Mr. Lutchman Sooknandan for the Appellant.
Mr. Rory Field, Director of Public Prosecutions,
assisted by Ms. V. Flowers for the Crown.

Criminal Law - Criminal Evidence - Murder - Admissibility of statement made by accused while in police custody which were in breach of the Judge's Rules and the Constitution of Belize - Duty of police to inform a person detained or arrested of his right to counsel before any in-custody interrogation begins - Evidence of an autopsy is admissible even no direct evidence as to the identity of the body is lead if there is circimstantial evidence which can identify the body as that of the decease.

ROWE, P.

Becky Gilharry, aged 13 years, left her home in the village of San Antonio, Corozal District, Belize, at about 5.00 p.m. on the evening of February 15, 1999 in the company of the Appellant Robert Hill. She did not return home and her dead body was found covered with uprooted trees and leaves near the Santa Rita archeological site on the following morning. Robert Hill was taken into custody by the Police that same night and after the dead body of Becky Gilharry, (hereinafter "Becky"), was discovered he was arrested and charged with her murder.

A trial before Gonzalez, J. and a jury was conducted between April 2 and April 10, 2000 and resulted in a verdict of guilty of murder. The Appellant was sentenced to be hanged.

Neither Mr. Sooknandan nor Mr. Field appeared at the trial and are clearly not responsible for the manner in which the case was conducted. The Appellant attacked the verdict and sentence of the Court on a number of grounds. We concluded that the appeal ought to be allowed and we ordered a new trial. We will set out herein our reasons for the decisions but in doing so we will be careful not to discuss matters that the jury will have to decide on the retrial.

The Appellant was on very friendly terms with the family of Becky Gilharry and he had spent some time at her home on the afternoon of February 15, 1999. At the request of the Appellant, Becky's mother allowed her to accompany the Appellant to a public telephone booth about 75 feet away. The Appellant returned to Becky's home and told her mother that Becky had gone to visit a friend. When, however, Becky did not return home, a report was made to the police. Constable Cab requested the Appellant to accompany him in his search for the missing girl. She was not found that night and the Appellant was detained by P. C Cab at the police station. P.C Cab did not caution the Appellant at any time during his interaction with him on the night of February 15, 1999.

Sergeant Eugene Fuentes interviewed the Appellant at the police station on the morning of February 16, 1999. In that interview the Appellant is alleged to have told the sergeant that he did not know where Becky was. Sergeant Fuentes received information of the discovery of a dead body and he took the Appellant along with him to the Santa Rita site. When the dead body was uncovered, the sergeant asked the Appellant if he knew who it was and the Appellant is alleged to have replied "da Becky." From his observations of the dead body and the information that he previously had, Sergeant Fuentes arrested and charged the Appellant for murder. It was the prosecution's case that after the Appellant was cautioned, he agreed to give a statement which was taken by Corporal Reyes in the presence of Israel Alpuche, a Justice of the Peace and Commissioner of the Supreme Court. After a hearing on the voir dire, the caution statement was admitted into evidence. Also admitted into evidence, were the oral statements of the Appellant.

The police officers testified that prior to his arrest, the Appellant had not been cautioned nor had he been read his constitutional rights. It was common ground that from the time that the Appellant was detained on the night of February 15, 1999 by P.C. Cab, to the time when he gave the caution statement on the following day, he was not represented by an attorney,

Ground 2 of the Appellant's grounds of appeal complained that the learned trial judge admitted statements allegedly made by the Appellant while he was in custody and which were in breach of the Judges' Rules and section 5(2)(b) and (c) of the Constitution of Belize. Section 5(20) and (c) of the Constitution of Belize state that:

"Any person who is arrested or detained shall be entitled ?

(b) to communicate without delay and in private with a legal practitioner of his choice and, in the case of a minor, with his parents or guardian and to have adequate opportunity to give instructions to a legal practitioner of his choice;

(c) to be informed immediately upon his arrest of his rights under paragraph (b) of this subsection."

We were not referred to any earlier decisions of this court on the interpretation of sections 5(2)(b) and (c) of the Belize Constitution. These provisions, however, are similar to provisions in the Constitution of Trinidad and Tobago and the Constitution of South Africa and we derive much benefit from decisions out of those jurisdictions. The pertinent portion of the South African Constitution relevant for this purpose is section 22(1). It provides that:

"Every person who is detained ? shall have the right ? (c) to consult with a legal practitioner of his or her choice and to be informed of this right promptly."

