Gordon et Al v R

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Inniss, J.A.,Georges, J.A.,Graham, J.A.
• Judgment Date: 19 June 1980
• Neutral Citation: BZ 1980 CA 6
• Docket Number: Criminal Appeals Nos. 3, 4 and 5 of 1980
• Date: 19 June 1980

Court of Appeal

Inniss, J.A. (P.); Georges, J.A.; Graham, J.A.

Criminal Appeals Nos. 3, 4 and 5 of 1980

Gordon et al

and

Regina

Criminal Law - Defences — Self — defence and provocation

Criminal Law - Aiding and abetting — Murder

Facts: Appeal against conviction and sentence for murder by three accused — Joint trial — Misdirection of jury with omission by trial judge to direct them that prosecution must negative self-defence — Possibility of verdict of manslaughter by reason of provocation not properly put to jury by judge — Existence of material on which a jury, if properly directed, would have come to conclusion that this killing was a killing after provocation and accordingly would justify a verdict of manslaughter —

Facts: Three accused appealed against conviction — Trial judge directed jury as to English criminal law when discussing abetment — Law of abetment contained in Criminal Code, Cap. 22, s. 17 Laws of Belize —

Held: As regards first appellant the misdirection on the issue of self-defence, though serious, did not turn the scale against him — Judgment of guilty of manslaughter substituted for murder — Sentence varied to 7 years hard labour — Appeal allowed on other grounds in case of second and third appellants.

Held: Direction defective as it did not advert to use of word “Purposely” in s. 17 (1) of Criminal Code — Miscarriage of Justice — Appeals of second and third appellants allowed — Convictions quashed.

JUDGMENT:

1 The three appellants, Cecil Gordon, Michael Gordon and William Ifield were charged jointly before the Supreme Court of Belize with the Murder of Frankie Batty. On Wednesday, 6th February 1980, the appellants Cecil Gordon and William Ifield were each found guilty of murder as charged and sentenced to death by hanging. The other appellant, Michael Gordon, was found guilty of manslaughter, and on 25th February, 1980, was sentenced to 5 years imprisonment with hard labour. Each of the appellant now appeals against his conviction and sentence.

2 The case was remarkable for the great difference between the account of the death of Frankie Batty given by the prosecution witnesses and that given by appellants Cecil Gordon and William Ifield, each of whom testified on his own behalf.

3 The case for the prosecution was that it was appellant Cecil Gordon who actually struck the blow by which the deceased was murdered, and that the other two appellants abetted the murder. It depended in large measures on the evidence of Manuel Estrada and Gerald Dougall, the first of whom was a full eye witness.

4 Estrada, who knew both the deceased and the three appellants, told how at about twenty minutes after midnight of the 29th December, 1978, he was passing Carl's Bar at Santa Elena in the Cayo District, when he saw a hand push one Shaber down the stairs. While he and Shaber were discussing the matter, appellant Cecil Gordon approached and asked Shaber what had happened. Shaber replied that one Waight (the owner of Carl's bar) had pushed him downstairs. The deceased, Frankie Batty, then came from the Mar Azul Club and talked to Estrada. Shaber told the deceased “Happy New Year” and the deceased replied the time had not yet come. Cecil Gordon then told the deceased he had no manners, like a dog. Deceased replied “I am not talking to you”. Cecil Gordon then said “If you don't like that you can do anything”. He hauled up a dagger from the sock on his right foot and tried to cut the deceased's throat. He did so without any provocation from the deceased. The deceased took the knife away from Cecil Gordon. Apart from that he did nothing to Gordon. Then, in company with Estrada, and with the knife in his hand, deceased walked away towards Mar Azul Club. The spot where the knife was taken away was about 5 yards (distance pointed) from Carl's Bar. Estrada then heard Cecil Gordon hail Michael Gordon and William Ifield from upstairs, telling them to bring down a stool so that he, could whap Frankie. Michael Gordon and William Ifield came down to the street and the three appellants came behind the deceased and Estrada. None had a stool or anything else in his hands. Then William Ifield came from behind deceased and grabbed him in a half Nelson grip. The other two were right behind him. Deceased had Cecil Gordon's knife in his hand and Cecil Gordon tried to get the knife from him while Ifield had him in that grip. Deceased kicked Cecil Gordon “to the floor”. Michael Gordon then tried to take the knife from the deceased and the deceased kicked Michael down on the ground. Ifield changed his grip and held the deceased by the neck. Then he hauled the deceased to the ground on his back. In doing so Ifield fell to the ground with the deceased on top of him. Michael Gordon then held the deceased by the feet and Cecil Gordon took away the knife from the deceased with his right hand. Cecil Gordon then stabbed the deceased in his chest. He stabbed him once. The spot where the deceased was stabbed was about a yard from the fence round the Silva's residence. Estrada did not intervene at all. Then one Taylor came and said to all three appellants “You have already killed the boy already”. Cecil Gordon replied, “If you don't like it you can do anything” and tried to stab Taylor who ran away. Witness Estrada then went to try to pick up the deceased. Cecil Gordon asked him if he was a hero as well and came at him with the knife while Michael Gordon came at him with a piece of stick, trying to whap Estrada with it. But he did not succeed. Cecil Gordon then tried to stab Estrada in the stomach but failed. Estrada then ran to the police station and reported the matter. According to Estrada, at no time did the deceased try to threaten the appellants with the knife.

