Court of Appeal
Criminal Appeal No. 5 of 1986
18th November, 1986
SIR JAMES A. SMITH P.
SIR ALBERT L. STAINE J.A.
KENNETH ST. L. HENRY J.A.

Appellant in person
Mr. Fred Lumor for the Respondent.

Appeal against conviction and application for leave to appeal against sentence of 6 years imprisonment imposed for arson - Statement made by accused - Section 89 of Chapter 75 - Judge failed to warn jury to look for confirmation of statement - Judge misrepresented contents of statement and encroached on functions of jury by telling them what amounted to recklessness - Appeal allowed - Conviction and sentence set aside - New trial ordered.

J U D G M E N T

The Appellant was convicted of arson contrary to section 138(1) and (3) of the Criminal Code, Chapter 84, the particulars of the offence being that on the 24th day of February, 1986 at Belize City, without lawful excuse, he destroyed by fire a dwelling house belonging to Mary Rudon, intending to destroy such property or being reckless as to whether such property would be destroyed. He was sentenced to 6 years imprisonment. He appealed against his conviction and sought leave to appeal against the sentence imposed.

The prosecution's case rested partly on circumstantial evidence and partly on a statement allegedly given by the Appellant to the police. That statement indicates that the Appellant was staying at the home of one Mary Rudon and speaks of a misunderstanding and subsequent argument with Mary Rudon about a butcher knife and clothes pins which Mary alleged to have been stolen. The statement then continues:

"I then told Mary that I was going to leave her house and she said that she was going to take a bath. Whilst she was bathing I pulled down my clothes off my hanger and after she was finish she change her clothes and said that she was going to her neighbour. After she left I finished packed up my clothes in a cloth valise which is mine. There was some baby clothes inside the valise which belongs to Mary which I took out and put on the table which has on a kerosene lamp lighted. There was some left on the chair which was beside the table and I picked those up and these were the one that I threw on top of the table and this was when these rest of clothes knock over the lamp shade off the lamp. I did not pay much attention to this but I picked up my bag and valise and went through the door. I did not have a watch but I can assume that it was about 9.10 p.m. when I left. I did not know something like this would have happened."

In so far as it may be regarded as a confession the statement required confirmation by virtue of section 89 of Cap. 75. That section is as follows:

"If an accused person, after having made any confession or admission that he had committed a crime or offence, pleads not guilty at his trial, he shall not be convicted on such confession or admission alone without such confirmatory evidence as the court thinks sufficient."

It was therefore the duty of the learned trial judge to warn the jury that they ought to look for confirmation of the statement and not to treat it a confession in the absence of such confirmation. He ought further to have indicated to the jury evidence which, if they accepted it, was capable of confirming the statement in so far as it could be regarded as a confession. This the learned trial judge failed to do. The statement in fact did no more than admit to behaviour which it was for the jury to assess with a view to deciding whether it amounted to recklessness on the part of the Appellant. The learned trial judge directed the jury in the following terms:

"Now he is saying that he threw those baby clothes which were in the valise and threw them on the table and it hit the lamp shade and may have caught fire but he did not pay much attention to it, that he went off. That, if you admit that as his own statement, then it shows recklessness".

Counsel for the Crown has quite properly conceded that in giving the directions the learned trial judge erred in two respects. Firstly he misrepresented the contents of the statement which nowhere mentioned that anything "may have caught fire". Secondly he encroached on the function of the jury to decide whether the conduct of the Appellant as disclosed in the statement amounted to recklessness. Counsel for the Crown submitted that notwithstanding these misdirections the conviction should be affirmed in view of the circumstantial evidence. We cannot accept that submission. The circumstantial evidence was given by three witnesses-Mary Rudon and Bernadine Stephens who were occupants of the house destroyed by fire and a 9 year old girl Celia Nicholas. We have no means of knowing what was the jury's assessment of the credibility of these witnesses. The jury may well have felt, in the light of the learned trial judge's directions, that once they found that the Appellant had given the statement attributed to him, recklessness was established and they need look as I further for any evidence of it. We cannot say that if there had been no misdirection the jury would inevitably have convicted the Appellant.

The appeal must be allowed and the conviction and sentence set aside. In the interest of justice however we order that there be a new trial.

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