Court of Appeal
Criminal Appeal No. 14 of 1994
SIR DENIS E.G. MALONE

Appeal against conviction for murder - statement made under caution - allegation by appellant at trial that he was beaten and burnt - presumption that if person injured while in custody, police responsible for injuries does not arise as the only evidence on issue was the unsupported evidence of the appellant - question of fact for judge - judge's decision to admit statement a proper one - judge's direction to jury on how to treat confession appropriate - direction on drawing of inferences impeccable - appeal dismissed - conviction and sentence affirmed.

J U D G M E N T

This is an appeal by the Appellant against his conviction for the murder of Alan Dines and Ann Dines on or about the 6th day of February, 1994.

The grounds of appeal are the following:

1. (a) The Learned Trial Judge erred in law in ruling admissible the alleged confessional statement of the accused as freely and voluntarily given;

(b) and that the principle of law involved in this connection was distinguishable from the following MARIO GONZALEZ vs R. BZ C.A. No. 3 of 1985

JUAN JOSE CALLES et al. vs. R. BZ C.A. 10, 11, & 12 OF 1987 and
ANDERSON & HYDE vs R. BZ C. Ca. Nos. 6 & 7 of 1989

2. (a) The Learned Trial Judge erred in misdirecting the jury on the law relating to the drawing of inferences.

(b) He misdirected the jury on the law of circumstantial evidence, and in particular, failed to direct it would be necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which could weaken or destroy the inference.

3. The learned trial judge failed to give adequate and proper directions on how to treat the alleged confession extracted in contravention of section 88(2) of the Evidence Act.

4. The learned trial judge erred in law in that he misdirected the jury on the law relating to an "intention to kill" at page 96 lines 1 et seq: "You may gather the intention to kill from the manner in which he (the accused) said in his confession he used the stick and the size of it." Page 96 bottom. See WINSEL WILLIAMS. BZ. No. 2 of 1992.

5. The learned trial judge at p. 100 lines 6 - 10 directed the jury only about accepting the version of the accused, WITHOUT EMPHASIZING THE NEED ALSO TO REJECT THE CAUTION STATEMENT in order to acquit.

6. The verdict was against the weight of the evidence."

On the 6th of February 1994 the bodies of Alan and Ann Dines were found floating in the sea near the sea wall on the south side of San Pedro. Special constable Ramirez who with Sgt. Hewlett removed the bodies from the water, also found a mangrove stick floating in the sea about three feet from the male body. The mangrove stick was about three feet long with a diameter of about four inches. According to Ramirez it had a red stain like blood on it. A black waist bag and a green waist bag were also found in the vicinity. The latter was found on the ground about twenty-five to thirty yards west of the area. It contained inter alia, $25.00 and a Belize driver's I.D. with the name Alan Dines.

The Appellant was on the 6th February 1994 in occupation of Room 6 at Jesus Tzul's rooming house at San Pedro. In a search of it on that day by the police in the presence of the Appellant a blackish acid wash pair of pants was discovered on the bed in that room. In the right front pocket of the pants were found two gold chains and two gold rings. The appellant was taken to the San Pedro Police Station where the police alleged, he made a voluntary statement under caution in which he confessed himself to be the murderer of Alan and Ann Dines. At his trial the defence attempted, without success, to exclude the statement. Other evidence was gathered by the police in the course of their investigations, but without doubt the statement is at the heart of the Crown's case against the Appellant. Indeed had it not been admitted there may well have been no case for the Appellant to answer.

In a statement given at the voir dire the Appellant said he telephoned his mother with the permission of the police after signing a paper they had put before him and explained both at the voir dire and in a statement from the dock why it was that the caution statement he was alleged to have made should be rejected by the jury as evidence implicating him. His explanation in summary is that he was threatened with death and beaten by the police when on being told to relate what he knew about the deaths of the Dines he replied that he knew nothing about the matter. He was hit in the stomach and sides and twice burned on the arm with a cigarette whilst handcuffed. He observed one of the policemen to be writing and was told to sign a paper put before him without it being read to him as he had requested. Eventually he signed the paper.

His further evidence from the dock was that he was permitted to telephone his father and did so. His father then came to the police station and he told him about the beating. He also told his lawyer about it.

In conflict with the Appellant's evidence at the voir dire and from the dock was the evidence of the police officers. The salient feature of that evidence is that the appellant made a voluntary statement and in particular was not beaten or burned with a cigarette whilst in their custody. They acknowledged that the interview with the Appellant took place in the quarters of the N.C.O. and explained it took place there because of lack of privacy at the police station.

We can see nothing sinister in removing to the quarters of the N.C.O. If as the Appellant stated he was handcuffed, it is preferable he should not have been as we think that unless the requirements of security demand otherwise a suspect should not be handcuffed when giving a statement. In the circumstances of this case there is no evidence to suggest that the appellant should have been handcuffed. However it is clear from the evidence that if he was handcuffed, he was not induced to sign the statement put before him by reason of being handcuffed.

The evidence of the Appellant and the police has been set out at some length as on the first ground of appeal Counsel for the Appellant has submitted that this case falls within the prima facie rebuttable presumption recognized as follows by this Court in Mario Gonzalez and the Queen Criminal Appeal No. 3 of 1985 at p. 2:

"if a person is injured while in the custody of the Police the presumption must be that the Police are responsible for these injuries."

