Court of Appeal
Criminal Appeal Nos. 3 and 4 of 1983
25th May, 1983
SIR JOHN SUMMERFIELD P.
SIR JAMES SMITH J.A.
ALBERT L. STAINE J.A.

Criminal Appeal against conviction and sentence for dangerous harm - Common enterprise or common purpose to escape - Corroboration - Need for trial judge to warn jury to treat incriminating evidence with caution and to look for corroboration before relying on it - First Appellant complaining on appeal that evidence during the trial in the court a quo that he was an 'escapee prisoner' was prejudicial to him and trial judge should have directed the jury to disregard it - First Appellant failing to make objection during the trial - Section 150 (1) (d) of the Indictable Procedure Ordinance making it mandatory that such an objection should be taken during the trial - In determining complaint, Court of Appeal to take account of the failure to make objection at the proper time, and to weigh the prejudicial effect of the evidence to see if there was a miscarriage of justice - Juror - One of the jurors was a brother of a prosecution witness - No court official involved in the trial aware that juror was brother of prosecution witness - Appellants challenging the qualification of the juror after exhausting their preemptory challenges - Appellants not advancing any reasons for challenging qualifications of juror - Trial judge disallowing Appellant's challenge - Trial judge, court officials and Appellants knowing of the relationship between juror and prosecution witness after the trial - Whether there was a need to order a venire de novo - Appropriate circumstances in which a venire de novo should be ordered - Burden of proof - Proper approach to summing up prosecution's burden of proving its case beyond a reasonable doubt - Gonzalo Rivas v R, referred to with approval - Meaning of the word "satisfied" and its cognate expressions in summing up burden of proof - Satisfied construed to mean "satisfied so that you feel sure" - Role of the Court of Appeal in criminal appeals - Need to ensure there has been no miscarriage of justice - Section 31(1) of the Court of Appeal Ordinance.

J U D G M E N T

The two Appellants were tried together on alternative charges of attempted murder and dangerous harm. Named with them in each count as being implicated with them in each offence was one Johnson Franklin, who was not tried with the Appellants. The Appellants were both found guilty of dangerous harm contrary to section 78 of the Criminal Code and each was sentenced to seven years imprisonment with hard labour. Both appealed against conviction and sentence. Neither was represented at the trial or on this appeal.

The case for the prosecution rested primarily on two witnesses, John Flowers, a taxi driver, and P.C. Santiago Choc who was the virtual complainant and the police officer injured in the incident about to be related. What follows is based substantially on their evidence.

On 27th March, 1982 at about 5:45 p.m., P.C. Choc was on duty at the junction of Western Highway and Hummingbird Highway. He received certain information. Later he saw the Appellants and Franklin emerge from the bush and head towards Belize City. He stopped them and asked them their names which they refused to give. One of the three had a white bucket containing gasoline. Asked where they were going they said they were going to Mile 44 (on the Belize City/ Belmopan Highway) where they said they had a pick-up which had run out of gas. A taxi driven by Flowers came from the direction of Belmopan and P.C. Choc stopped it. In it they all drove to the Belmopan Police Compound. At the police station they were questioned by Corporal Logan. Asked to give their names and addresses, the two Appellants gave false names. Corporal Logan then asked P.C. Choc to accompany them to Mile 44 to verify their story. Flowers agreed to take them for a fee of $15.00.

They then drove towards Mile 44 in the taxi driven by Flowers. Next to Flowers in the front was the first Appellant. In the middle of the back seat was Franklin. Next to Franklin on the right of the back seat was P.C. Choc.

Before they left a T.S.U. Officer handed P.C. Choc a revolver.

They drove to Mile 44. No vehicle was seen. They continued to Mile 43. Still no car was seen. The taxi made a U turn and started heading towards Mile 44. Thereupon the first Appellant put a hand around Flowers' neck and pulled his head back to the seat. At the same time he put a sharp instrument to Flowers' throat and said: "Freeze". The first Appellant then told Flowers to stop the taxi and he did so.

Flowers then saw Franklin in the back seat snap P.C. Choc's hand. The second Appellant got out of the front seat, opened the back door, and helped Franklin get P.C. Choc out. All the while the first Appellant held the knife against Flowers. The first Appellant then used the knife to poke at the courtesy light. He broke the bulb in it and extinguished the light. He then let go of Flowers and went out through the same back door as P.C. Choc had gone. All three, together with P.C. Choc, were then out of the taxi.

Flowers heard P.C. Choc grunt twice. Flowers made his escape from the taxi and lay in the long grass. He heard one of the three say "Let's go back and finish the dumb bitch". They returned to the car and opened a door. One of them said "the bitch carry the key too". The door was slammed. One said: "which way to Belize City " and they all ran off.

