Court of Appeal
Criminal Appeal Nos. 15, 16 and 17 of 1983
17th November, 1983
SIR JAMES A. SMITH Ag. P.
ALBERT L.STAINE J.A.
KENNETH ST. L. HENRY J.A.

Court of Appeal - Murder - Appellants jointly indicted as principals - Whether third accused was acting outside scope of common purpose - Directions to jury on question on common purpose wrong - Statement taken by police to be recorded in language spoken by accused - Omission by Judge to address jury on the weight of The Statements - Convictions quashed and sentences set aside - Retrial of all the accused.

J U D G M E N T

Mario Orlando Lopez (the first Appellant) Jose Francisco Alvarado (the second Appellant) and Jose Ernesto Hernandez (the third Appellant) were jointly tried and convicted on two counts for the murders of Demetrio Hoil (Count 1) and Miguel Lemus (Count 2) on 23/24 September 1982 at San Francisco Ranch in Cayo District close to the border with Guatemala.

Miguel Lemus lived on the ranch with his wife Julia. There were two buildings on the land. In one of them there was a shop, in the other a kitchen. Their daughter Leticia, who lived at Melchor, came daily to the ranch to assist in the shop. She left these premises about 7 p.m. on 23rd September after securing the shop, leaving her father asleep on a bed in the kitchen and handing Demetrio Hoil the watchman, her father's 16 guage shotgun. She returned to the ranch next morning to find the door of the shop open and its contents scattered. On entering the kitchen she found her father lying dead on the bed, his hands and feet tied together. She looked around for the watchman but did not find him. Leticia then left for Melchor to make a report.

About 9 a.m. the same morning Julia Lemus returned from a visit to Flores where she had been since 20th September. She saw her husband on the bed in the kitchen, his head covered with a cloth and tied hands to feet. She noticed he had been shot in the head. She found her money and jewelry to be missing from the shop. She searched for her husband's shotgun but could not find it and found that a .38 revolver which she kept in a box under the counter in the shop was missing together with a box of .38 bullets. She did not inform the police of the missing 'revolver until sometime in December. The revolver and bullets had been given to her for safe custody by her brother Romero Cassanova.

Later in the day Leticia returned to the ranch and found the dead body of the watchman, Demetrio Hoil in the banana plantation about 100 feet from the ranch buildings.

Dr. Rhodas' post mortem examination the same day of Demetrio Hoil disclosed he had died of external and internal haemorrhage from four deep wounds, one on the left side of the thorax which penetrated the heart. another on the right side of the thorax penetrating the lung, a third wound which cuts into the left side of the abdomen and a fourth wound on the right side of the abdomen, both of which punctured the intestines and caused them to protrude. There was also a wound on the right side of the head. In Dr. Rhodas' opinion all these wounds were caused by a machete.

Dr. Rhodas also examined the body of Miguel Lemus and found he had died of haemorrhage and lesion to the brain from a bullet wound through the cranium from the perietal region on the left to the front of the right ear.

The three Appellants were well known to the Lemus family. With Julia's permission the first Appellant cultivated a vegetable patch on the ranch. The second Appellant had lived on the ranch since his childhood and was called "Chico". He worked with Julia. The third Appellant had come to tile ranch three months earlier and worked with the first Appellant in the vegetable patch. Leticia saw both there on 23rd September but they had left the ranch before she did. That was the evidence of Julia and Leticia Lemus. However the first Appellant in evidence on oath denied knowing the third Appellant and that he worked for him on the vegetable patch. He said he continued to farm there until 6th December.

The prosecution evidence concerning the first Appellant was circumstantial, starting with that of Trinidad Mendez a taxi driver living at Benque who said that on 2Oth November 1982 the first Appellant came to ask him for a lift to Spanish Lookout. It was arranged that Mendez would take six persons, four men and two women to Champon on 29th November for $60.00 dollars. On that day the first and second Appellants and their wives came and requested Mendez to pick up their luggage near Bacadilla. When Mendez and the first Appellant arrived there they found the third Appellant and another man with the luggage, which was then loaded in the vehicles. All four ~turned to Mendez house at Benque about 7 p.m. There the first Appellant asked Mendez to care of a .38 revolver and a box of bullets. Mendez agreed and put them in the locker of his vehicle. According to Mendez, the first Appellant offered to sell him the vegetable patch at San Francisco Ranch, without success, but Mendez was agreeable to supervising it for the first Appellant. Next day (3Oth November) they drove to the ranch to see Julia but she was not there. Later that day Mendez drove the three Appellants, the two wives and the other man to Spanish lookout and thence to Champon where first Appellant paid Mendez, and the latter returned the .38 revolver and box of bullets to the first Appellant.

