Court of Appeal
Criminal Appeal No. 8 and 9 of 1977
MICHAEL HOGAN, P.
CLIFFORD INNIS, J.A.
P. T. GEORGES, J.A.

Court of Appeal - Conviction for robbery and rape - Judge's rule not applicable when accused not in custody and regarded at the time as potential witness - Statement recorded not obtained by an unfair method - Sentence for robbery excessive - Sentence varied.

J U D G M E N T

The Appellants Cornelius Bardalez and Bartolo Bardalez were charged together with Lewis Ford, who is not now before the court, with robbing Abe Loewen of money-United States and Belizean currency-and with raping his wife Elizabeth. They were convicted on both counts and sentenced to 9 years imprisonment on the robbery charge and 7 years on the rape charge, the terms to run concurrently.

As originally framed, the grounds of appeal included the contention that the verdict was unreasonable and could not be supported having regard to the evidence. At the hearing of the appeal, leave was granted to amend the grounds by substituting for the ground-that the learned trial judge had erred in failing to exercise his discretion in admitting statements made by the Appellants which had been obtained in breach of the Judges' Rules.

Since the argument centred solely on this ground, a detailed review of the evidence is not needed. Suffice it to say that on the 5th of September, 1976, at about 5:50 a.m. the Loewens who lived at Spanish Lookout, became aware that armed men were attempting to get into their house. Picking up their 2 /12 year old child, they ran through the back door in an attempt to reach their nearest neighbour who was some 200 yards away. Their attackers gave chase, caught up with them and took them back to the house. There were three men -one armed with a shot gun and two with knives. Under threat, the Loewens gave the men the money they had in the house U.S. $247.00 in $100.00 bills and $20.00 bills and Belize $100.00 approximately. Having got the money the attackers forced Mr. & Mrs. Loewen to strip compelled Mr. Loewen to hold the child facing the wall and each in turn had sexual intercourse with Mrs. Loewen against her will. They then tied both of them hand and foot in a crouched position and placed gags in their mouths. A vehicle then drove into the yard. The attackers checked and saw that people had arrived and they fled. Neither Mr. nor Mrs. Loewen could identify their assailants because their faces were either substantially or wholly concealed by masks.

In due course the Loewens freed themselves and a report was made to the police. Corporal Lino received the report at San Ignacio Police Station at about 7:00 a. m. on September 5.

On September 6, Corporal Lino took statements from Joseph Torres and Dorothy Bel of Unitedville, a village across the river from Spanish Lookout where the Loewens lived. This is established that Cornelius and Bartolo had made arrangements to borrow Torres' shot gun about 6:00 p.m. on September 4th, that Cornelius had collected the gun and five cartridges at about 4:00 a.m. on September 5th, and had returned it and all the cartridges about 11:00 a.m. that same day.

After taking the statement from Torres, a message was to despatched to C.I.B., Belize, as a result of which Corporal Reyes swore to an information and obtained a warrant to search a house in Racoon Street, Belize, where the applicants lived with their parents. He was searching for U.S. currency but found none. About 6:00 p.m. that day -September 6th he saw Cornelius and another brother Rudolpho on Racoon Street near their house and to use his words-

"I invited them to the C.I.B."

Presumably they accepted the invitation-Rudolpho entering the Land Rover first. The Corporal noticed at that stage that Cornelius put his hand into his pocket and on taking it out, threw something like paper under the land rover. Corporal Reyes asked him what he had thrown there. Cornelius gave no answer. The driver reversed the land rover and there on the ground were 4 $1.00 US notes and $2 in Belize notes. When asked why he had thrown the money away, Cornelius made no reply. Corporal Reyes took both Rudolpho and Cornelius to C.I.B., Belize, left them there and set out for the Police Training School where he met Bartolo who was stationed there training as a police recruit.

He told Bartolo that he had information that there had been a rape and robbery at Spanish Lookout about which Bartolo could give information. Bartolo replied that he had not been in Cayo District over the weekend, he had been to Corozal. Corporal Lino searched him and found 1U.S. $20 bill and 4 Belize $20 bills. He stated that Valencia had given him these.

Corporal Lino and Bartolo left for C.I.B. Belize. There is no evidence of the conversation preceding their departure, but in cross-examination Corporal Lino said that they came to Belize because Bartolo was going there in any event and he had no facilities for taking a statement at the Training School.

