Supreme Court
Appeal No. 10 of 1977
6th December, 1982.
Moe, C.J.

Mr. E.L. Flowers for the Appellant
Mr. G. Quallo for the Respondent

Criminal law - Break and entering of dwelling house - Stealing from dwelling house - Conviction - Appeal against conviction - Whether statement given by the offender voluntary - Confession confirmed by evidence.

J U D G M E N T

On 19th October, 1976 the Appellant was convicted of two offences by the magistrate for the Belize Judicial District namely:- (1) On 4th May, 1976 he broke into the dwelling house of Edna Arias with intent to steal; (2) On 4th May, 1976 he stole from the said dwelling house $40 BZ., the property of Edna Arias. For these, he was sentenced to serve 6 months and 4 months to run concurrently.

He appeals against conviction on three grounds:

(1) the decision of the Inferior Court was unreasonable or could not be supported having regard to the evidence;

(2) the decision was based on a wrong principle in that the magistrate assumed that the statement given by the Appellant to the police was voluntary and failed to direct his mind on a "voir dire" as to whether the Prosecution had established the voluntariness of the said statement and the decision was such that the Inferior Court viewing the circumstances reasonably could not properly have so decided;

(3) the magistrate erred in law in holding that the Defendant failing in his unsworn statement to mention that he was forced, threatened or induced to give his statement was tantamount to his statement being voluntary and he being guilty;

and against the sentence as being unduly severe.

The main evidence relied on by the Prosecution was against the Appellant, a statement which he gave in writing to the police. The magistrate, in his reasons, concluded that it was a voluntary statement. The Appellant, however, has contended that the magistrate failed to take the correct considerations. The submission, in effect, was that the magistrate failed to hold a voir dire. In my view, it is a pointless exercise to require a magistrate who is judge of both fact and law to hold a trial within a trial. The inappropriateness of the procedure was pointed out recently by Lord Lane, C.J. in F (An Infant) v Chief Constable of Kent [1982] Criminal Law Review 682. The magistrate then who was the arbiter of fact had put before him the allegation that the statement was involuntary. The accused himself set it up by a lengthy cross-examination of the police constable. When the Prosecution's case closed, the accused elected to give an unsworn statement. The Appellant, as the magistrate pointed out, did not mention or suggest that he was threatened or induced or forced in any way to give the statement he gave to the police.

It is evident that the magistrate had in mind the question whether the statement was voluntary. He had put before him circumstances in which it was suggested it was taken. He was entitled to take into account the fact that the person making the accusation that he was threatened or assaulted to give a statement does not substantiate it or in any way seek to do so. He came to the conclusion that the statement was voluntary and he was entitled to do so.

The Appellant further contended that even if the statement was properly in evidence, since it amounted to a confession there was need for confirmatory evidence. The magistrate stated that he found that the confession of the Appellant was confirmed by evidence of two witnesses and there was evidence on which the magistrate could have come to this finding.

The appeal against conviction fails. The Appellant was sentenced to serve the above-mentioned sentences six years ago. Taking all the circumstances of the appeal into account, the sentences are set aside and the Appellant sentenced to serve one day imprisonment for each offence.

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