Features — 21 September 2019
Murder and the law

I want to confess outright that before I began doing my paralegal studies at the University of Belize, I was rather clueless about the law. However, I was always very fascinated with it. Two subjects in particular gripped my attention: Constitutional LAW and Criminal LAW.

I remember that Sen. Michel Chebat was my constitutional law teacher, and I had all sorts of questions and comments for him. This was because I felt that if no other law was taught in our school system, at least Constitutional law should be taught, as it went to the core of all other laws and more so, to the core of our personal rights and freedoms, as well as the system and power of governance in our country.

Then, I was taught Criminal Law by Lutchman Sooknandan, who served as Director of Public Prosecutions twice. What intrigued me about this area is that criminal law is a very wide and complicated area stemming from how intention to commit a crime is determined, and the impact that the rules concerning what evidence can or cannot be admitted in trial could have on this process.

See, as lay people, we think differently when we think about a crime, and the many hearsay evidence we think should be allowed into evidence, cannot be admitted. So when the history of past things said by the accused or the deceased or some relative, cannot be admitted in evidence, we can’t understand why not, if we know they said it. Well, this whole hearsay rule is a book by itself.

I say all of this because I did not always know the law and as a lawyer, we keep learning each day.  There is always something new to learn, but the basic principles are set and when changed, it is by legislation or a new decision at the highest court in our system. Each case turns on its own facts.

The recent murders have caused so much discussion about legal issues and often, people not knowing better are understandably frustrated as they try to find who is to blame. The police are blamed for not finding the perpetrator, the attorneys for doing their duty to represent clients, the courts for finding them not guilty.

The most recent debate is over the fact that it has been officially reported that the post-mortem exam done on the body of 19-year-old Adamir Choc, aka “Mia,” resulted in an “Inconclusive” cause of death. Common sense had people questioning, if the cause of death cannot be ascertained, how can it be proven in court that she was killed and did not just die of natural causes?

That is a spot-on question and one that any defence attorney representing any accused for murder in which there is a death certificate saying “inconclusive,” will surely have to use in defending his client per law.

Inconclusive Cause of Death!

At the writing of this article, I read a news report that says that police have a person of interest detained and are contemplating charges. That is good news, and I hope that leads to further evidence and information.

However, I cannot stop thinking like a prosecutor, having done my share of prosecuting murder cases while I was a Crown Counsel at the Office of the Director of Public Prosecutions, and understanding the burden of proof on the prosecution.  So, my thought is that there must be at least prima facie evidence of all the elements of murder.

To me, this report is interesting because without a cause of death being conclusive, I really don’t see how anyone can be charged with murder, yet.  But I also know that the forensic pathologist can go over all the evidence again and get back results of any specimen sent for testing, and then finally give a conclusive cause of death.

Until then, and at the writing of this, I know the cause of death remains inconclusive.

I can also tell you that from experience, even if charges are brought against an accused without the minimum evidence to prove all elements of the case, the magistrate, at a preliminary inquiry (PI), can stop the case from proceeding. You see at PI, the defense attorney can challenge the evidence and the magistrate can find that there is not a prima facie case, and so, it is not sent up to the Supreme Court for trial.

Then, when a competent court does its duty under the law and throws out the case at the PI hearing, people who do not know better will be angry and blame the legal system, not realizing that they are being hoodwinked. I have dealt with such types of cases myself, and while I will not explain the details of the process, I will tell you that if there is not, on the face of the paper evidence, anything to at least point to every element needed to prove murder, the magistrate has to dismiss the case there and then.

My honest legal opinion is that with no cause of death being established, the evidence proves only that Adamir is dead. It does not prove that her death was not due to natural causes or unlawful causes.  It is the law that whenever a person dies there must be a death certificate stating the cause of death.  People who are ill and then die, their doctors are usually able to ascertain what they died from and issue the certificate.

If the person is found dead, the authorities usually take charge of the body and do the autopsy to make sure it is not foul play. For example, if an elderly person is found dead in his house where he lived alone, even if there is no sign of injury, an autopsy will still be done to find out how he died. If it’s a heart attack, then no crime is ascertained.

