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Judiciary Supreme Court Belize
(BILL HUGHES APPELLANT
The Constitution of (AND
BETWEEN
Belize (
Judges Rules (THE QUEEN RESPONDENT

Court of Appeal
SupremeCourt
Criminal Appeal No. 26 of 2002
Judgments &
2002: June 17 and October 17.
Court of Appeal
Judgments
The Honourable Mr. Justice Rowe - President
The Honourabie Mr. Justice Mottley - Justice of Appeal
The Honourable Mr. Justice Sosa - Justice of Appeal

Ms. Antoinette Moore for the Appellant.

Mr. Kirk Anderson, Director of Public Prosecutions for the Respondent.

Criminal Law - Appeal against conviction and sentence -

Manslaughter - Section 124 of the Criminal Code - Causation -
Novus actus interveniens - What constitutes negligent medical
treatment to exonerate an accused from liability.

JUDGMENT

MOTTLEY J.A.

1. The Appellant, Bill Hughes, was charged with manslaughter in that, on 14th
January, 2000, he caused the death of Godwin Dawson by unlawful harm by
way of stabbing him. On 28th November 2001, he was convicted and sentenced
to 15 years' imprisonment. At the time of the incident, he was aged 15.

2. On 14 January 2000, the deceased, along with other young men, were at the
corner of Moho and Kanot Streets. A fight, which lasted 2 - 3 minutes, took
place between the deceased and the Appellant. The fight started when the
deceased walked up to the Appellant and gave him a punch in his face. After
receiving this punch, the Appellant took a knife with a four-inch blade from his
right pants pocket and stabbed the deceased. The prosecution's witness,
Richard Mendez said that, after the Appellant stabbed the deceased, the
deceased grabbed the Appellant's arm and punched him in the face whereupon
they fell to the ground. The Appellant approached Mendez with a knife in his
hand, whereupon Mendez armed himself with a knife and the Appellant ran
away. The deceased fell to the ground. After the deceased got up, a small
amount of blood was seen in the region of his abdomen.

3. In his statement to the police which was made in the presence of Cyril
Moreira and Claudio Serano a Justice of the Peace, the Appellant said he was
on his way to buy fried chicken when he saw a crowd of young boys. One of the
boys approached him and punched him in his mouth and chest. Mark Martinez,
with whom the Appellant had been walking, intervened and tried to stop the
deceased from punching him. The Appellant took a knife from his pants pocket
and stabbed the deceased in his side. He did not remember which side of his
body. He was punched in his face by Richard Mendez.

4. In his unswom statement from the dock, the Appellant said that, when the
deceased attacked him, he told his friend to get the deceased off him because
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he did not wish any trouble. His friend was unable to get the deceased off, so he
defended himself. After the stabbing incident, Richard Mendez came from
behind him and punched him in his face a couple of times, causing him to fall to
the ground. The Appellant stabbed at him but he ran away. Mark Martinez, who
gave evidence on behalf of the defence, supported the Appellant.

5. In her evidence Dr. Lydia Larinaga, who worked at the Southern Regional
Hospital in Dangriga, said she examined the deceased on 14 January 2000.
She observed that he had a wound, which she treated by suturing. Before
stitching the wound, she checked to see how deep it was. This was done by the
doctor trying to penetrate the wound by inserting her finger. She was unable to
do this. At this stage, the wound did not appear to be deep and was considered
to be a superficial injury. The deceased left the hospital without being
discharged by the doctor. As a result, the doctor was not afforded the
opportunity of observing him.

6. On the morning of 15 January 2000 the deceased was again seen at the
hospital by the doctor. At that time, he complained of pain. He appeared to be
bleeding from the wound. On examination, it was found that the bleeding came
from the stitches. He was admitted to the hospital for observation. He remained
in hospital until about 10:00 a.m. on the following day when he was discharged.
When asked by counsel for the prosecution why he was discharged the doctor
said:

"Because at that moment he didn't present anything abnormal so I

told his mother if there was any problem like fever or vomiting she
would have to bring him back. All the vital signals were normal. At
that moment he didn't have pain that is why he was discharged
from the hospital. There was no complication."