On 4th December 1982 at his ranch near Iguana Creek, Pedro Hernandez was approached by the first Appellant looking for work. He told him, that the second and third Appellants and two women were with him. They obtained work there and lived on the ranch. Next day (5th December) Pedro Hernandez saw the first and second Appellants firing a revolver at a tree near the road and, when asked, the Appellants said they were testing the revolver which had been damaged. On being told to stop the first Appellant put the revolver and bullets in a sack. It appears that the third Appellant had departed. He was later seen by Mendez in Benque.

On 8th December P. Sgt. Palacio and other police officers surrounded a thatched house, at Champon and found the first and second Appellants and their wives inside. On the bed the P. Sgt. found a 16 gauge shot gun and under the bed he found a .38 Smith and Wesson revolver and a kit bag containing a box of 39, .38 bullets. He took possession of these weapons and ammunitions, arrested the first and second Appellants and took them to Benque.

According to P. Sgt. Palacio on 9th December Julia Lemus identified the shotgun and revolver as those stolen from the ranch.

The case against the first Appellant rested upon his possession of the shotgun, the revolver and the box of bullets' and an inference from the surrounding circumstances that the first Appellant participated in the crimes committed on the night of 23/24 September at San Francisco Ranch. This Appellant's story was that at Champon, passing Salvadoreans had offered to sell him all three items, the shot gun, the revolver and the bullets; He'' had refused, but offered for a commission to find a buyer for them in Guatemala. By their verdict the jury clearly rejected this story.

Mr. Sampson for the first Appellant argued that the evidence of the identification of the weapons and the bullets as those from, San Francisco Ranch, was inadequate and further that even if identity was established, the possession of these weapons by the first Appellant some 9 or 10 weeks after 23/24 September 1982 would not lead to an irrefutable inference that he obtained them at the ranch on that fatal night. Our only comment at this stage is that it was significant that the first, Appellant had possession of all three items which disappeared on that night from tile ranch where he grew his vegetables.

The second Appellant in his statement to the police placed himself at the scenes of the crimes on 23/24 September and gave a description of events implicating himself, though he did not admit to personal participation in the killing of Demetrio Hoil or Miguel Lemus. He described the breaking, entering and stealing from the shop.

The third Appellant in his statement to the police admitted attacking Demetrio Hoil with a machete and shooting Miguel Lemus in the head with a revolver.

Each of these statements to the police was apparently given in Spanish but recorded in English. Each statement was challenged in the voire dire, but eventually admitted in evidence by the trial judge.

In his statement the dock the second Appellant, referring to his statement to the police said:-

"Police threatened me because they wanted me to accuse Lopez, and as for the statement I did not know what it contained because it was in English."

The third Appellant, referring to his police statement in his unsworn statement in the dock said ;-

"I had nothing to do with the incident. I ignored the statement (to the police) because they did not read it back to me." The admissibility in evidence of these statements to the police have been challenged by counsel representing each of these Appellants.

Consideration may now be given to the grounds of appeal each Appellant was separately represented by Counsel.

Both Mr. Sampson, for the first Appellant and Mr. Young, for the second Appellant, complained that the trial judge erred in failing to direct the jury on the law relating to aiding and abetting. The provisions of section 19(1) of our Criminal Code which set out the circumstances which constitute the abetment of crimes and the offence thus created, the punishment for which is set out in Sec. 19(4) are the same as the corresponding provisions in section 86(1) and (2) Of the Penal Code of the Bahamas which were considered in Farquharson v. The Queen (1973) 2 W.L.R. 598 at p.600. That was an appeal to the Privy Council from a conviction of Farquharson and two others upon charges of murder, attempted murder, armed robbery and burglary where the three men broke into a dwelling house, one armed with a pistol, another with a cutlass and Farquharson who was unarmed. One of the others fired a pistol killing the householder. The planning of the break in and its execution were described in Farquharson's statement to the police The clear effect of the statement was that before the weapons were used Farquharson knew they were in the possession of his associates.

