Zelaya v R

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Hogan, P.
• Judgment Date: 03 November 1977
• Neutral Citation: BZ 1977 CA 26
• Docket Number: Criminal Appeal No. 2 of 1977
• Date: 03 November 1977

Court of Appeal

Hogan, P.;

Inniss, J.A.;

Blair-Kerr, J.A.

Criminal Appeal No. 2 of 1977

Zelaya

and

R.

Criminal law - Using deadly means of harm with intent to wound — Appeal against conviction and sentence — Appeals dismissed.

Hogan, P.

1 Appellant (to whom for convenience we will in this judgment refer as the accused) appeals against his conviction on each of two counts on the first for using deadly means of harm with intent to wound Albert Zelaya, and on the second for intentionally and unlawfully causing dangerous harm to Albert Zelaya. He also seeks leave to appeal against his sentences, which were two years imprisonment with hard labour on the first count and three years imprisonment with hard labour on the second; the sentences to run concurrently.

2 The evidence indicated that on the 17th July, 1976, there was a party at the house of one Orvin Jeffords at La Democracia Village. Persons present included Albert Zelaya, his brother the accused, Orvin Jeffords, P.C. 108 Espinosa, and his brother P.C. 255 Gideon. Gin and rum were being drunk.

3 It appeared that some time after midnight there was a “play fight” between accused and Jeffords. Albert Zelaya told the accused to leave the guy alone.

4 At about 2 a.m., P.C. Espinosa left the party and went home. About five minutes after getting into bed, he heard a loud talking; somebody arguing. He came out of his house and saw that the people arguing were the accused and his elder brother, Albert Zelaya. He saw them proceeding to their homes still arguing, and was returning to his house when he heard Albert Zelaya telling accused that he “Doesn't worth nothing”. Accused replied “You want to try me then.” Albert said “Yes”, whereupon accused said “I am coming but I am going home first”. Accused then left; and Albert left for his house. Espinosa went towards Albert's house, which was about 25 yards from that of accused. He was just about to reach it when he saw accused come out of his house and go towards Albert's. He had something in his hands, which Espinosa at first took to be a machete. This the accused raised and pointed to where Albert, who had no weapon, was standing. Espinosa then saw it was a shot-gun. The gun went off and Albert dropped. Espinosa said he then saw that accused had broken the gun and was trying to re-load it. He ran towards and held on the accused, with whom he had a tussle because accused did not want to hand over the gun. Eventually, accused left the gun in Espinosa's hands and ran. P.C. Gideon, who had come to the spot after the shooting, ran after accused and caught him. At some stage after shooting Albert, accused said he did not mean to shoot his brother.

5 According to Espinosa, accused was carrying the shot-gun with the barrel pointing downwards, and shot from a position (which he demonstrated in Court) with the gun held at arm's length downwards with the barrel forward.

6 Albert Zelaya, accompanied by accused, was taken on the 31 mile journey to the Belize City Hospital in a motor car, arriving at about 5:30 that morning, 18th July, 1976.

7 There a Doctor, Dr. Premaunand Shenoy, found Albert Zelaya to be suffering from multiple gun shot injuries over the lower half of both thighs in the front. In the Doctor's opinion the injuries were dangerous because they might have punctured a large blood vessel in the front of the thigh and also because of the profuse bleeding.

8 The Doctor found both Albert Zelaya and the accused to be under the influence of alcohol.

9 For the Prosecution a statement given by the accused to the Police after caution was admitted in evidence without challenge from the Defence. In it accused said that in the course of an argument at Jeffords house, his brother Albert had begun pushing him around and when he left Albert followed him still pushing and elbowing him in his stomach; that on reaching his house accused was walking upstairs leaving Albert in the yard at the foot of the steps but Albert was still tantalising accused, who rushed for his shot-gun inside the house, and came back and fired at the ground to scare Albert off, the shot accidentally hitting Albert in the legs. accused claimed that he never had any intention of harming his brother.