7. Sometime around 7:00 p.m. on the 16 January 2000, the deceased again
returned to the hospital. He had been vomiting since about 3:00 p.m. The doctor
said she sent him to Belmopan to be evaluated by a surgeon because he was
getting dehydrated. In reply to a question from the Appellant who was
unrepresented at the trial, the doctor said that, before discharging him from the
hospital on the 16 January, she had observed him overnight and, as there were
no complications, she concluded that he could be discharged. In reply to a
question from the judge, she conceded that her observation was superficial in
that it consisted of looking at him, feeling his pulse, cleaning his injury and
noting the absence of any fever. She however retracted this concession and
asserted that her observation was not in fact superficial.

8. Dr. Mario Estradabran who conducted a post mortem on the deceased on

18th January, 2000 found that.

"…the deceased has a stab wound 4 cm. It is a little bit - it is less

than 2 inch stab wound situated on this area. This is the left flank
of the abdomen. The guts is situated 14 cm. from the center of the
belly going to the side. The decease had a stab wound right there.
And this stab wound penetrates inside the abdomen. Penetration
means that stab wound went deep inside of the belly of the cavity
inside of the belly."

Later in his evidence he stated:

I saw that the stab wound described externally entering going inside the
abdominal cavity taking a direction left to right backwards to frontwards, and
downwards to upwards. . . . So, it penetrates inside. The stab wound penetrates
inside of the Intestines. And external border lower region of the left kidney
where the trajectory finished. So in other words, when the stab wound
penetrates inside the abdomen, damage the guts colon penetrates the colon I
mean the intestine and went below the kidney below the kidney where the
trajectory end up. So, up to a depth of approximately 6 inch to the depth of the
stab wound was 6 inches."

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Dr. Estradabran gave the cause of death as "a septic shock as a consequence
of peritonitis due to colon rupture injury to the left kidney as a consequence of
stab wound to the abdomen. The septic shock meant generalized infection." He
said that "infection normally takes place immediately because the contaminated
material of the intestine, the stool or the fluids from the intestine coming out and
start to contaminated the liver, kidney, spleen and other organs then the
infection appears very very quickly."

9. In reply to a question from the Appellant, the doctor stated:

"To my knowledge they should not release that victim any time at all. They
should keep the victim inside the hospital at the first time when the victim arrives
at the hospital they should be admitted and that patient immediately and do a
proper examination and send him to the nearest hospital if the Dangriga
Hospital does not have the facility to save the victim's life."

10. In response to a further question from the judge, the doctor said:
"… the first thing you need to do when you have a stabbing incident that ways
(sic) wear a glove wear a surgical glove and push your finger inside of the stab
wound to see to have a better idea of the depth of the stab incident. If you see
that all the finger goes in and you would feel the guts or the organs or the
intestine through the finger then you will be able to have a more clear area to
say this is a critical case and needs immediate medical attention."

Dr. Larinaga said she tried to penetrate the wound with her finger but was not
successful. The doctor who performed the surgical operation on the deceased
was not called as a witness.

11. In his summation, the judge told the jury:

"And Dr. Mario Estradabran testified that he performed an autopsy on the body
of Godwin Dawson and concluded that from his examination, or from his
autopsy or post mortem on the body he concluded that Dawson died from septic
shock due to an injury to the left kidney of his body as a consequence of a stab
wound or an injury.... Now, members of the jury, before I move into that let me
tell you that Dr. Mario Estradabran did disclose some very revealing things, that
there was a certain amount of sloppiness at the hospital or a certain degree of
carelessness or negligence by the doctor who attended this particular person.
But the law of Belize is, that it is irrelevant whether there was negligence at the
hospital at the person - with the result that the person died. The original act of
this person, the person who did the stabbing if you find that it is the accused is
still responsible for the death irrespective of the negligence of the hospital; that
is a different situation. I suspect the rational is - but for the injury inflicted by Bill
Hughes that person would not have died any way. It is only if there is proof that
the hospital did something totally different and cause the death of Godwin
Dawson that the accused would then be exonerated. But if it is only a question
of negligence, only a question of sloppiness as this case clearly shows that
does not exonerate the accused. I need to make it clear of that."