The Supreme Court, (Eastern Cape Town Division) in State v Nowbewu, (1997) 4 LRC 116 (South Africa) per Erasmus, J. at p. 144 said:

"The inquiry does not end with the fact of the failure by the police to apprise the Appellant of his rights. In order to put the matter in proper perspective, the court must look at the nature of the police actions or inaction in the light of the circumstances prevailing at the time. Generally speaking, a positive violation of a person's rights by officials is more serious than a neglect on their part, such as the failure to inform him or her of his or her rights; an intentional denial of a person's rights is more reprehensible than an unintentional omission of a duty; a mala fide action is more blameworthy than a bona fide omission."

On the facts of that case the court held that the police did not intentionally deny the Appellant his right to legal representation or purposely refrained from advising him of his rights and it was therefore not a proper case for the magistrate to have exercised his discretion to exclude the statements of the Appellant.

In Thornhill v The Attorney General, (1976) 31 WIR 498, the police detained Thornhill between 5.30 p.m. on October 17, to 12.45 p.m. on October 20, 1973, in the meanwhile denying access to his attorney in the belief that the Appellant would refuse to answer questions if he had the benefit of counsel. The court held that such action on the part of the police was a contravention of section 2(c)(ii) of the constitution of Trinidad and Tobago (as it then was) for which Thornbill was entitled to constitutional redress. The court, however, declined to grant a declaration that all statements taken from the Appellant during the period that he was denied counsel were unconstitutional, null and void. Georges, J., with whom the Privy Council agreed, held that it was for the judge who presided over the trial to determine after full oral evidence whether or not the statements were to be excluded. There was not to be an automatic exclusion of the statements made in contravention of this constitutional provision.

The constitution of Trinidad and Tobago was amended and no section in the precise terms of section 2(c)(ii) of the 1962 constitution was re?enacted. However, the Privy Council has held that a person who has been arrested and detained by the police in Trinidad and Tobago has a constitutional right to be informed of his right to retain and instruct without delay a legal adviser of his own choice and to communicate with him. Attomey General and another v Whiteman, (1991) 39 WIR 396. An important aspect of this case is that the Privy Council supported the view of Davis, J.A. at p. 408, that when an arrested or detained person has the right to be advised "as early as possible" of a right to counsel, he should be so informed before any "in?custody interrogation" takes place.

Finally, we turn to the decision in Allie Mohammed v The State, (1999) 2 A.C. 111 (P.C.), another case from Trinidad and Tobago. There it was conceded that a statement was admitted into evidence that was taken by the police from the Appellant in contravention of his right under section 5(c)(2) and (h) of the constitution of Trinidad and Tobago to be informed of the right to communicate with a legal adviser. The Privy Council rejected the submission that the provision in the Trinidad and Tobago Constitution should be interpreted in a manner similar to Miranda v Arizona (1966) 384 U.S. 436, and held that it would not be right to hold that the judge's discretion to admit or exclude a voluntary confession was entirely abolished by the relevant constitutional provisions in Trinidad and Tobago. The Privy Council adopted a balancing approach to the interpretation of the constitutional provisions for advising a person who has been arrested or detained, similar to that adopted by Erasmus J. in State v Nowbewu, supra. In delivering the judgment of the Board, Lord Steyn said at p. 123?124:

"The stamp of constitutionality on a citizen's rights is not meaningless: it is clear testimony that an added value is attached to the protection of the right. The narrow view expressed in King v Queen is no longer good law. On the other hand, it is important to bear in mind the nature of a particular constitutional guarantee and the nature of a particular breach. For example, a breach of a defendant's constitutional right to a fair trial must inevitably result in the conviction being quashed. By contrast the constitutional provision requiring a suspect to be informed of his right to consult a lawyer, although of great importance, is a somewhat lesser right and potential breaches can vary greatly in gravity. In such a case not every breach will result in a confession being excluded. But their Lordship make clear that the fact that there has been a breach of a constitutional right is a cogent factor militating in favour of the exclusion of the confession. In this way the constitutional character of the infringed right is respected and accorded a high value. Nevertheless the judge must perform a balancing exercise in the context of all the circumstances of the case. Except for one point their Lordships do not propose to speculate on the varying circumstances which may come before the courts. The qualification is that it would generally not be right to admit a confession where the police have deliberately frustrated a suspect's constitutional rights."

