Court of Appeal
Criminal Appeal No. 11 of 1980
29th October, 1980.
A. BLAIR-KERR. (P.)
CLIFFORD INNISS (J. A.)
P. T. GEORGES (J. A.)

Criminal Law - Offence of Receiving stolen goods - Appeal against Conviction and Sentence - Whether learned Judge properly directed the Jury - Witness credibility - No adverse inference could be drawn from the accused's right to remain silent - Appeal dismissed.

J U D G M E N T

The Appellant was convicted before the Supreme Court on two counts of Receiving and was sentenced to two years imprisonment on each count, the sentences to run concurrently. He now appeals against his convictions and seeks leave to appeal against the sentences imposed.

On the first count he was charged that between the 3rd and 4th February 1978, he dishonestly received one double bed mattress, a box of crockery and a butane stove with butane tank, which articles were valued at approximately $225, the property of one John Parsons, knowing the same to have been stolen.

On the second count he was charged that between the 13th and 14th February 1978, he dishonestly received an Evinrude Outboard motor and a 3 gallon outboard motor tank, which articles were valued at approximately $750, the property of Mr. Parsons, knowing the same to have been stolen.

John Parsons is the owner of Salt Creek Estate situated on the Northern Road in the village of Sand Hill. Of the various buildings on the estate, there is Mr. Parsons' dwelling house and a store. The latter is a two?storey building, the upper flat of which is occupied by a watchman employed by Mr. Parsons named Thomas Holland who is 87 years of age. The lower flat is the store. Another employee is a Mr. Hubert Wade who lives in Sand Hill Village and works on the estate.

In July 1976 Mr. Parsons left Belize for Florida where he remained till July, 1978. In February 1978, during his absence, a large number of articles, including those enumerated in the first count, were stolen from his dwelling house, and the articles enumerated in the second count were stolen from the store. This was reported to Mr. Parsons, but it was not till after his return to Belize in July 1978 that police inquiries were instituted. As a result of this on 8th August 1978, the Appellant (an ex?police officer) and a Mr. William Canton Jr., (who was Chairman of the Village Council) were charged with breaking into Mr. Parsons' dwelling house with intent to steal, stealing a large number of articles from that dwelling house and stealing the Evinrude outboard motor and the outboard motor tank from the store. The Appellant was additionally charged in the alternative with the two counts of receiving to which reference has been made.

We were informed that Canton has not been tried because he has absconded; and that the Appellant was tried in November 1979 but that the Jury was unable to agree on a verdict. The Appellant's second trial on the two receiving charges commenced on 17th April and he was convicted on 18th April, 1980.

Wade and Holland were called as witnesses for the prosecution. Wade gave general evidence as to the theft of various articles from the dwelling house and as to the theft of the outboard motor from the store, but his testimony did not advance the prosecution's case against the Appellant to any material extent. Holland, despite his age, was more specific. He said that Canton and a coloured Creole man who was a policeman came to the estate and took the outboard motor and lubricating oil; that Canton picked up the machine and passed it to the policeman; that he did not give Canton permission to take the motor; that Canton threatened him and that he let Canton "take the things" because he was afraid.

On 5th August 1968, Sergeant Reyes executed a search warrant at the premises of the Appellant. He was accompanied by Parsons. In the Appellant's bedroom, Reyes found a double bed mattress and under the bed he found a carton box which contained crockery and cutlery. Parsons identified the mattress, crockery and cutlery as property stolen from his residence on Salt Creek Estate. In the Appellant's kitchen Sergeant Reyes found an outboard motor propeller and a 3 gallon tank for an outboard motor.

Later in the day, Reyes contacted the Appellant and invited him to Punta Gorda Police Station where he informed the Appellant that Parsons had identified certain articles found at his (the Appellant's) house as articles stolen from his (Parsons') premises. Reyes cautioned the Appellant. The Appellant, after caution, said that while he was stationed at Ladyville as a policeman, Canton Jr., of Sand Hill Village gave him these articles along with the Evinrude motor, a butane stove, a blender and a butane tank saying that he must keep them and that when he (Canton) was ready, he would call for them; that he brought the articles to Belize City, and that after he resigned from the Police Force, he took them to Punta Gorda Town where he was then living.

The Appellant then took Sergeant Reyes and Mr. Parsons to his premises where he handed over a butane stove and butane tank which were identified by Parsons as his property. The Appellant then took Reyes and Parsons to the premises of one Jaime Petillo where the Evinrude motor was recovered. It was in pieces. The Appellant said to Sergeant Reyes that upon his return to Belize City, he would confront Canton.

