Gordon v R. (Belize)

[2010] UKPC 18
Privy Council Appeal No 0032 of 2009

JUDGMENT

Kirk Gordon v The Queen

From the Court of Appeal of Belize

before

Lord Saville
Lord Rodger
Lord Collins
Lord Clarke
Sir Christopher Rose

JUDGMENT DELIVERED BY

Lord Clarke

on

21 July 2010

Heard on 17 May 2010

Appellant
Paul Bogan
Lucy Corrin
(Instructed by Simons Muirhead & Burton)

Respondent
Not represented

LORD CLARKE

Introduction

On 14 July 2006 the appellant was convicted of murder after a trial in the Supreme Court of Belize before Mr Justice Gonzales ('the judge') and a jury. On the same day he was sentenced to life imprisonment. He appealed to the Court of Appeal in Belize but his appeal was dismissed on 8 March 2007, full reasons being given on 22 June 2007. On 17 November 2009, the Board granted special leave to appeal against his conviction.

i) that the judge effectively withdrew the issue of intention to kill from the jury;

ii) that the judge misdirected the jury as to the partial defence of loss of self-control;

iii) that the judge misdirected the jury in stating that the appellant could not be convicted of manslaughter if he intended to kill the victim; and

iv) that the jury were wrongly denied the opportunity of considering the appellant's statement under caution and police interview.

The facts

The deceased was Arthur Ellis. The appellant was alleged to have killed him at about 1130 pm on 14 November 2003 by striking him a number of times with a piece of wood. In short, four police officers were in a marked police car when they saw the appellant about 600 feet away just in front of 21 Kraal Road in Belize City, which was his home address. He was hitting a motionless body on the ground with a one foot by three foot piece of wooden board. He was observed to be bending over, holding the piece of wood with both hands and hitting the man on the ground to the face and head as he lay on his back on the ground.

The evidence of the four police officers was shortly to this effect, so far as relevant to this appeal. Before the police car stopped Corporal Aldana saw the appellant strike the deceased with four or five blows. After the car stopped he got out, drew his revolver and ordered the appellant to stop. The appellant initially refused, still holding the board, but after Corporal Aldana had given a second warning he dropped the board. After a struggle, the appellant was handcuffed, arrested and put in the police car, where he was cautioned. He said "If unu neva reach in time this would have been a straight murder." No contemporaneous note was made of that comment. Corporal Aldana could smell alcohol on the appellant's breath and formed the view that he was under the influence of alcohol. There was no sign of injury to the appellant…

JUDGMENT