Court of Appeal
Criminal Appeal No. 14 of 1977
22nd July, 1978
SIR MICHAEL HOGAN, P.
SIR CLIFFORD INNISS, J.A.
SIR ALASTAIR BLAIR KERR, J.A.

Court of Appeal - Appeal against convictions for Burglary and Aggravated Theft - Whether evidence of accomplices can corroborate each other - Trial judge misdirected himself by telling Jury accomplices can corroborate one another's testimony - Direction contrary to established rule - Archibold Criminal Evidence Pleading and Practice - D.P.P v Hester (1972) 3 All ER 1056 - Trial unsatisfactory - Convictions and Sentences quashed - Re-trial ordered.

J U D G M E N T

On 10th October, 1977, Appellant, Alejandro Escalante, was convicted before the Supreme Court of Belize on Counts for Burglary and for Aggravated Theft in that he stole a number of items from the dwelling-house of one Malik Muhammad. On 13th October, 1977, he was sentenced to three years' imprisonment with hard labour on the Count for Burglary and one year imprisonment with hard labour on the Count for Aggravated Theft, the sentences to run concurrently.

Against his convictions and sentences he now appeals.

In directing the Jury in regard to the evidence of the witnesses Moises Ysaguirre and Roger Tingling, the learned Trial Judge told them in effect that if they found these witnesses to be accomplices, the testimony of each would provide the necessary corroboration for the testimony of the other, for accomplices can corroborate each other.

While it is true that technically Roger Tingling was not an accomplice, having been called as a witness for the Defence (see judgment of Lord Simonds L.C. in Michael John Davies, 38 C.A.R. 11 at p. 32 and Archbold Criminal Pleading Evidence and Practice (38th Edn.) at paragraph 1425), we have noted that his being called by the Accused/Appellant followed on the failure of the Prosecution, for whom he was originally a witness, to call him; and that, having regard to his evidence, which turned out to be unfavourable to the Accused, he might have been found by the jury to have been a receiver of some of the stolen goods.

In this connection we have adverted to the case of Kenneth Frank Prater, 44 C.A.R. 83. In this case, one Welham, a co-accused with the appellant, had, at the trial, given evidence on his own behalf adverse to the appellant. In the course of the judgment of the Court of Appeal, delivered by Edmund Davies J., the following passage appears at p. 85:-

"Whether the label to be attached to Welham in this case was strictly that of an accomplice or not, in practice it is desirable that a warning should be given that the witness, whether he comes from the dock, as in this case, or whether he be a Crown witness, may be a witness with some purpose, of his own to serve".

In the same judgment at p. 86, Edmund Davies J. said:-

"This Court, in the circumstance's of the present appeal, is content to express the view that it is desirable that, in cases where a person may be regarded as having some purpose of his own to serve, the warning against uncorroborated evidence should be given. But every case must be looked at in the light of its own facts …………"

In Archbold Pleading Evidence and Practice (38th Edn.) at paragraph 1425, it is said that there is an increasing tendency in favour of the practice indicated in the above passages in Prater.

The Appellant was unrepresented at the Trial and the learned Trial Judge evidently considered that, in the peculiar circumstances of the case, it would be unjust not to accord to him the protection of a warning to the Jury against acting on the evidence of Tingling unless it were corroborated. Although this witness was neither a co-accused nor a prosecution witness, he might have been regarded as having a purpose of his own to serve, and in the special circumstances of the case, we are unable to say that the Trial Judge was wrong in his approach.

Unfortunately, he misdirected himself in telling the Jury that accomplices can corroborate one another's testimony. Such a direction is contrary to the well established rule, noted in Archbold Criminal Evidence Pleading and Practice (38th Edn.) at paragraph 1428, and mentioned with approval by Lord Diplock in D.P.P. v. Hester (1972) 3 All E.R. 1056 at p. 1074 letters a - e, that the evidence of one accomplice cannot be corroborated by the evidence of another. This was readily conceded by the Director of Public Prosecutions.

This misdirection was particularly unfortunate for the reason that there was another witness whose evidence was received at the Trial - one Albert Babb - whose testimony was also dealt with by the learned Trial Judge on the basis that the Jury might find him to be an accomplice as being a receiver of some of the stolen goods.

The matter does not end there. The directions given by the learned Trial Judge to the Jury as to the corroboration of the evidence of Ysaguirre and Tingling, if found to be accomplices, and the confirmation of a confession by the Appellant, if accepted were couched in terms which, in our view, were such as to leave the Jury without a clear picture as to the manner in which they should approach these matters.

For the reason stated above, in our opinion, the trial was unsatisfactory and the interests of justice require that there should be a re-trial.

Accordingly, it is ordered that the above-mentioned convictions and sentences be quashed and that a re-trial be had.

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