On Tuesday 8th August 1978, Sergeant Reyes returned to Belize City with the Appellant and the various articles found at the Appellant's premises and the premises of Jaime Petillo. The learned Judge's note of the evidence of Sergeant Reyes as to what happened at the C.I.B. Office reads as follows:

"On Tuesday about 2 p.m., Mr. Canton Jr. was brought in to C.I.B. Office where in presence of accused I told Canton what accused had said. Canton denied knowing anything about the articles. When the accused was asked to repeat what he had told me, he said he had nothing to say.

The Appellant gave evidence, the substance of which may be summarized thus:

"In February 1978 I was policeman stationed at Ladyville Village. One afternoon in February 1978 Canton, the Chairman of Sand Hill Village told me something which caused me to go to Salt Creek Estate where I saw Mr. Holland. I saw a mattress, 2 cartons, one gas tank, one outboard engine and tank. Later, I saw these things inside Canton's pick?up. Canton told me that Holland had sold him the articles for $750 and that Holland said the owner had given him permission to sell because he was not coming back to Belize. Canton asked me to keep the articles in the garage of the police station as his house had been burnt agreed. Later, when I asked Canton to collect the articles, he asked me to keep them for him. I took the articles to Punta Gorda. He told me I could use the mattress and the outboard engine. I used the outboard engine for a while. I took it to Petillo for repairs. I told the police that I did not know the articles were stolen".

The learned judge's note of the Appellant's answers to certain questions in cross?examination reads as follows:

"I did tell Sergeant Reyes that as soon as I saw Canton I would confront him. I did so. I didn't because on the way from Punta Gorda to Belize City, Parsons spoke to me and as a result I decided not to confront Mr. Canton. As a Police I realise how serious a charge of receiving stolen goods was. I kept quiet in view of what Parsons said and partly because after reaching Belize City one of the superior officers in C.I.D. told me something …………. I had to accept what Parsons said because it might have been beneficial maybe in Court. The reason why I kept quiet was due to what I was told by Mr. Parsons. At that time I was aware goods belonged to Parsons and they are stolen. From the time the police questioned me at the Station I knew".

In his summation, the learned judge said:

"Mr. Holland's evidence is important from the point of view as to whether the articles were stolen ………… his evidence is also important from the point of view that if you are satisfied that theft has been established, his evidence may also help you determine whether there was guilty knowledge on the part of the accused which is .........one important element that the prosecution must establish".

In cross?examination Holland said that he had made two statements to the police which were contradictory and that one was true and the other was not. Naturally, counsel for the defence pointed out to the Jury the importance of these answers in assessing the credibility of Holland as a witness; and the learned Judge referred to this matter in his summation, in the course of which he said;

"It has not been shown that he has lied under oath. It is not shown that he said one thing under oath before and saying a different thing under oath now".

This passage has been made the subject of a ground of appeal. Counsel for the Appellant submits that the learned Judge "usurped the function of the Jury". We do not agree. What the learned judge said was this:

"Let me deal first with the suggestion that (Holland) lied once and he would lie again - this is a matter for you. What we know is, if you accept it, that he said one thing to the police at one time and another thing to the police at another time - lied to the police. What you pay attention to is the evidence in court. It has not been shown that he has lied under oath. It is not shown that he said one thing under oath before and saying a different thing under oath now. It is for you to determine whether the fact that he said two different things to the police in 1978 necessarily means that he is lying under oath. That is for you to determine …………."

It was not suggested that Holland said one thing on oath to the magistrate at the preliminary inquiry and something different on oath at the trial or that he said one thing in examination?in?chief and something different in cross examination; and, in our view, the learned Judge did not err in inviting the Jury to consider whether the fact that Holland made two contradictory statements to the police in 1978 necessarily affected his credibility as a witness when testifying under oath at the trial.

The main ground of appeal concerned a passage in the learned Judge's summation which reads:

"The prosecution also puts to you that when confronted with Canton he failed to say anything and that you may infer guilt from this. It is for you to decide from the circumstances whether he should have said something in those circumstances in Belize City. You have heard him, you have heard the circumstances explained to you and it is for you to determine.."

The submission of counsel for the Appellant was that the learned Judge should have directed the Jury to disregard the submission of the prosecution and should have warned the Jury that it was not open to them to infer guilt from the Appellant's silence when confronted by Canton We were referred to a number of authorities on the point including the following:

R v. Naylor, (1933) 23 C.A.R. 177,
R v. Leckey, (1944) 29 C.A.R. 128,
R v. Ryan, (1964) 50 C.A.R. 144,
R v. Hoare, (1964) 50 C.A.R. 166,
R v. Sullivan (1967) 51 C.A.R. 102,
R v. Johnson (1962) 46 C.A.R. 55

As Viscount Dilhorne said in R. v. Gilvert (1978) 66 C.A.R. 237 at 244, there are a large number of reported cases arising from comments made at trial on the failure of the accused to disclose the defence put forward at the trial when questioned by the police at an earlier stage of the proceedings; and, as Lord Parker said in Hoare, it is not possible to reconcile all of them. The learned editors of Archbold (39th Edition) refer to the concluding words of Humphreys J. in R. v. Tune (1944) 29 C.A.R. 162. The learned judge said on that occasion (p. 165):?

