Criminal Appeal Nos. 8 and 9 of 1983
23rd November, 1983
SIR JAMES A. SMITH Ag. P.
ALBERT L. STAINE J.A.
KENNETH ST. L. HENRY J.A.
H. Elrington and Dean Barrow for Appellants.
Mr. G. Gandhi D.P.P. and Mr. T. Gonzalez for the Respondent.
against convictions and sentences of 2 years imposed for
manslaughter - power of a private person to arrest only
arises when the relevant felony has been actually committed
or attempted - intention required for manslaughter - manslaughter
an offence of basic intent - no misdirection by judge -
sentences not manifestly excessive but distinction to be
drawn between superior officer giving order to fire and
implications for inferior officer failing to carry out order
- appeals against conviction dismissed - superior officer's
appeal against sentence dismissed - inferior officer's appeal
against sentence allowed - sentence varied to 9 months imprisonment.
U D G M E N T
an appeal against conviction and sentences of the appellants
for manslaughter arising out of the death of one Edelmiro
Witzal. The charge was laid under Section 113(1) of the Criminal
are members of the Belize Defence Force. On the night of November
13, 1982 they were members of a group of persons from that
Force who set up a series of road blocks in Orange Walk. From
the evidence it appears that the object of the road blocks
was to intercept traffic in marijuana between Orange Walk
and Corozal. The first appellant was the officer in charge
of the group. At about 1:30 a.m. on November 14, 1982 a car
driven by the deceased approached a road block which had been
set up on the Corozal Road. Maria Mendoza was a passenger
in that car. According to her evidence she had in any event
intended to turn back because she had not obtained permission
to go to Corozal. At any rate when they came within sight
of the road block the deceased stopped the car and reversed
towards his left with the apparent intention of turning back.
The first appellant upon seeing the apparent maneuver to evade
the road block, ordered the second appellant to fire. There
is a conflict of evidence as to the terms in which this order
was given. One prosecution witness said that he heard an officer
shout "Fire, don't let the bitch get away". The
first appellant in his evidence said that although he could
not remember the exact words in which he gave the order he
had ordered the second appellant to fire to his right. In
his statement from the dock the second appellant confirmed
this. At all events the second appellant fired and the shot
hit the car which the deceased was driving and entered his
body, killing him.
to the appeal against conviction three grounds of appeal have
been argued. The first is as follows:
There was an error in law in that the learned Trial Judge
wrongly held that in the circumstances of the case, the
Appellants had no legal powers of detention and arrest.
There was an error in law in that the Learned Trial Judge
wrongly withdrew the question of justification from the
of this ground counsel for the appellants submitted that although
the appellants, as members of the Belize Defence Force, had
no special powers to detain and search, as private individuals
they had the common law power to arrest on suspicion that
a felony had been committed. He further submitted that this
power could be exercised in relation to the offence of possession
of dangerous drugs and that the jury ought therefore to have
been asked to consider whether in exercising that power the
appellants used excessive force. In relation to the power
of arrest he referred to a passage from Halsbury's Laws of
England 2nd Edition Volume 9 paragraph 113 which reads as
At common law the power of a private person to arrest is
limited to cases where treason or felony has been actually
committed or attempted, or where there is immediate danger
of treason or felony being committed, or where a breach
of the peace has been actually committed or is reasonably
apprehended. The onus of providing the commission of an
offence, or reasonable aprehension of it, is on the person
making the arrest."
clear from the passage quoted that the power of a private
person to arrest only arises when the relevant felony has
been actually committed or attempted. In the instant case
there is no evidence that the offence of possession of dangerous
drugs had been committed: there being no evidence that the
substance which Insp. Rowland found in the car and which he
"suspected to be a small quantity of dangerous drugs"
was in fact dangerous drugs. In the circumstances we do not
consider that on the evidence it can be said that the appellants
were exercising a lawful common law power of arrest and that
therefore a question of justification arose. This ground of
appeal therefore fails.
and third grounds of appeal may conveniently be dealt with
together and are as follows:
(a) There was an error in law in that the learned Trial
Judge omitted to tell the Jury that if the unlawful harm
which had caused the death of the Deceased had been negligently
rather than intentionally caused, the Appellants would be
guilty of manslaughter by negligence.
There was an error in law in that the Learned Trial Judge
omitted to direct the jury as to the intention that was
requisite before a verdict of guilty of Manslaughter could
was an error in law in that the Learned Trial Judge wrongly
directed the Jury to the effect that the Appellants would
be guilty of manslaughter even if there had been no intention
to hit the Deceased with the bullet which was fired."
submission made in relation to these grounds is that, by virtue
of sections 5, 6, 93 and 113 of the Criminal Code, the offence
of manslaughter other than by negligence includes as a necessary
ingredient a specific (as distinct from a basic) intention
on the part of the accused person to cause harm. The relevant
portions of these sections are as follows:
(1) A court or jury in determining whether a person has
committed an offence which employs one of the words specified
in sections 6, 7 and 8 of this Code shall use the standard
tests under sections 6, 7 and 8 of this Code for which that
key word is appropriate when answering any question relating
to him specified in subsection (2) below, unless the provision
creating the offence decides that the test is not to be
The questions mentioned in subsection (1) above are
the question of intention;
In relation to any person -
question of intention" means the question whether he
intended a particular result of his conduct;
The standard tests for the questions specified in subsection
(2) above are respectively specified in sections 6, 7 8(1)
and 8(2) below.
6. (1) The standard test of intention is -
Did the person whose conduct is in issue either intend to
produce the result or have no substantial doubt that his
conduct would produce it?
(2) The appropriate key words are -
(a) the verb "to intend" in any of its forms;
(b) "intent", "intention", "intentional"
Harm is unlawful which is intentionally or negligently caused
without any of the justifications mentioned in Title VI
of this Code.
