Court of Appeal
Criminal Appeal Nos. 8 and 9 of 1987
27 November, 1987
SIR JAMES A. SMITH P.
SIR JOSEPH A. LUCHOO J.A.
SIR DENIS E.G. MALONE J.A.

Appeals against convictions for murder - identification - Alibi - Failure of judge to direct jury that rejection of appellant Diaz' alibi could only support the identification evidence if they concluded that the sole reason for the fabrication of the alibi was to deceive them - No directions given to jury on how to proceed to determine whether appellant had an intention to kill - Challenge to admissibility of post mortem report - Absence of evidence that pathologist a registered medical practitioner - Omnia praesumuntur esse rite et solemnitur acta donec probetur in contrarum - a person acting in the capacity of a public officer is prima facie to be taken to be so - joint enterprise - no direction given to jury on determining the scope of the joint enterprise - appeals allowed - convictions and sentences set aside - appellants to be retried on the indictment - obiter - defence of duress not available to a person charged with murder.

J U D G M E N T

Salome de la Rosa Diaz (the first appellant) and Flavio Osorio Ramirez (the second appellant) were jointly tried and convicted on an indictment charging that, on the 28th day of September, 1986, at Morning Star Farm in the Cayo District in the Central District of the Supreme Court, they murdered Salim Juan Jr., contrary to section 102 of the Criminal Code, Chapter 84 of the Laws of Belize, 1980. Diaz was sentenced to death. Ramirez (referred to in the Appeal Record as Osorio), being under 18 years of age at the date of the offence, was ordered to be detained during Her Majesty's pleasure. They have both appealed against their convictions.

It is not disputed that the deceased, Salim Juan Jr., was shot shortly after 9:30 p.m. on the 28th September, 1986, in the house of his father Salim Juan Snr. at Morning Star Farm, at Mile 65, Western Highway and that he died at 2:45 a.m. on the 29th September, 1986. The prosecution alleged that it was Diaz who shot the deceased and that the resulting injuries caused the deceased's death. The prosecution further alleged that Diaz and Ramirez had the common purpose to commit robbery in the house of Salim Juan Snr. and to use force if necessary to the extent of killing in furtherance of their object; that Diaz shot the deceased in pursuance of that common object and, accordingly, both Diaz and Ramirez were guilty of murder.

In view of the order we have decided to make in this appeal, we do not propose to set out in any detail the evidence adduced at the trial but will refer to the evidence only insofar as it relates to the particular grounds of appeal argued before us.

Upon the application of counsel for the appellants at the commencement of the hearing, we gave leave for the appellants to substitute the grounds of appeal filed on their behalf on the 9th November, 1987, for those originally filed with their respective notices of appeal.

Grounds 1 and 2 of the first appellant's grounds of appeal were argued together. They are set out below:

"1. The leamed Chief Justice misdirected the jury in that he failed to warn them of the special need for caution in the identifying evidence.

2. The learned Chief Justice misdirected the jury in that he failed to give any or any proper direction on the identifying evidence and further failed to direct as to how such evidence was to be assessed."'

The identifying evidence to which reference is made in those grounds of appeal is that given by Rashida Juan, the sister of the deceased, and Salim Juan Snr., the father of the deceased. They both testified that the person who shot the deceased was the first appellant, Diaz. It appears from Rashida's evidence that on the evening of the 28th September, 1986, a farewell dinner party was given by Salim Juan Snr. at his home at Morning Star Farm, 65 miles Western Highway, in the Cayo District for some army soldiers from Holdfast Camp. Those present included Rashida, her parents and the deceased. Some of the guests departed at about 9:30 p.m. Very soon thereafter a man entered the house from the back door.