"It is probably better, when a person has been charged with a criminal offence after having been cautioned and has either made no answer at all, or has made some observation which in itself is not in the nature of an explanation, of the charge, that the presiding Judge should say nothing about it beyond telling the Jury exactly what was said or not said on that occasion. If nothing is said by way of comment by the presiding Judge, no point can be raised".

In Ryan, Melford Stevenson J., giving the judgment of the Court of Criminal Appeal, said (p. 148):

"It is, we think, clear as a result of those authorities that it is wrong to say to a jury: 'Because this accused exercised what is undoubtedly his right, the privilege of remaining silent, you may draw an inference of guilt'; it is quite a different matter to say: 'This accused, as he was entitled to do, has not advanced at any earlier stage the explanation that has been offered to you today; you, the jury, may take that into account when you are assessing the weight that you think it right to attribute to the explanation".

In Gilbert, Lord Dilhorne referred to that passage in the Ryan judgment, and said:

"The Court" (that is the Court of Criminal Appeal) "felt that there was a clear dividing, line between these two courses. We have to confess that we are unable to perceive that this is the case. The second of the statements quoted seems to us an invitation to the Jury to draw an inference adverse to the accused on account of his exercise of the right of silence, though in a more oblique fashion ………We regard the present position as unsatisfactory. In our view it may not be a misdirection to say simply 'This defence was first put forward at this trial', or words to that effect, but if more is said, it may give rise to the inference that a Jury is being invited to disregard the defence put forward because the accused exercised his right of silence ………… It is not within our competence sitting in this Court to change the law. We cannot overrule the decisions to which we have referred. A right of silence is one thing. No accused can be compelled to speak before, or for that matter, at his trial. But it is another thing to say that if he chooses to exercise his right of silence, that must not be the subject of any comment on his failure to give evidence. As the law now stands, he must not comment adversely on the accused's failure to make a statement. The Criminal Law Revision Committee in its Eleventh Report (Comnd. 4991) at paragraph 30 expressed the opinion that 'it is wrong that it should not be permissible for the Jury or magistrates' court to draw whatever inferences are reasonable from the failure of the accused when interrogated to mention a defence which he puts forward at this trial. To forbid it seems to us contrary to common sense and, without helping the innocent, to give an unnecessary advantage to the guilty."

However, Lord Dilhorne stated the general rule, as the law now stands, in these words (p.144):

"It is in our opinion now clearly established by decisions of the Court of Appeal and of the Court of Criminal Appeal that to invite a jury to form an adverse opinion against an accused on account of his exercise of his right of silence is a misdirection".

While accepting that that is the general rule, we are clearly of the opinion that, in the instant case, the learned Judge's comments did not infringe that rule; and we agree with the submission of the learned Director of Public Prosecutions in this regard, which may be summarised thus:

On 7th August 1978, the Appellant was cautioned that he need not say anything, that is to say he was reminded of his so?called right to remain silent. By stating to Sergeant Reyes how, according to him, he came to be in possession of the stolen articles, the Appellant chose to waive his right. The statement made by him to Sergeant Reyes was exculpatory. He went further and indicated that he intended to confront Canton. Accordingly, the police arranged the confrontation the following day. The Appellant's explanation was put to Canton who denied that he knew anything about the stolen articles. The Appellant was then invited to repeat his explanation which he had given to Reyes the previous day (an explanation which was, in all essential respects, subsequently given by the Appellant to the Jury). The Appellant indicated that he had nothing to say.

It was not suggested by the prosecution or the trial Judge that by declining to repeat his explanation, the Appellant was thereby accepting Canton's statement that he knew nothing about the articles; nor was it suggested to the Jury that the Appellant might be expected to have added to what he had already said to Reyes. He had a right not to repeat what he had previously said; but, in the circumstances, his failure to do so was capable of raising a doubt in the minds of the Jury as to whether his previous statement was in fact true. While no adverse inference could be drawn from his silence in itself, it was not his silence alone which fell to be considered. It was his silence in the context of his failure to repeat an exculpatory explanation which he had previously volunteered.

We agree with the learned Director's submission that the submission of counsel for the Appellant was really an invitation to this Court to extend the law as it stands, that is to say to extend the protection afforded by the right to remain silent beyond its present defined limits, bearing in mind that the statement made by the Appellant to Reyes was essentially exculpatory.

There was ample evidence to support the Jury's verdict of guilty; and the appeal against conviction is accordingly dismissed.

As regards sentence, we are unable to say that in all the circumstances, 7 years imprisonment is manifestly excessive; and the Appellant's application for leave to appeal against sentence is refused.

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