Flowers then helped P.C. Choc into his taxi. He was complaining about his back and Flowers pulled a knife blade from it. P.C. Choc was taken to hospital where he was found to be in respiratory distress. He was cold and clammy and bleeding from the nostrils and mouth. He had fluid in the left lung. Apart from bruises on his face, he had no less than five penetrating stab wounds half an inch thick; one on the right side of the neck, three on the right shoulder blade and one on the left lower down.

P.C. Choc's account of the main incident complements that of Flowers. He said he was squeezed by Franklin against the door before it stopped. Then the second Appellant got out of the front and opened that door. He was pushed out and fell into a drain. He tried to get up and run but was tripped and fell on his stomach. Franklin grabbed his hand. He felt blows on his back. The second Appellant was nearby at the time, grabbed his other hand and started punching him in the face. Thereupon the first Appellant joined in and hit P.C. Choc on the back twice while the first Appellant held on to his hand. The second Appellant grabbed Flowers' revolver. P.C. Choc ran towards the taxi, got in, and lost consciousness.

Of course, one of the main issues at the trial was whether the Appellants were engaged in a joint enterprise, acting with a common purpose jointly and this aspect was dealt with at great length and in detail by the learned trial judge. If acting in concert each would have been responsible for the wounds inflicted on P.C. Choc by one more of them.

In an unsworn statement from the dock the first Appellant's version leading up to the time just before P.C. Choc received his wounds had much in common with the prosecution evidence. He admitted extinguishing the courtesy light but claimed that he had first asked Flowers to turn it off. He did not explain why he wanted it off. He spoke of a "hassle" with Flowers after which he alleges both let each other go. On leaving the car he saw P.C. Choc down on the ground. He claims that he then panicked and ran into the bush. He said he did not harm or threaten P.C. Choc in any way.

The first Appellant called Franklin as a witness. Franklin's evidence also had something in common with the prosecution evidence but with a gloss which exornerated the first Appellant from any violent acts and implicated the second Appellant as the culprit. He claimed that P.C. Choc had shoved the gun into his side; that he got excited, grabbed it and that a struggle ensued. Following the struggle the second Appellant ran away and Franklin followed. He claims that while running the second Appellant admitted to having "juked the policeman". It does, however, appear from Franklin's evidence that the first Appellant was actively engaged in the escape-no doubt the central theme of the joint enterprise. Re said that the first Appellant, whose witness he was, said: "Let's get out of here because those policemen trying to kill us".

In the course of his cross examination, Franklin said: "We walked in the bushes. We were escaped prisoners so we walked through the bushes". That was a matter of complaint by the second Appellant on this appeal. He claimed that "it was prejudicial and that the learned trial judge should have directed the jury to disregard it."

The second Appellant also gave an unsworn statement from the dock. He claimed that after the taxi had turned around a hassle started. He got out because two men were struggling with a gun behind him. The hassle, according to him, was between Franklin and P.C. Choc and they all ran off in the same direction. He claimed that he did not cause any kind of harm to P.C. Choc. His supporting witness did not assist the substance of his defence in any way.

It may be observed that there were no direct denial that the three were engaged in a common enterprise to escape. If anything their admissions strengthen that aspect of the prosecution case and certainly it must have been the common intention at the point in time when they fled together in the same direction.

It should also be observed that the learned trial judge warned the jury to approach the evidence of Franklin with caution in so far as it incriminated the second Appellant and he directed that they should look for corroboration before acting on it against the second Appellant. There was, of course, ample corroboration.

Dealing first with the complaint of the second Appellant concerning the statement by Franklin that they were escapee prisoners. It is correct that the learned trial judge did not direct the jury to disregard that evidence. Equally, any complaint about the admission of that evidence should have been made at the trial but was not. One recognises that the second Appellant was not represented at his trial but if he was sufficiently articulate to make the complaint to this court he could have made it at the trial if he felt aggrieved. Indeed, it is mandatory that such an objection should be made at the time the evidence was given, section 150 (l)(d), of the Indictable Procedure Ordinance. Unless so taken the Supreme Court was precluded from entertaining the objection - section 150(2). This would not preclude this Court from evaluating the prejudicial effect of any evidence improperly admitted in appropriate cases, but this Court would also have to take account of the failure to take objection at the proper time. Had objection been taken as required by section 150(1)(d), the learned trial judge could have determined its relevance as constituting a motive for the common enterprise to escape from P.C. Choc and, further, whether its probative value outweighed its prejudicial effect. As it was, no mention was made of this evidence in the summing up. In the circumstance of this case, as will appear when an important ground is dealt with later, this isolated lapse could not have led to a miscarriage of justice.

The second ground of complaint was that one of the jurors was the brother of a prosecution witness, Sgt. Manuel Vivas. This allegation was not supported by affidavit but this Court caused enquiries to be made and it turns out that one juror was, in fact, the brother of Sgt. Vivas and that that juror had been challenged by both Appellants. The challenge was disallowed.

