Mr. Anderson for the Appellant
Miss Gallimore for the Respondent.

Appeal against conviction and sentence of death imposed for murder - intention - despite initial misstatement of law, direction on intent adequate - judge dealt satisfactorily with issue of identification - Section 145(1) of the Indictable Procedure Act Chapter 93 - allocutus not read to appellant before sentence passed - Section 150 (1)(b) and (1)(c) and Section 150(2) of Indictable Procedure Act - time for objection to irregularity passed - Court unable to entertain the objection - appeal dismissed - conviction and sentence affirmed.

J U D G M E N T

The Appellant was indicted for the murder of one Diego Tzul on 7th July, 1993, convicted and sentenced to death on 2nd December, 1994.

The facts are that Diego Tzul, a fruit vendor residing in Corozal came to Belize City regularly on Tuesdays and Fridays to sell his goods at the Queen Square Market. He would be accompanied by Robertina Galiano his common law wife and mother of his children.

On Tuesday 6th July, 1993, they had come to the City early morning arriving at the Queen Square Market around 1 a.m. They parked their van at the corner of the market by the stadium end which is in front of the market. With them were their little daughter Maria and son Arnulfo.

Having eaten Diego, Robertina and Maria were all resting inside the van when Robertina still awake heard knocking on the window of the van and a person saying "open the door and hand over all the money you have". She observed from her vantage point two men "black in colour" and one tall and one short holding up Diego Tzul with a gun. The door was on her side of the van and Diego told her to open it which she did.

Present at this time also together with a grandson was their acquaintance of Ausencia Valdez, a sweet and tamales vendor from Ranchito Village near Corozal. She had been sleeping behind the van belonging to Diego Tzul (the pick-up, as she described it). Footsteps awakened her and she saw the two men also and heard when one said speaking to Diego: "open the door and pass your money". Her grandson told her something which made her go to get assistance and make a telephone call.

Meanwhile Robertina having opened the door at the bidding of Diego, the two men then went out to where she was sitting in the van. One of them according to her was a short person and the other tall. The tall one had the gun. There was a lamp-post light at the comer of the Market and the Stadium was also lit. The van was 25 to 30 feet from the lamp post.

Once the men reached Robertina they began to "rough" her up and forcibly took from her person her chain, bracelet, watch and ring and then took her money by tearing her dress and searching her brassiere where she kept the money.

Diego Tzul who was in the van on the other side, seeing what they were doing to his lady pulled out his machete upon which the tall man fired a shot at him which caught him on the left side of his chest thereby inflicting serious injuries from which as it turned out he died the next day. The attacker was then no more than a foot away from Robertina.

Having fired the shot the tall person opened the van whereupon Diego Tzul fell to the ground. The attacker then dragged Robertina out of the van, hitting her with the firearm when she resisted as he dragged her. Little Maria was holding on to her mother's dress through all this and the son Arnulfo attempted to assist but desisted and went off when the shorter man hit him.

At this stage one Jose Andres Fuentes, at the time relaxing in his pick-up parked at the Queen Square Market, heard a shot and also heard a male voice shouting for help. He proceeded in the direction from whence the report of the gun had come only to see from about 20 yards away the two men abducting Robertina and the little girl Maria. Upon seeing them he shouted (or called out) to them to leave the lady alone. A shot was fired and Fuentes felt pain in his left knee. He threw himself into the van because as he said "he fired another shot". Then the men ran off.

Ausencia Valdez had seen when Fuentes was shot but did not see who shot him. Fuentes though saw the gunman's face when he fired the shot at him albeit he did not in fact see him actually carrying a gun while he and the other man were abducting Robertina and the little girl.

The police in due course appeared on the scene to find Diego Tzul (then still alive, bleeding and suffering from gunshot wounds to the left side of his chest), Robertina Galiano (who had cuts on her forehead) and Jose Andres Fuentes (who also had gunshot wounds to the left lower foot, right hand and right and left chest). The police made inquiries on spot as to descriptions of the culprits and then conveyed Diego Tzul to the Belize City Hospital. Jose Fuentes followed in his pick-up accompanied by Robertina Galiano.

