Dougal v R

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Bourke, P.,Inniss, J.A.,Hogan, J.A.
• Judgment Date: 24 February 1973
• Neutral Citation: BZ 1973 CA 1
• Docket Number: Criminal Appeal No. 2 of 1972
• Date: 24 February 1973

Court of Appeal

Bourke, P.; Inniss, J.A.; Hogan, J.A.;

Criminal Appeal No. 2 of 1972

Dougal

and

Regina

Delivered by Mr. Justice Inniss.

Criminal law - Appeal against Conviction — Murder

Practice and Procedure - Trial by Jury — Directions to Jury — Provocation

Facts: Defence of Provocation. Jury misdirected — Court satisfied jury must have been satisfied of facts which proved the appellant guilty of manslaughter

Facts: Jury directed that on issue of provocation, provocation only existed where the intention to cause death arose only from the act which caused the provocation and a previous intention to harm or cause the death of the deceased would rule out the provocation

Held: Judgment of manslaughter substituted for verdict of guilty of murder — Sentence of 10 years imprisonment with hard labour imposed.

Held: Jury misdirected — Judgment of manslaughter substituted for verdict of murder.

1 On 26th October, 1972, Appellant was convicted of the Murder of Raymond Slusher, otherwise known as “Bonzo” or “Canto”, before the Supreme Court of British Honduras and sentenced to death. Against this conviction he now appeals.

2 He bases his appeal on two main grounds and under the second ground which complains of miscarriage of justice there are five sub-heads.

3 There could be no doubt that the Appellant killed the Deceased by sinking a knife into his heart. The main issue for the jury was whether the killing resulted from provocation.

4 The first ground of appeal is in effect that, on the evidence adduced, no reasonable jury could have failed to find provocation; but although counsel has argued this ground with diligence and skill, it cannot, we think be sustained.

5 Under the first two sub-heads of the second ground Counsel has questioned the accuracy and sufficiency of the directions on provocation given to the jury by the learned judge both in stating the law as to the burden of proof cast on the Prosecution and in relating the evidence to the law of provocation.

6 With regard to the first-sub-head the learned trial judge both at the beginning and at the end of the passage in his summing-up in which he dealt with provocation directed the jury in clear terms that it was for the Prosecution to satisfy them beyond any real doubt that the Accused (now the Appellant) did not act under extreme provocation. We therefore think that there is no substance in the contention under this sub-head.

7 With regard to the second sub-head Counsel submitted that in relating the facts to the law, the learned Trial judge had in particular over-emphasized or inadequately examined and analysed the alleged threat by the Appellant to kill the Deceased, uttered according to the evidence of Carl Myvett, at about 2:45 a.m. (some three hours before the fatal occurrence) in Pancho's Inn, and the lull in the sequence of events which according to the judge occurred shortly before the actual killing. Counsel further complained that the evidence that after issuing the above-mentioned threat the Deceased had gone out of the Club to pick up bottles and had met and talked with the Appellant without any suggestion that the latter had made any attempt to attack Deceased had not been put to the jury; nor had their attention been directed to the fact that the attack on the Appellant by Deceased had been made from behind and that up to the time when Deceased's brother arrived on the scene Appellant was not carrying a knife.

8 Moreover, Counsel submitted that the threat had been the subject of a serious misdirection in that the judge told the jury that its mere existence, which depended entirely on their view of Carl Myvett's evidence, would be sufficient to negative any possibility of provocation.

9 We do not think that the judge over-emphasized or inadequately examined and analysed the alleged lull in the sequence of events which occurred shortly before the killing for at page 21 of his address he said “And you may think from the evidence that there was only a very short lull, if any at all, in the fight”, and he put the throwing of the bicycle to the jury as part of the provocation to which the Appellant was subjected.

10 With regard to the threat, the particular passage of the summing-up against which complaint is made reads as follows-

“The second one is this, that the Accused acted wholly or partly from a previous purpose to cause death or harm whether or not he would have so acted but for the provocation. So provocation only exists where the intention to cause death arises only from the act which causes the provocation: a previous intention to harm or cause the death of the Deceased would rule out the provocation. For example, if A harboured ill-feelings against B and was looking for an opportunity to kill...