Court of Appeal
Criminal Appeals 11 of 1992
18 September, 1992
KENNETH ST. L. HENRY, P.
DR. NICHOLAS J. O. LIVERPOOL, J.A.
SIR LASCELLES ROBOTHAM, J.A.

Appeal - Criminal Law - Murder - Sentence of death - Case of circumstantial evidence - Trial Judge failed to direct jury on standard of proof specifically in relation to the defence of alibi - Failure to give guidance to the jury if they reject the alibi - Defence of Appellant was alibi - Directions on burden of proof and alibi could have left the jury in no doubt. Whether trial Judge erred in rejecting appellant's no case submission - Principles covered by The Queen vs. Galbraith 73 C.A.R. 74 - Chief Justice right in rejecting submission of no case - Appeal dismissed - Conviction affirmed.

J U D G M E N T

On 29 July 1.992, this appellant was convicted for the murder of Jill O'Born and sentenced to death.

The deceased O'Born was discovered on the floor of her house at 21 Howard Street, Dangriga at about 9.30 on the morning of 14th August, 1991 by Regina Neil, a co-worker, who had gone to deceased's home, to investigate the reason for her failure to report for work on that day.

Ewart Ltza an Assistant Inspector of Police in response to a report went to the home of the deceased and saw her lying on her back on the floor with her legs spread apart and her clothing in a disheveled condition. Her body was covered with some clothing and a sheet and when these were removed, it was discovered that her throat had been cut. Blood was seen on the clothing and on the floor.

Dr. Estradabran performed a Post Mortem examination and his findings revealed that deceased had suffered a nine inch cut to her neck, which affected all the soft tissue in that area. The tracheal tube, the oesophagous, and the alimentary canal were completely severed. Death he said was due to asphyxia secondary to the cutting of the throat.

Inspector Itza after his arrival on the scene discovered that the bedroom in the house showed signs of having been searched, as an empty purse was found on the bed, and, clothes were pulled out of the drawers.

In addition, he found a knife approximately 12 inches long on a table in the dining room, which appeared to have blood-stains on the blade.

It would appear that the deceased was alone at home on the night she met her death as Albert Valerio with whom she was co-habiting had left the home on 8th August 1991 with a troop of scouts and was still away. After the entry into his house on 14th August, he was summoned from the Camp by the Police, intercepted by them at Belmopan, where he was detained over-night.

On 15th August on his arrival at Dangriga Police Station, the Police subsequently showed him some clothing consisting of about 4 T-shirts, green, blue, pink and mauve in colour. The green T shirt had the scent of Yardley Lavender perfume on it, which perfume both deceased and himself used. He described the green shirt as a female T shirt, with the brand name "Memo", appearing on the back.

When he was asked if he would be able to identify this green shirt, his answer was "For sure". When he was shown the shirt (marked 11xhibit D. G. 3) he said:-

"This is the blue shirt "memo" brand with 3 buttons and made in Bangladesh".

The description of this shirt D. G. 3 as green at one stage and blue at another stage, frequently occurred during the trial.

The case for the Crown was based solely on circumstantial evidence, and a red T shirt marked I.D. "A" plays an important part. This red T shirt was found on the morning of 14th August by Police Constable Arzu who had been detailed by Inspector Itza to carry out a patrol of the area after the deceased body was discovered. Arzu gave evidence of finding the shirt, while so patrolling, about 100 yards from the deceased house. It was found on the right hand side of the roadway. He handed it over to Inspector Itza.

The case for the Crown was succinctly outlined at the trial by the learned Director of Public Prosecutions in his opening. After a few opening remarks he said:-

"Elias Taibo (appellant) had come to Dangriga the day before about 7 o'clock (and) had returned back after 8 the following day. When he came to Dangriga he was seen wearing a red T shirt which was identified as found not far from the house where the lady was killed. On returning back he was found wearing a greenish shirt (emphasis added) which was identified as belonging to this lady (I.E. deceased).

