Court of Appeal
Criminal Appeal No. 10, 11 and 12 of 1987
14th September, 1988
SIR JAMES SMITH P.
KENNETH ST. L. HENRY J.A.
SIR JOSEPH LUCKHOO J.A

Mr. B. S. Sampson for the Appellants
Mr. F. Lumor for the Respondent

Court of Appeal - Appeal against conviction for conspiracy to kidnap, kidnapping and blackmail - Sections 22(1) and 174(1) of Criminal Code - Joint trial - Admissibility of alleged confessional statements - Onus on prosecution to prove affirmatively that admission made by accused was not induced by promise of favour or advantage, fear, threat or pressure - Trial judge overlooked warning in accordance with section 88 of the Evidence Act - Admissible evidence.

J U D G M E N T

The Appellants Juan Jose Calles, Isabel Valle and Isidro Yanes were Indicted on the following four counts: (1) conspiracy, contrary to section 22 (1) of the Criminal Code of Belize, the particulars of which were that they, and other persons unknown, on the 17th January, 1987 and on other days prior thereto at Orange Walk Town and at a farm on the San Estevan Road in the Orange Walk District acted together with a common purpose to kidnap Eloy Escalante; (2) kidnapping, contrary to section 52 of the Criminal Code, the particulars of which were that they, on the 17th January, 1987 at a farm on the San Estevan Road in the Orange Walk District kidnapped Eloy Escalante; (3) conspiracy, contrary to section 22 (1) of the Criminal Code, the paritculars of which were that they and other persons unknown on the 17th January, 1987 and on other days prior thereto, at Orange Walk Town in the Orange Walk District acted together with a common purpose to commit blackmail upon Eloy Escalante and Adrian Escalante; (4) blackmail, contrary to section 174 (1) of the Criminal Code, the particulars of which were that they, on the 17th January, 1987 in the Carbapan Area near Progresso in the Corozal District, with a view to gain for themselves in a letter dated the 17th January, 1987 and addressed to Adrian Escalante at 31 Main Street, Orange Walk, made an unwarranted demand of $200,000 United States of America currency from the said Adrian Escalante with menaces.

The Appellants were jointly tried on the abovementioned counts before a judge and jury. Calles was convicted on the first Count charging conspiracy to kidnap and was acquitted on the other three counts. Valle and Yanes were convicted on all four counts. They now appeal their convictions.

The case for the prosecution was to the following effect. Eloy Escalante, a businessman living at 31 Main Street, Orange Walk Town, owned a 30 acre farm about one mile across the Orange Walk Town Bridge on the San Estevan Road. On Saturday morning, the 17th January. 1987, he drove his pick?up truck to his farm where he did some work. At about 10:00 a.m. he returned home for breakfast. He again left home and returned to his farm at about 10:45 a.m. where he did some more work. At about 12:45 p.m. he went to his farm gate to get into his truck when he saw two men inside his farm compound. The men, who were both armed with revolvers, were about four and six feet respectively from him. He saw the faces of both men. Escalante raised both of his hands to ward off the revolvers from his person and the man nearest to him, who was holding a silver white revolver, fiied one shot which wounded Escalante on his left - M. Escalante subsequently identified Yanes as the man who fired the shot. Escalante was overpowered by the two men who tied his hands from the back and blindfolded him. He was marched through the barbed wire fence at that spot into a car. He was placed between the front seat and the back seat with two men sitting at the back while another man drove the car. He estimated that he was driven for about one?half to one hour before the car stopped. He was pushed out of the car and, still blindfolded with hands tied, marched into bush and up a hill. At the top of the hill he was pushed into a cave and his hands were untied and the blindfolds were removed by one of the men who held a gun. There were two men with him in the cave. The men then closed the entrance to the cave with boulders and a piece of wood. On that evening two men, other than the Appellants, brought him a meal of bread and cheese. On the following evening, Sunday the 18th January, 1987, two men, other than the Appellants, brought him another meal. He received injections from the men because of the gunshot wound which he had received on the previous day in the palm of his hand. The men also brought paper, an envelope, a pen and a flashlight. They asked him to write a letter to his son and, at their dictation, he wrote a letter to his son Adrian. The letter was dated the 17th January although it was written on the 18th January. What he wrote indicated that he was confined against his will in a place unknown to him and his family and he requested his son Adrian to give those who had confined him what they were asking for as his liberty depended on this being done. He addressed the envelope to his son. The men left with the letter saying that if the family made a report to the police they would kill, the whole family. On the 20th January, 1987, the letter, in a sealed envelope addressed to Adrian Escalante, was found by one Armando Gomez under the door of the Marisol Bar and Gomez, who had heard of the disappearance of Eloy Escalante, handed the letter to the police at Orange Walk Police Station. Gomez had received a telephone call from an unknown person which caused him to go to the Marisol Bar. The sealed envelope contained what Eloy Escalante had written with an addendum written by someone else containing a demand for a ransom of $200,000 U.S. with a threat that failure to meet the demand by the 23rd January would result in harm or death to Eloy Escalante.

