Court of Appeal
Criminal Appeals Nos. 4 and 5 of 1993
7th February, 1994
KENNETH ST. L. HENRY, P.
SIR LASCELLES ROBOTHAM, J.A.
PROFESSOR TELFORD GEORGES, J.A.

Mr. Anderson for the Appellants
Mr. Sooknandan for the Respondent

Court of Appeal - Appeal against convictions for murder - Whether the Judge misdirected the jury as regards items of evidence capable of amounting to corroboration - Section 90(4) of Evidence Act - R. v Sharp (1993) 3 All E.R. 225 - R v. Bey (1993) 3 All E.R. 253 - Mere fact that Defendant lies is not proof of guilt - Broadhurst v R. (1964) 1 All E.R. 111 - appeal allowed - Re-trial ordered.

REASONS FOR JUDGMENT

On March 14,1991 the dead bodies of Gordon and Barbara Scott, two elderly Canadians who had been temporarily living at the Bahai Centre in Belmopan, were found lying in a pasture in Never Delay. They had died as a result of gunshot wounds to the head. A shotgun and two spent cartridges were found near the bodies and subsequent examination disclosed that one of the cartridges had been fired from the shotgun, the other from another shotgun which was not recovered.

In December 1991 as a result of information given by one Roy Gordon, a convicted prisoner, the Appellants were arrested and charged with the murders of the Scotts, and on February 22, 1993 they were convicted. They appealed against their convictions and on September 8, 1993 we allowed the appeals, set aside the convictions and ordered a new trial. We promised to give reasons in writing for our decision and now do so.

The first ground of appeal argued was as follows:

"1. (i) The learned trial judge erred in law, by having misdirected the jury as regards the items of evidence capable of amounting to corroboration of Roy Gordon's evidence, in the event that the jury found that he was an accomplice, when he told the jury:

(a) 'Again Mr. Foreman and members of the jury.?if you accept his evidence and find that Hansel Smith did threaten the life of Roy Gordon then that is capable in law of being regarded as corroboration of Gordon's evidence. And it is for you to decide whether or not the evidence does amount to corroboration, in that it connects Hansel Smith with the crime. Concerning what he says if you accept what Hansel Smith said, if you accept that it is true, that is capable in law of being regarded as corroboration of Gordon's evidence implicating Hansel Smith in the commission of this crime.'

(b) "Mr. Foreman and members of the jury, if you accept Natasha's evidence in respect of the identification of Glenford Neal I must point out to you that it is evidence capable in law of being regarded as corroboration by connecting or tending to connect him with the crime, and it is for you to decide whether or not the evidence does not amount to corroboration. If you accept her evidence that she identified Glenford Neal and it is corroboration you may find that it is independent evidence which connects Glenford Neal as the person who drove the blue van after the commission of the crime and when combined with Gordon's evidence if you accept it, of Neal driving the van away after the commission of the crime, it implicates Neal as a participant in this crime of murder. But these are questions of fact for you to decide as judges of the facts.'

(ii) The learned trial judge erred in law when he directed the jury that the fabrication of a false alibi can amount to corroboration, provided the jury is satisfied that the fabrication did not arise from mistake nor panic or stupidity, in that the judge ought further to have directed the jury that before considering a false alibi as being capable of amounting to corroboration, they must feel satisfied that the only reason for the fabrication of the false alibi was to deceive them, out of a realization of guilt and a fear of the truth, as sometimes an accused person will concoct a false alibi stupidly so as to bolster a genuine defence or just as can any other person be, the accused person or his witnesses can be mistaken about dates, times and places; and further, the learned trial judge ought to have directed the jury with regard to the fabrication of a false alibi amounting to corroboration, in the same manner as the law requires with regard to lies told in court amounting to corroboration."

The prosecution's case rested almost entirely on the evidence of Roy Gordon who stated that he had arranged with the Appellant Smith to meet at a ferry in the Never Delay area where he would act as a watchman in connection with the proposed robbery of "two white people". Smith did not turn up at the arranged meeting place and, having waited in vain Gordon was returning home by bicycle at about 2:00 p.m. when he met a blue van driven by Neal, with Smith beside him and a white man and woman seated behind them. The van stopped. Smith told the man to get out while Neal assisted the woman out. They were then taken at gun point to a nearby pasture where Smith shot the man with one shotgun and Neal shot the woman with another. The Appellants then left in the van with Neal driving.

Gordon also gave evidence, supported by one Thomas Hill, of an incident in prison when he was threatened by the Appellant Smith who told Gordon that he was "too soft to let the Police know what happened" and that he would kill him either in prison or outside.

Counsel for the Appellant submitted that since a threat could have been made either by a guilty person attempting to silence a truthful potential witness or by an innocent person angered by the perfidy of that witness, such a threat could not be regarded as corroboration of that witness. We do not agree. We consider that in suggesting to the jury that the threat was capable of amounting to corroboration however, the judge ought to have made it clear to them that since a threat may be made either by a guilty or an innocent person, it could only amount to corroboration if they were sure that it was made by a person conscious of his guilt and attempting to escape punishment by silencing the witness. His failure to do so amounted to a misdirection.

