted, the judge directed the jury on each of the five elements he had identified, including intention to kill. He addressed that question in detail between pages 209 and 215. He first reminded them that, if they accepted that the deceased was killed by the appellant, before they could find him guilty of murder they must find and be sure that at the time of the killing he had the specific intention to kill the deceased. The judge then reviewed the evidence relevant to that issue at some length. He concluded at pages 214-5 by saying that it was for them ‘to determine and conclude whether on the evidence’ they could draw the inference that the appellant had the specific intention to kill the deceased when he was inflicting the blows on the body and face. Pausing there, the Board is in no doubt that the jury must have been aware that they must consider and be sure of that fact. Moreover, that is so, even though, when turning to the question whether the appellant acted unlawfully, he said that was the final element in the case ‘and the controversial one’. The judge then summed up the issue of self-defence in considerable detail. Moreover, he introduced his analysis of the evidence by asking

The Board is unable to accept the submission that the judge in effect withdrew the issue of intention to kill from the jury. It is true that he emphasised the fact that the defence focused on the issue of self -defence. That is perhaps understandable given the way the trial had been conducted, although the Board is of the opinion that the judge went too far when he said that self-defence was the only issue the defence cared about. However, he at no time withdrew the issue of intention from the jury. On the contrary he told the jury that it was one of the five elements about which they must be sure before they could convict the appellant of murder and he summed up the facts with regard to it in detail. In these circumstances the first ground of appeal fails.

At the trial the defence relied upon the partial defence contained in section 119(b) of the Criminal Code quoted above. Mr Bogan submitted on behalf of the appellant that the judge misdirected the jury in this connection by directing the jury that the question was whether a reasonable person would have lost his self control, whereas he should have directed them that the question was whether the appellant in fact lost his self control. These submissions raise two questions: first, whether the test is an objective or subjective one and, secondly, whether the judge misdirected the jury.

Section 119(b) is quoted above. It provides that an accused is guilty of manslaughter and not murder where he intentionally causes death by unlawful harm and there is such evidence as raises a reasonable doubt as to whether he was justified in causing some harm to the other person, and that in causing harm in excess of the harm which he was justified in causing he acted from such terror of immediate death or grievous harm as in fact deprived him, for the time being, of the power of self-control. Section 119(b) is to be contrasted with section 119(a), which also reduces murder to manslaughter but does so where there is such evidence as to raise a reasonable doubt as to whether the accused was deprived of the power of self-control by such extreme provocation given by the other person as is mentioned in section 120. Section 120 provides a list of matters which may amount to extreme provocation for the purposes of section 119(a). They include, in section 120(a), an unlawful assault or battery committed upon the accused by another person, either in an unlawful fight or otherwise, which is of such a kind either in respect of its violence or by reason of words, gestures or other circumstances of insult or aggravation, as to be likely to deprive a person, being of ordinary character, and being in the circumstances in which the accused person was, of the power of self-control. Section 121(1)(a) makes it clear that the accused must in fact be deprived of the power of self-control by the provocation.

It can immediately be seen that there is a distinction between section 119(a) and section 119(b). By reason of section 120(a), the unlawful assault or battery must be of such a kind as to be ‘likely to deprive a person, being of ordinary character, and being in the circumstances in which the accused person was, of the power of self-control’. The test is thus to that extent objective. There is no similar provision in section 119(b), where it is sufficient for there to be a reasonable doubt as to whether the accused ‘acted from such terror of immediate death or harm as in fact deprived him, for the time being, of the power of self control’. The Board emphasises the words ‘in fact’ because they demonstrate that, for the purposes of this part of section 119(b) the test is entirely subjective and has no objective element.

The Board accordingly accepts Mr Bogan’s submission in this regard. It does so on the basis of the express language of section 119(b). It finds support for its conclusion from two decisions of the Judicial Committee on appeal from Belize delivered on the same day, namely 24 May 2001. They were Norman Shaw v The Queen (No 58 of 2000) and Cleon Smith v The Queen (No 59 of 2000), in each of which the judgment of the Board was delivered by Lord Bingham of Cornhill. He identified four questions which should be asked under a provision of the Criminal Code then in force, which was in very similar terms to section 119(b) quoted above. As set out in para 17 of Cleon Smith, they were:

Mr Bogan submitted that the following part of the summing up (at pages 240-1) wrongly introduced an objective element not justified by section 119(b) of the Code:

The Board has put the passage complained of in italics. The Board accepts Mr Bogan’s submission that the italicised passage is a misdirection. It wrongly introduces the ordinary and reasonable man, whereas, for the reasons given above, such a person has no role to play in the partial defence introduced by section 119(b). The question is not whether an ordinary and reasonable man would have been caused to experience terror of immediate death but whether there was evidence that that the appellant was acting from terror of immediate death or grievous harm and whether there was evidence that such terror deprived the appellant for the time being of the power of self-control? See questions (3) and (4) in Cleon Smith. If there was such evidence, the burden of disproving the defence was on the prosecution.

The Court of Appeal said that it was not submitted on behalf of the appellant that there was a misdirection in this respect. That is odd because the submissions and the skeleton argument (but not the grounds of appeal) had raised the issue. In any event, the point was fully argued before the Board. For the reasons given ground 2 succeeds. The Board has concluded that for this reason the conviction for murder must be quashed and a verdict of manslaughter substituted. There was evidence both that the appellant was acting from terror of grievous harm and that such terror deprived the appellant for the time being of the power of self-control.

