Court of Appeal
Criminal Appeals Nos. 5 and 6 of 1992
18 September, 1992
KENNETH ST. L. HENRY, P.
DR. N.J.O. LIVERPOOL, J.A.
SIR. LASCELLES ROBOTHAM, J.A.

Mr. Sampson for the Appellant Aguilar
Mr. Sabido for the Appellant Martinez.
Mr. Sooknandan for the Respondent

Appeal - Criminal law - Murder - Corroboration - Misdirection of the jury - Section 90(4) of the Evidence Act - Evidence of one accomplice cannot corroborate evidence of another - In light of misdirections appeal allowed - Convictions set aside - New trial for one Appellant.

J U D G M E N T

On March 31, 1992 the Appellants were convicted for the murder of one Rodolfo Cardenas and sentenced to death. They appealed against their conviction.

The principal witness for the prosecution at the trial was one Mario Eck, a taxi driver who had originally been arrested and charged by the police for the murder, but not indicted, and whose evidence was that on November 20, 1991 he was hired by the Appellant Martinez to take him from Orange Walk to Corozal along with one Hugo. The next day on Martinez' instructions he went to the Maya Hotel in Corozal and took the two men to Orange Walk Trial Farm to the home of the Appellant Aguilar. Later that morning, again on Martinez' instructions, he returned and took four persons, including the two Appellants, to Douglas Village in the area of the deceased Cardenas' home where they stopped. No one came out of the car and after a few minutes they left and returned to Orange Walk to Aguilar's home. On November 22, 1991 he was again hired by Martinez and took the same four men, first to the area of Cardenas' home, then to a shop for refreshments and eventually to a sugar road on the way to Orange Walk where he passed two persons on bicycles, one of whom was the deceased. On Martinez' instructions the taxi stopped, Martinez and Hugo came out of the taxi, produced pistols and forced the two person to enter the taxi after tying their hands behind their backs. The fourth man, Luis, pointed a gun at his neck while the two men were being tied up and he was ordered to continue driving after the men reentered the taxi. He obeyed and heard Martinez, who was then in the front of the taxi, arguing with the two men who had been tied up, about a load of cocaine. While this was going on a physical assault of the two men also took place and he heard the sound of a shot. When he looked round he saw a gun in Martinez' hand pointed at Cardenas' forehead.

Cardenas died from a gunshot wound to the left side of the forehead, and his body was taken from the taxi and left by the side of the road. Mr. Eck later made a report at the Orange Walk police station that he had been kidnapped and his taxi taken. This he said he did on the instructions of Martinez and later he drove Martinez and another man to the Guatemalan border.

A ground of appeal which was argued on behalf of both Appellants is that the learned trial judge misdirected the jury in relation to corroboration of Mr. Eck in the event that the jury found that he was an accomplice.

Section 90(4) of the Evidence Act provides as follows:

"(4) In a trial before any court, a person shall not be convicted solely on the uncorroborated evidence of an accomplice, and the judge shall direct the jury that the accused is not to be convicted unless there exists confirmation of the accomplice's evidence in a material particular by some fact or circumstance implicating the accused in the commission of the crime."

It was submitted that there was no evidence capable of amounting to corroboration of Mr. Eck and that therefore the jury ought to have been directed that if they found that Mr. Eck was an accomplice then in so far as the Appellant Aguilar was concerned they ought to acquit him. The learned trial judge in fact told the jury:

"It will be your duty in this case to look at the evidence, to examine the evidence to see whether in this case there is any corroborative evidence. So Mr. Foreman and Members of the Jury, in looking for corroborative evidence to support what Mario Eck says you may find in the evidence of Filiberto Muy evidence which confirms the following events:

(1) he Muy and Cardenas were riding their bicycles on the sugar cane road in Douglas Village at about 11.30 a.m.;

(2) that a car stopped and some armed men came out and forcibly took away their cycles, bound them and forcibly force them into the back seat of this car;

(3) that while in the car, he Filiberto Muy and the deceased Cardenas were beaten with fists and the butts of guns;

(4) that whilst they were being beaten in the car and questioned Cardenas was shot;

(5) that he escaped by running from the car in the cane field and shots were fired.

