Young v R

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Hogan, Michael, P.
• Judgment Date: 22 July 1978
• Neutral Citation: BZ 1978 CA 7
• Docket Number: Criminal appeal No. 5 of 1978
• Date: 22 July 1978

Court of Appeal

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

Criminal appeal No. 5 of 1978

Young

and

Regina

Criminal Law - Appeal against conviction and sentence — Murder

Criminal Law - Evidence — Unsworn statement

Facts: Accused raised defence of accident in his unsworn statement from the dock — Whether unsworn statement could be treated as sufficient material on which to raise the defence of the accused

Facts: Appellant gave no evidence nor called no witnesses at his trial on a charge of murder — Defence of appellant raised for first time in his unsworn statement — Past practice of courts to consider dock statement as sufficient material to raise defence even without other evidence — Whether the past practice of courts should be adopted in this case — Decision in Regina v. Coughlan (1977) 64 Cr. App. R. 11 considered at length but not followed

Held: Appeal was based on finding of facts — No merit in ground that defence was put to jury in a manner which was unfair to the appellant — No evidence in case on which a jury could properly have returned a verdict of manslaughter on grounds of extenuating circumstances within meaning of s. 111(b) of Criminal Code — Jury not misled as to burden of proof — Appeal dismissed.

Held: Unsworn statement should be treated as sufficient material on which appellant could raise this defence.

Hogan, Michael, P.

1 On 19th April, 1978, appellant was convicted before the Supreme Court of Belize for the murder of Barbara Blackett and sentenced to death. He now appeals against his conviction and sentence.

2 According to the evidence, the deceased lived with her parents, Canon and Mrs. J. Blackett, at 56 Racecourse Street in Belize City. Next door but one, on the same side of the street, lived appellant, with his common-law wife, Alejandra, his step-daughter and four children. In the lower flat of his house, appellant carried on a shop, in which he sold alcoholic liquors and fried chicken, hamburgers, etc.

3 By and large, although there had been certain incidents which caused a temporary straining of relations, Barbara Blackett and her sister Joan Flowers, got on well with the appellant until about two to three weeks before the incident in which Barbara lost her life. The disruption of this friendship, according to the evidence for the prosecution, had been caused by word reaching Barbara and Joan through their sister, Marjorie Carr, that appellant had made an extremely derogatory remark concerning Barbara and had also sexually molested their 12 year old niece, Shelmadine Carr.

4 On 11th November 1977, Barbara Blackett and Joan Flowers had their mid-day meal at their parents' house. Barbara was the first to leave for the purpose of returning to her work as a teacher at St. John's Primary School. On her way, she paused to speak with one Arlene Reyes, a friend of hers, about the latter's child, who was sick in hospital. Arlene was on the upstairs verandah of her grandmother's house, which was opposite appellant's house on the other side of Racecourse street, a narrow street. Appellant's car was parked immediately below the verandah, and appellant and a boy were attending to it. Joan flowers joined Barbara as she was conversing with Arlene and also asked after Arlene's baby.

5 The accounts of the two eyewitnesses, Joan Flowers and Arlene Reyes, as to precisely what happened showed some differences,

6 According to Joan Flowers, appellant broke into the conversation that was going on between the three ladies, saying: “Your luck will run out soon.” When they ignored him, he pointed to the boy with him and said: “Just because you think you big your luck not going to run out too.” Barbara thereupon turned to him and said: “Look here, Mr. Young. Everybody's luck has to run out. You better mind yours don't run out before we.” Joan then said: “I don't know why you no go inside and molest your wife and daughter,” to which Barbara added: “And stop molesting little children when they go into a shop to buy”. Arlene having advised them to go, they moved off, and as they did so, appellant said: “Stand up there and you will see what will happen to you.” Barbara then said: “I will stand right here and I want to see what you can do to me.” She was then about three feet from appellant's door and facing in but not exactly in front of it. By then, appellant had gone in his shop, got his gun and some shells, “cranked” the gun, and loaded it. Joan turned back and went to, and indeed past, Barbara, and advised her to go, not to fool around with Mr. Young. As Barbara “made to turn,” appellant, while still in the shop, fired his gun and Barbara fell down. The range was variously described by Joan as about ten feet and about five to six feet.