What happened was that both Appellants had exhausted their five preemptory challenges when the brother of Sgt. Vivas was called. The Appellants objected assuming that they had further preemptory challenges to exercise. They gave no reason for the challenge. In fact it is admitted that there was no reason they could have put forward by way of challenge for cause as they did not know at the time that the prospective juror was related to Sgt. Vivas. They only became aware of the fact some time after the trial. The preemptory challenge in excess of quota allowed by law is disallowed. There is nothing to suggest that the trial judge, prosecuting counsel or any court official was aware of the relationship. Indeed, one can safely assume that they did not.

Had it come to notice at any time before verdict the trial judge could have made an order, if he saw fit, under section 150(3) of the Indictable Procedure Ordinance. It did not so come to notice.

There is nothing to suggest that the juror concerned was disqualified for service as a juror under section 6 of the Juries Consolidation Ordinance or exempted from such service under section 7 of that Ordinance. Prima facie he was qualified to serve as a juror. In the circumstances he could only have been prevented from serving on the jury if he had been successfully challenged by the Appellants or one of them under section 24 of that Ordinance. The only ground on which he had been challenged was under section 24(2)(g) namely-

"(g) any circumstance which in the opinion of the Court is likely to cause prejudice against the accused person or which renders a person as improper as a juror."

No doubt if so challenged, any trial judge would have excused the prospective juror on the ground that, as a brother of a prosecution witness, it would not be proper for him to serve as a juror. However, that was not done for the very good reason that no one concerned with selection was aware of the situation.

According to Halsbury's Laws of England 3rd. Ed. Vol. 23 p. 29 para. 55:

"If facts relating to the qualification of a juror which could have constituted grounds for a challenge for cause becomes known to a part only after the trial, the court will normally order a "venire de novo", except in a case where there has been an impersonation of a juror or a mistake as to identity."

There is nothing to suggest inpersonation or mistake as to identity. As the qualification of the juror is not in dispute there is still less reason to order a venire de novo.

When one examines the evidence of Sgt. Vivas it is clear that it does not carry the case further in relation to either Appellant one way or the other. His evidence amounted to a link in a chain identifying the Appellants as two of the three persons who set off from the police station in Belmopan with Flowers and P.C. Choc to Mile 44. As it turned out identification was not an issue. His evidence was, therefore, unnecessary and, at best, a mere formality. He was not even cross-examined by either Appellant.

There is nothing to suggest that either Appellant suffered any prejudice by reason of the juror concerned serving as a juror. The jury can return a majority verdict of 7 to 2. Here the verdict was unanimous. There is no reason to suppose that there could have been any miscarriage of justice.

Consideration can now be given to an aspect raised by this court of its own volition but which had not been raised as a ground of appeal by either Appellant. Having read the record this Court considered it right to invite the learned Director of Public Prosecutions to address the Court on the adequacy of the directions on the burden and standard of proof and to allow the Appellants to reply.

In the summing up the general direction on this aspect was in the following terms:

"In a criminal trial the burden of proof is on the prosecution, always. What that means in effect is that the prosecution must prove to your satisfaction that these accused committed the offences with which they are charged. The accused do not have to do anything. They may question the witnesses, they make a statement from the dock as they have done in this case, they may call witnesses on their behalf; but all that will be is an attempt to show that the prosecution case is not good enough. It is not encumbent on them to prove anything. They can just stay silent and say you are accusing me of this offence, you prove it. And it is, throughout the evidence of this case, the duty of the prosecution to satisfy you on the facts. Now I deliberately used the word satisfy in the first instance but bearing in mind that in most human affairs one cannot be satisfied a hundred percent, the law does not require the impossible - you are required therefore to be satisfied beyond a reasonable doubt. Now a reasonable doubt is not a fanciful doubt, I mean, not saying well I am not sure, I kind of feel it is so. Your doubt must be related to the facts and you must feel sufficiently uncertain to say I am not satisfied that the accused is guilty of this offence. The prosecution will seek to prove from the evidence that there is sufficient evidence for you to be satisfied that it was these accused who did what the prosecution says they did. It is for you to decide whether you are reasonably sure that that is how the thing happened. And once you feel reasonably sure about certain facts you will then put the facts together to see whether they constitute the offence which I will define to you as a matter of law."

That is inadequate. It does not convey sufficiently to the jury the high standard of proof that they have to apply in determining the issues before them so as to justify a conviction.

Much of what is contained in that direction is unexceptionable. But a reasonable doubt is a case of saying "well I am not sure". The standard contained by the expression "reasonably sure" (used twice) is below that which applies in this jurisdiction. This court has dealt with this aspect fully in the recent case of Gonzalo Rivas v. R. Criminal Appeal No. 2 of 1983 and so it is unnecessary to deal with the matter at length in this judgment. It is clear from that judgment that the above quoted direction standing on its own is unacceptable.