In our present case on appeal the three Appellants were jointly indicted as principals and not as aiders and abettors of one of them. Assuming that one or more of the Appellants could be charged under section 19(1) of our Criminal Code with aiding and abetting the two murders or either of them and if convicted deemed guilty of murder and punished accordingly under section 19(4) of the Criminal Code. The fact is that none of them were so charged. They were however charged under Sec. 102 of the Code as principals and having been so charged it would be incompetent to convict any one of them under some other section. In coming to that conclusion we follow that statement of the law as stated in Fraquharson (supra) at p. 600. it would in the circumstances have been wrong for the trial judge to direct the jury on the law of aiding and abetting and he was correct not to have done so.

The prosecution sought to prove that the Appellants set out on a joint enterprise to break and enter the shop of Julia Lemus with intent to steal and did steal therefrom money, jewelry and a .38 revolver, one or more of them armed with a machete with the intention common to all to use the machete and the revolver as necessary in the furtherance of their common purpose even to the extent of murder to secure their object or their safety. In the result the night watchman Demetrio Hoil was killed with a machete and Miguel Lemus was shot through the head with a revolver. The crucial question was whether those acts were within the contemplation of all the participants to achieve their common purpose, or did one or other of them act on his own and go beyond the common intention. In considering that question it was necessary to consider the case regarding each of them separately.

In directing the jury on this question the learned trial judge first said at p.62 of his summing up:-

"Before I proceed to deal with the evidence I should also mention that the prosecution's case is based on what is referred to as a common intention. The prosecution's case is that these three accused committed this offence, doing various acts in the course of it, and because they did it in pursuit of a common intention it does not matter who did which act……… if you find that these three are the people who raided the farm that night then it does not matter which of them did any particular act, they are all guilty of murder of both people irrespective of who shot or stabbed. That is what is meant by common intention."

At p. 82 of the summing up the trial judge told the jury with regard to the first Appellant:-

"If you are satisfied so that you feel sure that he, with whoever else was on the farm that night had a common intention to rob the farm and no one or more of them committed the murders in furtherance of that common intention then you have sufficient grounds for finding him guilty of the offence."

At p. 83 of the summing up he told the jury:-

"In relation to the second accused if from such confirmation as you find, you are satisfied so that you feel sure that what you feel sure that what is stated in the statement (to the police) is the truth, the second accused is guilty of murder, whether he did the act himself or whether one or the other of the participants did it so long as you are also satisfied that it was done in the furtherance of a common intention to rob the farm that night."

Then finally, after recalling the jury, the trial judge said to them:-

"So the statement made by each accused can only be evidence against that accused, not against any other accused named in that statement. So if you then recall this is why I keps on saying that the only evidence against the first accused it the guns. What the other accused have said about him is not evidence. So if you are satisfied it is the same guns and that places him on the scene then you may convict him if you are also satisfied they had a common intention. Similarly if you are satisfied that the statement, made by the second accused is true, because of confirmation from other sources, then you may convict him it you are also satisfied they had a common intention. Similarly if you are satisfied that the statement made by the third accused is true about what he did you may convict him on that provided there is confirmation of it and providing you are satisfied they had a common intention. So you must treat the case of each accused separately and not take into account the statement made by one accused in which he implicates the other."

The question was whether the third accused (now the third Appellant) who admitted in his police statement that he stabbed Demetrio Hoil and shot Miguel Lemus in the head, by so doing was acting outside the scope of the common intention of the others or whether on the evidence it was the common purpose of all three Appellants to use force if necessary to the extent of killing in furtherance of their object or their safety or avoidance of identification. The learned trial judge however in addressing the jury on this question of common purpose thought that a common purpose to rob would in the circumstance suffice to make each of them liable for the deaths of Hoil and Lemus. But that is not the law and the directions of the trial judge in the summing up to the jury were clearly wrong and amounted to serious misdirection. An example of a proper direction on common intention in a joint enterprise is to be found in the summing up in the Farquharson case (Supra) at p. 599 which the Privy Council found to be unexceptionable.