At about 6:15 a.m. that same day Detective Sergeant Augustine went back to the Belize City Hospital where the three injured persons were and requested each of them (including Diego Tzul) to peruse three albums of photographs to see if they could recognize the two men involved or either of them. This resulted in Robertina Galiano and Jose Andres Fuentes pointing out Appellant. Diego Tzul as mentioned later died from his injuries.

A search was mounted in the city for Appellant who was later seen on Central American Boulevard on 7th July and taken into custody and detained at the Police Station.

On 9th July in two separate identification parades at the Police Station Robertina Galiano and Jose Fuentes singled out Appellant in the separate lineup. A third parade at which Maria the daughter of Robertina was witness proved unsuccessful. The Appellant was later formally charged with the murder of Diego Tzul.

Jose Andres Fuentes, who played such a prominent part in the case was himself a fruit vendor then living in Belize City who sold his products as did Diego Tzul and family at the Queen Square Market. Every Monday night he would receive his vegetables and by co-incidence on the Monday night preceding the incidence of the shooting while driving his pick-up on Central American Boulevard he saw two "fellows" (as he described them) walking going in the same direction in which he himself was travelling. He knew one of the fellows by sight for certain and had so known him for some three years while selling in the Market. This was none other than the Appellant who he said used to go to the Market to sell things. Later on during the incident of the shooting he recognized Appellant and was positive it was Appellant who had shot him.

Appellant appeals against conviction and sentence upon five grounds.

The first ground is that the learned trial Judge misdirected the jury on the issue of intention.

Counsel for the Appellant at the hearing referred to the passage in the summing-up to the jury at page 43 of the transcript commencing at line 21 to the end of the page and continuing over to page 44 ending at line 4:

"Now Madam chairperson and members of the Jury, the law presumes a person to intend the natural and probable consequences of his acts. So you may feel that the natural and probable consequences of shooting a person inflicting the wound describes by Dr. Estradaban, if you accept his evidence in this regard, inflicting that fatal injury from a close distance if you accept that evidence from Dr. Estradaban, is that the person would be seriously injured and the person dies. (Then at line 30) However, as judges of facts, you are not bound to infer an intention to kill from the mere fact that death was in your opinion, a probable result of the act of the accused. But that fact is relevant to the question of intent and you would have to take this into account this matter (sic) when considering all the evidence and all the proper inferences to be drawn from that evidence".

Counsel identified the issue to be whether the learned trial Judge had not, by those directions left the jury confused, by first erroneously stating the law to presume a person to intend the natural and probable consequences of his acts and then just a little further down in his summing-up, contradicting the earlier misdirection by a general direction as to other necessary factors and to the evidence as a whole.

The erroneous direction upon the law, followed immediately by such a direction, even though as to the relevant factors which the jury ought to consider in determining the state of mind of the accused at the relevant time without first correcting himself as to his error, might well have left the jury in a state of confusion.

Counsel for the Respondent in reply conceded that the learned trial judge had in fact misstated the law but submitted that he had in effect corrected himself by his directions from lines 30 onwards on page 43 on to page 44 line 4 of the transcript. Counsel contended that the learned trial judge gave extensive and comprehensive directions as to intent (page 40 line 26 to page 44 line 4 of the transcript). Counsel further contended that the matter of determining the intention of the accused at the relevant time was a question of fact for the jury and that the learned trial judge had from the outset on page 28 fine 25 of the transcript impressed upon the jury that questions of fact were for them exclusively.

As to the learned trial Judge's misdirection on the law of intent Counsel for the Respondent invited attention to the passage on that topic in Archbold's Criminal Pleading, Evidence and Practice (39 ed.) paragraph 917 (5) on page 623 reading from the fourth line:

" ... where misdirection as to the law is established by the appellant, the conviction will be quashed unless the prosecution can show that on a right direction a reasonable jury would inevitably have come to the same conclusion."