Rashida said she was just leaving her room when she saw this man and she screamed saying "an armed man is entering the house". The man said "No one should move" while swaying the gun he held from side to side. According to Rashida, the man appeared to be looking for a specific person because he pushed her away. This caused a chair to fell down. She also fell down. She got up and followed behind the man. The man "inspected the crowd. and then the deceased came out of a room through the kitchen door holding a chair (demonstrated). The gunman ordered the deceased to put the chair down, using rude words in Spanish. She then heard the sound of a shot being fired. Her brother fell backward releasing the chair. While on the floor her brother said "why have you shot me, what have I done to you;" He got up "slightly" and the gunman pointed the gun at him. Her brother fell on his back again. The gunman, speaking in Spanish, said to her brother "You mother fucker you are not dead yet". Her father picked up bottles and hurled them at the gunman. The gunman then opened his shotgun. . Rashida said she tried to get out of the way of the flying bottles. The gunman was making his way out of the door through which he had entered. She tried to move to one side but the gunman turned around and pushed her, causing her to fall. She got up because the gunman was making his way towards where her brother had fallen and was pointing his gun at her brother. She jumped in front of the gunman who held her and pushed her causing her to fall.The gunman told her to stay there because when he was finished he would "arrange" himself with her. She got up and said "You shot my brother, shoot me" and pushed him trying to get him out of the door through which he had entered. He pushed back trying to stay in. In the meanwhile her father had got his gun. He shot at the gunman who returned the fire. She estimated that the gunman had stayed 5 - 10 minutes.

Rashida testified as to the state of the lighting in the room at the material time. She recounted the circumstances in which she came to point out the appellant Diaz as the gunman to the police at an identification parade held on the 1st October, 1986. Under cross?examination Rashida admitted that she had never seen the gunman before the night of the 28th September, 1986, and that she did not give a description of the gunman to the police until some 17 days after she had identified Diaz as the gunman at the identification parade. She offered an explanation for her failure to give the police a description of the gunman before then. She denied the suggestion put to her by counsel for Diaz that on the 29th September, 1986, she and her father went to the police station and there was shown Diaz in a room. She admitted that when the gunman appeared at her father's home everything went into confusion though she said she was not confused. She also admitted that most of the time she was behind the gunman.

Salim Juan Snr. testified that two minutes after the departure of some guest he heard Rashida scream saying there was an armed man coming from the back. He (Salim) turned around and saw an armed person who said in Spanish "Every one keep seated and quiet". At that time the deceased was in the kitchen. The deceased came out of the kitchen and picked up a chair. The gunman speaking in Spanish ordered the deceased to put down the chair. The deceased was proceeding to put the chair down when the gunman aimed and fired at the deceased. The deceased said, also in Spanish, "you mother fucker, I don't know you, what made you do this to me?" The gunman started to retreat to the back door. He opened the gun and an empty shell fell out of the chamber of the gun. Salim said that there were empty coke pint bottles near to his refrigerator and he started to throw these bottles at the gunman in order to prevent him from putting another cartridge in the gun. Rashida told the gunman "Don't shoot my brother again". The gunman turned and moved towards the back door. Rashida pushed him out of the door but he turned at her and she stumbled and fell on her back. When the gunman got out, he (Salim) ran into his room and got his shotgun. The gunman who was then on the back veranda fired in his direction and he returned the guman's fire. Salim said that he identified Diaz as the gunman at an identification parade held at San Ignacio Police Station on the lst October, 1986. This witness admitted under cross?examination that he did not give a statement or a description of the gunman to the police until the 4th October, 1986 and offered an explanation for the delay in so doing. He denied the defence suggestion that on the 29th September, 1986, Diaz was shown to him at the police station but said that he saw Diaz behind the counter of the police station and did not tell this to the police.

It was submitted by Mr. Flowers that, as the correctness of the identification of Diaz by the two witnesses, Rashida and Salim, was challenged at the trial and the prosecution's evidence against Diaz rested wholly or substantially on the testimony of Rashida and Salim, the learned Chief Justice was required to give directions to the jury as settled in the case of R.v. Turnbull (1976) 36 Cr. App. R. 132 by the English Court of Appeal and that the learned Chief Justice failed to give such directions. First, it was the duty of the learred Chief Justice to warn the jury of the special need for caution before convicting on reliance of evidence of visual identification. Second, he should have examined closely the circumstances in which the identification was made and he should also have reminded the jury of any specific weaknesses in the identification evidence, exposing to the jury the weaknesses and dangers of identification evidence in general and in this particular case. Mr. Flowers also referred us to the case of R. v. Whylie (1977) 25 W. 1. R. 430 where, he submitted, the Turnbull guidelines were applied by the Jamaica Court of Appeal. He further submitted that when one looks at the circumstances in which the identification of the gunman was made in the present case, there was a possibility of mistaken identification taking place.