When Eloy Escalante failed to return home in the afternoon of 17th January a search for him at his farm had proved unsuccessful, a report that he was missing was made to the police by one of his relatives. As a result, a police party from Belize City went to Orange Walk Town to conduct an investigation into that report as well as into a report that one Toloza was also missing. On Sunday 18th January, 1987, a joint operation was conducted by the Belize City police party and the Orange Walk Town police party during which many aliens were picked up for questioning. In the course of this operation Sergeant of police Leslie Logan and other police officers of the Orange Walk Town police went to the home of Valle and Yanes in Orange Walk Town. On arriving there Sergeant Logan observed a brown Ford Sedan parked in the backyard. It bores the registration number "Czl. D 512" on a Corozal licence plate. Valle claimed to be the owner of the car and, at Sergeant Logan's request handed over the keys, of the car. Valle and Yanes were taken by Sergeant Logan in the Ford Sedan the police station where they were detained. There Valle was searched in the presence of Sergeant Rosalez and a motor vehicle transfer form found in his trousers pocket. The transfer form indicated that the car Valle claimed to be his had been transferred from one Velasquez to one Mejibar.

Upon inspection of the car Sergeant Rosalez found what appeared to be blood stains on the lower left hand side of the rear seat and on the floor of the vehicle immediately in front of the rear seat as well as stains at the back of the passenger seat next to the driver's wheel on the right. These stains were examined on the 12th February 1987, by a Government Analytical Chemist and were found to be human blood of Group A, the most common group in this northern part of Belize. A blood sample taken from Escalante proved to be Group A. The car in which the stains were found was identified by Santiago Rejon, a 14?year?old student, as the one he had seen at about 11:45 a.m. on Saturday the 17th January when he, his father and his elder brother were going to a canefield they owned about one mile from Escalante's farm. He said that on his way to the canefield he saw Escalante on his farm and noticed a brown car with Corozal number plates parked on the right hand side facing the farm. He saw two persons looking into the bonnet of the car. On his way back to Orange Walk Town at about 12:30 p.m. he saw the same brown car closer to Escalante's farm and there were two persons by the car. He stopped and enquired whether they needed help. He was told that the car had a flat tire though he could see no flat tire. He and his father spoke with the men for about ten minutes and then left. On the following day he heard of Escalante's disappearance. He, his father and his brother went to Orange Walk Town Police Station to volunteer information of what they had noticed on the previous day and he saw the same brown car with Corozal number plates parked at the police station. He informed the police of what he had seen on the previous day and subsequently at two identification parades he picked out Valle and Yanes as the persons he had seen the previous day at the brown car near to the Escalante farm. At the trial some ten months later Santiago Rejon stated that he identified Valle and Calles at the identification parades. In fact Calles was never put on an identification parade. In parenthesis, it is to be noted that Yanes in a statement from the dock at the trial admitted that Santiago Rejon did identify him at an identification parade on which he was a suspect but he alleged that Rejon was prompted to do so by A.S.P. Brooks. The prosecution by Rejon's evidence sought to place Valle and Yanes in the vicinity of Eloy Escalante's farm shortly before Escalante was shot and taken away to the cave which was subsequently discovered to be in the Carbapan area of Progresso.

John Triminio, a taxi driver, testified that at about 5:30 p. m. on Saturday the 17th January, 1987, he drove Yanes, whom he knew by sight for a year and a half though not by name, and two other men to Anna's Store in Orange Walk where they purchased what appeared to him to be bread and a jar of jam, after which he drove them to Progresso where be dropped them off. This evidence was adduced to place Yanes in the vicinity of the cave in which Eloy Escalante was confined carrying foodstuffs.

On the 18th January, 1987, Valle and Yanes were taken from the Orange Walk Police Station to C.I.D, Belize City. Sgt. Rosalez testified that on Monday the 19th January, 1987 Valle elected to give a statement. At about 2:00 p.m. he accordingly recorded a statement given by Valle which Valle signed. As a result of what was disclosed in the statement he (Sgt. Rosalez) asked Valle if he could take the police to the spot where Escalante was confined and Valle agreed to do so. Sgt. Rosalez also testified that at about 4:00 p.m. that day he recorded a statement made by Yanes after caution and that Yanes signed the statement. What was attributed to Valle and Yanes in those statements clearly implicated them in the commission of the offences which were subsequently charged on the indictment laid against them.