Counsel in that regard also quoted from the passage in R. V. Stoddart (1909) 2 Cr. App. R. 217, at page 246 where the Lord Chief Justice said, inter alia:

"Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the Counsel for the prosecution and for the defence respectively. This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced..."

Counsel for the Appellant had urged that the position in regard to intention clearly set out in section 9 of the Criminal code and emphasized that there is no presumption of law in Belize that a person intends the natural and probable consequences of his acts. Counsel then cited the leading case of Winsell Williams vs The Queen (1992), in support of his proposition and then followed by citing for the sake of completeness two other cases, namely, Roberto Galeano Aguilar and Abel Martinez vs The Queen (1992) and Francisco Conorquie and The Queen (1992), both cases in which the Winsell Williams case was followed. However, it is to be noted that in the leading case the essential misdirection was the learned trial Judge's use of the expressions "so you will have to consider the act in question, the act itself" and "and without any other evidence". This error was repeated in the Conorquie case insofar as the second expression is concerned. Therefore on that score alone while we agree that the learned trial Judge in the instant case fell into the same error when he made the bald statement that the law in Belize presumes that a person intends the natural and probable consequences of his acts, he did not restrict his summation to the act itself and without any other evidence. On the contrary it appears to us that he endeavoured to paraphrase for the jury the entire section 9 of the Code, in particular paragraphs (a) and (b). Besides as pointed out by Counsel for the Respondent his directions otherwise upon the element of intent were comprehensive and, as we consider, compelling, as unfortunate as it was that he should have fallen into the self-same error as the learned trial judges in the Winsell Williams and Conorquie cases.

We recognize, however, that the concern of Counsel for the Appellant as he urged upon us was the fact that the learned trial judge having properly directed the jury upon the separate roles of judge and jury, emphasizing that the law was for the judge and the facts for them might have confused the jury. We are of the opinion that in all the circumstances there was no risk of real confusion and that a reasonable jury would inevitably have come to the same conclusion. Accordingly, this ground of appeal fails.

The second ground of appeal was that the learned trial judge erred in giving directions to the jury as to certain inferences to be drawn from the evidence, particularly the evidence of Jose Fuentes, in that he failed to direct the jury that the inference could possibly be drawn from Fuentes' evidence, that he Appellant did not have a gun with him on the 6th July, 1993.

Counsel for the Appellant submitted as we understood him that it was incumbent on the learned trial Judge when reviewing the evidence of the witness Jose Andres Fuentes to have pointed out to the jury that a fair inference to be drawn from the witness's testimony in favour of the appellant was that perhaps Appellant did not have a gun on the night of the occurrence. The relevant part of the witness's testimony at page 4 of the transcript as referred to and quoted by Counsel was:

"... upon seeing them I told them to leave the woman alone. I recognized only one of them. I had known this person whom I recognized for about three years. I used to see the person in the market. He used to come and sell things. I see that person here in Court today ... I did not see him carrying a gun whilst they were taking the lady and I saw his face when he fired the shot. I felt a pain in my left knee. I threw myself into the van because he fired another shot."

Counsel for the Appellant argued that it is apparent from the evidence that Fuentes cannot say which of the two men, if any, it was who fired the two shots at him. Fuentes is recorded to have said in evidence maintains Counsel that he did not see the accused carrying a shot gun whilst they we taking the lady.

Counsel submitted that the learned trial judge compounded his error when, having failed to point out the above inference, he in fact suggested to the jury that from Fuentes's evidence they could draw the inference that the accused did in fact have a gun with him that night. Counsel pointed out that further, the learned trial judge did not direct the jury in the required circumstance upon joint enterprise.

We look at the learned trial judge's summing-up regard to Fuentes's evidence which reads according to the Record on page 46 at line 32 and on to the top of page 47:

"He says he had a plait hair style. He says I did not see him carrying a gun, but whilst he was taking the lady, I saw his face and he fired the shot. You will have to ask yourself if you accept his evidence that he fired the shot, then you can draw a reasonable inference that he was carrying a gun. Because a gun cannot come out of a vacuum. If you accept that the shot was fired. He said he felt pain; he said he fired another shot. Did the shot fire on its own- It's for you to decide if it is the only inference that you can draw. That when this shot was fired this person did not have a shot gun. He did not have a gun. These are questions of fact for you to decide."