Mr. Flowers contended that certain weaknesses in the identification evidence given by both Rashida and Salim were not pointed out by the learned Chief Justice to the jury and that, accordingly, the guidelines set out in the judgment of the English Court of Appeal in Turnbull's case were not followed in this regard.

Finally under these two grounds, Mr. Flowers submitted that the learned Chief Justice did not direct the jury as to the question of support for the identification if the defence of alibi put forward by Diaz was rejected. Indeed,the jury by their verdict did reject Diaz's defence of alibi. In this regard Mr. Flowers referred to the passage appearing at p. 137 in Turnbull's case (at 36 Cr. App. R.) where it was stated:

"Care should be taken by the judge when directing the jury about the support for an identification which maybe derived from the fact that they have rejected an alibi.

It is only when the jury is satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for its being put forward can fabrication provide any support for identification evidence. The jury should be reminded that proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was."

It is the case that the learned trial judge in putting the defence of alibi advanced by Diaz did not give any guidance to the jury as to how they should treat the rejection on their part of the alibi advanced by Diaz. What he did tell the jury was that if they accepted the alibi Diaz could not have been at Salim's house on the evening of the 28th September, 1986. In our view that was not enough as the jury might conceivably have come to the conclusion upon finding that the alibi was false that Diaz's lies in this regard proved that he was where the identifying witness said he was. We find that the learned trial judge's omission in this regard amounted to a misdirection sufficient to make it unsafe to sustain Diaz's conviction.

On the other hand we are satisfied that the learned trial judge's directions in respect of the testimony given by Rashida and Salim were adequate. As was stated by Scarman L.J. in R. v. Keane (1977) 65 Cr. App. R. 247 at page 248, "it would be wrong to interpret Turnbull inflexibly. It imposes no rigid pattern, establishes no catechism, which a judge in his summing up must answer if a verdict of guilty is to stand. But it does formulate a basic principle and sound practice. The principle is the special need for caution when the issue turns on evidence of visual identification:

The practise has to be a careful summing up, which not only contains a warning but also exposes to the jury the weaknesses and dangers of identification evidence both in general and in the circumstances of the particular case. It is true that in R.v. Oakwell (1978) 1 W.L.R. 32, Lord Widgery C.J., giving the judgment of the English Court of Appeal, said (at pages 36 and 37) that "Turnbull is intended primarily to deal with the ghastly risk run in cases of fleeting encounters" but a perusal of the Court's judgment in Turnbull's case might throw doubt on the correctness of that statement. We think that Scarman L.J.'s view as stated above correctly sets out the principles to be applied in a case of this kind. We are of the view that the learned Chief Justice in the present case did apply those principles to the evidence of the identifying witness. After reminding the jury of what those witnesses said, the learned Chief Justice told the jury (at pages 107 to 109 of the Record):

