Court of Appeal
Criminal Appeal No. 1 of 1982
5th March, 1982
SIR JAMES SMITH, P.
A.L.STAINE, J.A.
H.L. da Costa, J.A.

Appeal from conviction and sentence of 3 years imposed for burglary - Section 200 of Criminal Code - intent required for 1st count of burglary - intent to commit rape - no evidence led by Prosecution to support such intent - burden of proof not discharged - conviction unsupported by evidence - appeal allowed - conviction quashed - sentence set aside.

J U D G M E N T

This is an appeal against conviction and sentence. The Appellant was charged on an indictment containing two counts, both for burglary. The second count was in the alternative. In the first count the accused was charged with burglary contrary to section 200 of the Criminal Code, Ch. 21. The particulars of the offence were that on the 26th June, 1981, the Appellant at Belize City in the Central District of the Supreme Court, did by night, unlawfully break a building, to wit: the dwelling house of Geraldine Cadle situated at No. 110 New Road, with intent to commit a felony therein to wit: Rape.

The second Count, in the alternative, was identical save that in this count the intent alleged was to commit the felony of theft in the dwelling house.

The Appellant was tried before a jury on 27th January, 1982. The evidence for the Crown so far as material shows that around 2 a. m. on the 26th June the Appellant broke and entered the dwelling?house of one Geraldine Cadle. She was lying in bed but not asleep. She heard a male voice outside saying "O.K. Elaine" and then a female voice saying "Why don't you go leave me alone". She at first thought it was her husband. Then she tilted the blinds to look and saw a man with a clear shirt coming upstairs. He came on to the verandah but did not knock on any of the doors. She heard a sash window shaking and went to a crack in her room to look into the parlour, but she could not see anything as the curtain was down. After a while she heard footsteps coming back around the verandah. She peeped underneath the floor. The person then turned back and went to a window. She went back to the crack in the wall, looked and saw the person lowering himself through the sash window into the parlour from the verandah. There was a bright light in the parlour; she recognized the man whom she knew before.

The intruder went straight towards the room door of Geraldine's grandmother. Geraldine then screamed - "Thief". The man quickly retraced his steps and stood in the middle of the parlour. At this stage Geraldine called out to her absent husband "Eric wake up, there is a man in the house". The grandmother who had emerged from her room also started to shout "Thief". The intruder then beat a hasty retreat through the sash window by which he had entered.

The Appellant was found guilty on the first count and was sentenced to three years imprisonment. From this conviction and sentence the Appellant has appealed on the ground that the verdict of the jury was unreasonable and against the weight of evidence.

Admittedly the intruder was a trespasser and had clearly committed a summary offence. But the burden of proof was on the Crown to establish that the Appellant had the intent to commit rape ? a necessary ingredient of the offence charged.

The learned trial judge directed the jury that unless they were satisfied on the evidence that the Appellant went in for the express purpose or committing either felony they should acquit. So, too if they were left in doubt. But at no stage did he direct their attention to any evidence which showed an intention to commit the offence of rape: and this for a very good reason. Any such evidence was conspicuous by its absence.

Counsel for the Crown made a valiant attempt to support the conviction. He was ever driven to submit that an expression of a desire for female companionship on the part on the Appellant would show the necessary intent; as if a desire for an apple would constitute an intent to raid an orchard.

From the evidence it is clear that the Appellant retreated with celerity the moment he was duped into thinking there was a man in the house. As Talbot C.J. once observed: "The thought of man is not triable, for the devil himself knoweth not the thought of man". Whatever thought might have been in the mind of the Appellant he fled the scene before giving the slightest indication of what he intended. Certainly there was no evidence to show he had any intention to commit the felony of rape. In the circumstances the conviction plainly cannot be supported.

Accordingly the appeal is allowed, the conviction quashed and the sentence set aside.

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