Counsel for the Respondent submitted that this aspect of the case was clearly a question of fact for the jury. In any event, counsel maintained, the charge is that of the murder of Diego Tzul. Robertina Galiano made it very clear that Accused carried a shotgun with which he shot Diego Tzul. Counsel submitted that the fact of accused carrying a gun that night was the only inference to be drawn. There was no other reasonable inference. The question of joint enterprise did not arise. Both witnesses, Robertina Galiano and Jose Andres Fuentes said that it was accused who fired shots, who had the gun. The shot that killed Diego Tzul was undoubtedly fired by the accused. The other shots were aimed at and injured Fuentes.

We do not support the contention of Counsel for the Appellant in particular because of the tenor of the learned trial Judge's summing-up quoted above. We have noted too that despite Jose Andres Fuentes' testimony that he did not see the Appellant carrying a shotgun whilst they were taking the lady, Robertina Galiano herself testified that Accused had hit her with the firearm. No doubt the cuts she sustained on her forehead were from that blow or blows although she did not actually say so.

In the result, we find no fault with the learned trial Judge's summing-up in this regard and are of the opinion that there is no merit in the submissions of Counsel for the Appellant and accordingly this ground fails also.

Appellant alleges as his third ground that the learned trial Judge erred in law in that he failed to specifically direct the jury as to the effect of the Appellant's evidence at the trial that he (the Appellant) did not sell things at the market, and that he (the Appellant) doesn't know Fuentes, insofar as the evidence of identification by recognition as was given by Mr. Fuentes, was concerned.

Jose Andres Fuentes testified at the trial that on the Monday night before Diego Tzul was shot he had passed these two men Walking along Central American Boulevard as he drove his pick-up going in the same direction one of whom he recognized positively to be the Appellant. He had known the Appellant for three years by sight as it appeared by virtue of the fact the Appellant was frequently to be seen at the Market "selling things" there while Fuentes himself was a vendor. The Appellant on the other hand in cross-examination denied that he sometimes sold things at the market and protested that he only go there to deliver gas. Appellant also said in answer to a question from the jury that he did not know Fuentes.

Counsel for the Appellant submitted that this aspect of Fuentes's identification of the Appellant was by recognition and that this was by Fuentes's own admission by a glance only. Counsel argued that because of there factors and because the Appellant had said he did not know Fuentes and denied selling things sometimes at the Market the learned trial judge should have specifically pointed out to the jury that in considering the evidence of identification by Fuentes they should pay very careful attention to the sworn testimony of the Appellant himself to the effect that he did not sell at the Market and didn't know Fuentes.

Counsel maintained that the learned trial judge did not deal adequately with the issue of identification by recognition by Fuentes in that he repeatedly, although subtly, suggested to the jury that it was more likely than not, that the Appellant had been correctly identified by Fuentes as having been present at the scene of the crime, especially bearing in mind that the Appellant, according to the evidence of Fuentes, had been known to him for some three years. The learned trial judge Counsel claimed had made no more than passing reference.

Counsel for the Respondent submitted in reply that the learned trial judge had carefully analysed the testimony of Jose Fuentes and had otherwise done all that was necessary, putting the prosecution's case alongside that of the Appellant. The learned trial judge told the jury in no uncertain way that if there was a reasonable doubt as to whether the Appellant was at the scene of the crime then he must be given the benefit of that doubt.

We are in agreement with that submission. We take not of the fact that Michael Ellis, the witness for the prosecution who gave abbreviated evidence by affirmation deposed that he knew the Appellant for some 5 to 10 years and that he sometimes went to the Queen Square Market and saw the Appellant there although he could not remember seeing him doing anything in the Market. Michael Ellis appeared to be, according to the evidence of the Appellant himself, a good friend and companion.

