Court of Appeal
Criminal Appeal No. 6 of 1981
5th June, 1981
ALASTAIR BLAIR-KERR P.
P.T. GEORGES J.A.
J.A. SMITH J.A.

Criminal Appeal against conviction for murder- Appellant jointly charged with one Leonard James, his accomplice with whom he was acting in common purpose when the murder was committed Appellant's co-accused blaming the murder on Appellant- Appellant giving an unsworn statement from the dock - Whether section 9(4) of the Evidence Act applies to such statement- whether such statement amounts to evidence given by Appellant- Whether Appellant elected to assume the role of a witness in his defence by making the statement.

J U D G M E N T

The Appellant and one Leonard James were charged with murder. The allegation in the indictment was that between 27th August and 5th September, 1980 at Ladyville, they murdered Julio Pasos. The Jury found the Appellant guilty as charged, but as regards James, they were unable to agree and no verdict was returned. The Appellant was sentenced to death. He now appeals against his conviction and sentence.

Broadly the case for the Crown was that the Appellant and James planned to steal motor vehicles, that on the 22nd August, 1980, they stole a Toyota pickup number 4?10, Registration C 5465, the property of B.S.I., and drove it to Mile 53 on the Northern Highway, that on 26th August, 1980, they hired a taxi, a Montego Mercury, light blue in colour with a black vinyl top, Registration D?5171, which was owned by one Placido Ayuso and driven by the deceased, Julio Pasos; that at their request, the deceased drove them to the 11th Mile on the Northern Highway where they murdered him; that they then proceeded to dispose of various parts of the Toyota pickup and the taxi to various persons, and finally that they left the taxi at Mile 15 on the Northern Highway.

A mechanic employed by B.S. I. testified as to the theft of the Toyota during the night of the 22nd/23rd August, and a report was made to the police. On 27th August, a further report to the effect that the taxi and the deceased could not be found was made to the police.

On 1st September, a farmer named Edward Messam who lives at Mile 16 on the Belize/Corozal Road was out hunting. At a spot some 75 yards off the road at Mile 15, he found the abandoned taxi. He reported the matter to the police and a party of officers came to the scene. They found that the front and rear licence plates had been removed from the vehicle and the right front and left back wheels had also been removed. They also noted that the back seat, the battery and the fan belt were missing. The number on the licence disc was D?5171.

Police investigations proceeded and one Ricardo Hernandez who lives at Mile 17 on the Northern Highway was contacted. He testified that between 12.30 and I a.m. during the night of 22nd/23rd August, a blue Toyota pickup (number 4?10 on the doors) arrived at his home. It was driven by the Appellant and there was another person in the vehicle. He said that the Appellant asked for the loan of some tools because he had some trouble with the vehicle, that he (Hernandez) lent the Appellant 9/16" box end and a metric tool, and that the Appellant then drove off in the direction of Orange Walk.

The prosecution called Rosa Orantes, the wife of Hernandez. She said that on 31st August, during the absence of her husband, two persons, one clear skinned and the other dark, arrived at her home in a light blue taxi with a black top: that they took out from the taxi a motor car engine, car wheels, mats and a jack and put them under a mango tree.

Upon her husband's return, she told him what had happened. Hernandez knew the Appellant from childhood, and from his wife's description, he concluded that it was the Appellant and James who had left the various articles under the mango tree. Subsequently on 6th September, 1980, at an identification parade, Rosa Orantes identified the Appellant as one of the persons who had brought the car engine and other articles to her home in the light blue car with the black top and who had deposited the articles under the mango tree.

Hernandez said that as a result of a conversation he had with his brother, he suspected that the articles deposited by the Appellant and James were stolen and he informed the police.

Sergeant Garnett contacted Hernandez on 4th September. Hernandez pointed out to him the articles under the mango tree and said that they had been brought there by the Appellant and a dark?skinned person.