5 Estrada was cross-examined at considerable length and certain criticism of his evidence resulted, but none of any special consequence.

6 Gerald Dougall, at that time a constable in the Belize Police Force, was off duty on the night in question, 29th December, 1978, and was in civilian clothes. At about 11 to 12 midnight, he went to Carl's Bar. According to him, at about midnight the three appellants, accompanied by one Edmond Taylor, arrived and came on to the verandah where Dougall was. Cecil Gordon was speaking in a loud tone. Then all four left the verandah and went into the bar. A little later Dougall heard an argument coming from downstairs. He looked down and saw it was appellant Cecil Gordon arguing with the deceased. He did not see the other appellants at that time. He saw Cecil Gordon take a knife out of his right sock and move the knife towards the deceased's throat. He saw deceased take hold of Cecil Gordon's right hand with the left hand and take away the knife from him. He could not say if at that time Gordon got cut. Dougall then went downstairs and spoke to the deceased asking him what was the matter. He said “Nothing”. He did not speak to Cecil Gordon because he was somewhat drunk and behaving badly. He thought it best to leave him alone. Dougall confirmed that the witness Estrada was with the deceased at that time. Estrada said he was going to take the deceased home and then walked of in the direction of Cayo. Dougall returned upstairs to the bar and after a while went on the verandah where he heard another argument. This time he saw the three appellants holding deceased by the fence at Silva's residence. William Ifield was holding deceased through the arms and around the head. Michael Gordon held the deceased's feet and Cecil Gordon took away the knife from the deceased. He did not see if anything happened after that because there was a crowd there. He thought they were just taking the knife away from the deceased. He went down again and standing at the steps of the bar, he saw the three appellants along with the deceased. Deceased was on the ground. Cecil Gordon was bending over the deceased. He did not see the knife. Michael Gordon was bending down still holding the deceased's feet and William Ifield was still holding the deceased's body. Dougall returned upstairs and 3 – 4 minutes after he heard someone say “Frankie got stabbed”. He went downstairs and on the way down, met the three appellants coming up. He saw appellant Cecil Gordon with a knife in his right hand and he saw blood on the knife and on his right hand. He then went to where deceased was lying and saw that he was bleeding from the chest. He accompanied the deceased to the hospital in a taxi. Deceased was conscious. Dougall asked who had done this to him and, deceased said “Gordon”. He also saw the Nurse talking to the deceased, but did not know what she said to him. Later he saw the three appellants at the hospital. He noticed that the two Gordons had “cuts on one of their hands”. At no time before that did he notice any injuries on them. The knife he saw in the possession of the deceased had a blade 4”—5” in length. Deceased was known as a quiet person.

7 This witness acknowledged having consumed a large amount of alcohol on the evening in question but insisted that he was not drunk. He was cross-examined at length. Certain criticisms of his evidence emerged from his cross-examination, including a number of differences between the statement he had given to Sgt. Lewis, which he had not amended at the preliminary inquiry, and his testimony to the court. One omission from his testimony which appeared in his statement was as follows: “When the three men were rushing at Frankie, he began to thrust the knife from right to left to avoid Cecil, Ifield and Michael beating him.”

8 He said he had forgotten to mention this in his evidence. He did not see the knife come into contact with any of the appellants.

9 He admitted that he did not intervene because he was afraid of the three appellants. He did not call the crowd to assist because they themselves were afraid.

10 He said he had given his statement in a hurry because he...