Court of Appeal
Criminal Appeal No. 6 of 1979.
20th of July, 1979.
ALASTAIR BLAIR-KERR (P.)
CLIFFORD INNISS (J. A.)
WILLIAM DUFFUS (J. A.)

Criminal Law - Aggravated Theft - Breaking and Entering - Appeal against Conviction - Whether proper direction given to the Jury as to the evidence of the co-accused - Warning to be given to the Jury against uncorroborated evidence if the co-accused had interest of his own to serve - Conviction affirmed.

J U D G M E N T

Appellant Nicholas Baptist appeals against convictions before the Supreme Court of Belize for Housebreaking and Aggravated Theft. For these crimes he was sentenced respectively to 3 years imprisonment with hard labour and 2 years imprisonment with hard labour, the sentences to run concurrently. He was permitted to make submissions on sentence although he had not asked for leave to appeal against sentence.

Appellant Baptist had been charged jointly with one Michael Lopez with the commission of the two above?mentioned crimes and in the alternative with Receiving. At their joint Trial, both were convicted of Housebreaking and Aggravated Theft and both appealed against their convictions. On the application of Michael Lopez, however, the Appeals were heard separately.

The case against Appellant, Nicholas Baptist, was based on recent possession; and the facts were as set out in the Judgment of this Court in Criminal Appeal No. 5 of 1979, Michael Lopez v. Regina.

The evidence against Appellant consisted of?

(1) the testimony of Robert Aldana, Manager of the China Inn Restaurant, that at about 11 p.m. on 25th June, 1978, the very day on which Mr. Nelson discovered his articles missing, Appellant, then in the company of his co?accused Michael Lopez, had sold to Aldana 5 8?track tapes for $15.00. Baptist took the tapes from a bag which also contained an electric iron. Three of these tapes were later identified as the property of Montique Nelson and part of the articles missing from his dwelling?house.

(2) A statement given to the Police by Appellant, which was admitted in evidence by the Trial Judge after a "trial within a trial"; and

(3) The sworn testimony of Appellant's co?accused Michael Lopez.
The effect of the sworn testimony of Michael Lopez is set out in the Judgment of this Court in Criminal Appeal No. 5 of 1979, Michael Lopez v. Regina. The main features of this testimony were in effect:-

(1) Support for the evidence of Aldana that Appellant had sold Aldana 5 8?track Cassettes for $15.00 on the evening of Sunday 25th June, 1978;

(2) Agreement by Lopez with Appellant to try to sell an amplifier and a calculator for Baptist's aunt who wanted to make her passage money to the United States of America;

(3) Receipt from Baptist of a brown bag containing a calculator and a box containing an amplifier; and

(4) that on 27th June, 1978, he, Lopez, left the bag and the calculator with his friend Andy Alvarez and took the amplifier to Dawson's at Orange Walk where he was trying to sell it when the Police came upon him.

There was also evidence that the brown bag, the amplifier and the calculator were identified by Mr. Nelson as his and as some of the articles missing from his dwelling?house.

In his statement to the Police, Appellant admitted to being in the company of Michael Lopez at about 8:30 p.m. on Sunday, 25th June, 1979. Appellant told Lopez he was going to sleep but Lopez said he had something up which was values. They had then reached the junction of Prince Street and Albert Street. Appellant asked where were the valuables and Lopez said "Across there" and pointed towards Pamela's Store. That, of course, was the flat below Mr. Nelson's dwelling?house.

Appellant continued in his statement that just then a person passed who Lopez said was a policeman. Appellant then told Lopez "Let's go" because the Police had already seen them. Lopez, however, said to hold on and shortly after went across to Pamela's Store where he picked up a brown bag containing something from against the fence in the yard. He handed the bag to Appellant, who carried it to the corner of Wagner Lane and South Street. There Lopez opened the bag and Appellant saw that it contained one amplifier and one adding machine on top of other items which he did not see before he, Appellant, closed up the bag. Lopez then took the bag and said he wanted somewhere to leave it. They walked to South Street Bridge where Appellant left Lopez sitting on the Bridge with the bag and went home. Next morning Appellant met Lopez by Wesley Church. Sergeant Reyes came up and told Lopez they wanted to see him at the C.I.B. Office. Lopez immediately ran into Prince Street and disappeared.

In his Defence, Appellant made an unsworn statement from the dock in which he said that Lopez was telling lies and that he, Appellant, knew nothing about the articles which Lopez carried to Orange Walk.

The Chief Justice correctly advised the Jury that they might find Aldana to be an accomplice as being a receiver of stolen goods. If so, they were not to convict the Accused (Appellant) unless there existed corroboration of Aldana's evidence by some independent evidence, other than the evidence of another accomplice, implicating the accused in the commission of the crime in some material particular.

We also advised the Jury that the Accused having pleaded not guilty, if they found that his statement to the Police was an admission that he had committed the crime, he was not to be convicted on such admission alone without confirmatory evidence.

In further directions to the Jury, he told them that the Accused's statement to the Police could amount to corroboration of Aldana's evidence and that Aldana's evidence could amount to confirmation of Accused's statement to the Police.

We find no fault with these directions.

The learned Trial Judge, however, does not appear to have given the Jury any warning concerning the evidence of Michael Lopez, the Appellant's co?accused. This witness, not being called by the Prosecution, technically speaking, was not an accomplice. Nevertheless, it seems clear that he had a purpose of his own to serve and indeed sought to exonerate himself by implicating the Appellant.

In our Judgment in Criminal Appeal No. 14 of 1977, Alejandro Escalante v. Regina, this Court adverted to the case of Kenneth Frank Prater, 44 Cr. App. R. 83 and cited with approval certain passages from it to the effect that in cases where a witness, although not technically an accomplice, may be regarded as having some purpose of his own to serve, the warning against uncorroborated evidence should be given, although every case should be looked at in the light of its own facts.

In the instant case, we think it would have been better if the Jury had been warned that, if they found that Michael Lopez had an interest of his own to serve, it would be dangerous to convict Accused Baptist on his evidence unless there existed corroboration of it by some independent evidence, other than the evidence of an accomplice, which in a material particular implicated Baptist in the commission of the crime. In our view, however, no miscarriage of justice resulted from the omission to give such a direction because the Jury by their verdict clearly rejected the explanation given by Lopez as to how the stolen goods came into his possession and in any event there was other evidence in the case sufficient to justify the conviction of the Appellant.

The summing up also contained an impeccable direction on the doctrine of recent possession.

The jury, of course, were the sole judges of the facts of the case and it was for them to make the findings in this regard. We see no reason for interfering with their finding that the Appellant was guilty of Housebreaking and Aggravated Theft.

In our opinion, there is no substance in the appeal against Appellant's convictions and it is dismissed.

So far as the sentences imposed on him are concerned, the Appellant had previous convictions for dishonesty; and Housebreaking and Aggravated Theft are serious offences; carrying maximum penalties of 14 years and 7 years respectively. We see no reason for interfering with the sentences imposed on the Appellant and leave to appeal against them is refused.

----------OO----------