You may find that Muy's evidence corroborates the events as stated by Mario Eck but this evidence is deficient in that it does not point out who were the persons involved. He is unable to identify any of the defendants and he is unable to recognize even the taxi driver Mario Eck but you may say that this is evidence that confirms the events referred to by Mario Eck.

And then you have the statement given by Martinez in the caution statement and also the unsworn statement he made from the dock. This caution statement confirms that:

(1) he Martinez and others and the accused Roberto Aguilar hired Mario Eck's taxi to take them to Douglas Village;

(2) That they having driven along the village and Cardena's home they drove along the sugar road in Douglas Village;

(3) that while driving along the sugar road they saw two men on cycles, one was Cardenas the deceased and another person whom they apprehended. Cardenas and Muy were placed into the back seat of the car. They were being beaten;

(4) that in the back seat of the car was Roberto Aguilar, Hugo and the other Galeano and that he Martinez was seated in the front seat of the car with Mario Eck who was the driver;

(5) that Cardenas was shot while he was seated in the back seat of the car.

Likewise in the statement from the dock Martinez confirms what he states in the caution statement except that he makes no reference to accused Roberto Aguilar and furthermore states that it was Hugo who accidentally fired the gun that killed Cardenas.

So Mr. Foreman and Members of the Jury, you may find you have corroborative evidence in the caution statement made by Martinez and the unsworn evidence of Martinez. It is for you Mr. Foreman and Members of the Jury, to decide whether the evidence of Muy and Martinez provides corroborative evidence. I am suggesting to you and I am directing you that these pieces of evidence are capable of amounting to corroborative evidence to corroborate Mario Eck's evidence if you find that he was an accomplice. However you must bear in mind that whatever Martinez says is only evidence against himself and not the accused Aguilar."

In our view these directions may well have misled the jury into believing that there was evidence capable of amounting to corroboration. In fact the evidence of Mr. Muy could not amount to corroboration because it did not identify and therefore implicate either appellant. (Vide R. v. Baskerville (1916) 2 K.B. 658.) The evidence of one accomplice cannot corroborate the evidence of another accomplice and in the caution statement the Appellant Martinez said that the gun went off accidentally while he was hitting Cardenas with it, while in his unsworn dock statement he said that someone else had shot Cardinas so that neither statement could corroborate Mr. Eck's evidence. There was therefore no evidence capable of amounting to corroboration of Mr. Eck. It was open to the jury to convict Martinez of murder on the basis of his unsworn statement if they believed that the shooting was in the course of a joint enterprise to which Martinez was a party, but the jury received no clear directions in this regard, the directions being confined to a joint enterprise between the two Appellants. It was also open to the jury to convict Martinez of manslaughter on the basis of his caution statement if they believed that there was confirmatory evidence from Mr. Muy, but again they received no directions in this regard. In the light of these misdirections the appeals must be allowed.

In addition, in so far as the Appellant Aguilar is concerned the only evidence which implicated him is that of Mr. Eck. No identification parade was held. Mr. Eck admitted in cross?examination that at the preliminary inquiry he had at first said "I cannot identify any of the accused. I do not know any of them" although later he identified them. He also admitted in cross examination that he might be mistaken in his identification of the Appellant Aguilar. Even if the jury believed that he was not an accomplice and could therefore act on his uncorroborated evidence we do not consider that evidence sufficiently strong to justify an order for a new trial.

It was also argued on behalf of the Appellant Aguilar, and conceded by the Crown, that the summing up was defective in relation to the questions of intention and of joint enterprise. We have recently in Winswell Williams v. R. C.A. 2/92 dealt with the question of intention and the effect of section 9 of the Criminal Code. We wish only to emphasize that by virtue of section 9 the presumption, which exists in other jurisdictions, that a man intends the natural and probable consequences of his actions is not part of the law of Belize. A jury should not therefore be invited to apply such a presumption in the course of determining an accused person's intention but should be told, in accordance with section 9, that the fact that in their view a particular result is a natural and probable result of a person's conduct is merely one of the relevant factors to be taken into consideration in determining whether the person intended to produce that result by his conduct.

