Court of Appeal
Criminal Appeal No. 5 of 1994
8th September, 1994
KENNETH ST. L. HENRY, P.
SIR LASCELLES ROBOTHAM, J.A.
HORACE W. YOUNG, J.A.

Mr. C. Ramirez for Appellant
Mr. S. Gamalath for the Respondent

Appeal against conviction for murder and sentence of death imposed - Statement under caution made by accused - Sections 88 and 89 of Evidence Act - Need for confirmatory evidence - "Confirmatory evidence" not to be equated with corroboration - Ample evidence which jury could accept as confirmatory -Appeal dismissed.

REASONS FOR JUDGMENT

The Appellant was convicted on 3rd March, 1994 for the murder of Ernesto Guevara and sentenced to death. His appeal is against conviction and sentence.

On September 5th, 1994, we dismissed the appeal and promised to put our reasons for so doing in writing. We do so now.

The Appellant had originally been charged with the same crime jointly with his live?in companion Saul Lopez Cruz but that indictment was withdrawn and a new indictment charging the Appellant alone substituted for the previous one.

The facts are briefly as follows:

The Appellant worked for Jesus Gongora on his farm in the Silk Grass Area in the Stann Creek District as cleaner and man in charge occupying his employer's house on the farm together with companion Saul Lopez Cruz.

Appellant was given by request of his employer a 16 gauge shotgun (together with cartridges) for dealing with a marauding tiger which had been eating his dogs. His employer instructed him to keep the gun at all times when not in use in the house.

Cruz the companion had his own 12 gauge shotgun.

On Thursday, 1st October, 1992 Jesus Gongora engaged the deceased Ernesto Guevara to go to the farm the next day Friday and assist the Appellant to plant pineapples providing the deceased with a red nylon measuring rope.

Guevara went to the farm on the Friday morning as arranged riding his familiarly known mountain-climber bicycle (yellow, blue and pink in colour) where he met and worked with both the Appellant and Cruz planting pineapples all that morning.

Appellant and Cruz induces Guevara to stay on until the evening so that they could go hunting instead of which they inveigled him to accompany them towards the back of the farm where the Appellant by his own admission shot Ernesto Guevara at point blank range from the back with his 16 gauge shotgun in the presence (and according to Appellant due to the prompting) of Saul Lopez Cruz inflicting a fatal wound.

When Guevara, failed to report back to Jesus Gongora that Friday and up until Sunday he became alarmed and reported to the Police which set in train an investigation which led to the detention at the Police Station on the Monday of both the Appellant and Cruz.

At the Police Station while Appellant and Cruz were sitting near each other in the charge room Appellant was heard to say to Cruz within hearing of both Police investigators Ciau and Francis, "I killed him because you told me to do so because you disliked him."

While in detention Appellant of his own volition undertook to take both investigating officers to the spot where he had buried Ernesto Guevara. They took both the Appellant and Saul Lopez Cruz (and by invitation Jesus Gongora) to the farm where the Appellant opened the padlocked door of their living quarters and then between himself and Cruz showed the investigating officers where Guevara's bicycle was buried under one of the two beds in the house.

Appellant then took them to the northern section of the farm and pointed out the spot where the body of Ernesto Guevara was buried (by then decomposed remains) and then took the investigators some 50 feet further and showed a place where a pair of rubber boots and a piece of red nylon rope were buried.

Officer Ciau cautioned the Appellant when they found the remains of Guevara and the boots and rope.

Back at the Station officer Ciau once more cautioned the Appellant in the presence of a Justice of the Peace and the Appellant expressing a wish to make a statement, the officer duly took and recorded it in Spanish and translated it into English.

Officer Ciau deposed in his evidence in chief that he had made no promise to the Appellant, no threats, no inducements, neither did he beat him.

The statement forms part of the record at pages 99 to 101.

It reads in part beginning at the end of line 23 on page 100:

"When I turned around to see Saul, he gave me sign, saying what happen kill him, I seeing Saul with the gun I feared him a little. I then raised the gun firing the shot at the short fellow hitting him on the left side of the stomach. After I had killed the short fellow Saul came to the spot where he fell …."

Then the final sentence at line 29 on page 101 reads:

"I killed the short fellow because Saul insisted for me to do it and like how the devil was around I shot and killed him."

The case turned solely on the above confession and the Appellant's grounds of appeal as argued represented in fact a challenge of the manner in which the learned trial Judge dealt with it in his directions to the jury.

The Appellant having pleaded 'Not Guilty' at the trial the jury could not by reference to sections 88 and 89 of the Evidence Act (Chapter 75) properly convict in the absence of such confirmatory evidence as the Court thinks sufficient.

The relevant statutory provisions read:

88. ? (1) An admission at any time by a person charged with the commission of any crime or offence which states, or suggests the inference, that he committed the crime or offence may he admitted in evidence against him as to the facts stated or suggested, if such admission was freely and voluntarily made.

(2) Before such an admission is received in evidence the prosecution must prove affirmatively to the satisfaction of the judge that it was not induced by any promise of favour or advantage or by use of fear, threat or pressure by or on behalf of a person in authority.

89. 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.

The grounds as notified and which were eventually argued before us were:

1. That the learned trial judge, Justice Meerabux erred in law in that ?

(a) he misdirected the jury in a manner which would lead them to think that there was confirmatory evidence in respect of a confession statement given to the Police by the accused (sic).

(b) he failed adequately to direct the jury of the effect of conflict between evidence given by witness for the prosecution.

Counsel dealt in his submissions with both the above grounds together.

(Ground 1(c) and Ground 2 as initially notified were abandoned).

The learned trial judge in his directions to the jury carefully dealt with credibility of witnesses and with contradictions and inconsistencies in the evidence on pages 39 to 41. He dealt also specifically with the Appellant's caution statement on pages 60 and 61. We see no need to recite these passages.

As to what is confirmatory evidence and the proper approach of the jury to such the learned trial judge directed the jury on page 63 as follows:

"confirmatory evidence is such evidence which connects the accused with the commission of the crime but it need not be in a material particular. You shall have to deal, not only with this confession but with the admission and from time to time as we go through the evidence) will mention some pieces of evidence which I will invite you to consider as being confirmatory evidence but in the final analysis it will be for you to decide what is confirmatory evidence as judges of fact …"

Then on page 81 the learned trial judge proceeded to refer to matters in the evidence which the jury could consider as confirmatory evidence but that the members of the jury could disregard whatever he had said in that regard.

Counsel for the Appellant as we understood his submissions was at pains to suggest that because there were inconsistencies and contradictions in the evidence adduced by the prosecution, there was an absence of the credibility which Counsel submitted was essential in regard to those pieces of evidence which the learned trial judge had pointed out were capable of acceptance as confirmatory evidence and that in essence confirmatory evidence was absent. Counsel it appears equated confirmatory evidence with corroboration with which we disagree.

In our view there was ample evidence which the jury could accept as confirmatory evidence. The directions of the learned trial judge were adequate and we do not share the view of Counsel for the Appellant that the learned trial judge had misdirected the Jury in any essential respect.

The appeal was accordingly dismissed.

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