Court of Appeal of Belize
Criminal appeal No. 2 of 1987
16th June, 1987
SIR JAMES A. SMITH P.
SIR ALBERT L. STAINE J.A.
KENNETH ST. L. HENRY J.A.

Appeal by Prosecutor against decision of the Supreme Court on an appeal from an inferior court setting aside the respondent's conviction for theft and varying his sentences of imprisonment for offences under Section 44(e) and Section 76 of the Criminal Code-Section 26(1)(a) of Court of Appeal Ordinance-Appeal to the Court of Appeal from order of Supreme Court on an appeal from an inferior court can be on any ground which involves a question of law alone-Issue as to claim of right - Question of claim of right raises a question of mixed law and fact - Court finds that judge was correct in his exposition as to meaning of claim of right - Court would not apply law to facts as precluded from making findings of fact - Ground as to sentences imposed also does not raise a question of law -Appeal dismissed.

J U D G M E N T

The respondent, Francisco Mossiah was tried, convicted and sentenced in the magistrates court of offences contrary to sections 152, 44(e) and 76 of the Criminal Code, the sentences imposed being respectively 6 months, 3 months and 3 months imprisonment to run concurrently. He appealed to the Supreme Court against his conviction for the theft of $52 contrary to section 152 and against sentence on each of the other offences, having at the hearing abandoned his appeal against conviction in respect of the offences contrary to sec. 44(e) and Sec. 76 of the Criminal Code.

The learned Judge allowed the appeal against the conviction for theft, set aside the sentences of imprisonment under sections 44(e) and 76 of the Code and substituted a fine of $150 in respect of each.

The Prosecutor has appealed to this Court under Section 26(1)(a) of the Court of Appeal Ordinance and being a second appeal from the decision of an Inferior Court it is limited to questions of law only.

The facts as found by the trial magistrate were to the following effect:-

Orlando Williams, Francis Mossiah and five others were employed by a Mr. Henry at Caledonia between 16th and 20th June to cut and load sugar cane. They were paid for cutting cane about 11 p.m. on 20th June and told by Mr. Henry they would be paid for loading cane on Monday, 23rd June. Mr. Henry gave Williams $230 with which he paid the men, leaving a balance of $47 as his portion: he had in addition $5 of his own and thus possessed a total of $52. The men were entertained to food and drink by Mr. Henry and then dispersed. Williams left between 12 midnight and I a.m. and drove his truck to Calcutta Village where he saw Francis Mossiah.

The magistrate said in his reasons for judgment that up to Williams' arrival at Calcutta Village the evidence for the prosecution and the defence were the same. The magistrate continued: -

"Williams said the defendant (Mossiah) asked him for money for loading the cane. The defendant admitted he asked Williams for "a little portion of the loading". The defendant stated Williams "fired a punch" at him but the punch did not catch him. He, defendant in turn "hit him (Williams) with his right hand and saw him fall to the ground. Williams' version is that he "felt a hit at the back of his head" and he fell to the ground. When he opened his eyes he saw the defendant pointing a gun at him, telling him not to get up or he will be dead……………………………………………. The medical report stated Williams had a "cut wound to occipital area (deep and one inch length.)".

The magistrate concluded:-

"If the wound sustained by Williams was as a result of the hit he received from the defendant's right hand, the medical report would not have been what it portrayed. Williams' story is straightforward. I found that the defendant wanted to be paid for the loading of the cane and did not want to wait till Monday for his money. He decided to exact his own payments from Williams and when Williams refused to pay him he used excessive force to take away William's money. To my mind this can be nothing less than armed robbery."

That was the magistrate's view of the case he was called upon to try.

Francisco Mossiah appealed to the Supreme Court, the second of his grounds of appeal being, "2. The decisions were erroneous in point of law" and the fourth: 4. "The sentences were unduly severe. The appeal was heard on 6th March 1987 when Counsel for Mossiah raised the question of a claim of right to the money, the subject of the theft charge, to which the magistrate did not advert at the trial.

At the conclusion of the argument the learned judge under the heading "Order" stated:-

"In regard to the charge of theft, the appellant (Mossiah) has stated from the dock that "I told him if he could give me a little portion for the loading". This clearly raised a rebuttal of dishonesty. This is in fact a defence of claim of right in terms of S. 146(1) of the Criminal Code. The magistrate made no reference to the question of intent in regard to the count of theft. The conviction against theft cannot therefore stand. The appeal against conviction for theft is allowed, the conviction is quashed and the sentence set aside."

So said the judge and he continued:

"Mr. Welch (counsel for Mossiah) presses that the sentences for the other two offences are manifestly excessive for a first offender. I agree and set aside the sentences of 3 months for wounding and three months for aggravated assault and substitute a sentence of a fine of $150 for each, in default 2 months imprisonment, to run concurrently."

Thus was the appeal disposed of. It was followed on 17th March 1987 by a "Judgment" which in effect were reasons for judgment amplifying his decision on 6th March 1987 allowing the appeal against the conviction for theft and reducing the sentences in respect of the other two offences.

On 17th March 1987 the learned judge set out a summary of the evidence before the trial magistrate followed by this comment:-

"On the evidence before him, the trial magistrate was entitled to make findings that the defendant (Mossiah) was guilty in regard to the counts of wounding and aggravated assault, although they arise on the same facts. In regard to the charge of theft, he failed however to determine whether the actus reus of appropriation was combined with the mens rea of dishonesty. Sec. 145 defines theft as the "dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it."

