Mr. O. Twist for the Appellant
D.P.P. for the Respondent

Appeal against conviction and sentence of death imposed for murder - identification - quality of evidence good - warning by judge for special need for caution before accepting recognition evidence given to jury, but no full Turnbull direction given - alibi - appropriate directions given by judge on the issue of alibi - even though no full Turnbull warning given, Court satisfied that a reasonable jury properly directed along the full Turnbull guidelines would have concluded that the appellant was responsible for death of deceased - proviso applied - appeal dismissed - conviction and sentence affirmed.

LIVERPOOL, J.A.

On 31st March, 2000, the Appellant was convicted of murdering George Chavez on 7th July, 1995, in the village of Guinea Grass in the Northern District of Belize, and was sentenced to death. He now appeals against that decision.

The Appellant was identified as the murderer by an eyewitness Martin Adolphus, who claimed that he had known the Appellant as "R" for at least ten years, and that they had been at school together. He stated that on the day of the murder he was riding his bicycle about 6 p.m. when he came across the deceased and another man named Sufredo. They called him and he stopped. It was already sundown and there was no moon. Night was just setting in but the street was lit by a street lamp across the road from where they were standing. He saw the accused walking down the street. He saw his face when he was approaching the group. He saw the side of his face when he was walking past them; and he saw the back of his body after he had walked past.

When Adolphus next saw the Appellant he was standing in the centre of the road about 18 to 20 feet away. He was watching the group and the witness observed that the Appellant had something in his hand which he raised and took aim. The Appellant discharged a shotgun and the deceased fell to the ground. Sufredo rode off on his bicycle, and the witness dropped his bicycle and dashed to the ground. He saw when the deceased fell to the ground. He then saw the accused load a bullet in the shotgun, walk towards the deceased who was lying on the ground, took aim, and discharged another bullet into his body. There was nothing between him and the accused during the incident which could have obstructed his vision. He claimed to have had a clear view.

The medical evidence established that Chavez death was caused by multiple injuries to his head and abdomen by a shotgun.

The Appellant gave evidence on oath. His evidence was in substance the same as that contained in a statement which he had given to the police on his arrest in August, 1998. He stated that he had lived at Guinea Grass for about ten years. He knew Martin Adolphus by seeing him in the street sometimes. On the day of the murder he had worked in a canefield and returned home at 1 p.m. He stayed home until 3:30 when he left to collect his pay, and walked to Celia's Bar with Sergio Jimenez where they arrived at 4 p.m. He remained at Celia's Bar until 6:30 p.m. and consumed six bottles of beer during this period. On his way home he overheard people saying that he had killed the deceased. He ran home, recounted what he had overheard to his family; and took some clothes and left the village. He stated that he ran away because a member of the Chavez family had killed his younger brother and ran away; he was afraid that they might kill him if they found him.

In fact the Appellant was not found by the police until August 1998 when he was arrested and charged with the offence.

Two witnesses gave evidence for the defence. Sergio Jimenez testified that he had indeed accompanied the Appellant to Celia's bar at 4 p.m. that day; but that he had left the Appellant at the bar after consuming one soft drink. He knew nothing about the incident which led to the murder of George Chavez. The second witness was the wife of the Appellant, Elesia Pop. She confirmed that when the Appellant returned home about 7 p.m. that day he told her that he had overheard persons accusing him of a death which he knew nothing about, and was leaving the village because the Chavez family were following him.

The first ground of appeal is that the trial judge misdirected the jury when he told them that the case was a matter of evidence of recognition and failed to give a warning to the jury about the identification evidence in accordance with the guidance set out in R v Turnbull (1977) Q.B. 224.

It has frequently been stated that the Turnbull warning should always be given in identification cases, and it is generally accepted that the warning now applies to recognition as well as to pure identification cases. In Turnbull Lord Widgery had stated (at page 228)-

"First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witness can all be mistaken. Provided this is done in clear terms the judge, need not use any particular form of words."