In route to Belize, Lino informed Bartolo that he had information that Bartolo had been in Unitedville over the weekend. Bartolo then stated that he had gone there on September 4 with Lewis and Santiago Valencia in a land rover and that they had spent the night there.

At C.I.B., Lino asked Bartolo whether he would give a statement in writing. He gave no caution, he said, because he was treating Bartolo as a witness not as a suspect.

At the trial Bartolo objected to the statement alleging that he had been slapped and bullied by the Corporal who had questioned him in a hostile manner and had then prepared a statement which he had been forced to sign without being allowed first to read it. He had seen the statement only afterwards when Lewis Ford had given him a copy.

Although the statement confirmed his presence on the scene, it was basically exculpatory in purpose. He denied taking part in the rape. He indicated that he had no idea that any criminal act was being planned but that he was suddenly aware that his cousin Ford and his brother Cornelius were masked with lady's stockings. He described the knocking on the Loewen's door, with himself in the background, the Loewen's flight and the chase by his brother and his cousin, he remaining behind. Later he heard screaming and went up to see what had happened, first placing over his head a lady's stocking they had given him because he did not wish to be recognized. He sought to have his companions leave but they refused.

They returned to the house, he remaining by the door. He saw his cousin hit the man with the barrel of the gun and again he asked them to leave. He went outside himself and as he left he heard his cousin ordering the man and woman to strip. The man was crying that that was all the money he had. Again he went back asking his brother to leave but his brother would not. The man and woman were naked and his cousin said that he would have sex with her. Again he went outside. He heard the lady screaming and the man asking God for help. After a while he went inside again and saw the man and woman tied up. He could only suspect that his brother and his cousin had had sex with the woman. He walked away in the direction they had come and as he walked he saw his brother and his cousin following him. In due course they reached the land rover and drove to Belize City reaching there about 11:00 a.m. Later they left for Corozal and then Orange Walk. On their way there Lewis shared the money he had got from the robbery and gave him 4 Belize $20 notes and $U.S. $20 note the money the police had recovered from him.

After Bartolo had made this statement, he was allowed to return to the Police Training School. Inspector Hamilton took him there. He carried on with his normal duties and late next day he was arrested and charged with the offences of which he was convicted.

The contention in the case of Bartolo is that he was in custody from the moment Corporal Lino took him to the C.I.B. and that, according to the Judges' Rules he ought not to have been questioned at all and certainly he should have been cautioned before a written statement was taken from him.

The case of Cornelius is somewhat different. He had been left at C.I.B. Belize by Corporal Reyes when that officer set off for the Police Training School. Presumably he spent the night there and next day Corporal Reyes took him to San Ignacio reaching there somewhere between 7:00 a.m. and 8:00 a.m. Corporal Reyes handed him over to Corporal Lino and gave, the, Corporal the statement recorded from Bartolo.

Cornelius was first interviewed by Inspector Gillett. The Inspector questioned him as to his whereabouts on the evening of September 4th, the early morning of September and the remainder of that day. Using the information that he had from Bartolo's statement and from Torres, the Inspector was able to impress Cornelius that he knew Cornelius was not speaking the truth. After some 20 minutes of this, Cornelius agreed to give a statement. The task of recording the statement was assigned to Corporal Lino who duly caution Cornelius and took the statement. Inspector Gillett's evidence is that the oral statement made to him was more detailed than the written statement recorded by Corporal Lino. The statement amounted to a full confession of the rape and robbery.

In the case of Cornelius, the contention is that he was plainly in custody when the Inspector questioned him, that this questioning was in clear breach of the Judges' Rules and that the subsequent caution given by Corporal Lino was in the circumstances ineffective since it came after what was clearly a full oral confession improperly obtained and that accordingly the written statement should itself have been ruled inadmissible. The harried trial judge had ruled both statements admissible after hearing evidence in two trials within the trial.

The new Judges' Rules promulgated in England in 1964 do not apply in Belize. Section 80A of the Supreme Court of Judicature Ordinance Chapter 5, in effect preserves the original Judges' Rules and power is vested in the Chief Justice to introduce new Rules with modifications if deemed necessary. We are informed that the Chief Justice has not exercised those powers. Our attention has, however, been drawn to a document in circulation entitled "Notes for the guidance of Polcie in following the Old Judges' Rules and as to certain other matters". The Old Judges' Rules are set out in that document.