The Appellant was interviewed by Sergeant Garnett and Sergeant Reyes at the police station, and after caution he said that, he and James (whom he referred to as Dobsy) stole the Toyota, that he had driven it to the 53rd Mile on the Northern Highway where they stripped the vehicle and hitch?hiked back to Belize City; that they chartered a Spanish man named Pasos to take them to Ladyville, that they then asked Pasos to drive along the old Northern Road; that on reaching Mile 11, they asked Pasos to stop, which he did, that Dobsy cut Pasos' throat with a broken bottle; that he (Dobsy) then took a bumper jack out of the car and hit Pasos on the head with it "until he was dead"; that Dobsy took $26 out of Pasos'pocket; that they then drove to Orange Walk Town and then to where they had stripped the Toyota; that they took out the rear seat of Pasos' taxi and put the Toyota engine into the space; that they then drove to Hernandez' place at the 17 1/2 Mile where they left the engine, and then continued to Mile 15 where they drove the taxi into the bush.

The Appellant offered to take the police to the various places mentioned by him. As they were proceeding along Freetown Road, the Appellant pointed out James who was riding a bicycle. James was arrested and taken to the police station. The Appellant took the police party to Mile 11 to a spot about 30 or 40 yards off the road where a decomposing dead body was found. The Appellant said: "That is the Spanish man".

The trouser pockets of the person were turned out. Beside the body, there was a brown wallet and several guards and charms. Although the flesh of the body had largely decomposed, Sergeant Reyes, who had known Pasos for 30 years said that the body was that of Pasos. One Quentin Zelaya also identified the body as that of his brother?in?law Pasos. In the wallet Sergeant Garnett found a Revenue Collector's receipt dated 19th August, 1980 in the name of Julio Pasos for a driving permit.

The Appellant then took the police to Mile 53, and about 200 yards in the bush the police party saw the stripped Toyota. The Appellant said "that is the Toyota". The engine of the vehicle, some of the wheels, the front windshield and the headlights had been removed. Nearby, the police found the licence plates of the taxi D?5171 and the rear seat of the taxi. The Appellant said that they had removed the seat from the taxi to make space for the Toyota engine.

The Appellant, after caution, made a further statement which was recorded by Sergeant Garnett. The substance of that statement may be summarised thus:

On the morning of 23rd August, he and Dobsy stole the Toyota and drove it into the bushes at Mile 53. On 27th August they hired a taxi driven by an old man whom he knew as Viejo (there was evidence that deceased was sometimes referred to as Viejo), drove past Ladyville on to the old Northern Road. Dobsy grabbed the old man and took him into the bush. He heard the old man groaning. He (the Appellant) went into the bush and saw the old man on the ground with his throat cut. Dobsy then went to the taxi, took out a bumper jack and beat the old man on the head with it. Dobsy searched the man and took $26. Early next morning they returned to where the Toyota was, took out its engine, took out the back seat of the taxi and put the engine in the taxi and drove to Hernandez place where they left the engine. They then drove the taxi to a Spot about 1/12 miles from Hernandez place and drove it into the pine ridge.

A post?mortem examination was carried out on the body by Dr. Rosales at the spot where the body was found. The doctor said that there was a transverse fracture of the posterior part of the skull on the left parietal bone, and he said that there were indications of blows on the frontal region and left temporal region. He said that a car jack could have caused these injuries. As all the flesh on the body was decomposed, he was unable to say whether the deceased had suffered a throat wound. In his opinion, death was due to severe cerebral haemorrhage in the brain caused by the fracture of the left parietal region of the cranium and of the left temporal region.

The prosecution called two witnesses named Austin Gillett and Henry Carr. The nickname of the latter is "Champs". Gillett said that on 31st August, the Appellant said that he had a car and that he was scrapping it; that he (Gillett) drove the Appellant and his friend to the 15th Mile; that the Appellant and his friend went into the bush and came back rolling tyres which they offered to sell for $50. The tyres were not suitable for Gillett's vehicle so he contacted his old friend Champs' who agreed to buy them for $30.

The Appellant made an unsworn statement from the dock. He said:

"I did not kill Julio Pasos. I did not make any arrangement with anyone to kill him."

James also made an unsworn statement from the dock in which he alleged that it was the Appellant who stole the Toyota; that it was the Appellant who killed Pasos, by striking him on the head with a bumper jack. He admitted that he was present when, according to him, the Appellant stripped the Toyota, and that he was with the Appellant when they went to Hernandez' place.