"It was put to Salim Sr, and Rashida that the conditons prevailing after the entry of the gunman into their house was one of confusion and that they could not be positive about the identity of Diaz. Both witnesses admitted there was confusion but said there was sufficient light in the house and Diaz stayed between 5 and 15 minutes. In his closing address to you members of the Jury, Mr. Flowers suggested that at the inspection of his father's house on the 31st July at our request, she said something different, and demonstrated a situation more favorable to her identification of the gunman, than when giving evidence in the witness box during the trial some ten days previously. Members of the jury that is a matter for you to decide but do remember that Rashida was the first witness in the trial and was asked about the gunman's manoeuvers and her own manoeuvres. She was in the box and the restriction of movement from there could not have resulted in a very meaningful demonstration. She knew the house but neither Mr. Flowers, nor Mr. Williams, nor you members of the Jury, nor I, had any idea about the internal geography of the house. You did not have even a sletch then. Mr. Flowers objected to have a sketch produced though this objection was later withdrawn when the second witness went into the box. This was Salim Senior the father and he produced a sketch of his house drawn by himself which made our understanding a little better. But you members of the Jury insisted, and rightly so, to go to the house to see for yourselves the identification situation and what it might have been like at the time of the gunman's entrance. Rasbida did demonstrate after having taken the oath in situ. You must decide yourselves whether the conditions were favourable or unfavourable. Was there sufficient light? Was there a good opportunity to see the features of a man she and her father were seeing for the first time? Did the struggle she had with him blind her to his facial features? Salim Sr. threw some 60 empty bottles at him from the place where the freezer was to the place in the direction of the rear door from which he was trying to make his exit. Was not Salim Sr. aiming at, and the gunman dodging, the bottles? And if he was dodging where would his face have been focused? On Salim alone? On Rashida who was tackling him? Or at the door from which he was trying at one time during the struggle with Rashida to enter and from which, when Salim Sr. got his gun he wanted to get out? Before he wanted to get in, now he wanted to get out. I think, members of the Jury, there was pandemonium, certainly there was fright, certainly there was anger, but you have got to ask yourselves have Salim's and Rashida's memory of the gunman's face and garments fade? You have to decide. One thing is certain however, to convict, you members of the Jury must be satisfied so that you can feel sure of guilt. Diaz has only to sow some little doubt in your mind and he is entitled to an acquittal. Certainly Diaz could not have been serenading his girl friend Elba at 9:30 to 10 p.m. on the 28th and be at Salim's house at the same time. You have heard and seen them both. What do you make of Diaz and Elba's evidence? She showed you the house in which she stayed at the time. Do consider the evidence carefully.

I must also warn you members of the jury, that even if you accept that on the morning of the 29th of September the Police did not show Diaz to Rashida and Salim, and did not, so to speak, white wash them to point to him and implicate him, implicate an innocent man, the parade conducted by Kelvin Augustine, though not flagrantly illegal, leaves much to be desired. The question you have to decide is not whether Rashida and her father are honest witness but whether though they may be honest they are mistaken. Here the identification by Salim, if you believe him, occurred on the 29th of September and he said that he waited to be called and was called on the lst of October. The first time he saw Diaz was therefore, as I said six hours after the shooting, and the second time was after three days. Was it a stroke of fate that Diaz should be identified when he was, and to have been seen by Salim a few hours later that night or is Diaz truly the victim of a mistake?"

Then the learned Chief Justice went on to criticize the police handling of the identification parades held on the lst October, 1986, at which Rashida and Salim pointed out Diaz as the gunman.

It will therefore be seen that the learned Chief Justice did in effect warn the jury of the special need for caution before accepting the identifying evidence. We are also satisfied after a careful scrutiny of the learned trial judge's directions, that those directions dealt with all the essential matters relating to the weaknesses and dangers of identification evidence generally and in the particular circumstances of this case.

The third ground of appeal advanced by the first appellant was as follows:

"The learned Chief Justice misdirected the jury in that he ruled that the statement of the co?accused was to be disregarded."

The burden of the submission on this ground was that the learned Chief Justice ought to have told the jury that they might have regard to those portions of the statement of the co?accused which were favorable to Diaz. Mr. Flowers frankly admitted that he was unable to find any reported authority in support of such a proposition. We hold that there is no substance in this ground of appeal.