The learned judge quoted Sec. 146(1)(a) of the Criminal Code and correctly stated that it preserved the claim of right in the old law of larceny. We would add that the subsection is identical with Sec. 2(1) of the English Theft Act 1968.

Section 146(1)(a) states:-

(1) a person's appropriation of property belonging to another is not to be regarded as dishonest -

(a) If he appropriates the property in the belief that he has in law the right to deprive the other of it on behalf of himself.

The learned judge continued:

"The evidence had in this case both from the complainant and the defendant clearly raises a claim of right on the part of the defendant. The onus is clearly on the Crown to prove the dishonest intention and to displace the claim of right which the evidence reveals. The defendant is not dishonest if he believes, whether reasonably or not, that he has a legal right to do the act which is alleged to constitute the appropriation of the property. Although claim of right was raised in the evidence, the trial magistrate failed to advert to it and did not make a finding as to the dishonest intention or otherwise of the defendant."

In the further appeal on a point of law to this Court by the Prosecutor the two grounds of appeal as we understand them are to the effect, that on appeal to the Supreme Court the learned judge erred firstly in finding that the respondent, Francisco Mossiah, in regard to the charge of theft acted under a claim of right and was thus not to be regarded as acting dishonestly; and secondly that the judge wrongly exercised his discretion in setting aside the sentences imposed by the magistrate and substituting fines.

Both of these grounds are alleged to be errors in law. As to the first ground a claim of right raises a question of mixed law and fact. It is open to this Court to analyse as a matter of law what is a claim of right in relation to the offence of theft as defined in the Criminal Code. But as this is a second appeal from the decision of an inferior court under Sec. 26 of the Court of Appeal Ordinance it is not open to us to make any findings of fact.

Sec. 26(1)(a) of the Court of Appeal Ordinance provides:

26. - (1) Where the Supreme Court makes an order on an appeal from an inferior court in a criminal cause or matter any party to such appeal may appeal to the Court from the order of the Supreme Court.

(a) upon any ground which involves a question of law alone;

In support of the first ground of appeal learned Crown Counsel purported to rely on the case of Ilena Bernard 26 Cr. App. R. 137 and adopted that view of the law as expressed by the Lord Chief Justice to the jury at the trial of Ilena Bernhard on an indictment of demanding money with menaces with intent to steal contrary to section 30 of the English Larceny Act 1916. The circumstances are set out at pp 143, 144 of the judgment of the Court of Appeal delivered by Charles J.

The jury had already retired when a note from the foreman of the jury was handed to the Lord Chief Justice, which was in these terms:

"One member of the jury, although sharing the view of the remainder that the prisoner was guilty of endeavouring to obtain money by threats, will not agree to a verdict of guilty because he holds the opinion that she honestly believed that the money claimed was due to her."

The report continues:-

"The Lord Chief Justice thereupon further directed the jury as to the meaning of the words "a claim of right made in good faith".

(and went on to say)

"In order that that kind of excuse may arise, there must be two elements: there must first of all be a claim of right, and secondly a claim of right made in good faith."

and later the Lord Chief Justice said -

"You cannot have a claim of right where the circumstances are such as to exclude the possibility of a legal claim
…………………

The question is not if she thought something or other. The question is whether on the materials it was open to her to think she had a real claim of right and made in good faith. In other words, a person cannot make a right by thinking she has one."

and the Lord Chief Justice ended by saying:-

"I direct you as a matter of law."

The Court of Appeal however at p 144, upon consideration of the relevant authorities were of opinion that the Lord Chief Justice's direction to the jury was erroneous in point of law. Thus, the decision in Bernhard did not support the learned Crown Counsel's contention based on the view of the Lord Chief Justice.

The Appeal Court in Bernhard cited with approval the following exposition of the law as stated in Stephens History of the Criminal Law of England Vol. IV p.124:-

"Fraud is inconsistent with a claim of right made in good faith to do the act complained of. A man who takes possession of property which he really believes to be his own does not take it fraudulently, however unfounded his claim may be. This, if not the only, is nearly the only case in which ignorance of the law affects the legal character of acts done under its influence."

Another example is to be found in Clayton 15 Cr. App. R. 45

It reads:

"Appellant was convicted of stealing 30.s., belonging to his wife. He has all the way through persisted that he had a right to the money. The appellant's claim to the £5 even though he might have no legal right to take the 30 s., ought to have been put to the jury by the Chairman as the defence. Whether he was right or wrong he had a bona fide belief that he had a right to the money. Therefore the appeal must be allowed."

Now that we have explained the law, if this were a trial it would be put to the jury to apply it to the facts of the case. In this instant case on appeal we are precluded from making any findings of fact. All we can do is to say that the learned judge was correct in his exposition as to the meaning in law of "a claim of right".

As to the second ground of appeal the question that arises is a matter for the learned judge in his discretion whether the sentences imposed by the magistrate were proper sentences to impose in all the circumstances. That does not give rise to a question of law and our jurisdiction in this appeal is limited to questions of law.

For these reasons we would dismiss the appeal by the Prosecutor.

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