Some observations on the use of the expression "satisfied" and its cognates may be of assistance. In England it would appear that in cases other than those involving the doctrine of recent possession, the expression "satisfied" in defining the standard of proof required is acceptable: e.g. Blackburn v. R. 39 C.A.R. 84 (a case involving fruad). That that approach is acceptable in this jurisdiction would appear to be reflected in the decision of this court in Frederick Reynolds v. R. Criminal Appeal No. 3 of 1978. It is, therefore, not open to this court to say that that expression in a proper context insufficiently conveys the high standard applicable. However, as will appear from Rivas' case, there is much merit in using the expression "satisfied so that you feel sure" or the expression "sure" alone in an appropriate context. Equally, "completely satisfied" appears to be acceptable in English cases involving recent possession (where "satisfied" alone has been held to be insufficient) e.g. R. v. Hepworth and Fearnley 1955 39 Cr. App. R. 152.

Having expressed a view on the general direction it becomes necessary for this Court to examine the summing up as a whole and to determine whether in the light of the overall effect there are grounds for intervention. Further, this Court must analyse as a whole to determine how it should exercise its powers within the framework of section 31(1) of the Court of Appeal Ordinance 1967 which is in the following terms:

"The Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the Court before which the Appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal:

Provided that the court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the Appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

The duty imposed on this Court and the approach it should have to any case under appeal is clear. The examination and analysis must be fair and realistic. A prime function is to determine whether there has been a miscarriage of justice.

The learned trial judge put the defences of the two Appellants to the jury very thoroughly and fairly. Indeed, he went so far as to treat and refer to, their unsworn statements as "evidence". He dealt fully with the evidence of Franklin, the witness called by the first Appellant and gave a warning as to the necessity for corroboration in so far as it implicated the second Appellant. Franklin was obviously an accomplice.

Towards the end of his summing-up the learned trial judge directed the jury in these terms:

"If you accept the evidence that Mayen did nothing you can act on that and discharge Mayen. If, however, you feel he is lying, you still have to examine the evidence of the prosecution and be satisfied that things happened the way Choc and Flowers say they happened before you can convict these accused of anything. This would necessarily mean you also disbelieved their dock statements. If you disbelieve the accused and you disbelieve Franklin, and if you believe the prosecution case, you must then satisfy yourself that the attack on P.C. Choc was made by both accused with the common intention of either killing him, in which case it would be attempted murder or of causing him serious harm, in which case it would be the offence of causing dangerous harm. If you believe the accused or even if you are not satisfied with the prosecution witnesses, you will find that accused not guilty of any offence. If you believe Franklin that it was Sanker who stabbed and that Mayen took no part in the assault, which means you disbelieve Flowers and Choc in so far as their evidence relates to Mayen, you will find Mayen not guilty and then try to decide which of these offences Sanker has committed."

At this stage the learned trial judge directed the jury that the issue was whether they believed Flowers and P.C. Choc. That was made very clear to the jury. It is equally clear from their verdict that the jury did believe those witnesses. Once their evidence is believed then it must follow that the Appellants and Franklin were acting in consort even though the common plan to effect escape may have come about spontaneously when the taxi turned to return them to Belmopan, their ruse about their pick-up running out of gasoline at Mile 44 having been exposed. With P.C. Choc armed with the revolver, escape must necessarily have required force. The case against the two Appellants was extremely strong once Flowers and P.C. Choc were believed. The Appellant's own unsworn statements and the evidence of Franklin lent support to the conclusion that they were acting in concert in a common enterprise to escape forcibly. Once that was established it did not matter whose hand it was that used the knife.

In fact, a simple common approach to undisputed fact demonstrates what an overwhelming case it was against the two Appellants. It is not in dispute that the two Appellants and Franklin set off for Mile 44 seated in Flowers' taxi as described earlier. It is not in dispute that Flowers was driving and that P.C. Choc was with them armed with a revolver. It is not in dispute that they passed Mile 44, saw nothing significant and went on to Mile 43 where the taxi turned to return. It is not in dispute that the incident (or "hassle") occurred following this turn. That incident left P.C. Choc unconscious with five stab wounds and Flowers hiding in terror for his life in the long grass until help arrived. That incident enabled the two Appellants to make their escape (as prison escapees they no doubt had a motive) into the bush and they were not picked up until some time later. What is the obvious inference from those unchallenged facts without the detailed evidence of Flowers and P.C. Choc about the incident or "hassle" leading to escape?

This Court can confidently rule out the possibility of a miscarriage of justice and apply the proviso to section 31 of the Court of Appeal Ordinance.

As to sentence, it is certainly not manifestly excessive. No one who commits an attack of this nature on police officers can look to this Court for any sympathy.

The appeals against conviction and sentence are dismissed.

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