Dicta to, the same effect are to be found in Reid, Dennis and Whylie v R (1989) 37 WIR 346, and Beckford and Shaw v R (1993) 42 WIR 291. It was argued in this case that the judge did not explain to the jury the reason for caution when approaching the issue of identification; that he failed to remind the jury that even an honest witness can be a mistaken witness; and that he also failed to direct the jury, to examine the circumstances under which the identification was made.

On this question the judge addressed the jury as follows:

"Now, members of the jury, this evidence which has come forth from the witness Adolphus is evidence of recognition. Evidence of recognition, members of the jury is not the same as evidence of identification which can be of fleeting glance identification and there are certain procedures for that. In this case, members of the jury, the witness has testified that he knew this person, this accused person for ten years, went to school together and they lived in the same village and at the time when he saw him there was adequate light, there were two street lights and that given the time when he saw him the first time and up to the time when he fired the last shot you, members of the jury, can conclude that that cannot be a two seconds view of the accused, certainly it has to be more than a fleeting glance in my view there was sufficient time for him to have seen and recognize [d] the accused. But, members of the jury, I must tell you also that mistakes in recognition even of close friends and relatives are sometimes made so you must be very careful when dealing with this evidence of recognition.

Mr. Sampson told you that people have mistaken him for a gentleman by the name of Godfrey Ramos. I, myself have been mistaken by other people ---- and I myself have mistaken one person for another where the lighting situation was far from being dark. So, I tell you all these things members of the jury, because I want you ---- to be absolutely sure that there was no mistake when it come to the recognition of this accused person on the 7th of July, 1995 when the witness said he saw when he fired two shots on the person of Chavez with the result that he died."

In this case no Turnbull warning in the fullest sense was given, although the law requires, in Belize, that the warning applies both to identification and recognition cases. But it is also recognized that there are exceptional cases where a Turnbull direction is unnecessary or where it is sufficient to give it more briefly than would otherwise be required. In R v Bentley (1991) Criminal L.R. 620, Lord Lane CJ was of the view that in a case where there was purported recognition of a familiar face which had taken place over a considerable period of time in perfectly good conditions of lighting such a direction would, in those circumstances, be quite unnecessary. And in Beckford and Shaw v R (1993) 42 WIR 291, Lord Lowry gave the example of a witness identification evidence of the accused who was a workmate whom he had known for 20 years, with whom he had been conversing for half an hour face to face in the same room, and the witness is sane and sober; in which case there would be an exception to the general rule that a Turnbull warning should be given.

In Shand v R (1995) 47 WIR 346, Lord Slynn of Hadley delivering the advice of the Board said (at page 351)-

"The importance in identification cases of giving the Turnbull warning has been frequently stated and it clearly now applies to recognition as well as to pure identification cases. It is, however, accepted that no precise form of words need be used as long as the essential elements of the warning are pointed out to the jury. The cases in which the warning can be entirely dispensed with must be wholly exceptional, even where credibility is the sole line of defence. In the latter type of cases the judge should normally, and even in the exceptional case would be wise to, tell the jury in an appropriate form to consider whether they are satisfied that the witness was not mistaken in view of the danger of mistake referred to in Turnbull."

In our view the Judge's direction was adequate in the circumstances of this case and is clearly in accordance with the general direction recommended by Lord Widgery in Turnbull. Further, although the full Turnbull warning was not given, the circumstances in which the recognition of the Appellant took place do, in our view, constitute the exceptional circumstances in which it has been held that a full Turnbull warning need not be given.

The recognition was by an eye-witness who had known the Appellant for years. The distance between the eye-witness and the Appellant was not great. The eyewitness' observation of the Appellant were not fleeting glances. The eye-witness testified that he had recognized the Appellant with the aid of two a bright street lamp and the eye-witness had an unobstructed view of the Appellant.