In so far as the question of joint enterprise is concerned it may be of assistance to refer to the principle to be applied, as it is expressed by Lord Parker in R. v. Anderson: R. v. Morris (1966) 1 QB at p. 118:

"...where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (and this is the crux of the matter) that, if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co?adventurer is not liable for the consequences of that unauthorised act."

In applying the principle it is essential for a jury to determine the nature and extent of the joint enterprise and, where the use of violence is part of that joint enterprise, the extent of violence which is or may reasonably be regarded as being within the contemplation of the parties to it. When death results, it is of particular importance to determine whether the act which resulted in death was one which was within the scope of the enterprise. If it was, it becomes the responsibility (albeit in varying degrees) of all the parties to the joint enterprise. If it was the act of one adventurer who went beyond what had been tacitly agreed as part of the joint enterprise then that adventurer alone would be liable. In the instant case it was therefore vital for the jury to consider not merely whether death resulted from the attack on the deceased but whether the particular act and the use of a weapon were within the contemplation of the parties to that attack and consequently within the scope of their joint enterprise. There was no evidence that the Appellant Aguilar had a revolver or was aware before the two men were brought into the taxi that the other three men with him were armed. The jury would therefore have to decide whether the joint enterprise, if there was one, was, as the prosecution suggested, a joint enterprise, if there was one, was as the prosecution suggested, a joint enterprise to kill Cardenas, or a joint enterprise to extract information as to the load of cocaine. If it was the latter they would have to decide whether it extended to the use of a revolver. If the joint enterprise to which the Appellant Martinez may have been a party did not extend to the use of a revolver because he had no knowledge that any of his co?adventurers had a revolver, he would be entitled to an acquittal. The jury ought to have been clearly directed to distinguish that situation from one in which death had unexpectedly resulted from the use of violence of the nature and degree contemplated, as might have been the case if the use of revolvers to beat the deceased had been contemplated and in the course of that beating the revolver had unexpectedly been discharged and killed the deceased. This latter was the situation in R. v. Reid (1976) 62 Cr. App. Rep. 109 where all the co?adventurers were armed and it was considered that:

"when two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others, they must be acquitted of murder, but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter."

Although in this case the learned trial judge in a number of passages dealt with the question of joint enterprise, in none of them did he clearly direct the jury to determine the nature and extent of the joint enterprise, if any, to which the Appellant was a party as a necessary prerequisite to deciding whether the act which resulted in death was outside the scope of that joint enterprise.

In so far as the Appellant Martinez is concerned it was also argued that the learned trial judge did not properly exercise his discretion in admitting the written statement obtained by the police, firstly because it "was not shown by the prosecution to have been obtained voluntarily" and secondly "because it was obtained under circumstances which rendered its reception unfair to the Appellant." Evidence was led by the prosecution to show that the statement was voluntarily given. The evidence of the Appellant was that Insp. Itza threatened to kill him in his fact with a pistol and did in fact hit him in his chest with a stick some 1 1/2 feet x 1 1/2 inches; that about eight men ? three at a time ? kicked him in his ribs for about 10 minutes, that eventually his body was black and blue in front. He did not however make any complaint to the magistrate before whom he was taken that same day. He called as his witness a police officer who, upon handing over the Appellant to the prison authorities had noted that the Appellant had "scratches on the back and chest". There was evidence that immediately prior to his arrest the Appellant had fallen into some bushes and that the police officer who held him also had scratches. The learned trial judge carefully analysed the evidence and submissions, rejected the Appellant's evidence of beating by the police, concluded that he had received the scratches when he fell into the bushes and admitted the statement in evidence. We can see no good reason to interfere with the exercise of his discretion in this regard.

Finally it was submitted that the learned trial judge erred in failing to give proper directions on the defence of accident. In our view the defence of accident did not arise on the evidence. The "accidental" discharge of the revolver in the course of beating the deceased with it, to which the Appellant Martinez referred in his statement to the police was, if they accepted it, a matter for the jury to consider in deciding whether there was on the Appellant's part an intention to kill. It could not however give rise to a defence of accident.

For the reasons we have given we allow the appeals and set aside the conviction and sentences. As regards the Appellant Martinez however we consider that the interest of justice requires that there be a new trial and so order.

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