In his closing address, Mr. Dujon, who appeared for the Appellant, admitted that the plan was to steal, but that so far, as his client was concerned, there was no plan to kill and that it was James who struck the fatal blow. Mr. Sabido, who appeared for James, submitted that the plan was to steal and that "James" intention had not gone so far as murder.

The ground of appeal as filed by the Appellant was that "the verdict of the jury should be set aside on the ground that it is unreasonable and cannot be supported having regard to the evidence". Mr. Sabido, who appeared for James in the Court below, appeared for the Appellant Trapp before this Court. He abandoned that ground but he was given leave to argue the following grounds:?

(1) that the trial judge failed to direct the jury adequately that a question of complicity arose; that therefore section 90(4) of Chapter 18 applied therefore making it dangerous to convict without corroboration of an accomplice's evidence;

(2) that even if corroboration did not apply under section 90(4), then a
warning to the jury was still required as to corroboration since the co?accused James had an interest or purpose to serve.

In our view, there is no substance whatsoever in these grounds of appeal. Subsection (4) of section 90 reads as follows:

"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."

In Prater (1960) 44 C.A.R. 83, the Appellant was charged jointly with two others, one whom, a man named Welham, gave evidence on his own behalf which was adverse to the Appellant. The trial judge did not warn the jury of the danger of acting upon Welham's evidence. Giving the judgment of the Court of Criminal Appeal, Edmund Davies J., said:

"……..whether the label to be attached to Welham was strictly that of an accomplice or not, in practice it is desirable that a warning should be given, whether he comes from the dock, as in this case, or whether he be a Crown witness, may be a witness with some purpose of his own to serve ……...... This court, in the circumstances of the present appeal, is content to express the view that it is desirable that, in cases where a person may be regarded as having some purposes of his own to serve, the warning against uncorroborated evidence should be given."

This statement was considered by the Court of Criminal Appeal in Stannard (1964) 48 C.A.R. 81. Winn J., giving the judgment of the Court said (p. 91);

"The rule, if it be a rule is no more than a rule of practice. I say deliberately 'if it be a rule' because, reading the passage of the judgment as, I have just read it, it really seems to amount to no more than an expression of what is desirable and what, it is to be hoped, will more usually than not in cases, at any rate where it seems to be appropriate to the learned judge, be adopted. It is certainly not a rule of law".

In the instant case, James was undoubtedly an accomplice, and he and the Appellant blamed each other, but neither gave evidence. James gave a statement to the police in which he said that the Appellant killed Pasos, and the learned judge correctly warned the jury that this was not evidence against the Appellant. In arguing that James' statement to the police required corroboration, Mr. Sabido was submitting, in effect, that a statement made to a police officer which incriminates a co?accused is evidence against that co?accused.

James again asserted in court that it was the Appellant who killed Pasos, but he did not give evidence to this effect. He made an unsworn statement from the dock, a course which he was entitled to take having regard to proviso (g) to section 58 of the Evidence Ordinance. That section, so far as relevant, reads:?

'158. Every person charged with an offence, shall be a competent witness for the defence whether he is charged solely or jointly with any other person:

Provided that? …………..

(9) nothing in this Ordinance shall affect the right of the person charged to make a statement without being sworn."

Giving the judgment of the Court of Appeal in Coughlan (1977) 64 C.A.R. 11, Shaw L.J. said (p. 17) ?

"When the Criminal Evidence Act 1898 made it possible for a person charged with an offence to be a witness in his own defence, it expressly preserved by section I (b) what had until then been the only right of such a person namely, to make a statement without being sworn. The section makes a clear distinction between the position where an accused person elects to assume the role of a witness in his defence and the situation where he makes an unsworn statement. In the latter case he is not a witness and he does not give evidence,"

The authorities to which reference has been made refer to the desirability of warning the jury of the danger of acting upon uncorroborated accomplice's "evidence". Mr. Sabido cited no authority for his startling proposition that it is desirable that a similar warning should be given in regard to unsworn statements from the dock; and we feel confident that no such authority exists. In our view, the learned judge would have erred if he had given such a warning.

For these reasons, the appeal is dismissed.

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