The fourth ground of appeal is that the learned Chief Justice misdirected the jury in that he failed to give any or any proper direction on the elements of the crime of murder. Mr. Flowers observed correctly that nowhere in this summing up did the Chief Justice mention the elements of the crime of murder and submitted that in the absence of a direction in this regard, the jury could not properly arrive at a verdict of guilty of murder. It is true that, insofar as the first appellant Diaz was concerned, no issue arose as to the question of the deceased's death as a result of an unlawful killing. The live issues at the trial in relation to Diaz were: (1) identity; and (2) intentional killing. The learned trial judge gave directions on the issue of identity but he omitted to direct the jury as to what in law constituted an intentional killing. In the ordinary course a trial judge would read to the jury the definition of murder as is set out in section 114 of the Criminal Code and refer to the approach to be taken by them in deciding whether or not the accused had the requisite intent to kill. He may or may not read to them the relevant provisions of section 9 of the Criminal Code dealing with proof of intention but he should certainly direct the jury in accordance with those provisions. The nearest the learned Chief Justice got to dealing with this aspect of the matter was when (at pages 121 and 122 of the Record of Appeal) he said:

"Very finally members of the Jury, I must explain to you the effect of Section 9 of our Criminal Code read in conjunction with Section 131 of the Indictable Procedure Ordinance, namely, that the intention of an accused person is a matter to be determined by you, the Jury, the intention of an accused person; you determine his intention from his actions. And you have got to decide the question with reference to all the evidence drawing such inferences from the evidence as appear proper in the circumstances; and upon an Indictment charging an accused person with Murder if the Prosecution fails to prove to you, that the accused person intentionally caused the death of the deceased, and the Jury, you the Jury, is satisfied that the accused person caused the death of the deceased by unlawful harm it shall find the accused person not guilty of Murder but guilty of Manslaughter. That is the law, I cannot change it, but it is you finally who have got to decide upon intention. I myself see great difficulty of such lesser verdict in the circumstances relating to Diaz if you are satisfied so that you can feel sure of his guilt, because he did the actual shooting."

While mention is made of section 9 of the Criminal Code and section 131 of the Indictable Procedure Code, nothing was said as to how the jury should proceed in determing whether or not Diaz had the specific intent to kill which is an essential element of the offence of murder. It was for the jury to say whether, upon their acceptance of the testimony of the identifying witnesses, the shooting of the deceased was with an intent to kill him, or to subdue him, or to harm him (see Irwin de Jesus Silva v. R (Cr. App. No. 18 of 1983)). In our view this ground of appeal succeeds.

The fifth ground of appeal which related to the procedure followed on the court's visit to the locus in quo was abandoned in the course of the argument.

We would hold that the cumulative effect of the errors to which reference has already been made would require that the appeal of the appellant Diaz be allowed, the conviction quashed and the sentence set aside. In the circumstances, we so order and direct that he be retried on the indictment.

We now turn to the appeal of the second appellant Ramirez. The first ground of appeal in relation to this appellant was that the learned Chief Justice erred in law in holding that the post mortem report was admissible in evidence under section 36(1) of the Evidence Ordinance without satisfying himself that it was signed by a registered medical practitioner or Government Pathologist. The post mortem report of Dr. Pedro Lopez was admitted in evidence by the learned Chief Justice, after objection on the part of Mr. Williams, counsel for Ramirez, in proof of the cause of the deceased's death. Dr. Lopez had, prior to the trial, departed the country. The post mortem report was signed by Dr. Lopez, purporting to do so as a registered medical practitioner, and certified that the deceased Salim Juan Jnr. died as result of gunshot injuries to the thorax. The foundation for the reception of this report was sought to be laid through the evidence of Cpl. L. Williams who was present when the deceased's body was identified to him and the doctor and who saw the postmortem examination performed by Dr. Lopez at the Belize City Hospital mortuary and the report signed by him. This witness stated that Dr. Lopez was the pathologist at the time. The note of the objection made by Mr. Williams to the admissibility of the post mortern report was that it was not proved that Dr. Lopez was a registered medical practitioner. The learned Chief Justice held that Prima facie the post mortern report was admissible under s. 36(l) of the Evidence Ordinance. No evidence was adduced to show that Dr. Lopez was in fact not a registered medical officer at the time he signed the report.

