Plummer v R

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Hogan, P.,Inniss, J.A.,Duffus, J.A.
• Judgment Date: 01 January 1975
• Neutral Citation: BZ 1975 CA 6
• Docket Number: Criminal Appeal No. 3 of 1975
• Date: 01 January 1975

Court of Appeal

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

Criminal Appeal No. 3 of 1975

Plummer

and

Regina

Practice and Procedure - Trial by jury — Directions to jury

Criminal Law - Trial by jury — Directions to jury — Manslaughter

Facts: No case to answer submission on appellant's trial for manslaughter defence counsel submitted that there was “No Case” to answer, at the end of the Prosecution's case — Judge refused to rule on this submission and left it to the jury to decide

Facts: Appeal against conviction of manslaughter by negligence — Trial judge left no case submission to jury to decide — Evidence disclosed it was a border line case between accident and negligence which called for a clear and careful summing up to the jury

Held: It is the duty of the trial judge himself to rule on a “no case” submission — Appeal allowed.

Held: Jury not given adequate guidance as to precise facts on which they should have been satisfied when reaching a decision as to whether the appellant was negligent — Appeal Allowed — Conviction and sentence set aside.

1 The appellant was charged and convicted for the offence of Manslaughter by Negligence, contrary to section 102 (a) of the Criminal Code. He was sentenced to two years' imprisonment with hard labour.

2 It is not in dispute that the appellant and the deceased and three other men were at an all night party at the home of Rudolph Dawson, the fifth prosecution witness. Dawson got home at about 1:00 a.m., to find the deceased and another man, Chavo already in his home drinking. Soon after the appellant arrived and at about 3:00 a.m., the host Dawson and the appellant fetched another friend Robert Lodge, and all five remained drinking steadily and playing records. It was a friendly party. It went on until about 8:00 a.m., when there was some suggestion of breakfast but n the meantime the record playing continued and at about this time the deceased got shot on the left side of his chest. The shot ruptured his left lung and he died soon after. It is also an admitted fact that the deceased died from a shot from a gun brought to the party and which was certainly with the appellant shortly before and after the occurrence.

3 There is no clear and undisputed evidence as to how the shooting took place.

4 The prosecution call two of the persons present at the party.

5 The host Rudolph Dawson did not see the gun but he heard the shot and saw the deceased going down, clutching in his left hand some gramophone records which Dawson had just handed to him and with his right hand on his chest, whilst appellant was standing 3 or 4 feet away from the deceased. Dawson saw no gun. The other witness Lodge was treated as a hostile witness but he eventually said that, after the shot, he saw the appellant with a gun in his hand about one foot from the deceased.

6 The prosecution appeared to rely on the following facts:

• (1) that the appellant brought a loaded gun to the party;

• (2) that this gun went off and the shot killed the deceased;

• (3) that when this occurred the gun was still in possession and under the control of the appellant; and

• (4) that the appellant failed to give any adequate explanation of his admitted part in the tragedy.

7 In proof of these four facts, the prosecution produced evidence to the following effect — a Mr. Stafford Garbutt with Robert Lodge (p.w. 7) brought the appellant to the Police Station and in the appellant's hearing stated that the appellant had just shot one of his friends. In answer to Constable Valencio at the Police Station the appellant said that he “did not mean to shoot the fellow and they were friends”, but failed to give any further explanation when pressed to do so by Dawson and Lodge. The witness Lodge said that after the shooting he saw the appellant with a gun in his hand standing about a foot from the deceased. Medical evidence as to the powder marks found by the doctor on the deceased's chest where the shot entered indicated that when the gun was fired, it was pointing towards the deceased and fired in close proximity to his chest.

8 At the end of the prosecutions case, Mr. Musa for the appellant submitted that there was “no case” to answer. The trial Judge did not himself rule on this submission but left it to the Jury to decide. The Jury retired and, on their return, decided that “the case continues”.

9 The appellant then made his defence and give an unsworn statement from the dock. He said–

“I was at Jeffs' home sitting in a settee when the gun fell out of my pocket. I picked it up and Willie Bobo saw me went and picked it up. He asked me to show it to him. I gave it to him. He took it and was looking at it. He gave it back to me. While receiving the gun I heard it went off. I don't know how it went off — That's all.”

10 This implies that he did not know how the gun went off and in effect put his defence under two heads:

• (a) that there was no evidence at all to show how the gun came to be discharged and that therefore there was absolutely no evidence to show that this was due to negligence;

• (b) that the discharge was accidental.

11 On appeal, Mr. Musa who appeared for the appellant, argued three main grounds. His first was that “there was insufficient evidence at the close of the case for the prosecution to justify the...