12. In his first ground of appeal, complaint is made that the judge erred in law
by failing to direct the jury that, if they found that the deceased died as a result
of manslaughter by negligence of the medical doctor and not by the medical
treatment of the injury inflicted by the accused, the Appellant should be found
not guilty.

13. Counsel for the Appellant submitted that the evidence shows that the
medical treatment which the deceased received was, at the very least, less than
the normal standard of care expected for such an injury. She stated that the
evidence showed that the treatment may have amounted "to negligence or even
negligence by the treating physician." She contended that the judge was wrong
when he told the jury that under the law of Belize "it is irrelevant whether there
was negligence at the hospital and the person - with the result that the person
died."

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14. Section 124 of the Criminal Code Act, Cap. 101 deals with "explanations
and modifications" to the general provisions of the Code "with respect to
causing an event... causing death by harm." Section 124(d) states that:

"Death shall be held to have been caused by harm if the death be

caused by the medical or surgical treatment of the harm unless
such treatment itself amount to murder or manslaughter."

15. By this provision, the death of a person will be held to have been caused by
the injury which was inflicted in circumstances where the death is in fact caused
by the medical or surgical treatment of the injury. However, if the treatment itself
amounts to murder or manslaughter, then in those circumstances the death will
not be considered to be as a result of the injury inflicted. No suggestion has
been made that the treatment of the deceased amounted to murder. Counsel
submitted that because of the treatment of the deceased by Dr. Larinaga,
negligence was in fact relevant. She relied on the evidence of Dr. Estradabran
who said in cross-examination that the hospital ought not to have released the
deceased at anytime, and that the deceased ought to have been admitted to
hospital and a proper examination carried out to ascertain the true nature of the
injuries and send him to the nearest hospital if the Dangriga Hospital did not
have the facility to save his life.

16. Counsel referred to Smith (1959) - Cr. App. R. 121 in which the case of
Jordan (1956) 40 Cr. App. R. 152 was explained. In Smith's case it was held:

"Where a person has received a wound and dies after an interval

of time and the occurrence of intervening incidents, if at the time
of death the original wound is still an operating and substantial
cause, then the wound can properly be said to be the cause of
death, albeit that some other cause of death is also operating, and
the person who inflicted the wound will be liable for homicide.
Only if it can be said that the original wounding is merely the
settling in which another cause operates can it be said that death
does not result from the wound."

17. The Director of Public Prosecution in his reply relied on the case of David
William Cheshire (1991) 93 Cr. App. R. 251 where Beldam L.J. in delivering
the judgment of the Court of Appeal had this to say:

"In the criminal law, and in particular in the law of homicide,

whether the death of a deceased was the result of the accused's
criminal act is a question of fact for the jury, but it is a question of
fact to be decided in accordance with legal principles explained to
the jury by the judge. We think the matter cannot be better put
than it was by Goff L.J., as he then was, in the case of Pagett
(1983) 76 Cr. App. R. 279.

At p.288 he said:

"In cases of homicide, it is rarely necessary to give the jury any

direction on causation as such. Of course, a necessary ingredient
of the crimes of murder and manslaughter is that the accused by
his act caused the victim's death. But how the victim came by his
death is usually not in dispute. . . . Even where it is necessary to
direct the jury's minds to the question of causation, it is usually
enough to direct them simply that in law the accused's act need
not be the sole cause, or even the main cause of the victim's
death, it being enough that his act contributed significantly to that
result. It is right to observe in passing, however, that even this
simple direction is a direction of law relating to causation, on the
basis on which the jury is bound to act in concluding whether the
prosecution has established, as a matter fact, that the accused's
act did in this sense cause the victim's death. Occasionally,
however, a specific issue of causation may arise. One such case