It is to be borne in mind that the witness Jose Fuentes besides identifying the Appellant by recognition on Central American Boulevard and at the scene of the crime did so also by photograph out of an album and on an identification parade. Taking all factors into account we are of the view that this ground fails.

The Appellant's fourth ground is that the learned trial judge failed to specifically direct the jury that the evidence by witnesses of identification by them of the Appellant at the identification parade was to be taken subject to the proviso that such identification may well have been unreliable as the witnesses may well have been influenced in making their identification by having seen the photograph rather than by anything which they recall having seen at the material time.

Counsel for the Appellant cited the cases of -

(1) Maynard et al v. R. (1979) 69 C.A.R. 309
(House of Lords);

(2) Dwyer & Ferguson v. R. (1925) 18 CA.R. 145
(Court of Criminal Appeal (Eng.)).

Counsel relied heavily on a passage in the judgment of Lord Roskill in the first-mentioned case. Indeed the wording of this ground in the Appellant's notice is almost word for word a quotation of that passage.

However, in both cases, the identifying witnesses it would appear were shown photographs whereas in this case the photograph of the Appellant was in each instance singled out by Jose Fuentes and Robertina Galiana from an album of photographs. Both witnesses, three days later, identified the Appellant on identification parades. In the second-mentioned case there was not even an identification parade.

Without in any wise detracting from the unquestioned merit in the dictum of Lord Roskill, what was said is not trite law in Belize and we must look carefully at the manner in which the learned trial judge dealt expressly and in general in his summing-up with the important issue of identification.

Although he did not deal with the matter of the photographs in any particular fashion, the learned trial judge nevertheless dealt satisfactorily with the question of identification. First, in a general way, and then by reference to the individual testimony of the two identifying witnesses Fuentes and Galiano when reviewing their testimony at length and in detail. Relevant passages from his general directions are as follows:

"Now Mr. Foreman and Members of the Jury, I must give you some specific direction and I will deal first with identification of the accused.

In this case, the question of identification of the accused is a matter of great importance and you will have to approach this matter very carefully, because sometimes people makes mistakes.

A mistaken witness can be a very convincing one, and a number of witness could all be mistaken. You will have to examine closely the circumstances in which the identification from each witness came to be made. How long did the witness have the accused under observation- At what distance; in what light- Was the observation impeded in any way by passing traffic or crowd of people- Have the witness ever seen the accused before; if so how often; if only occasionally had he any special reason for remembering the accused- How long elapsed between the original observation and the subsequent identification to the police- Was there any material discrepancy between the description of the accused given to the police by the witnesses when first seen by them and his actual appearance-

It is my duty to remind you the jury of any weaknesses that may have appeared in the identification evidence. These matters go to the quality of the identification evidence. If the quality was good and remains good at the close of the prosecution's case, the danger of a mistaken identification is lessened. But the poorer the quality, the greater the danger.

I will be dealing with the evidence of the relevant witnesses in detail, and it will be my duty to identifying the evidence which I adjudge to be capable of supporting the evidence of identification and conversely I shall be adjudging that evidence which do not have that quality to support the identification.

In the final analysis, it will be for you as judges of facts to determine whether you are satisfied so that you feel sure that the accused was positively identified as the person who allegedly committed the offence."

"Now, the onus is on the prosecution to prove that the identification parade was carried out beyond any reasonably doubt. That it was carried out fairly. If therefore you are left in any doubt about whether it was carried out fairly, you will find that the accused was unfairly identified at the identification parade and the evidence against him in this regard if you so find, becomes suspect and should be disregarded. I should be dealing with this in detail as we go through the evidence of the various witnesses and of the officer who carried out or who is responsible for the identification parade."

"I told you about the identification evidence. You have to ask yourself, whether the witnesses could have been mistaken. The circumstances in which the identification by each witness came to have been made of the accused. How long did the witness have the accused under observation of what distance in what light. Was the observation impeded in any way by traffic or crowd or people. Have the witness ever seen the accused before- If so how often, any special reason for remembering the accused. How long elapsed between the original observation and the subsequent identification to the police. Any material discrepancy between the description given to the police by the witness, when first seen and his actual appearance.