On this evidence the Crown is relying to prove that this lady is dead and on this evidence we are saying it was Elias Taibo who intentionally caused the death of Jill O'Borne. Our case is being presented relying on circumstantial evidence; there is no direct evidence".

The Crown's case of circumstantial evidence centered around the evidence of:

(1) Constable Paul Arzu, who found the red T shirt (ID "A") 100 yards from deceased's house on 14 August 1991.

(2) Constable Darius Guzman who on 16th August on instructions of Inspector Itza searched the premises of Martin Vallerio in Seine Bight where it was alleged that appellant was living along with Joseph Augustine. Found there were 2 short pants, and 1 light green sport shirt (D.G.3).

One of these pants was mauve in colour.

(3) Jane Cruz who up to 13th August 1991 was living with the appellant in Seine Bight. They parted company on that date.

(4) Albert Valerio who lived with deceased at 21 Howard Street, Foreshore Area, Dangriga.

(5) Francisco Valerio who saw Appellant in a red T shirt in Dangriga on the night of 13 August 1991.

I will now deal with 2-5 seriatim as the finding of the red shirt by Arzu has already been mentioned.

(2) Constable Guzman on his search of the house of Martin Valerio at Seine Bight did it in the absence of the Appellant who claimed to have lived there, as well as in the absence of the other occupant Joseph Augustine and the owner Valerio. The house was not locked so free access was made. In answer to Counsel for the Appellant he said he had never seen the Appellant living there nor was he ever told by him that he lived there. Exhibit D. G. 3 the blue shirt was found there. It was wet.

(3) Jane Cruz lived with appellant at Seine Bight from May to 13th August 1991. She said she gave him a red shirt which she bought second hand and she identifies I.D. "A" as the shirt.

On 13th August the Appellant had on this red shirt and a mauve pants and he told her he was going to Cayo to get $1,000 or $2,000. She said she saw him board a pick up truck which was headed towards Dangriga, a town some distance from Seine Bight.

On the following day at Seine Bight she saw him get off a green pick up. He was now observed in a blue shirt and he went to Rita Maxima's house. She was shown the blue T shirt Ex. D. G. 3 and all she could say of it is "This resembles the shirt". In cross-examination she said she could have seen him for about 1 minute and that she was about 50 yards away from him. She also said rain was drizzling and in answer to Counsel agreed that it was impossible for her to say whether the shirt was "black or what".

In his submissions before this Court Counsel for the Appellant emphasized these deficiencies in her evidence and pointed out that the most Cruz could say of these shirts is "that they resembled".

(4) Then there is Albert Valerio who said of the shirt Ex.D.G.3 in examination-in-chief:

"The shirt Ex.D.G. 3 resembles one that Jill Oborne had in the house and that she personally owned".

Furthermore Albert Valerio at the close of his examination-in-chief at the trial spoke to jewellery as being missing from the house and ended up by saying "I can't recall anything else that was missing". In cross examination he said he did mention missing clothing to the officer taking the statement, but it does not appear therein. It must be remembered that one bit of evidence from which it was sought to link the Appellant with the murder was the blue shirt and it could prove to be vital, if it could be established that it belonged to the deceased, and that the Appellant was seen wearing it on the morning after the deceased was murdered. In his own words at the trial in cross examination Valerio said of this shirt:

Q. When Sgt. Itza showed you the (blue) shirt
(D.G. 3) you scrutinized it properly-
A. Yes I scrutinized.
Q. With very meticulous care, closely-
A. Yes.
Q. After so scrutinizing this exhibit with meticulous
care you came down with the decision.... "I am
unable to make a positive identification".
A. Yes.