(1) Every person who causes the death of another person
by any unlawful harm is guilty of manslaughter.
If the harm was negligently caused, he is guilty only of
manslaughter by negligence."
the submission was that manslaughter is the causing of death
by unlawful harm and unlawful harm must be either intentionally
or negligently caused. "Intentionally" it was submitted,
in this context means with the intention of causing harm and
this specific intention must be proved where the offence in
charged under section 113(1).
the Director of Public Prosecutions submitted that manslaughter
is a crime of basic intent equivalent to voluntary manslaughter
in English law and that the only intention required is an
intention to do the act which caused the harm. He relied on
a decision of the Supreme Court in R. v. James Bradley. In
that case the learned judge after a careful analysis of the
relevant sections of the Criminal Code, Cap. 21 and of the
English law reached the conclusion for which the Director
of Public Prosecutions contended.
Code Cap. 21 contained no provisions similar to these contained
in sections 5 and 6 of the Criminal Code which in 1981 replaced
it. It in therefore necessary first to consider the effect
or these sections. A careful reading of them indicates that
they do no more than prescribe the standard test to be applied
in determining intention where that element falls to be determined
in relation to an offence. Similarly section 7 and 8 in conjunction
with section 5 prescribe the standard tests to be applied
in determining knowledge and recklessness respectively where
each of those elements falls to be determined in relation
to an offence. The sections do not alter the law in so far
as it relates to the classification of crimes of basic intent
and specific intent.
question to be considered therefore is whether in Belize as
in England, involuntary manslaughter is a crime of basic intent.
In our view it is. It should be observed that in England involuntary
manslaughter includes cases where death has resulted from
an unlawful act as a result of which some degree of harm is
intended or contemplated as well as cases where death has
resulted from a high degree of negligence on the part of the
defendant (vide Archbold Criminal Pleading and Practice 38th
Ed. paragraph 2531). These two cases would seem to fall within
the ambit of the two offences of manslaughter created by section
113 of the Code. Section 113 does not include in its definition
of manslaughter any mention of specific intent. The section
does contain a reference to unlawful harm and when the definition
of unlawful harm is imported into the section it reads:-
Every person who causes the death of another person by harm
which is intentionally or negligently caused without any
of the justifications mentioned in Title VI of the Code
is guilty of manslaughter.
If the harm was negligently caused, he is guilty of manslaughter
of the word "intentionally" into the definition
of manslaughter may at first appear to indicate that a specific
intention is part of the offence, but upon analysis it becomes
clear that the words "intentionally or negligently"
are intended merely to indicate the mens rea or basic
intent required for a criminal offence. The words simply provide
that harm cannot in any event be unlawful and therefore subject
to criminal sanction unless it is cause by an act which is
not merely accidental or inadvertent, but, is either voluntary
and deliberate or the result of a grave lack of care. Thus
in R. v. Majewski (1977) A.C. 443 at page 480 Lord Salmon
has long been established that except for special cases
in which crimes of absolute liability are created by statute,
no one can be convicted of any crime unless he has guilty
mind (3 Coke's Institutes, 6). The elements constituting
a guilty mind naturally differ widely from crime to crime
just as the elements constituting different crimes themselves
necessarily differ widely. In cases such as assault and
assault occasioning actual bodily harm, the accused is not
guilty unless it is proved beyond reasonable doubt that
he intended to do what he did i.e., commit the assault or
was recklessly indifferent as to whether or not what he
did might amount to an assault. It is not necessary to prove
that he intended to cause the bodily harm which resulted
from the assault."
for the appellants is correct when he submits that it must
be established that the harm was not caused by mere accident.
There is however no evidence in this case to suggest that
the firing of the gun was an accidental and not a deliberate
act. It was, in addition, an unlawful act. The soldiers were,
it is true, engaged in an operation, which was designed to
assist the police in their duties of law enforcement. There
was however no lawful justification for discharging a firearm
in the circumstances, and to fire in the general direction
of, even if not directly at, a moving vehicle was a dangerous
act in relation to the occupants of that vehicle. In R. v.
Larkin (1942) 29 C.A.R. 18 it was stated at page 23 that:-
the act which a person is engaged in performing is unlawful,
then if at the same time it is a dangerous act, that is,
an act which is likely to injure another person, and quite
inadvertently the doer of the act caused the death of that
other person by that act, then he is guilty of manslaughter."
was approved by the House of Lords in D.P.P. v. Newbury (1977)
A.C. 500. Ground 3 of the grounds of appeal cannot therefore
be sustained. In so far as ground 2(a) is concerned, negligence
could only arise if the act of the appellant was a lawful
act performed in a grossly negligent manner. But, as we have
indicated, the act of the appellants was an unlawful act.
This ground therefore must also fail.
far as the sentences is concerned we cannot say that in all
the circumstances a sentence of two years imprisonment was
manifestly excessive. In dealing with the question of sentences
we have considered inter alia the submissions of counsel to
the effect that the appellants were placed in an impossible
situation by the authorities who employed them in what should
have been exclusively Police work and thereby obliged them
to engage in an operation which was perhaps illegal ab initio.
If the Excutive considers itself ultimately responsible in
this way, then the Executive will no doubt consider the advisability
of action being taken pursuant to section 52 of the Constitution.
We do not however consider that we can take this into account
because the appellants' actions cannot be said to be the direct
result of the arrangements made by the authorities although
they may be consequential on those arrangements. We would
however make a distinction between the second appellant who
faced military sanctions if he failed to carry out the order
of his superior officer to fire and the first appellant who
gave the order. The sentence of the second appellant is therefore
set aside and a sentence of twelve months imprisonment substituted
therefor. The appeals against conviction and the first appellant's
appeal against sentence are dismissed.