Court of Appeal
Criminal Appeal No. 3 of 1985
13th June, 1985
SIR JAMES A. SMITH P.
SIR ALBERT L. STAINE J.A.
KENNETH ST. L. HENRY J.A.

Appeal against conviction and sentence of death imposed for murder - statement made under caution - allegation by appellant in voir dire that he was beaten by police and sustained injuries for which he had been treated by a doctor - evidence not refuted by Prosecution - presumption that if a person is injured while in the custody of the Police, Police are responsible for injuries - reasonable doubt as to voluntariness of statement - onus not discharged by Prosecution - statement ought not to have been admitted in evidence - no other evidence capable of supporting verdict - appeal allowed - conviction set aside.

J U D G M E N T

On January 30, 1985 the Appellant was convicted for the murder of Walter Belisle and sentenced to death. This is an appeal against that conviction.

Evidence led by the prosecution indicated that the deceased, a 76 year old farmer, lived alone but occasionally gave lodging to persons in need of it. The Appellant was seen in the deceased's premises on Sunday, Monday and Tuesday the 15th, 16th and 17th July, 1984 and was last seen there by one Roy Joseph at about 6 p.m. on Tuesday July 17. The following day at about 7 a.m. the body of the deceased was found lying in the bed in his home. The body had two stab wounds in the neck approximately ½ centimeter apart piercing the internal carotid artery and jugular vein and fracturing the second vertebra of the neck. Haemorrhage from these wounds caused death. At the time the body was discovered the appellant was not on the premises and money which had been counted in his presence and placed in a purse and a bottle was missing. So was a radio. On July 31 1984 the Appellant was found in an unoccupied house outside Santa Elena Town. According to Cpl. Valentine he cautioned the Appellant who said that he wished to speak to his mother and after being afforded an opportunity of doing so gave a written statement to the police. According to the Appellant he was illtreated by Cpl. Valentine and gave a written statement to avoid further illtreatment. After a hearing on the voire dire the learned trial judge expressed himself as satisfied beyond reasonable doubt that the statement was given freely and voluntarily and ruled that it was admissible in evidence. This ruling is the subject of the first ground of appeal which complains that the ruling was unreasonable having regard to the evidence.

Two witness gave at the hearing on the voire dire- Cpl. Wellington Valentine for the prosecution and the Appellant. The gist of Cpl. Valentine's evidence was that he took a statement from the Appellant that no force or pressure was used on the Appellant and that the Appellant gave his statement freely and voluntarily. The Appellant on the other hand said that Cpl. Valentine boxed him on his right jaw, punched him in his belly and struck him on the foot with a staff and that he gave a statement to avoid further punishment. If the matter had ended there, it would have been a straight issue of fact for the learned trial judge to decide with a view to determining whether the prosecution had discharged the onus of proving beyond reasonable doubt that the statement was voluntary and therefore admissible. But the matter did not end there. In answer to the learned trial judge the Appellant said that he had been taken to a doctor and treated for the injuries he received. In cross examination he had already said that he had reported his illtreatment to prison officer Flowers and to an attorney, Mr. Sampson, and he rejected the suggestion that he had a fight with a prisoner after the statement was taken and before he was brought to Belize. We recognize that the learned trial judge had the inestimable advantage of observing the witnesses and as an appellate court we would not ordinarily question his assessment of their credibility. We also recognize that the appellant's evidence suggesting that at the time of the trial in January 1985 he still had marks of the bruises he said he suffered some six months earlier appears incredible. Nevertheless at the conclusion of the hearing on the voire dire there was clear evidence from the Appellant that he had suffered injuries after being apprehended by the Police. Not only was this evidence unrefuted by the prosecution but the suggestion put to the Appellant in cross examination of a fight with another prisoner appears to indicate that the prosecution accepted that the appellant had suffered injury but was alleging that it was not at the hands of the Police. However no evidence to support the suggestion was ever led, nor was any attempt made to call the doctor who the Appellant said had treated him, with a view to ascertaining the nature and extent of his injuries, if any. Prima facie if a person is injured while in the custody of the Police the presumption must be that the Police are responsible for these injuries. In the circumstances it was in our view essential to their case for the prosecution to call evidence by way of rebuttal.

The learned trial judge gave no reasons for his decision but with great respect to him it seem to us that on the evidence as it stood the allegation by the Appellant must at least have raised a reasonable doubt as to the voluntariness of the statement. Consequently the prosecution failed to discharge the onus which lay on them of proving beyond a reasonable doubt that the statement was voluntary and admissible. In our view the ruling of the learned trial judge that the statement was voluntary was unreasonable having regard to the evidence, and the statement ought not to have been admitted in evidence.

It was the statement which placed the Appellant on the scene at the relevant time and contained an admission that he then struck the deceased, albeit with a crowbar, an implement which could not have caused the fatal wounds. The evidence for the prosecution apart from the statement does not go beyond placing the appellant on the deceased's premises at about 6 p.m. on July 17. There is no direct evidence as to what took place on those premises after the witness Norman Garcia locked them at about that time and indeed Garcia's evidence is that he did not then see the Appellant on the premises. The Appellant in his unsworn statement from the dock said that he left the deceased alive at about 9:40 p.m. on July 17 and went to stay in a friend's house where the Police eventually found him. The medical evidence places the time of death as between 11 p.m. on July 17 and 1a.m. on July 18. There is no evidence that any of the articles missing from the deceased's house was found on the Appellant. The evidence apart from the written statement is circumstantial and not in our view sufficient to support the conviction.

In view of the conclusion which we have reached in relation to this ground of appeal it is not necessary to consider the other grounds of appeal.

The appeal is allowed and the conviction set aside

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