Keme v R

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Hogan, P.
• Judgment Date: 22 July 1978
• Neutral Citation: BZ 1978 CA 4
• Docket Number: Criminal Appeal No. 4 of 1978
• Date: 22 July 1978

Court of Appeal

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

Criminal Appeal No. 4 of 1978

Keme

and

Regina

Practice and Procedure - Appeal — Grounds of Appeal

Criminal Law - Defences — Intoxication

Criminal Law - Appeal against conviction — Use of deadly means of harm

Facts: Appeal on grounds (inter alia) that the committal of the appellant was illegal and irregular because the magistrate did not follow the requirements of the Indictable Procedure Ordinance, Cap. 22, and the Evidence Ordinance, Cap. 18 — Court discussed ground at length — No merit found in ground of appeal — Court expressed doubt whether appellant entitled to raise matters in ground of appeal in fashion adopted in Appeal Court or in court below —

Facts: Appellant convicted on charges of (i) use of deadly means of harm and (ii) unlawfully causing dangerous harm — Trial judge did not leave defence of intoxication to jury — No material placed before court to make issue of intoxication fit and proper to be placed before the jury — Whether trial judge erred in refusing to ask jury to consider intoxication when drawing a conclusion as to the intent of the accused —

Facts: Unlawfully causing dangerous harm — Appellant shot a party with whom he had an altercation — Whether appellant validly committed to stand trial — Whether issue of intoxication should have been left to the jury —

Held: The court sitting to try an indictment was not there to act in an appellate or revisory capacity in respect of the committal proceedings and its power to go behind the indictment and explore how it came to be preferred are limited — Also the fact that the appeal court overlooked these obstacles was not to be taken as a precedent in the future.

Held: Intoxication, if it exists, is a factor to be left to the jury to be considered with other matters when deliberating on intent. The question as to whether it existed need only be raised for consideration where there is material on which a conclusion could be based — Appeal dismissed.

Held: No merit in grounds of appeal — Appeal dismissed.

Hogan, P.

1 The appellant appeals against convictions before the Supreme Court on counts for use of deadly means of harm contrary to section 77(c) of the criminal code and for intentionally and unlawfully causing dangerous harm to Joseph Riverol, contrary to section 76 of that Code.

2 The evidence at the trial was broadly as follows:

3 At about 2 a.m. on 4th July 1976, there was an altercation in the San Martin Restaurant, Orange Walk, between the appellant and Eldo Briceno on the one side, and Joseph Riverol and his close friend, George Wade, on the other. During the course of the dispute the appellant, who had been urged by Briceno “to shoot,” was alleged to have opened his shirt and shown Wade a revolver stuck in his pants. Wade then went outside and on to the upstairs verandah, but there ensued further words and some mutual pushing and shoving between the appellant and Riverol who claimed to have then heard a gunshot in the restaurant, following which the appellant and Briceno left through the back door.

4 Ten minutes later Riverol went out of the front door to where he was shot.

5 There were two eyewitnesses of this incident – Wade, who was still on the upstairs verandah, and Riverol himself. Their testimony differed in a number of respects – notably, as to the course taken by Riverol when he came out of the front door, what words, if any, were spoken, where Riverol was when he was shot, and where Briceno and appellant were when the shot was fired. Both were agreed, however, that there was only one car parked right in front of the restaurant, that appellant and Briceno were by it, that they and Riverol were the only three persons outside the restaurant in front of it except for Wade on the upstairs verandah, that appellant held his right hand pointing in the direction of Riverol, that a flash came from his right hand and there was a report, and that Riverol was shot in his stomach. Neither witness, however, actually saw the firearm.

6 Dr. Tembe, to whom Riverol was taken for examination immediately after the shooting, said that there was a single gunshot wound, oval-shaped, clean-edged, about half an inch at its longest part, on the abdomen slightly to the left of the middle line. This was the only wound of entry and there was no exit wound. He could feel, however, two to three medium-sized pellets close together at the back of Riverol's body. In the doctor's opinion, there was internal abdominal damage and Riverol's condition was dangerous: in the absence of medical treatment he would have died.

7 The doctor's opinion as to the type of firearm which caused the wound and the presence of pellets in Riverol's body was inconsistent with the evidence of both Wade and Riverol as to what had occurred, and also with the further evidence of Riverol that on his second operation at the Belize City Hospital, a bullet, not a pellet, was removed from his back and shown to him by the doctor who removed it. This doctor did not give evidence.

8 Dr. Tembe, however, frankly admitted that he had never had a case of a single bullet wound although he had read about them, that he was not conversant with firearms, and did not know the difference between a firearm which discharges a single bullet and one which discharges a number of pellets.

9 From suggestions made in cross-examination, appellant's defence or one leg of it, seemed to be justification, but he neither testified nor gave an unsworn statement from the dock, and these suggestions were unsupported by any evidence. The defence eventually appeared to boil down to a submission that Wade and Riverol had got together to concoct a story to explain shooting of the latter and the jury should not accept it because they were close friends. In any event the unreliability of their evidence was underlined by the large number of differences between them.

10 There were, indeed, a large number of fairly substantial differences between them. These were, however, put to the jury at some length by Counsel for the defence and also by the learned trial judge.

11 They are not the subject of any ground of appeal. The latter was confined to other matters and have been ably argued before us.

12 The first turns on the validity of the committal. It is alleged that this was illegal and irregular because the magistrate did not follow the requirements of the Indictable Procedure Ordinance, Chapter 22, and the Evidence Ordinance Chapter 18, in the following matters:

• (1) The examining magistrate did riot, as require by s. 30 of the Indictable Procedure Ordinance, cause a doctor to examine Riverol.

• (2) The examining magistrate, contrary to s. 36 (3) of Cap. 18, took into consideration the medico legal report of Dr. Tembe, which tendered by a police witness, and did not ensure the taking of the doctor's deposition as required by the said s. 30.

• (3) The examining magistrate did not hear and consider the evidence of Gasper Ayuso from...