7 According to Arlene Reyes, however, while she and Barbara were conversing about plans to visit her child in hospital that evening, bits and pieces of conversation went on between Joan and appellant, and she heard him say: “One day your luck will run out.” Appellant moved from his car towards his shop, saying: “I not fraid for jail at a11. Jail no mean a fuck to me.” Joan and Barbara were about to move off when Joan said: “Instead of worrying with me, you should study your lady and step-daughter.” Appellant, who was about to go into his shop, stopped and turned around and said: “Uno stand up and it again.” Joan replied: “we no fraid for you.” Appellant went into his shop, went behind the counter and returned with a gun. He “cranked” it and put a shell into it. Barbara and Joan were looking directly at appellant, who aimed the gun, pointing it at Barbara's face. Barbara turned to move off and as she turned, appellant fired the shot. Barbara fell down and witness Arlene Reyes apparently fainted.

8 The story was taken up by Joan Flowers. Accordingly to her, appellant then said: “You next,” and came out of the shop loading his gun, and looking at Barbara on the ground. Joan then ran, turning off the road into appellant's yard. She saw appellant coming behind her, and ran through his back door into the shop. She waited a few moments to see whether he was to the front or at the back. He appeared at the back door and fired at her. In the same instant she must have turned to run, and felt “like a bullet moving past her left ear.” She ran on to the street and then to her parent's house, screaming. Looking back, she saw that appellant had come out of his front door, still holding the gun and aiming it again.

9 By that time, Canon Blackett, having heard two shots had come out of his gate. He saw appellant on the street by the side of his fence walking towards him with a gun held waist high and pointing towards, although not aim at, him. Canon Blackett thereupon ran back into his yard.

10 When Inspector of Police Orlando Pollard reached the scene, appellant was inside his saloon, speaking loudly and incoherently, and still holding the shot gun in his hands. Appellant said: “I gwine end everything now,” and began to make preparations which suggested that he was about to attempt suicide; but Inspector Pollard, with commendable courage, succeeded in taking the gun from him. From it, P.C. Humes extracted a used cartridge. Another empty cartridge was found under the counter and a third one between the counter and the entrance to the shop.

11 Some days later Inspector Pollard found some small holes on the inside of the shop about five to six feet to the left of the front door as one faces it from the back door of the shop. They were just below the ceiling, which were eight to nine feet above floor level.

12 According to the medical testimony, Barbara Blackett's head presented, on its right side near the right ear, a large hole. Inside her head the doctor found nine pieces of lead, like pellets, and a piece of wadding, a number of fractures of bones and severe hemorrhage. In his opinion she died from cranial encephalitic lesion and internal hemorrhage caused by a gun shot wound; and the finding of the piece of wadding inside her head indicated that the shot had been fired at close quarters.

13 Suggestions were put in cross-examination of Joan Flowers to the effect that since the incident concerning Shelmadine Carr, Barbara and Joan had daily harassed the appellant on their way to and from school. These were all denied and were unsupported by the evidence of Arlene Reyes.

14 Joan Flowers also denied a suggestion made to her in cross-examination that in the course of the conversation on 11th November, 1977, appellant had asked Barbara and herself to leave him alone and go about their business.

15 The defence was stated by appellant in an unsworn statement from the Dock. He called no witnesses.

16 In his unsworn statement, he admitted knowing Barbara Blackett, whom he described as bold, loud and a drinker. At her request he had sometimes bought drinks for her at the Tavern Club. He described certain incidents in which he had been embarrassed by her, but in spite of which they had remained on friendly terms.

17 One Sunday morning, however, Maureen and her sister Marjorie Carr had brought Shelmadine Carr to him and informed him of a complaint by Shelmadine that he had put his finger into her private parts. This he had denied, but they had refused to accept his denial. Instead of reporting the matter to the Police they began to curse him and call him all manner of things. Barbara and Joan in particular had to pass his shop about four times each day and in a loud voice kept taxing him with indecently, assaulting Shelmadine. In one incident Joan had slapped him across the face, while Barbara made a very insulting remark; in another, Barbara had thrown a large stone at him in his shop, following this with a very insulting remark. The Blackett children also told his children many unsavoury things about himself and his common-law wife, so that his children would come home crying. It seemed to him that Barbara and...