The case Bartolo, in our view, raises no difficulties. It cannot be successfully argued on the facts that he was in custody. The anology with house arrest fails since no one told him that he would be free to leave the Training School if his duties there permitted and if he wished to. After he gave his statement at C.I.B. Belize, he returned to the School and in answer to a question put to him he agreed that once he was taken to the School, he was free until Corporal Lino met him late the following evening. Bartolo's complaint was basically that force and treats had been used on him to make him give the statement. The learned trial Judge found against him in this respect and that decision is well grounded on the evidence.

Once it is accepted that the, Appellant Bartolo was not in custody and that Corporal Reyes regarded him at that time as a potential witness rather than a person to be charged, none of the Judges' Rules are applicable. The statement cannot thus be challenged for breach of them.

The case of Cornelius requires more detailed consideration. In his ruling the learned trial Judge found that the police frankly admitted-

"That the accused was questioned for something like twenty minutes before he elected to give a statement and that he was in custody at the time but had not been charged with an offence,"

For this Appellant it is argued that the police must have made up their minds to charge Cornelius at the time when they were questioning him since they had already taken him into custody. Rules 2 and 3 of the old Judges' Rules, therefore, applied-

"Rule 2: Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking him any questions, or, any further questions as the case may be.

Rule 3: Persons in custody should not be questioned without the usual caution being first administered.

There is a note to Rule 3 in the document mentioned above which emphasizes that the Rule is not intended to encouraged or authorise the questioning or cross-examination of a person in custody after he has been cautioned.

The practical operation of these rules bristles with problems and this is reflected in the authorities. For the Appellant much reliance was placed on R. v. Winkel (1912) 76 1P. 191 a case before Avory J. at the Central Criminal Court decided before the earlier Judges Rules and which may indeed have contributed to their promulgation. Winkel had been charged with procuring an abortion. The police on first approaching him informed him of the allegations which had been made by the lady who had sought the abortion at his request. He denied them. In particular they pointed out to him that she had alleged that he had given her the money. He denied it. The police had other evidence supporting her allegation on that issue. The police officers insisted that it was their practice to inform persons taken into custody of the charge and briefly of the substance of the police case. Their intention in doing this was not to get an admission. Avory J. stated:

"I have repeatedly condemned the practice and I shall continue to condemn it. It is a form of cross-examination by the police officer of a man who is in custody, and no police officer has any right whatever to put any question to a prisoner when he is in custody. To say "It is alleged so and so, is only a subtle form of cross-examination."

This was not a considered ruling but an interjection in the course of the evidence and the proposition has undoubtedly been stated too widely.

It is true that 20 years later Alfred Brown and John Bruce (1931) 23 Cr. App. R. 56- a Court of Criminal Appeal of which Avory J. was a member specifically approved of Winkel. The Court composed of Lord Newart C.J. Avory and Acton J.J. stated:

"In the evidence of a police officer one finds this passage: "In the charge room at Spalding police station I cautioned the accused and said' I am satisfied you both know-' something about taking the glass from the window at Ashwell's shop on the night of the 20th April and stealing the goods'. I said: Do you care to say what you do know. They both made a voluntary statement. These statements so obtained seem to us clearly to come within the mischief of Winkel (supra)".

In that case it should be noted that the Appellants had an alibi not put forward at the trial at which they were unrepresented, legal aid having been refused. Evidence had been called on appeal which tended to support the alibi. On other grounds the conviction would have been clearly unsatisfactory.

The modern approach even before the introduction of the new Judges' Rules has tended to be less dogmatic. These Rules are not rules of law but are intended solely for the guidance of the police. This had been pointed out as long ago as Voisin (1918) 13 Cr. App. R. 89. There the accused in detention in a cell was asked to write the words 'Bloody Belgian". He wrote 'Bladie Belgian". a mis-spelling identical with that on a note found on the scene of the crime. It was contended that the question ought not to have been asked and that the request was a breach of the Judges' Rules. The argument did not succeed.

In Wattam (1962) 36 Cr. App. R. 72, the police questioned an accused as to his whereabouts at the time of a murder. He gave three conflicting statements changing on each occasion when the police were setting about confirming his answer. It was argued that since the Appellant had not been to told that he was free to go he was in fact in custody and the answers to the questions were inadmissible. The trial judge held that he was not in custody and the Court of Criminal Appeal entirely agreed. The Court pointed out-

"The police must investigate matters of this kind, or there would be no protection for anybody."

While the Note to Martin Priestley (1965) 51 Cr. App. R. 1. to which we have been referred is instructive, it does not directly apply to Belize since it deals with the situation under the New Judges' Rules.