It should be observed further that at the Preliminary Inquiry he changed his stand slightly and said "It resembles - looks like". However as previously stated Albert Valerio was able to say that the shirt had the scent of Yardley's Lavender perfume which his wife and himself both used at home, and that the shirt D. G. 3 was a female shirt. In his own words he said:-

"While living with Jill O'borne she had T shirts- female T shirts…. The brands were mainly memo brands made in Bangladesh. She had 4 memo brand T shirts. The colour of those 4 were blue, green, mauve and pink. The shirt D. G. 3 resembles one that Jill O'borne had in the house and that she personally owned.

At the end of the day therefore Albert Valerio did not say that the shirt did not belong to Jill O'borne. It was just that he was unable to make a positive identification of it.

(5) There was evidence from one other witness that the Appellant was seen wearing a red shirt on the night of 13th August and that came from the witness Francisco Valerio. He said that at about 7.30 - 8.00 p.m. on that night he was in Dangriga where he lived and whilst walking on St. Vincent Street he met the Appellant walking north to south. They spoke Appellant asked him for Albert Valerio and was told that Albert was not in Dangriga. Appellant further told him that he could go and sleep at Albert's house because "he, Albert and the deceased are friends". When asked by Counsel how the appellant was dressed the witness said:

"I could recall he was wearing a red shirt and a light short pants."

They parted thereafter.

The fact that the appellant was known to Albert Valerio, (and therefore to his paramour the deceased) is borne out by Valerio himself in his evidence when he said:

"I know Lynam Prison. I got to know Ellis Taibo in this area. This was in 1984. Our relationship was neutral at the time of this incident. I have a very good relationship. Whenever I go to Seine Bight Village I would see Ellis Taibo working. He used to visit me at 21 Howard Street. While clearing the yard on one occasion he was passing and he asked me if that is where I was living and I told him yes. On another occasion he passed by and said he was hungry and I got some food for him. This was about 7:00 a.m. one day in 1991. It was about 5 weeks before the incident. I have no idea if he has ever been there any other time but not in my presence".

This evidence of Albert Valerio is confirmed by none other than the Appellant himself in his cautioned statement says:

"On Tuesday when I left Seine Bight, I had a domestic dispute with my girl Jane Cruz. I got to know Albert from Lynam where I was serving a term. His father was a Prison Officer there and Albert used to carry carving and wood works to Placencia and Seine Bight to sell ... I know that he was living with a white woman on the sea side here in Dangriga. I have visit his house on about three different occasions. I had breakfast at their house once.

The statement continues:

The last time I went to their house was Sunday 11th August 1991 and Jill told me Albert was not there. 'This was about 7:00 p.m. in the night. She told me Albert went to Belize City on some scout business.".

From the above it will be seen that it was two days after, in the night of 13th August 1991, whilst Albert Valerio was still away on "scout business" that the deceased came to her death. Also implicit in this is the fact that Appellant would have been well known to the deceased, and had access to her home. Furthermore the absence of deceased's paramour Albert Valerio from home was confirmed to the Appellant by Francisco Valerio when Francisco met him in the street in Dangriga on the night of 13th August and told him that Albert was not in Dangriqa.

The Appeal

The first ground of appeal was -

The learned trial Judge erred in law in that:

(a) he failed to direct the jury freely and adequately on the burden and standard of proof specifically in relation to the defence of Alibi and that any reasonable doubt on the issue of Alibi must be resolved in the Appellant's favour.

(b) failed to give any guidance to the jury if they reject the Alibi how they should treat that rejection.

The defence of the Appellant was an alibi, and this was put forward by his unsworn statement from the dock and in his statement to the Police.

In both his statement from the dock and his cautioned statement he denied having spoken to Francisco Valerio in Dangriga. He further said that on that night after he had finished drinking wine with a friend, he went to Lenny's uncompleted house and slept alone there and he did not go to 21 Howard Street. The following morning he hitch-hiked back to Seine Bight. He called no witnesses in support.

In his general directions to the Jury the learned trial Judge told them that it is the prosecution who has the burden of proving the case against the Appellant. These general directions were satisfactory.

