Court of Appeal
Criminal Appeal No. 10 of 1977
22nd December, 1977
MICHAEL HOGAN, P.
CLIFFORD INNISS, J.A.
W. A. H. DUFFUS, J.A.

Court of Appeal - Conviction for robbery whilst armed with an offensive weapon - Identification of accused child of 12 years of age - Corroboration of child's evidence not required by Statute - Judges required to warn jury of the danger of convicting on uncorroborated evidence of a child - Corroboration of evidence by complainant - Sufficiency of evidence to justify verdict - Appeal dismissed.

J U D G M E N T

The Appellant, David Sutherland, was tried jointly with Roderick White on a charge of Robbery whilst armed with an offensive weapon. They were found guilty and the Appellant, Sutherland, was sentenced to three years imprisonment and his co-accused, White, to five years imprisonment. The Appellant appeals against both his conviction and sentence whilst the accused, White, appealed only against sentence. The appeals have been heard separately.

The Prosecution's case is that both the Appellant and White, acting together, entered the jewellery shop run by the complainant, Aurora Olvias, for her husband Edelmiro Olivas, and there the darker of the two men indentified by Mrs. Olivas to be Accused, White, held a knife at her throat, threw down and broke a show-case containing jewellery and took away some of the jewellery. The other robber, the Appellant, stood at the doorway of the shop wearing a handkerchief over his nose to mask his face. After the show-case had been broken and the jewellery seized by White, both men ran away. The accused, White, was identified both by Mrs. Olivas and by a young boy, Rudolph Swasey, who said he saw the accused, White, running out of the shop.

The case against the Appellant depends largely on the evidence of the young boy, Swasey. He saw the Appellant just before the robbery occured in the vicinity of the shop with a handkerchief tied across his nose, a paper bag in his hand, plaited hair and wearing a floral pink shirt. Mrs. Olivas described the second robber who stood at the door of her shop as being similarly dressed with plaited hair, a paper bag in his hand, with a handkerchief tied across his nose and wearing a floral shirt. Then to complete the Prosecution's evidence on the clothes, Constable Robinson describes how on the same evening of the robbery he went to the yard where the Appellant lived and under a little building similar to a fowl coop at the back of the Appellant's house he found a large paper bag containing a red floral handkerchief, a pink floral shirt, a grey trousers and a woolen short sleeved shirt. The complainant indentified the handkerchief and the pink floral shirt as having been worn by the man standing at the doorway of the shop with the handkerchief around his nose, and the trousers and flannel shirt as that worn by the accused, White.

The boy, Swasey, identified the handkerchief and the pink floral shirt as those which he had seen the Appellant wearing in the vicinity at the time of the robbery.

The complainant, Mrs. Olivas, also gave some evidence of identification of the Appellant but her identification was most unreliable and indefinite and cannot be relied on to convict the Appellant. She was unable to identify the Appellant when she saw him in the custody of Corporal Reyes the following day. The case against the Appellant depends on his identification by the boy Rudolph Swasey a child of twelve years of age who gave sworn evidence. Corroboration of his evidence is not required by statute but is required in England by a rule of practice which has acquired the status of a rule of law: (see R.V. Sawyer (1959) 43 C.A.R 187 at p. 190) and judges are required to warn the jury of the danger of convicting on the uncorroborated evidence of a child.

The Judge's summing-up to the jury as set out in the Record of Appeal does not contain any warning of the danger of convicting on the child's uncorroborated evidence. However, before the hearing of the appeal commenced, Miss Pitts, a Crown Counsel who conducted the prosecution at the trial, filed an affidavit stating that the record was defective in that it omitted that part of the proceedings where she drew the trial judge's attention to the fact that he had omitted to direct the jury that it would be dangerous to convict on the uncorroborated evidence of the witness, Swasey, and that the Judge then gave the required direction to the jury before they considered their verdict, although he did not direct on the question of what items of evidence were capable of corroboration. We directed the Registrar to refer this matter to the trial judge for his report.

The trial judge reported with welcome speed and clarity. After hearing the Director of Public Prosecutions and the Appellant, who appeared in person, both agreeing that the report correctly set out the facts, we accepted that the affidavit and report accurately reflected the judge's directions on this matter to the jury before the jury considered their verdict. It appears that its earlier absence was due to the fact that the summing-up had been tape recorded and that the tape recorder had been inadvertently not switched on when the addition to the summing-up took place.

In his report the trial judge said, inter alia--

"I told them that since Rudolph Swasey was a young boy, it was unsafe to act on his evidence without corroboration, and defined corroboration as some independent evidence which connected the accused with the commission of the crime in some material particular."

"I further told them that they were entitled to act on the boy's evidence even without corroboration if they believed his evidence but it was safer to look for that corroborative evidence."

The learned judge then went on to state that he did not indicate what material he considered to be corroborative of the child's evidence.

The English Authorities have not been entirely consistent in their approach to this matter. The cases were discussed in Article 1423 of the 39th Ed. of Archbolds Criminal Pleading and Practice. In the case of R. v. Zielinski (1950) 2 A.E.R. 1114N the Court said that if the judge save the appropriate warning and explained what was meant by corroboration, there was no need for him to go on and point out what parts of the evidence could constitute corroboration. In Clynes (1960) 44 C.A.R. 158 at p. 161 treatfield J. in delivering the judgment of the Court of Criminal Appeal said:

"It is quite true that in this Court it has been laid down that a Judge is not obliged to draw the jury's attention to specific items of evidence which may or may not be corroboration, but it is, in our view, at least necessary….... to tell the jury what is meant by corroboration. No particular language is necessary to describe it, but it is at least necessary to explain to the jury that what is required is some independent evidence of some material fact which implicates the accused person and tends to confirm that he is guilty of the offence."