Another prosecution witness, 11 year old Natasha Pook, gave evidence of seeing two men run from a blue van which they parked on Santa Maria street where she lived and which turned out to be a van owned by the deceased. One of the men, the driver of the van, she identified as the Appellant Neal and the other as a "clear skin man" who was not the Appellant Smith. This, she said, was at about 10:00 a.m. while she was playing on the sidewalk at a time when her sister had not yet come home from school. She herself went to school that afternoon and school normally closed at 3:30 p.m.

It is clear that her evidence was not capable of corroborating the evidence of Roy Gordon. At 10:00 a.m. the murders, according to Gordon, would not yet have been committed. At 2:00 p.m. and until 3:30 p.m. would have been in school, so that it cannot be said that she merely made an error as to the precise time. Furthermore according to Gordon both Appellants left the scene of the murder in the van, whereas Natasha identified one of the occupants of the van as a person other than the Appellant Smith. The identity of that other man was not disclosed at the trial and Smith cannot be described as a "clear skin man". In the circumstances we are of the view that the learned trial judge misdirected the jury when he told them that Natasha's evidence was capable of corroborating Gordon and was "independent evidence which connects Glenford Neal as the person who drove the blue van after the commission of the crime".

Section 90(4) of the Evidence Act provides that "a person shall not be convicted solely on the uncorroborated evidence of an accomplice". The learned trial judge had left the issue of accomplice vel non to the jury and we cannot say whether they found that Gordon was an accomplice. These misdirections on corroboration were therefore fatal to the convictions.

As regards the submission with respect to a false alibi as corroboration, like the English Court of Appeal in R v. Sharp (1993) 3 All E.R. 225 at 230 and R. v. Bey (1993) 3 A11E.R 253 at 257, we approve the following specimen direction recommended by the Judicial Studies Board in England:

"The prosecution has alleged that the defendant lied [to the police] [in giving evidence of his alibi]. If you are sure that he did, you must consider why he lied. The mere fact that a defendant tells a lie is not itself evidence of guilt. A defendant may lie for many reasons, for example: to bolster a true defence, to protect someone else, to conceal disgraceful conduct of his, short of the commission of the offence, or out of panic or confusion. If you think that there is, or may be, some innocent explanation for his lies then you should take no notice of them. But if you are sure that he did not lie for some such or other innocent reason, then his lies can [be evidence going to prove guilt] [amount to corroboration]."

The important point to be brought home to the jury is that the mere fact that defendant lies is not necessarily proof of his guilt. "Ibis is emphasized by the following dictum of Lord Devlin in Broadhurst v. R. (1964) 1 All E.R. 111 at 119:

"It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if on the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course on all the circumstances and especially on whether there are reasons other than guilt that might account for the untruthfulness. This is the sort of direction which it is at least desirable to give to a jury."

In the present case the judge told the jury:

"I must point out to you Mr. Foreman and members of the jury, that the fabrication of alibis to deceive the jury can be corroboration in itself provided you the jury are satisfied that the falsity has not arisen from mistake and the fabrication is not due to panic or stupidity."

He repeated these directions on two occasions, but he also told the jury:

"If you find that both accused Neal and Smith told lies about where they were at the material time when the crime was committed, that does not by itself prove that they were where the identifying witness (in this case Gordon) says they were. You must ask yourselves this question: Is there evidence which you accept as a fact that both accused were at the scene of the crime at the material time on the 6th of March, 1991 and committed the crime?"

Viewing the summing up as a whole we do not consider that there has been a misdirection by the judge in this regard.

The second ground of appeal argued was as follows:

"The learned trial judge erred in law, by having misdirected the jury on the law as it relates to evidence of identification, in particular that ?

(i) he failed to explain to the jury the reason for caution when approaching the issue of identification;

(ii) he failed to remind the jury that even an honest witness can be a mistaken witness;

(iii) he failed to remind the jury that even as regards the recognition (as distinct from the mere identification) of someone, mistakes can, and are sometimes made."

The directions of the judge were as follows:

"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 make mistakes, A mistaken witness could be a convincing one and a number of such witnesses could all be mistaken. You have to examine closely the circumstances in which the identification by 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, a crowd of people? Have the witnesses 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 witness when first seen by them and his actual appearance?"

This was not a "fleeting glance" recognition by the witness Gordon. According to his evidence he came face to face with the Appellants. He had known the Appellant Neal for over 7 years. He had arranged with Smith to meet him at a ferry in the Never Delay area and after the murder Smith told him to come to Smith's home that night. He was then given by Smith rings and money "because of the job I did for him i.e. the watchman job". The identification by Natasha Pook was for the reasons we have given irrelevant. In the circumstances we consider that the judge's directions on identification were adequate.

A number of other grounds of appeal filed were abandoned. For the reasons we have given, however, we allowed the appeals. We considered that the interest of justice required that there be a new trial of the Appellants and we so ordered.

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