Under both the new Rules and the Old Rules one paramount object remains ensuring that statements tendered in evidence have been voluntarily made. A breach of the Rules is evidence that the accused may have been unfairly treated and should be protected by the inclusion of the evidence thus obtained, but it is not conclusive of the matter as has been suggested in Winkel.

In this case the oral confession made to Inspector Gillett was never led in evidence and there was A caution before the written statement, was recorded. It has been argued that the caution would have been ineffective since the prisoner, knowing that he had already made a clean breast of it orally, would se little point in not going a stage further and putting in writing what he had said. It was sought to draw an analogy with a statement obtained by an inducement where it could be shown that the inducement had been effective to cause a statement to be made long after the inducement had been given. The impact of an inducement and a caution are so dissimilar that no useful analogy can be drawn. A caution brings to the mind of the prisoner what his rights are and the realisation that he should exercise them may dawn at the very last moment before he commits himself to a deeply implicating step In R. v. Straker (1937) Crim. L.R. 476, a statement given by the Accused to the Italian police was admitted at his trial in England. He contended that this improper since he had not been cautioned when the gave the statement. The Court held that the statement was admissible because he had acknowledged it as correct in England after caution. Most people understand full well the difference between the spoken and the written word in matters of proof and indeed the popular fallacy, if any, is to exaggerate unduly the strength of the one over the other. Most people will casually say things which they will not put into writing. The spoken word can easily be denied. The written word presents far greater difficulty. There is no evidence that questioning was part of the process of recording the statement in the instant case. Indeed such evidence as there is points the other way since inspector Gillett' states that the oral statement to him was the more detailed. The evidence obtained in breach of the Judges Rules was not admitted. The evidence which was admitted had not been obtained in breach of the Rules. The situation contemplated in Bass (1953) Cr. App. R. 51 has not arison here- the judge has not erred in failing to see that there was cause for the exercise of his discretion and in omitting for that reason to exercise it.

Of course there may be instances where the preliminary questioning is of such a character that it can reasonably be held that its purpose, was to break the prisoner's will so that despite the caution the ensuing written statement could not be held to be voluntary. This can be excluded by using the overriding power of the court which is in no way dependent on a breach of a specific Judges' Rule. There was no occasion to use such power in the present instance. The approach of Sach L.J. in the Note to Martin Priestley (supra) is instructive and should be borne in mind-

"In these day of ever mounting crime, it is indeed essential not to fetter the hands of the police unnecessarily so as to hinder them in their difficult and vital tasks. They always remain a target for criticism even when correctly doing their duty. Only if they exceed the bounds laid down either by the Judges' Rules or by the common law or indeed common decency, judges will then exclude statements thus obtained."

Discussing the question of oppression the Lord Justice noted:-

"What may be oppressive as regards a child, an invalid or an old man or somebody inexperienced in the ways of this world may turn out not to be oppressive when one finds that the accused person is a of tough character and an experienced man of the world."

Questioning the Appellant Cornelius as to his whereabouts at the important junctures and making him aware that his answers appeared to be untrue was in no way oppressive.

As Sachs L.J. has stated in the Note cited above-

"Next to be noted is that to point out to a man that he is lying is not of itself either oppressive or wrong. Nor is it oppressive or wrong to give a man further opportunity to tell the truth".

Accordingly both appeals against conviction must be dismissed: Bartolo's because there was no breach of the Judges' Rules and Cornelius' because the answers given after questioning were not led in evidence and the cautioned statement recorded after questioning had not been obtained by methods which could be characterised as unfair or which could be said to have made the statement involuntary.

Finally, we deal with the issue of sentence. As already mentioned the learned trial judge imposed sentences of 9 years in respect of the robbery and 7 years in respect of the rape. The robbery may be described as typical of dastardly crimes of that kind-terror at dawn in an isolated homestead. One can feel no sympathy for the Appellants. We do agree, however, that for a robbery by first offenders, the sentence is severe. It may be that the learned judge was affected by the inhumanity of the rape and wished to increase the total term on that account. In that event the sentence should more logically have been 7 years for the robbery and 9 years for tire rape to run concurrently. A sentence in that form would have been difficult to challenge.

In its present form we agree that the robbery sentence is excessive and accordingly we grant the application for leave to appeal against sentence on that count, allow the appeal and vary the term of 9 years to one of 7 years to run concurrently with the term of 7 years for the rape.

Otherwise the appeals are dismissed.

----------OO----------