Court of Appeal
Criminal Appeal Nos. 6 and 7 of 1982
10th June, 1982
SIR JOHN SUMMERFIELD, P.
SIR JAMES SMITH, J.A.
ALBERT L. STAINE, J.A.

Criminal Appeals - Appeals against Conviction and Sentence - Burglary, Stealing and Receiving - Charge of Receiving was alternative to Burglary and Stealing - Criminal Code, section 200, 155(b) 177(1) - Doctrine of recent possession - The effect of the defence of one of the Appellants was a complete denial of possession of "radio-cassette player" - Although learned trial judge, in his summing-up, said that no explanation was given by the Appellant as to being in possession, he did not explain the Appellant's defence to the jury - Accused is entitled to have his defence put to the jury - Trial judge omitted to do so - Appellant should have a trail de novo - Evidence Ordinance, section 88(2), section 58 - Learned trial judge failed to accord the 2nd Appellant with the right to give evidence at the voir dire - Omission amounted to a failure of justice - Appeal allowed - Fresh trial ordered - Appeal of each Appellant allowed and convictions quashed and sentences set aside - Both Appellants to be tried de novo before another judge.

J U D G M E N T

The Appellants, Glenford Audinett and Michael Arnold, were jointly charged in the Supreme Court with three offences, burglary, stealing and receiving, contrary to sections 200, 155(b) and 177(1) respectively of the Criminal Code. The charge of receiving was alternative to the charges of burglary and stealing. The jury returned a verdict of guilty, against the Appellant Audinett upon the charge of receiving; and as to the Appellant Arnold, he was found guilty of burglary and stealing. Upon conviction the trial judge sentenced Audinett to one year's imprisonment and Arnold to five years for burglary and three years imprisonment for stealing, the sentences to run concurrently. Each of them appealed against conviction and sentence. Neither Appellants were represented by Counsel at the trial and each of them conducted his appeal in person in this Court.

The facts briefly were that on the night of 6th and or 7th September, 1980, the house of Raul Gomez was broken into and three articles stolen therefrom, a Panasonic video tape, "a radio cassette player" and an imitation gold necklace. Mr. Gomez discovered these articles were missing on the morning of the 7th September, and found that the front door which had been locked the previous night, was slightly ajar. He reported the matter to the police. P.C. Chavez came to the house to investigate the matter. He found an aerial wire on a chair near the door, which Mr. Gomez had observed earlier but this piece of wire did not belong to him. P.C. Chavez tested the wire in the lock of the front door and discovered that the front door could be opened in that way. At that stage the identity of the intruder or intruders was not known.

About a week later P. Sgt. Rodriguez said he saw Audinett at or near "Pacheco's Patty Shop" with what the sergeant described as "a radio cassette" and asked if he wanted to sell it; that Audinett initially replied it was not for sale but a day or two later they met again when Audinett offered to sell it to him for $80.00; he offered $75.00 for it and Audinett accepted. Mr. Gomez identified it at the trial as his "radio cassette player" which disappeared from his house on the night of 6/7th September.

The prosecution relied on the evidence of Sgt. Rodriguez and the doctrine of recent possession to prove the offences with which Audinett was charged. Audinett gave evidence on oath, describing how he came to be arrested. In cross- examination, he admitted he knew the location of "Pacheco's Patty Shop" where Sgt. Rodriguez said the transaction between them took place, but Audinett said he had no dealing with Rodriguez, whom he knew as "Boots".

The effect of Audinett's defence was a complete denial of possession of the "radio cassette player". The learned judge stated in his summing up when explaining the doctrine of recent possession that Audinett "has given no explanation of his possession of it". But nowhere in the summing up did the trial judge explain Audinett's defence to the jury. It does not matter how absurd or unlikely a defence may be, the accused is entitled to have his defence put to the jury and care should be taken to point out in the summing up all that there is to be said for the defence, especially where an accused is not defended by Counsel. Unfortunately the learned judge omitted to do so in the present case and we think therefore there should be a trial de novo in regard to the Appellant Audinett.

As to the Appellant Arnold, the prosecution relied on the evidence of P. Sgt. Gideon who produced a written statement allegedly made by Arnold on 6th October, 1980. This document was the only evidence linking Arnold with the offences charged, and he objected to its admission. In the absence of the jury Arnold cross-examined the police sergeant who answered "I deny you signed a blank paper". In his evidence in chief he has said he cautioned Arnold who gave his statement of his own free will which the sergeant said he took down in writing and read back to Arnold who signed it. In answer to a later question by the trial judge he added that Arnold said "he was going to give me a statement of what happened. I did not at any time ask him to make a statement". The trial judge admitted the statement on P. Sgt. Gideon's evidence alone without giving Arnold the opportunity to tell his own version of what happened as a witness on his own behalf.

The jury returned and Arnold again cross-examined P. Sgt. Gideon who answered "I did not harass you for three days before you made the statement. You did not sign a blank paper".

It was clear from these answers that Arnold was contending he had been harassed by the police and made to sign a blank paper. Arnold should have asked in the voir dire if he wished to give evidence to explain what happened especially as he was conducting his defence in person.

For the Crown it was conceded that Arnold should have been allowed to give evidence at the voir dire and reference was made to section 88(2) of our Evidence Ordinance which provides that before an admission of an accused is received in evidence:-

"the prosecution must prove, affirmatively to the satisfaction of the judge that it was not induced by any promise of favour or advantage or by use of fear, threat or pressure by or on behalf of a person in authority".

It was at one time thought in England on the authority of R. v. Baldwin (1932) Cr. App. R. 62 that an accused was not permitted to give evidence on oath at a voir dire. Later in R. v. Cowell (1940) 27 Cr. App. R 191, Hawke J. said:

"Whatever the case of Baldwin may have decided, this Court is of opinion that in such circumstances it to proper to allow the prisoner himself to be called as a witness if the justice of the case makes it desirable that this should be done".

The learned author of Archbold (40 Edition) has pointed out that in neither of those cases was Sec. 1 of the English Criminal Evidence Act, 1898 cited to the Court.

It is of interest to note that Section 1 of that Act is in similar words to section 58 of our Evidence Ordinance, and both provide that:?

"every person charged with an offence …… shall be a competent witness for the defence at every stage of the proceedings."

Thus, we need not look beyond Sec. 58 of Our Evidence Ordinance for authority that an accused person has a right to give evidence at the voir dire, which is no more than a stage in the proceedings of a criminal trial. Unfortunately the learned trial judge failed to accord that right to the Appellant Arnold and thereby decided to admit the statement without hearing his side of the story. That is how it appears on the record and there is no affidavit before us to the contrary. The omission amounted to a failure of justice and we would therefore allow the appeal and order a fresh trial.

During the hearing of this appeal the point was raised that the word "unlawful" had been omitted in the particulars of the offences charged, but we do not think it necessary to consider this point in the circumstances of this appeal.

The appeal of each Appellant is allowed and the convictions are quashed and sentences set aside. We order that both Appellants be tried de novo before another judge.

---------OOO---------