But if they find that he had poison in his system, they will need to determine if he committed suicide or if someone poisoned him.  Forensic doctors and forensic specialists can gather evidence to make such determination.

In the case of Adamir, there is already circumstantial evidence that shows that something is not right. But not because she was seen leaving with, let’s say Mr. XY, that means that XY killed her.  There has to be some evidence more than that, and it even needs to be shown that she was killed, and did not die from natural causes.

I believe that the investigation is still young and that more evidence can be gathered, and I know that even cold cases can be solved decades after.

How to prove murder!

But just as a means of sharing the basics about murder, I decided to share my 101 criminal law.  There are five elements that need to be proven for murder.  Using the case of Adamir as an example, I seek to explain in as simple a manner as possible. These are:

1. That Ms. Choc died from unlawful harm
2. That the said harm was inflicted by the accused
3. That we can prove who the accused is — IDENTITY
4. That at the time the accused committed the harm that caused the death, he intended to kill her
5. That the accused did not have any lawful excuse – e.g., self-defense

Now that’s me trying to put it in a simple form. So a person can die from a natural cause such as diabetes; heart attack or from an unnatural cause such as exsanguination due to gunshots, stab wounds or strangulation; blunt force trauma to the head; decapitation etc.

So for the record, “homicide” is not a cause of death, but means you are dead and was killed by another, but even to prove that she was killed, it needs to be proven how she was killed. Saying the cause of death is inconclusive means you still cannot say that it was indeed murder.

Thus, unless there is an unlawful cause of death stated as the cause of death, it cannot be said there is prima facie evidence to prove murder.

 I know many will say that common sense would be that she was killed because she disappeared and was found partially nude, and she would not have reason to be in the area she was found, etc.  That is true, but the said evidence helps as circumstantial evidence, and with more circumstantial evidence, a case can be built.

However, if there is an eyewitness who can come forward and give a first-hand account that they saw the accused chop up a person and the person stopped moving, and when he checked, the person stopped breathing or that they saw the accused strangle a person until the person stopped moving, and then after that, the person was found dead, then it is circumstantial evidence that can be used to conclude what is the cause of death.

In her case, if a person can say they saw the accused strangle her or suffocate her, that is good evidence that can be used to tie up all the circumstantial evidence and conclude that the said person with whom she was last seen caused her death.

This evidence will be woven along with all the other evidence before a court to still prove the 5 elements of the crime stated above. This is an exception, but it can be used before a court, and a trained legal mind knows how to gather such evidence.

Of course, this does not mean that it will not be challenged by the defence and used to create reasonable doubt.

Each bit of evidence needed

For example in a case I read at law school the accused was charged with murder because he thought he killed the person and so threw the body in the river and left the person for dead. So the autopsy found the person died from drowning, not the injuries the accused had inflicted.

 But the court looked at whether his act to throw the body in the river causing the drowning, which led to the death, and still found him guilty of murder.

Keep in mind that each case turns on its own facts and the legal arguments on these points of law are many, and sometimes the lines of distinction are fine. And the case about the drowning is not a Belize case, and often, each jurisdiction may have a principle in law sufficiently different from another that can result in a different verdict on almost the same facts.

There have been exceptional cases in other jurisdictions where murder is proven without a body. That is a whole new area and involves a lot of circumstantial evidence and forensic evidence. But no such case has yet been tested in Belize. I was hoping that the Annie Young case would be the first.

 In all cases, every little bit of evidence, even that which is seen as insignificant, is needed. This is because the prosecution must prove its case against the accused, beyond any reasonable doubt.

 This means that the defence only needs to cause some reasonable doubt. With an inconclusive cause of death, the said doubt can easily be caused if the case makes it as far as trial in the Supreme Court.

 I am just being real here. Those interested, go do your research on the topic so that neither I, nor anyone else, can fool you or mislead you! Just keep in mind that we operate under the British common law and so, those common law principles, along with our codified laws, are what govern our criminal cases.

Peace out!

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Deshawn Swasey

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