In the course of his summing up the judge said at page 242:

Mr Bogan submitted that the part of the passage just quoted, which the Board has put in italics, was a misdirection. He submitted that, following immediately after a direction on the partial defences, its effect was wrongly to instruct or suggest to the jury that the partial defences were not available if the jury found an intention to kill. He also noted that, when earlier giving directions on the partial defences, he had not directed them that the partial defences were only available if, and only if, they found an intention to kill. He submitted that the italicised direction, which was given immediately before they retired, effectively deprived the appellant of a proper consideration of the partial defences, especially that under section 119(b), and consequently deprived him of the possibility of a verdict of manslaughter on that basis.

The Court of Appeal rejected this ground. The Board too rejects this ground. In the passages quoted above, the judge was drawing a distinction between two kinds of manslaughter. The first was the traditional type of manslaughter, where the jury acquit of murder on the basis that there was no intention to kill, but convict the accused of manslaughter on the basis that he was acting unlawfully and his intention was to cause harm. At the start of the passage quoted above, the judge said:

By contrast, the second type of manslaughter is that provided for in section 119 of the Criminal Code quoted (and discussed in some detail) above. The judge had previously twice referred to the two defences to murder set out in section 119(a) and (b) as partial defences in the sense that they would not result in acquittal but only in a verdict of manslaughter. The judge told the jury that they should consider these partial defences when they were considering the offence of murder. It is implicit in his direction that they should convict of manslaughter if they decided that the appellant had the intention to kill but that either section 119(a) or section 119(b) applied. This is clear from the contrast with the first type of manslaughter, to which the judge returned in the italicised passage and only applied where the jury rejected murder on the ground that there was no intention to kill but only an intention to harm. While it would have been better if the judge had expressly stated that he was referring to the traditional type of manslaughter, the Board does not think that the jury can have been in any doubt that he was doing so. In all the circumstances the Board has concluded that, when the summing up is read as a whole, there was no misdirection in this regard and that ground 3 fails.

The day after the appellant’s arrest he made a statement to the police which included the following:

The appellant also gave a police interview which included the following:

Neither the statement nor the interview was put before the jury, although a passing reference was made to it during defence counsel’s final speech, when he said to the jury that the appellant had told the police in the presence of a JP what had happened and that the statement he made was in the possession of the prosecution, who for some reason did not tender it in evidence. He said that the reason he was referring to it was so that the jury should not think that the appellant had made his evidence up when he made the statement from the dock the day before.

In a letter dated 8 July 2009 the acting DPP explained that the statement and interview had been made available to the defence. She added that she could not say why counsel for the prosecution decided not to adduce the statement as part of the prosecution case. Both counsel and the DPP at the time were no longer in Belize. However, she added that counsel may have been guided by the position of the then Director, which, according to a note on the file, was that the statement was ‘primarily exculpatory’ and could not ‘possibly advance the prosecution’s case’ and so should not be tendered.

Mr Bogan submitted that the prosecution should have put the statement before the jury. It was a ‘mixed statement’ in that the appellant admitted violence with a weapon but gave an explanation for his behaviour. He submitted that the statement was admissible in accordance with R v Sharp [1988] 1 WLR 7 and R v Aziz [1996] 1 AC 41 and should have been adduced. This was on the basis that the rationale for its admission was that, in fairness to the accused, the jury was entitled to know the explanation given by him shortly after his arrest because the alternative is for the jury (as here) to hear an account apparently given for the first time years later, by which time he will have had time to fabricate one.

It was further submitted on the facts here that the appellant’s account was not so inconsistent with the prosecution case as to render it wholly unreliable or obviously fabricated. On the contrary, it was consistent with the prosecution case in that it could not be gainsaid that the incident began when the appellant was subjected to attack, that the appellant admitted his assault with the piece of wood, both when the deceased was standing and when he was on the ground, and that a knife was found lying on the road within a few feet of the deceased. It was submitted that the jury would be likely to have had far greater confidence in the appellant’s explanation if they had been aware of the contents of the statement and interview shortly after the incident.

This point was not taken in the Court of Appeal or in the petition for leave to appeal. However, the Board accepts that neither counsel nor their instructing solicitors now instructed on behalf of the appellant was aware of the letter from the acting DPP until after the petition hade been submitted. In these circumstances the Board decided that the appellant should be permitted to take the point.

The Board accepts the submissions made on behalf of the appellant. Both the statement and the contents of the interview were mixed statements and were thus admissible in evidence in accordance with the principles in Sharp and Aziz. In the opinion of the Board, as a matter of fairness, the prosecution should have adduced them in evidence. Accordingly ground 4 succeeds.

It follows from the above conclusions that the appeal must be allowed and the verdict of murder quashed. The question is whether the Board should conclude that a verdict of manslaughter should be substituted. The effect of allowing ground 2 is that such a verdict should be substituted. As to ground 4, it was not suggested by Mr Bogan on behalf of the appellant that the Board should not substitute a verdict of manslaughter. He no doubt recognised, in the opinion of the Board entirely correctly, that there was no realistic possibility that, had the jury seen the statement and interview, the appellant would have been acquitted of both murder and manslaughter. In these circumstances the just course is to substitute a conviction for manslaughter. The Board will accordingly humbly advise Her Majesty that the appeal be allowed, that a verdict of manslaughter be substituted and that the issue of sentence be remitted to the Court of Appeal. Subject to written submissions to the contrary being made within 28 days, the Board will humbly advise Her Majesty that the respondent should pay the appellant’s costs of the appeal.