Mr. Young drew our attention to the case of Lovesey and Peterson (1969) 53 C.A.R. 461 where a number of' persons attacked and robbed a jeweller in the course of which they inflicted injuries on him as a result of which he died. The Appellants' defence was a denial of all knowledge of the attack. The trial judge directed that the two offences of robbery and murder stood or fell together. On appeal Widgery L.3. (as he then was) said:-

"As neither Appellant's part in the affair could be identified neither could be convicted of an offence which went beyond the common design to which he was a party. There was clearly a common design to rob, but that would not suffice to convict of murder unless the common design included the use of whatever force was necessary to achieve the robbers' object (or to permit escape without fear of subsequent identification) even if this involved killing, or the infliction of grevious harm on the victim."

In the present case there was evidence upon which the jury I properly directed might conclude there was a common intention to use extreme force. In view of the serious misdirection of the trial judge on this issue the conviction of the first and second Appellants cannot stand and we would order a retrial.

Mr. W. Elrington for the third Appellant criticised the failure of the prosecution to call the police inspector to give evidence in the voire dire. We do not however propose to go into that matter at this stage. Suffice it to say that the learned trial judge in the exercise of his judicial discretion of the evidence before him found the statement of the third Appellant to have been made voluntarily. The judge also came to a similar conclusion regarding the police statement of the second Appellant.

We wish however to consider the manner in which the statement was recorded and the question of the duty of a trial judge to direct the jury as to the weight to be attached to it.

The statement of the third Appellant was taken by P. Cpl. Sanchez on 23rd January 1983 under caution. The third Appellant gave his statement in Spanish but P. Cpl Sanchez recorded it in English. He said he was conversant and well understood the Spanish language. But as he could not write well in Spanish he appears to have made a mental translation of what was said to him in Spanish and recorded it in English. Of course wherever possible a statement should be recorded in the language in which the accused spoke. When it is recorded in another language there is always the question whether what was recorded accurately represented' what an accused had said. There was apparently no witness to the statement which the third Appellant made to P. Corporal Sanchez, and there is no record on the statement of the signature of any such witness. There was thus no one to check the accuracy of what Sanchez had written. In directing the jury on the statements the trial judge said

"What you really have to consider is not whether it was proper to have recorded it in English but whether Cpl. Sanchez recorded something other than what in fact the accused told him and in doing that of course………… you have to examine for yourself the impression made upon you by Sanchez and Palacio."

Police Sergeant Palacio evidence in that regard was that he' instructed Corporal Sanchez to caution the third Appellant and added "He (Sanchez) did so and recorded a cautioned statement." However the Police Sergeant was not present in the room when Cpl. Sanchez took the statement of the third Appellant. The latter said that when he read it back in Spanish the third Appellant agreed it was correct.

Mr. Elrington submitted that the trial judge had a duty to direct the jury as to what weight to attach to the statement of the third Appellant. Mr. Young also made a similar point on behalf of the second Appellant. They relied on Chan Wei Keung v. The Queen (1067) 2 AC. 160 and R. v. Burgess (1968) 2 Q.B. 112. In the latter case at pp 117/118 Parker L.C.J. said (following the decision in Chan Wei Keung):-

"The position now is that the admissibility is a matter for the judge; that it is thereafter unnecessary to leave the same matters to the jury; but that the jury should be told that what weight they attach to the confession depends on all the circumstances in which it was taken and that it is their right to give such weight to it as they think fit."

The learned trial judge omitted to address the jury on what weight they should attach to the statements in the present case. He did draw attention to the evidence f9r their prosecution as to the circumstances in which the statements were taken but said nothing to warn the jury that as the statements in evidence were in a language the accused persons did not understand this was a serious factor in deciding what weight to attach to what was said in them having regard also to the attitude of the third Appellant towards the statement said to be his in his short statement in the dock; and likewise the weight to be attached to the statement of the second Appellant. It was vital for the jury to decide what weight to attach to the statement of the third Appellant because the entire prosecution case against him rested on his statement to the police.

A number of other grounds of appeal were argued. but with all respect to the three learned counsel concerned, we do not think it necessary at this stage to go into those matters having regard to the course we propose to take.

For the reasons stated we would quash the convictions and I set aside the sentences imposed by the trial judge 'and order that there be a retrial of all three Appellants before another judge.

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