As I said before, Robertina Galiano's evidence is very crucial. It was almost an eyeball confrontation. She was close to him. Could she have been mistaken in her identification of this person- The identification parade, was it fair- Was it carried out fair- Was the accused the only one with the dread hair there in the parade, or did the others also have dread hair. You have heard the evidence of the witnesses, could they have been lying to you-"

We are of opinion that the learned trial judge dealt adequately with the question of the identification of the Appellant.

This ground fails as well.

The fifth and final ground is that the learned trial Judge erred in law in passing sentence upon the Appellant at his trial, in that the requirements of section 145(1) of the Indictable Procedure Act of Belize were not followed in the course of passing such sentence thereby rendering the sentence which was passed upon the Appellant at his trial null and void.

Counsel for the Appellant alleges the irregularity to have occurred by implied reference to page 27 of the transcript whereon no noting appears as would indicate that the allocutus pursuant to section 145(1) of the Indictable Procedure Act had been put to the Appellant before he was sentenced to death.

Counsel submitted further that at this time, the Court to sentence the Appellant is functus officio and can no longer alter the sentence passed earlier, as the session at which the Appellant was earlier sentenced has long since ended, and the sentence has already been formally recorded.

Counsel for the Appellant cited in support of his contention the case of R. v. Porter (1961) 3 W. 1. R. 55 1. In that case the Appellant (as he was) had been convicted on July 14,1961 of murder and sentenced to death. The allocutus had not been put to him. On July 17, 1961, he gave notice of appeal against his conviction. On July 22, 1961, he was brought before the judge who had passed sentence on him on July 14,1961 and the allocutus was read to him. He remained silent and the judge again sentenced him to death. The sessions had not yet ended and the sentence passed on July 14, 1961 had not been formally recorded. It was held, inter alia:

(i) the legal position created by the omission to put the allocutus to the prisoner on July 14, 1961 was that he remained unsentenced according to law;

(ii) the judge had followed the proper course in having the prisoner recalled for the purpose of receiving sentence;

(iii) the sentence passed on July 22, 1961 was a valid sentence.

The appeal was dismissed.

This case is not of course of binding authority but could under certain circumstances be persuasive. However, for the reasons which follow, the case is not at this juncture helpful.

We are of the view that assuming the accused was in fact not asked, pursuant to section 145 (1) of the Indictable Procedure Act (Chapter 93) whether he had any matter of law to urge why sentence should not be passed upon him, the time for objection to the irregularity has by now passed by reference to section 150 (1) (b) or section 150 (1) (c) and by virtue of subsection (2) of that Act. Section 150 reads -

"150. - (1) Objections to a trial on the grounds of any irregularity or informality in the proceedings, or of improper admission or rejection of evidence shall be made as follows -

(a) if the irregularity or informality occurs before verdict given the objection shall be made before verdict given;

(b) if the irregularity or informality occurs in the giving of the verdict or before sentence is pronounced, the objection shall be made before sentence is pronounced;

(c) if the irregularity or informality occurs in or after passing sentence, the objection shall be made in writing to the Judge within twenty four hours after sentence has been pronounced.,

(d) if the objection relates to the admission or rejection of evidence, it shall be made at the time of such admission or rejection.

(2) No objection shall be entertained by the court unless made in accordance with this section.

(3) When any objection is duly made before sentence is pronounced, the court shall, so far as possible, correct such irregularity or informality and may direct the trial to be adjourned or to be re-commenced from any point."

In the unlikely event that that did happen, it would seem that Counsel representing the accused at the trial could and ought to have taken objection either there and then before sentence was pronounced (paragraph (b) in subsection (1), or, alternatively, in writing within 24 hours after sentence was pronounced (paragraph (c) in subsection (1), according to the circumstances.

We are therefore, in view of subsection (2) of section 150 of the Act unable to entertain the objection. This fifth ground of appeal accordingly fails,

In view of the failure of all five grounds the appeal must be dismissed and the conviction and sentence affirmed.

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