In our opinion the Constitution of Belize gives a person arrested or detained, the right to communicate with a legal practitioner without delay. A person in such a situation might not know that he has such a right or if he did know he had the right, in the particular circumstances of his arrest or detention, he may be too confused to recall the right. The police in Belize therefore have a duty to inform a person arrested or detained of this right to counsel. We are prepared to adopt the advice of Davis, J.A. in Whiteman's case, supra, that "without delay" means before any in?custody interrogation begins. We appreciate that section 5(2)(c) of the Belize Constitution provides that the person arrested should be informed of his right to counsel and does not make any special reference to the right of a person "detained" to be similarly informed. We think, however, that a person whether arrested or detained should not be interrogated without having been first informed of his right to have a legal practitioner of his choosing present during the interview.

It is clear from the responses which Sergeant Fuentes and P.C. Cab gave under cross?examination that they did not have the provisions of section 5(2)(b) and (c) of the Belize Constitution in mind when they were dealing with the Appellant. Both police officers were of the view that they could interrogate the Appellant without a caution if they had not made up their minds to arrest him for a criminal offence. P.C. Cab was under the impression that since he was investigating a missing person case there was no need for him to take any special constitutional precautions in relation to his interview of the Appellant. Sergeant Fuentes answered counsel for the defence to say that he had acted with prudence and in conformity with the Judges' Rules when he cautioned the Appellant immediately after his arrest. In our view, there was absolutely no evidence that the police officers refrained from informing the Appellant of his right to counsel on the right of February 15, 1999 and throughout the day of February 16, 1999 for any improper or oppressive purpose. In our view, the learned trial judge did not fall into error when he decided that he had a discretion to hold a voir dire to determine the admissibility of oral statements allegedly made by the Appellant and to have regard to any breach of the applicable constitutional principles which provide the right of counsel to a person arrested and in custody.

We would, however, draw the attention of the police to the advice of Davis, J.A., that:

"It would seem to me therefore, that the interests of justice may be best served if police officers were to note or require an accused person to note on any statements taken from him, the fact that that person had been informed of his right to retain a legal adviser and to hold communication with him at any stage of the investigation, emphasizing the fact that this is so even while the accused is in custody. In addition, the accused should he invited to sign such notation." Whiteman p. 407.

The Appellant contended in his first ground of appeal, inter alia, that the learned trial judge wrongfully excluded certain evidence favourable to the Appellant:

(a) "Failure to admit certain important aspects of Dr. Mario Estradabran's evidence.

Post Mortern Certificate admitted into evidence p. 3 ... L.2526

His reason for excluding this evidence p. 251 ... L.5?21

Note the cause of death p. 8 … L.24?25 ? Cause of Death
was manual strangulation, asphyxia.

Date and time of death p. 9 ... L. 9?11 '"She died on the 15 th of February, 1999 around 5:30 to 6:30 p.m." He withdrew cause of death by strangulation, asphyxia and emphasized cause or death in keeping with the caution statement whereas he ought to leave both to the Jury to decide."

At the outset of the prosecution's case Dr. Mario Estradabran testified that he performed an autopsy on the body of one Becky Gilharry that was identified to him by one Ms. Chavarria. The doctor gave a full description of the manner in which the body was clothed and of the body itself which was that of a 14 year old girl, of Creole descent, 63" in height and weighing about 100 lbs. His examination showed that there was recent penetration of the girl's vagina and anus by a blunt instrument. Her brassiere was in an irregular position with breast exposure; there were red stains characteristic of blood on her short pants and her blue underwear was stained with blood in the genital area. The injuries included a ligature mark of oblique shape following or divided in two lines on the exterior region of the neck 3 mm. in width and 20 cm. in length. There was a contusion on the right domicile bone. The immediate cause of death was manual strangulation, asphyxia. Neither Ms. Chavarria nor anyone else was called to give further identification of the body on which the autopsy was performed.

In the Appellant's caution statement that was admitted into evidence, the Appellant said that he and Becky went up to Santa Rita Hill and to the top of the Mayan Ruin and stayed there until it as dark. He said:

"I placed my arms around Becky and she refused me. I then pushed her as we were leaving and she fell to the around. I saw blood on her forehead and she groan but I pick her up and took her out of the Ruin, and placed her in a near bush around the edge of the compound of the Ruin and covered her body. I cannot say if she was dead."

