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CASE NOTE

Case Name: Kirk Gordon [Appellant] v. The Queen [Respondent]

Court Name: Judicial Committee of the Privy Council

Decision Date: 2010

Citation: [2010] UKPC 18 JCPC 2009/0032

Procedural History: The appellant was convicted and sentenced to imprisonment for life after a trial held 10 – 14 July 2006. He appealed unsuccessfully to the Court of Appeal against both conviction and sentence. He appealed to the Privy Council. Pre-trial activities consisted of the arrest the defendant the same night of the alleged murder, a statement given by the accused to police a day after the arrest, the location of a knife, found by police, alleged to have been used by the victim during an altercation with the appellant.

Facts: The appellant was alleged to have fought with and killed Arthur Ellis (the victim), who he claimed had a knife, at about 11:30 pm on 14 November 2003 by striking him a number of times with a piece of wood. The appellant, under no obligation to do so, gave a statement and interview to police in the presence of a JP a day after his arrest. As a consequence the appellant was charged under section 117 of the Criminal Code of Belize with murder. The accused was convicted of murder and made an unsuccessful appeal to the Belize Court of Appeal.

Issues:

1. Whether the issue of intention to kill was improperly withdrawn from the jury? 2. Whether the loss of self-control as a partial defence succeeds for the purposes of Section

116 (b) of the Criminal Code of Belize? 3. Whether the appellant could not be convicted of manslaughter pursuant to 116(1) of the

Criminal Code if he intended to kill the victim contrary to Section 119(a) and (b) of the Criminal Code Cap 101 of Belize?

4. Whether the appellant’s statement and police interview, under caution, is admissible?

Judgement: The appeal was allowed, a verdict of manslaughter substituted and the issue of sentencing remitted to the Court of Appeal.

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Rules of Law:

1. Withdrawing the issue of intention to kill from the jury:Withdrawing the issue of intention imputes a bias, Mueller, Christopher B. Laird C. Kirkpatrick (2009). Evidence; 4th ed. pp. 133–34 set out the following: “With respect to the critical facts of the case—whether the crime charged was committed and whether the defendant was the person who committed the crime—the state has the entire burden of proof. With respect to the critical facts of the case, the defendant does not have any burden of proof whatsoever. The defendant does not have to testify, call witnesses or present any other evidence, and if the defendant elects not to testify or present evidence, this decision cannot be used against them. The jury or judge is not to draw any negative inferences from the fact the defendant has been charged with a crime and is present in court and represented by an attorney. They must decide the case solely on evidence presented during the trial.” This was further reinforced by what was famously referred to as the “golden thread” in the criminal law by Lord Sankey LC“……Throughout the web of the English criminal law one golden thread is always to be seen—that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defense of insanity and subject also to any statutory exception...”

2. Misdirecting the Jury on the partial defence of loss of self-control:With reference to Section 116 (b) of the Criminal Code of Belize Lord Bingham of Cornhill offered the following as guidance: Was there evidence of a situation in which the appellant was justified in causing some harm to the deceased? Was there evidence that the appellant had caused harm in excess of the harm he was justified in causing? Was there evidence that the appellant was acting from terror of immediate death or grievous harm? Was there evidence that such terror deprived the appellant for the time being of the power of self-control?

3. The requirements for manslaughter direction:(a) …was deprived of the power of self-control by such extreme provocation given by the other person as is mentioned in section 120, or (b) he was justified in causing some harm to the other person, and that in causing harm in excess of the harm which he was justified in causing he acted from such terror of immediate death or grievous harm as in fact deprived him, for the time being, of the power of self-control.

4. The admission of evidence:Guidance is taken from R v Sharp [1988] 1 All ER 65 where the jury must be given comprehensible directions. They could not make sense of part only of the statement. The whole evidence should be considered as evidence, and the judge could allow the jurors to attach different weights to different parts, and he could point out the failure of the defendant to submit to cross examination. 

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Supporting Arguments:

1. The day after the defendant arrest a statement was volunteered to the police. The statement admitted his presence in the area, an argument with the decease, an assault on the appellant by the deceased, a struggle, retreat by the defendant but providing an explanation for the use of a piece of wood to defend himself. He did not give evidence at trial. His statement was not adduced by the prosecution and given only a passing remark by the defence. The judge did not direct the jury to consider the evidence given the previous actions see also R v Sharp [2008] WRL 7.

2. The direction regarding the actions of a reasonable man runs counter to section 119(b) of the Criminal Code of Belize. Members are of the view that the evidence presented to show the appellant was “acting from terror of immediate death or grievous harm and that the terror deprived the appellant of self-control” as per the direction of Lord Bingham of Cornhill in Cleon Smith v The Queen (No 59 of 2000) is of more import. Further support is provided by Norman Shaw v The Queen (No 58 of 2000). Both cases were on appeal to the Judicial Committee from Belize.

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Loosing Arguments:

1. Members agreed that the trial judge “summed up the facts with regard to it (intention) in detail” and at no time was the issue of intention withdrawn from the jury. The jury was instructed that “it was one of the five elements about which they must be sure before they could convict the appellant of murder.” In these circumstances there was no assumption of intent by the jury based on misdirection.

2. The Board has concluded that when the direction is read as a whole there is no misdirection. There is evidence that raises a reasonable doubt as to extreme provocation and loss of self-control resulting in a justified reaction.

“Obiter Dicta”: In the opinion of the Board, as a matter of fairness, the prosecution should have adduced them in evidence.

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I, Jepter Lorde, hereby state that this paper is my own work in accordance with the University’s rules and policies related to academic integrity.

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