In his specific directions on the Alibi, the learned Chief Justice said:-

"The law is that he does not have to prove his innocence. He gave a cautioned statement along the same line as the dock statement; he said where he was and where he spent the night; that he was at Lenny's, one Lenny's house that was incomplete. As I said, he said he did not go to 21 Howard Street. What you have to bear in mind is that the burden is on the prosecution to satisfy you so that you feel sure when you consider all the evidence to determine whether the burden has been discharged. The accused says where he was drinking wine then sleeping at Lennys so it is for the Crown to prove that it was he who was at 21 Howard Street at the particular time and committed, the offence. To connect him with the crime you look at all the circumstances and say whether, determine whether you are satisfied that this burden has been discharged. You will ask yourself is there evidence from which you can infer that the accused was in that house on the night of the 13th and 14th.…"

There is no set formula of words which a Judge must follow in his direction to the Jury. What is important is that the law and its meaning should be communicated to the Jury to their understanding. We are of the view that the combined effect of the directions on the burden of proof and the alibi could have left the Jury in no doubt that there was no burden on the Appellant to prove his alibi, even though he raised it in his defence.

This ground of appeal therefore fails.

The main ground of appeal put forward by Counsel for the Appellant was that the learned Judge erred in rejecting the appellant's NO CASE submission.

The principles governing a submission of no case to answer are covered by the case of The Queen vs. Galbraith - 73 C.A.R. 74. If there is no evidence that the crime alleged has been committed by the defendant, the case should be stopped. If the evidence is of a tenuous nature and the Judge comes to the conclusion that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict on it, then upon a submission being made the case should also be stopped.

Where however there is evidence whether direct or circumstantial on which a Jury if they accept it could properly convict, then the trial Judge should allow the matter to be decided by the Jury.

In this case we are of the view that the Crown had put forward a prima facie case albeit based mainly on circumstantial evidence, and the learned Chief Justice was right in rejecting the submission of no case.

The main factors at the end of the Crown's case which the Judge had before him or consideration were as follows:

(1) The deceased and Albert Valerio lived together in Dangriga, and the appellant was well known to them both.

(2) The deceased was in possession of a blue shirt which she bought in England - the Crown put forward D.G.3 as this shirt. It was a female's shirt.

(3) The Appellant was in possession of a red shirt which Jane Cruz bought for him, and a mauve short pants.

(4) The Appellant left his home in Seine Bight on the 13th August 1991 wearing a red shirt and a mauve short pants as stated by Jane Cruz.

(5) The Appellant was seen by Francisco Valerio in Dangriga on the night of 13th August 1991. He was wearing a red shirt, and "light short pants".

(6) He enquired of Albert Valerio from Francis Valerio, who told him that Albert was away from home.

(7) The following day 14 August, the body of the deceased was discovered in her home. That same morning a red shirt which the Crown was saying belonged to the Appellant was found about 100 yards from deceased home. It was stated by Cruz that it resembles the shirt Appellant was wearing when he left home on 13 August.

(8) On 14th August Cruz saw Appellant alight from a vehicle in Seine Bight wearing a blue shirt.

(9) A blue shirt (D.G. 3) was found on 16th August in an unfinished house by Cons. Guzman with other clothing including a short mauve pants. This house in Seine Bight was allegedly occupied by appellant and two others.

(10) This blue shirt (D. G. 3) the witness Albert Valerio said looked like one that the deceased had in her home. More importantly, he said it smelt of Yardley perfume which he and the deceased used at home.

(11) Appellant in his caution statement said on 13 August in Dangriga he was wearing a greenish shirt and a light mauve short pants.

We find that the case was properly left to the Jury for their consideration.

The learned Chief Justice gave adequate directions particularly on the defence of Alibi, and the Jury after due deliberation arrived at a verdict of guilty.

We see no reason to disagree with this verdict. The appeal is accordingly dismissed, and the conviction and sentence affirmed.

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