The short answer to Mr. Williams' submission on this ground is to be found in the application of the principle of law "omnia praesumuntur esse rite et solemnitur acta donec probetur in contrarum". In Phipson: The Laws of Evidence (11th Edition) at para. 326, it is stated that "acting in a public or official, but, not generally, in a private capacity or relationship is Prima facie evidence of title thereto, even in favour of the party so acting, or even between strangers". And at para. 328 it is stated that "acting in a public office is evidence for or against the party or between third persons of due appointment thereto, although the appointment is required to be by deed or the acting took place but once and the proceedings are criminal". Support for these statements are to be found in the cases of Gremaire v. Le Clerc Bois Valon (1809) 2 Camp. 114; 170 E.R. 110, where Lord Ellenborough allowed a claim for fees as a surgeon where it was not proved that the plaintiff was not regularly licensed as a member of the College of Surgeons, no formal proof being offered by the plaintiff of his being so licensed; and in the case of Reg v. Roberts (1878) 14 Cox 101 where on an indictment for perjury, acting as a deputy judge was held to be prima facie proof of appointment as such. In that case Lord Colleridge (at page 103) said that the mere acting in a public capacity is sufficient prima facie proof of appointment, though it is only a prima facie proof and is capable of being rebutted; and (at p. 104) he stated that "it is laid down in all the text books as a recognized principle that a person acting in the capacity of a public officer is prima facie to be taken to be so."

There being no evidence to the contrary, we hold that there was sufficient proof that Dr. Lopez was a registered medical practitioner and Government Pathologist, and that the post mortem report was admissible in evidence in proof of the cause of the deceased death.

The second ground of appeal urged by Mr. Williams was that the learned Chief Justice misdirected the jury by omitting to tell them exactly what is murder and manslaughter and what are the various elements of the respective offences. For the reasons already given in dealing with the fourth ground of appeal advanced by Mr. Flowers on behalf of the appellant Diaz, we hold that the learned trial judge did in relation to the question of intention omit to give the requisite directions in law.

Lastly, it was submitted by Mr. Williams that the learned Chief Justice misdirected the jury on the law of common intent or joint enterprise by suggesting that if the second appellant intended to rob he was guilty of murder. Mr. Williams contended that the learned Chief Justice ought to have invited the jury to consider whether or not the parties who were present at the scene were there in relation to a common purpose. Mr. Williams stated that the learned trial judge began to do so when he told the jury (at p. 113 of the Record):

"The sum total of Osorio's admission, you might conclude, is that he made himself one of the three participants in a crime to go and rob Salim Sr. a person he thought was in possession of money, and he knew there were two shotguns, and also knew there were ammunition stolen from the house of Sedacey. It was he himself that pointed to the young man and the old man the house of Sedacey and it is up to you to draw inferences. It is a question of fact. When you go to rob, armed with guns and with ammunition, what do you expect, what are your thoughts, what do you want to have the guns for; So you have got to decide whether Osorio made himself part and parcel of this robbery venture with two other men to rob Salim or Salim's house."

However, Mr. Williams submitted the learned trial judge ought to have directed the jury's mind to the the question whether, if what the gunman did do was done unlawfully and intentionally, it was part of the common purpose and he ought to have told the jury that it does not follow that other persons present are automatically guilty of murder; that they should go on to consider whether they are satisfied that that was part of the common purpose ? they must consider the case of each accused separately.

We are of the view that such a direction ought to have been given the jury but was not. In those circumstances the second appellant's conviction for murder cannot stand.

The appeal of the second appellant is allowed, the conviction is quashed and the sentence set aside. We direct that the second appellant be retried on the indictment.

In the result, the appeals of both appellants are allowed, their convictions are quashed and their sentences are set aside. They are to be retried on the indictment.

Before parting with this case we would like to refer to the decision of the House of Lords in R. v. Howe (1987) 1 ALL E.R. 771 in relation to the defence of duress advanced at the trial on behalf of the second appellant. In R.v. Howe a majority of the House held that the defence of duress is not available to a person charged with murder whether as a principal in the first degree (the actual killer) or as a principal in the second degree (aider and abettor).

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