During the course of his summing up, the learned trial judge directed the jury to entirely disregard the evidence of Dr. Estradabran on the basis that it was hearsay and did not relate to the girl Becky Gilharry. The judge left the case to the jury on the basis that if the Appellant pushed the deceased from a great height on the Santa Rita Ruin with the intention to kill her and she died as a result of the fall from that push he could be guilty of murder. On the theory left by the judge to the jury, they were never told what was the medical cause of her death.

Both counsel for the Appellant and the Crown attacked the summing up of the trial judge in relation to the medical evidence. The Appellant contended that the trial judge should have left to the jury the two sets of circumstances introduced into evidence by the prosecution as to the cause of death of Becky. On the evidence of the pathologist, the victim whose body he examined, had no prior sexual experience, had been sexually abused in the most horrible manner and was killed by manual strangulation. The statement of the Appellant to which we have referred above, admitted only to a push, a falling down from the Ruin, the picking up of Becky and the covering of her body with bush. Defence counsel submitted that, if the jury believed what the Appellant said in his statement, he could not be guilty of the offence of murder.

The Director of Public Prosecutions submitted that there was powerful circumstantial evidence to prove that the body upon which Dr.Estradabran performed the autopsy was that of Becky. He relied on the evidence of Sergeant Fuentes as to the clothing which Becky was wearing when her dead body was discovered near the Santa Rita Ruins, the age of the girl, her description, and the time of her disappearance. He compared this with the evidence given by the pathologist which he submitted was so strikingly similar to that of the police sergeant, that it was beyond coincidence and would defy all comprehension, that two girls of the same age, at an hour between 5.30 p.m. and 6.00 p.m. on the same day, in the same area of the country, could have been killed. If that had been so, the information would have been bound to become notorious and common knowledge.

We agree with counsel for the Crown that the evidence of Dr. Estradabran was admissible and ought to have been left by the trial judge for the consideration of the jury. To that extent we also agree with the submissions of counsel for the Appellant that the medical evidence should have been left by the trial judge for the consideration of the jury.

In our opinion, the case was left to the jury in an unsatisfactory state. If the trial judge concluded, as he did, that the considerably prejudicial evidence which the jury had heard from Dr. Estradabran was to be excluded, the proper course would have been to discharge the jury and order a new trial. Where the jury had heard of the excesses of sexual abuse that had been perpetrated against the young girl upon whose body Dr. Estradabran had performed the autopsy, it would be asking too much of human nature to expect the jurors to disregard that testimony when determining the cause of death of Becky Gilharry. To compound this unsatisfactory situation, the learned trial judge did not indicate to the jury what may have been the cause of death if, as the Appellant said in his statement, Becky Gilharry fell from the steps of the Santa Rita Ruins when he pushed her down. The jury was not impressed by the strong and repeated directions of the trial judge to return a verdict of manslaughter which, in our view, is another indication that they were not able to put out of their minds the graphic evidence of Sergeant Fuentes and Dr. Estradabran.

We concluded that the appeal ought to be allowed on the issue of the treatment of the medical evidence which was led by the prosecution and the manner in which the jury was directed as to this evidence by the trial judge. The efforts by the trial judge to withdraw the medical evidence from the jury could not, in our opinion, undo the tremendous prejudice that such evidence had created in the minds of the jury. We concluded further that in the interest of justice there should be a new trial before a different judge. It was for the reasons contained herein that we allowed the appeal, set aside the verdict and sentence and ordered a new trial.

Before passing from this case, we wish to draw attention to a passage that appears at pages 34?35 of the record. Defense counsel was cross?examining Sergeant Fuentes and it appears that the court felt that he was wasting time in that line of cross?examination. The following colloquy ensued:

"THE COURT: But don't waist (sic) the court's time.

DEFENCE: But the Court of Appeal…

THE COURT: Let it go in the record that I am not concerned about the Court of                     Appeal.

DEFENCE: I am trying to make a point.

THE COURT: I don't tremble before the Court of Appeal."

Counsel for the defence subsided. The point that he said he was trying to make never became clear. A trial judge is master of his court and must make decisions and rulings in the course of a trial according to law. This court has a duty to show deference and respect to all the constitutional courts of this country. In the course of a trial before any court in Belize, all counsel should be afforded the opportunity
to bring to the court's attention relevant authorities which may assist the trial judge in making rulings and decisions in the given circumstances, according to law.

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