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is where, although an act of the accused constitutes a causa sine
qua non of (or necessary condition for) the death of the victim,
nevertheless the intervention of a third person may be regarded
as the sole cause of the victim's death, thereby relieving the
accused of criminal responsibility. Such intervention, if it has such
an effect, has often been described by lawyers as a novus actus
interveniens, though no simple translation has proved satisfactory,
really because the Latin term has become a term of art which
conveys to lawyers the crucial feature that there has not merely
been an intervening act of another person but that the act was so
independent of the act of the accused that it should be regarded
in law as the cause of the victim's death, to the exclusion of the
act of the accused. At the risk of scholarly criticism, we shall for
the purpose of this judgment continue to use the Latin term."

18. Later in his judgment Bedlam L.J., after reviewing the cases of Smith and
Jordan said at page 257:

"It seems to us that these two passages demonstrate the

difficulties in formulating and explaining a general concept of
causation but what we think does emerge from this and the other
cases is that when the victim of a criminal attack is treated for
wounds or injuries by doctors or other medical staff attempting to
repair the harm done, it will only be in the most extraordinary and
unusal case that such treatment can be said to be so independent
of the acts of the accused that it could be regarded in law as the
cause of the victim's death to the exclusion of the accused's act....

In a case in which the jury have to consider whether negligence in

the treatment of injuries inflicted by the accused was the cause of
death we think it is sufficient for the judge to tell the jury that they
must be satisfied that the Crown have proved that the acts of the
accused caused the death of the deceased adding that the
accused's acts need not be the sole cause or even the main
cause of death it being sufficient that the acts contributed
significantly to that result. Even though negligence in the
treatment of the victim was the immediate cause of his death, the
jury should not regard it as excluding the responsibility of the
accused unless the negligent treatment was so independent of his
acts, and in itself so potent in causing death, that they regard the
contribution made by his acts as insignificant."

19. Dr. Estradabran stated that, in treating an injury of the kind suffered by the
deceased, it was necessary for the doctor to wear a medical glove and insert his
finger into the stab wound to ascertain its true depth. The purpose of doing this
is to find out whether the gut or organs or intestine had any injury. From any
such finding the doctor would then be in position to decide the correct treatment
for the injured person. It should be noted that Dr. Larinaga attempted to carry
out this treatment but said that she was unable to penetrate the stab wound with
her finger. In treating the deceased, Dr. Larinaga appeared to have adopted the
accepted treatment for the injury suffered by the deceased.

20. Dr. Estradabran stated that in his opinion the "direct cause of death was a
septic shock as a consequence of peritonitis due to colon rupture Injury to the
left kidney as a consequence of the stab wound to the abdomen." There was no
evidence of any intervening act by any person independent of Appellant's act
which would give rise to a claim that the deceased died as a result of murder or
manslaughter which was caused by a third party.

21. In our view, the direction of the judge quoted at paragraph 11 was in keeping
with the provision of section 124(d) of the Criminal Code. Section 124(d) clearly
states that death shall be held to have been caused by the injury if the death is
caused by the medical or surgical treatment of the injury unless the treatment
itself amounted to murder or manslaughter. This provision may be compared to

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what was said by Goft L.J. in Pagett's case that "the intervention of a third
person may be regarded as the sole cause of the victim's thereby relieving the
accused of criminal responsibilities." Negligence would have been relevant if the
treatment had been so grossly negligence as to amount to manslaughter.
Clearly the treatment of Dr. Larinaga did not in the circumstances amount to
gross negligence and therefore it could not be said that the death was caused
by manslaughter.

22. For these reasons we dismissed the appeal against conviction.

23. The Appellant and the deceased were engaged in a fight during the course
of which the deceased ran at the Appellant. It was after the deceased ran at the
Appellant that he was stabbed. However, having regard to the nature of the
injury and the unfortunate circumstances which led to the death of the
deceased, and the age of the Appellant, we consider that the sentence of 15
years should be varied. The appeal against sentence is allowed and the
sentence is varied to 12 years.

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