Counsel further submitted that in this case the presumption had not been rebutted as no evidence had been produced by the Crown to explain how the Appellant had come by the injuries of which he complained. Therefore the learned trial judge should not have admitted the statement as in the language of section 88(2) of the Evidence Act Cap. 75 the prosecutor had not discharged the burden on him to,

" ... prove affirmatively to the satisfaction of the judge that it (the statement) was not induced by any promise by favour or advantage or by use of fear, threat, or pressure or by or on behalf of a person in authority."

Mario Gonzalez (ibid) was a case in which there was in the language of the Court at p. 2:

"clear evidence from the appellant that he had suffered injuries after being apprehended by the Police."

Further it was a case in which the accused's evidence of injuries was not only not reported by the prosecution but the suggestion was put to the Appellant in cross-examination of a fight with another prisoner thereby appearing to indicate that the prosecution accepted that the Appellant had suffered injury but was alleging that it Police. No evidence to support that suggestion was ever led nor was any attempt made to call the doctor who the Appellant said had treated him with a view to ascertain the extent and nature of his injuries. This is not such a case. The only evidence of threat or fear is that unsupported evidence of the Appellant. No evidence was given by either his mother or father although his mother is said by him to have been telephoned and his father to have been telephoned and told about the beating. In the circumstances and bearing in mind that the Appellant made no complaint to any person in an official position it is not surprising that the learned trial judge entertained at least a doubt with respect to the evidence of the Appellant. Consequently in this case there was no presumption as in the Mario Gonzalez case (ibid). The trial judge's task was that of weighing the evidence carefully to determine whether the prosecution had affirmatively proved to his satisfaction that the statement was voluntarily obtained. In the performance of that task he would have had the inestimable advantage of observing the witnesses and was therefore in a far better position than ourselves to weigh the evidence of both the accused and the police. As in our view it was reasonable he should find proved affirmatively that there was no fear nor threat, nor pressure. His decision to admit the statement was the right one. Accordingly Ground I must fail.

The facts earlier recited disclosed that the trial proceeded on the basis that the murder weapon was a stick which the Appellant had in his caution statement estimated to be:

"about the length of my arm."

The fact also disclosed that P.C. Ramirez and Sgt. Hewlett recovered from the sea a mangrove stick which was about three feet from the male body and was about three feet long with a diameter of about four inches. According to P. C. Ramirez the stick had a red stain like blood on it. The stick was admitted as an exhibit. In his summing up the learned trial judge described to the jury that the intention of the appellant to kill might be gathered:

"from the manner in which he said in his confession he used the stick and the size of it."

Ground 4 of the grounds of appeal is that the trial judge erred in so directing the jury.

As the defence raised no objection to the admission of the stick in evidence and indeed accepted it as the murder weapon we consider it was properly admitted as an object found at the scene of the crime. We, however, consider that despite the acquiescence of the defence to the admission of the stick in evidence, the direction of the trial judge to the Jury was inadequate in that it failed to point out that whilst an inference might be drawn that the stick was the murder weapon, it would be dangerous to do so because of the absence of evidence proving it to be the stick in question. We do not, however, consider that the understandable error of the learned judge should be cause in the circumstances of this case for upholding the appeal. Accordingly ground 4 must fail and with it ground 5 which was included by the parties in this argument on ground 4.

On the confession the learned trial judge directed the jury as follows:

"Now, the accused or the Defence contends that the confession statement is fabricated. So it is your job to decide two issues in relation to the confession. First, you have to decide whether the accused actually made it. Secondly, but only if your are sure that he made it, you must consider whether or not what he said was true, and determining that you should take into consideration all circumstances having regard to the allegation by the accused that he was beaten and he was burnt. And that is the circumstances he says, under which he made that confession.

If for whatever reason you are not sure whether the confession was made or was true, then you must disregard it. If one the other hand you are sure both that it was made and is true, you may rely on it even if it was made as a result of oppression or other improper circumstances. That is the law as I understand it."

The language of that direction follows almost exactly that of paragraph 28 in Archbold and such differences as exist are of no significance. It provides a way for avoiding conflicts that might arise between judge and jury. It may be that it is manner or avoidance is unsatisfactory as it seems to intrude on the role of the jury. However, that may be we find like the learned judge that it expresses the law as it is. Accordingly ground 3 must fail.

The submissions made by the defence on ground 2 of the grounds of appeals were founded on a passage in the summing up in which the learned trial judge expressed in a somewhat confused manner his directions on the drawing of inferences.

Unquestionably, there is a passage in the summing up on the drawing of inference which is capable of causing confusion. The Judge, however, seems to have been aware that he may not have expressed himself as he would have wished as shortly after the confessing passage he returns to the drawing of inferences. He then said:

"But as I said earlier, before you can draw any inference which is adverse to a person it must only be the reasonable inference to draw from proven facts, and if there is an inference which is favourable as I said, to the accused or even neutral, then a favourable inference must be drawn on his behalf."

The correction in our view impeccably states the law. We therefore find that ground 2 must fail.

The outcome of the trial of the Appellant hung upon the caution statement. Had it been excluded, the evidence would probably have been insufficient for a conviction. But once the caution statement was admitted there was more than sufficient for a conviction. Ground 6 therefore fails.

In the result the appeal is dismissed, conviction and sentence affirmed.

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