Sometime after 6:00 p. m. that day a police Tactical Service Unit set out with Valle in an attempt to locate the cave in which Eloy Escalante was confined. .However, the attempt proved abortive as the police party was fired upon and one of the members of the party shot while approaching the area in which the cave was located. On the following day, Tuesday the 20th January, 1987, the Tactical Service Unit party accompanied by Valle again set out to locate the cave in which Eloy Escalante was located. On their way, near the spot where one of their party had been shot on the previous evening, there was found a .38 silver coloured revolver containing five spent shells. Valle then pointed out the cave where Eloy Escalante was confined and removed the rocks which barred the entrance to the cave. Eloy Escalante was then rescued from the cave.

Subsequently, on the same day, copies of the statements attributed to Valle and Yanes were handed to Calles who had been brought by the police to the station on the? morning of the 20th January, 1987 and detained. Calles then elected to give a statement. He was cautioned and the statement he gave was recorded by Sgt. Rosalez and signed by Calles. That statement implicated Calles in the commission of the offence of conspiracy to kidnap.

The Appellants in their defence denied the charges laid against them in the indictment and at the trial challenged the admissibility of the statements attributed to them on the ground that they were not freely and voluntarily given by them. Each of the Appellants alleged that they were severely beaten by the police prior to the making of the statements. The learned trial judge after holding a voire dire to determine the admissibility of the statements, ruled that the statements attributed to Calles and Yanes were voluntarily given by those Appellants and, as Valle had not clearly admitted that he had signed the statement attributed to him, he held that it was a matter for the jury's determination as to whether or not Valle did in fact sign that statement. The learned trial judge added that if he was wrong in so ruling in respect of Valle's statement, the statement could not be differentiated from that given by the other two Appellants and he would admit it as voluntarily given.

It was first submitted by Mr. Sampson that the learned trial judge misdirected himself on the burden of proof when ruling that the alleged confessional statements of all three Appellants and the alleged verbal admission by the second Appellant Valle of knowledge by him of the location of the cave in which Eloy iscalante was confined were voluntary and could not be supported having regard to the evidence.

Specific reference was made by Mr. Sampson under this ground of appeal to a passage in the learned trial judge's ruling on the question of the admissibility of the alleged confessional statements which Mr. Sampson urged indicated that the learned trial judge in fact placed the burden of disproving the evidence of the prosecution's witnesses given on the voire dire. In the passage which is set out below the reference to Al and A2 is to the Appellant Calles and the Appellant Valle respectively:

"But Al and A2 at the end of their evidence claim that on reaching Belize City Prison on Friday the 23rd, A1 retained an attorney of this Court who came to see him in prison and who arranged for him and A2 to go to Belize City Hospital to be examined by a doctor who was Spanish speaking who examined them, took notes, administered medicines, and sent Al to the X?ray department for X?rays to his chest. Here the defence had three potential witnesses which the Prosecution had no means of knowing about. Al says he did not know the name of the attorney, did not know the name of the doctor who examined him, who was Spanish speaking or the radiographer who took his X?rays. He did not ask for their names. I think I am entitled to take into account this fact. It certainly, as far as the lawyer who saw Al is concerned, if he existed for Mr. Sampson to find out his name. With the others doctors there could be applications for subpoenas to them to come and to produce the records. If they existed I see no valid reason for not calling them. It is not enough to say the accused bears no onus. Of course he does not, but I am in duty bound to take account of this failure to determine if their is any truth in the violence they say was given them.

In my opinion no violence, of whatever nature, was used on any of the three accused. I feel beyond doubt that this was a latter day invention."

The prosecution had suggested to Valle that any injuries he sustained were self inflicted. No evidence was adduced by the prosecution in respect of this suggestion.

In the first place it was known to the prosecution from the testimony of Calles on the voire dire that he was alleging that he and Valle went to the Belize City Hospital from the Belize City Prison on the 23rd January where they were examined by a doctor who examined them, took notes, prescribed medicines and sent them to the X?ray department for X?rays of the chest. Calles and Valle being in custody in the Belize City Prison on that day, there would, in the ordinary course, be a record made at the Belize City Prison of such a visit to the hospital if it did take place and if it did not that fact could readily have been proved by the prosecution. It therefore was not the case, as the learned trial judge seemed to think, that the defence had three potential witnesses which the prosecution had no means of knowing about. Further, the tenor of the passage set out above indicated that the learned trial judge did in fact seek to place the burden on Calles and Valle of proving that violence was not meted out to them by the police. The same also applies to Yanes. The learned trial judge appears to have overlooked the earlier warning he had given himself, in accordance with section 88 of the Evidence Act, that the onus was on the prosecution to prove affirmatively to his satisfaction that an admission made by an accused to a person in authority was not induced by any promise of favour or advantage or by the use of fear, threat or pressure. For those reasons we hold that it cannot be said that the written statements attributed to the Appellants were rightly admitted by the learned trial judge as having been freely and voluntarily given.