We are therefore of the opinion that the quality of the evidence of the visual identification of the Appellant by Martin Adolphus was good and that the trial judge did in effect warn the jury of the special need for caution before accepting the evidence of recognition. We are also satisfied after a careful scrutiny of the trial Judge's directions, that those directions dealt with all the essential matters relating to the weaknesses and dangers of evidence of recognition generally, and in the particular circumstances of this case.

The second ground of appeal raised the question of Alibi. It was urged that the trial Judge failed to explain to the jury what is meant by "Alibi"; that he had misdirected the jury when he told them that the testimony of Sergio Jimenez was of no use thus in effect, telling the jury to reject the defence of Alibi offered with regard to the particular witness; and that he failed to follow the Judges guidelines with regard to a false Alibi put forward as supporting identification, in that he should have directed the jury that they could rely on a false alibi as supporting an identification only if they were satisfied that the sole reason for the fabrication was to deceive them on the issue of identification. The trial judge made it clear to the jury that the defence was that the witness Adolphus was lying and that the Appellant had raised the question of an alibi. He said -

"The accused is telling you or he is raising what we call the defence of alibi --- alibi simply means that he was elsewhere. Members of the jury, though the law places an onus on the prosecution to prove the guilt of the accused so that you feel sure of it, it does not however, place a duty on the accused to prove that he was elsewhere at the time when the offence was committed. For example, the accused is under no obligation by law to bring any witness to say that he was at Celia's bar. He does not have to bring anyone to prove his alibi. It is the duty of the Crown to prove that the accused was not there and was at the scene of the crime and that he committed the crime. And in this case, members of the jury, the proof which the prosecution has adduced for this purpose from the witness Martin Adolphus who testified that he knew the accused for ten years. He saw the accused shot and kill the deceased, Robert Chavez, twice, one time in the area of his abdomen, the other time in the area of the head. Members of the jury, if you conclude that the alibi raised by the accused was false that does not in itself entitle you to convict him. The prosecution must at all times make you feel sure of the guilt of the accused. Let me further tell you, members of the jury, an alibi is sometimes invented to bolster a genuine defence."

In our view there is no substance in the ground relating to "Alibi" evidence. The trial Judge told the jury that in raising the defence of Alibi the Appellant was merely saying that he was elsewhere at the time the crime was committed, and that the onus was on the prosecution to prove that the Appellant was at the scene of the crime at the relevant time. As to the testimony of Sergio Jimenez, the trial judge was not in error in pointing out that that evidence did not provide an alibi for the Appellant. Sergio Jimenez left the Appellant at Celia's bar shortly after 4 p.m. after consuming a soft drink. The incident occurred between 6:30 p.m. and 7 p.m. The evidence of Sergio Jimenez could not, therefore, have assisted in determining where the Appellant was at the time of the incident. On the question of the failure of the trial judge to follow the Judge's guidelines, here again the trial judge told the jury that they were not entitled to convict the Appellant if they concluded that the alibi was false. He also went on to warn them that an alibi is sometimes invented to bolster a genuine defence.

The case against the Appellant was a very strong one. It is also a most appropriate case in which the Proviso should be applied. In Freemantle v R (1994) 45 WIR 312, Sir Vincent Floissac in delivering the advice of the Board, after reviewing dicta of Lord Griffiths in Barnes, Desquottes and Johnson v R; Scott and Walters v R (1989) 37 WIR 330; Lord Ackner in Palmer v R (1990) 40 WIR 282, and Lord Lowry in Beckford and Shaw v R (1993) 42 WIR, concluded that none of the dicta in those cases was intended to close the door to the application of the proviso where a trial judge has failed to give the jury the requisite general warning and explanation in regard to visual identification.

In all the circumstances we are satisfied that a reasonable jury properly directed along the full Turnbull guidelines would have concluded that the Appellant was responsible for the death of George Chavez.

We therefore dismiss the appeal and affirm the conviction and sentence.

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