10 In his defence accused gave sworn testimony which with some variations repeated his statement to the Police.

11 In one of his variations he said that when he got home he was resting on the step trying to revive; he was feeling “high” and was trying to feel better; as he was sitting there he saw Albert coming from his house towards Accused's house, cursing and saying he would take his revenge; that the accused then got off the steps and went for the gun and fired a shot on the ground to scare Albert off. He denied making any attempt to reload the gun. He said he went towards Albert and asked if he could get up, but the latter did not reply and the accused was still standing there when P.C. Gideon jumped on him, trying to get the gun from him; that they went to the ground and he gave Gideon the gun. He said he did not notice when Espinosa got there.

12 He admitted that after he had “shot” he ran, and said he did so in order to “beat” them.

13 The accused appeals against his convictions on three grounds. Ground 1, as amended, is in two parts, the first of which, marked (a) is in the following terms

• “(a) The learned trial judge erred in law when he directed the jury that “intentionally” in section 76 of the Criminal Code of the Laws of Belize has the same meaning as the word “with intent” in section 77(b) of the said Criminal Code.”

14 The direction complained of is that at the foot of page 22 of the record, where, in directing the jury on count 2, the learned trial judge told them: “‘Intentionally’ has the same meaning as it does in the first count.”

15 It will be seen that this direction was couched in terms which are not identical with those alleged in paragraph (a) of Ground I

16 The statements of intention under the two provisions which are relevant for the purposes of the instant case are, of course, those selected for inclusion in the respective charges. The statement of intention included in the allegation set out in the first count, which is drawn under section 77 (b) of the Criminal Code, is indicated by the words “with intent unlawfully to wound”; and that included in the allegation set out in the second count, which is drawn under section 76 of the said Code, is indicated by the words “intentionally and unlawfully caused dangerous harm”.

17 Counsel for the Appellant in an argument which, if we understood it properly, sought to draw an analogy with the use of the words “unlawfully” and “maliciously” in section 18 and section 20 of the English Offences Against The Person Act, 1861 and to derive guidance from the approach to the word “maliciously” discussed by the English Court of Appeal in Mowatt, 51 C.A.R. 402, also referred to the observations by the learned Chief Justice on the relevant Belize provisions in the case of Regina v. James Bradley at the Belize Sessions of January 1977.

18 For the purposes of the instant case we do not think it necessary to go into the argument at length as we have not found the suggested analogy or the discussion of the word “maliciously” in Mowatt'scase particularly relevant to the matter in issue before us. Nor would we consider it appropriate, without argument more directly in point, to express any concluded view on the observations of the Chief Justice except in so far as they differ from the opinion we are about to express in regard to section 76 of the Criminal Code, although we would question whether they give sufficient weight to the absence from section 77 of a requirement that there should be an actual injury and whether the deductions from the right of the prosecution to select a charge are entirely justified.

19 We would also mention that the marginal note “Intentional harm” to section 73 of the Criminal Code appears to be more appropriate if it has to be proved that the harm was intended rather than merely occasioned by an intentional act but it is not easy to see why sections 74, 75 and 76, which are similar in form, should not carry a similar marginal note.

20 Returning to the instant case, we are not disposed to read undue significance into the use of the word “intentionally” in the earlier sections as distinct from “with intent” in section 77(b).

21 It is the view of this court that the expression “intentionally causes any dangerous harm” in section 76 of the Code means with the intention of causing dangerous harm. In other words, it should be accorded a meaning similar to that which as we under stand, normally has been accorded to the expression “intentionally causes the death of another” in section 110 of the Code, i.e. as requiring an intention to cause death.

22 This accords with the submission made to us by the Director of Public Prosecutions and it is on this basis that we have considered the accuracy and sufficiency of the learned trial judge's direction to the jury on the requirement of intent for the purpose of the second count.

23 In dealing with the question of intent for the purposes of the first count he had told the jury they would have to be satisfied that the accused used a shot-gun “with a specific intention, in this case, the intention to wound”. He had also explained to them what an intention is and that they had “to gather it from all the surrounding facts, particularly in a case of this nature”.

24 Turning to the second count, the learned trial judge told the jury: “The second charge of the indictment is dangerous harm. Intentionally has the same meaning as it does in the first count”.

25 The submission of the defence is that by these words the jury would have been led to believe that in considering the second count they could convict the accused if they...