In this regard it is to be observed that the learned trial Judge, after reviewing the testimony of the prosecution witnesses and the Appellants given on the voire dire, stated that when the last of the accused had testified, before the emergence of Alicia and Miranda (who were called by the defence to testify as to observing injuries on the persons of Valle and Yanes) he (the trial judge) had "a slight lingering doubt that there might have been force used but this doubt, was dispelled on mature consideration of all the defence evidence." The learned trial judge stated that he disbelieved the testimony given by Alicia and Miranda. It is difficult to see how the lingering doubt the learned trial judge entertained after the last Appellant testified could have been dispelled because two persons called by the defence gave testimony which was incapable of belief. These was nothing in the evidence of these two persons which could be held to strengthen the evidence given by the prosecution witnesses on the issue. The benefit of the lingering doubt ought to have been given to the Appellants and the written statements ruled inadmissible. The same would go for the alleged oral admission to the police by Valle that he knew the location of the cave in which Eloy Escalante was confined.

It was next submitted by Mr. Sampson that the learned trial judge erred by ruling that a voire dire was not concerned only with the voluntariness of a written confessional statement and an oral confession, and not with an incrimi. nating admission by conduct. This submission related to evidence adduced by the prosecution that Valle accompanied the police Tactical Service Unit to the Carbapan Area near Progresso on the night of the 19th January and again on the 20th January in search of the location of the cave in which Eloy Escalante was confined. As we indicated during the course of the argument it was for the jury to determine what inference should be drawn from the fact of Valle's presence in the police party on those occasions, even if his presence there was without his consent.

In view of the conclusion we have reached on the first ground of appeal it is unnecessary to deal with the grounds of appeal which relate to the directions given the jury in respect of the alleged confessional statements save that it should be stated that the learned trial judge directed the jury in much the same terms as he did himself on the voire dire when dealing with the allegations made by Calles and Valle that they were beaten by the police and were later examined and treated at the Belize City Hospital. While it is true that the jury were told that the Appellants were under no obligation to call the lawyer whom they said made the arrangements for their visit to the hospital, the doctor who examined them at the hospital and the X?ray technician, the jury were told that, nevertheless, it was to be borne in mind that they could have been subpoenaed and forced to come to testify and bring their records with them. In our view such a direction wrongly sought to cast the burden upon the Appellants of proving that violence was meted out to them at the hands of the police. This would affect the jury's assessment as to what weight, if any, should be given to the statements of the Appellants and is an additional reason why no reliance could be placed on those statements by the jury.

Mr. Sampson also urged that the learned trial judge failed adequately to direct the jury on the law relating to common design distinguishing the same from abetment and conspiracy and to apply it to the evidence against each Appellant in each of the counts in the indictment. We have carefully considered the directions given the jury by the learned trial judge in respect of the offences charged in the indictment and do not think that there was any misdirection or non?direction amounting to misdirection as contended for by Mr. Sampson. Although the learned trial judge read to the jury the provisions of section 22(1) of the Criminal Code relating to conspiracy in which there was reference to abetment, he was right in not directing the jury as to the offence of abetment as that offence was not charged in the indictment. In our view, any such direction might have served only to confuse the jury.

Finally Mr. Sampson submitted that the learned trial judge failed adequately to put to the jury the essential elements of the count of blackmail and to consider whether there arose on the evidence any actus reus or intent by Valle and Yanes. He contended that there was no evidence that either Valle or Yanes participated in the actus reus of blackmail and that the learned trial judge should have instructed the jury as to the constituent elements of that crime. We do not agree that there was no evidence that either of the Appellants Valle or Yanes participated in the offence of blackmail charged in the indictment. In our view it was open to the jury to infer from the admissible evidence adduced by the prosecution that Valle and Yanes were participants in the offence of blackmail charged. We also do not agree that this was a case where it was necessary for the learned trial judge to give the jury any explanation of the word "menaces".

In view of the conclusion we have reached in respect of the first ground of appeal (which relates to the admission of the statements attributed to the Appellants) it is not possible for the conviction in respect of Calles to be sustained there being no other evidence connecting him with the offence of conspiracy to kidnap. However, it is necessary to consider whether this is a case where the proviso to section 31 of the court of Appeal Act should be applied in respect of the convictions against Valle and Yanes. Having examined the admissible evidence adduced in regard to those Appellants it is our view that a jury properly directed on that evidence, as the jury was in this case, would inevitably have convicted them on the counts laid against them in the indictment.

In the result, the appeal of Calles is allowed, the conviction of conspiracy laid in the first count of the indictment against him is hereby quashed and the sentence imposed is set aside. The appeals of Valle and Yanes are dismissed and their convictions affirmed.

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