The judge in the instant case appears to have followed the requirements of that authority.

The principles were further explained in the case of Goddard (46 C.A.R. 456 at p.460).

In that case the judge had correctly directed the jury on the need for corroboration, but did not go on to refer to any evidence which, if the jury accepted it, was capable of amounting to corroboration.

In delivering the judgment of the Court of Criminal Appeal, Lord Parker, after considering the Zielinski case, said-

"It is only right to say that in the experience of this court that principle is seldom followed; indeed, if it is to be treated as a general principle applicable to all cases of corroboration, this court feels that it goes too far. Quite, clearly, it is idle to give that direction simpliciter in a case where in fact there is no evidence capable of amounting to corroboration because the very fact that the, direction is given Would leave the jury to infer that there was some evidence capable of amounting to corroboration if they looked for it. Equally if I you got a case, as in many sexual cases, where there is a danger that the jury will treat as corroboration something which is incapable of being corroboration, there must be a duty on the judge to explain to the jury what is not corroboration as, for example, a complaint made by the complainant. In the general run of cases, where there is evidence capable of amounting to corroboration, the duty of the judge must deopond upon the exact facts of the case, bearing in mind that he certainly would not be expected to refer to every piece of evidence which is capable of amounting to corroboration but, in goneral, in the judgment of this court he should give a broad indication of the evidence which the jury, if they accept it, may treat as corroboration."

In case of R. v. Rance and Herron (62 C.A.R. 118 at 122) Lord Widgery (LCJ.).in delivering the judgment of the court dealing with the matter said:-

"The sixth ground in Rance's case is that the judge, whilst properly directing the jury that the evidence of one Flannery, a witness for the prosecution, required corroboration, failed to direct the jury as to what evidence was capable of corroborating the said witness. Our conclusion is that in sofdr as there is justification for that criticism it cannot carry sufficient weight to affect the safety or satisfactory character of the verdict."

Then in the case of R. v. Charles ("Times" of 6th July 1976, Article 1423 in the Supplement to Archbolds 39th Ed.) the Court of Appeal made it plain that it was the judge's duty to direct the jury as to which parts of the evidence could properly be regarded as capable of being corroboration. In delivering the judgment of the court, Lawton L.J. is reported as having said-

"Twenty years ago it was unnecessary for the judge to direct the jury as to what evidence was or was not capable of being regarded as corroboration. Today it was the accepted practice for the judge to indicate to the jury the nature of the evidence which could be used for the purpose of corroboration. Any doubt about the practice was settled by the Court of Appeal in R. v. Rance and McKenna (unreported April 25) when the Lord Chief Justice, in quashing a conviction, said that it was the judge's duty to point out what evidence could furnish corroboration."

It seems to us that this is a salutory change in practice and that the trial judge in Belize would be well advised to adopt a similar approach.

We would now consider in some detail the small boy's evidence and any evidence that could have corroborated his testimony.

The small boy's evidence identifies the appellant as being in the immediate vicinity of the jewellery shop at the time of the robbery. The first question for the jury was whether they accepted his identification. The person seen by the boy had his face partly masked as there was a handkerchief from the nose down but the boy could see the eyes and other features, and, if, as he said, he know the appellant well, then he might well have identified the latter. This was essentially a matter for the jury.

This evidence did not necessarily mean that the appellant was one of the robbers. but then there is the evidence of the complainant, who said that a man of similar colour and dressed as the boy described with plaited hair, a handkerchief from his nose down, in a pink floral shirt with a bat in his hand stood at the doorway.

There is also the evidence that the shirt and handkerchief together with a trousers and shirt allegedly worn by the Accused, White, were found hidden behind the appellant's house.

There was general corroboration of the boy's evidence in the complainant's description of the man she saw in the doorway and in her statement that the boy was present at the scene and did speak to her, as indeed he later reported to Corporal Reyes. Whilst there was no specific corroboration of the boy's identification of the Appellant, the fact that the shirt and handkerchief were identified both by the complainant and the boy, Swasey, as the clothing worn by the Appellant tended to confirm the substance and truth of his testimony.

In his address to us the Appellant has pointed out various discrepancies in the evidence but these must have been apparent to the jury which could properly assess their significance. There was undoubtely evidence before the jury on which, in our opinion, they could properly have come to a verdict of guilty.

The only real problem is whether, in view of the recent pronouncements in England, the absence of a direction on what specific parts of the evidence could provide corroboration must lead us to quash the conviction. After careful deliberation we think the answer should be no.

The Judge did give ample and proper warning on the danger of convicting on the evidence of the boy, Swasey, alone and on the desirability of corroboration.

He did not point out that corroboration could be found in the finding of the clothes, but be did address on the clothes at some length. There were some factual errors in the summing up, but these do not appear to us to be of any real significance.

There was, in our view, sufficient evidence before the jury to justify their verdict and we do not think it should be quashed

The appeal is dismissed.

The appellant also applies for leave to appeal against sentence. We can find no merit in his application and it is refused

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