Court of Appeal
Criminal Appeal Nos. 3, 4 & 5 of 1984
13th June, 1985
SIR JAMES A. SMITH P.
SIR ALBERT L. STAIN J.A.
KENNETH ST. L. HENRY J.A.

Appeal against conviction and sentences imposed for robbery - statements made under caution in Spanish but recorded in English and signed by the 2nd and 3rd appellants - they cannot be said to have adopted contents of statements as they did not understand what was written in them in English - statements inadmissible - circumstantial evidence - insufficient for judge to point jury to one conclusion only if on the evidence other valid conclusions may be reached - doctrine of recent possession - Section 95 of Evidence Ordinance Chapter 75 - question of fact for jury whether a lapse of 75 days could be considered to be "recent" - judge should have directed jury on application of doctrine - appeals allowed - all appellants acquitted and discharged.

J U D G M E N T

The Appellant's Mario Orlando Lopez, Jose Francisco Alvarado Valdez and Jose Ernesto Hernandez Salina were convicted in the Supreme Court of the offence of robbery contrary to section 153(1) of the Criminal Code and sentenced to imprisonment for 10 years, 12 years and 12 years respectively. The particulars of the offence were that they-

"between the 23rd and 24th day of September, 1982 at San Francisco Ranch Cayo District, in the Central District of the Supreme Court robbed Miguel Lemus of $1,500.00 United States Currency, Quetzales $1,800.00 Guatemalan Currency, $2,600.00 Belize Currency, one 16 gauge shot gun valued at $100.00 Belize Currency one Smith and Wesson .357 Magnum Revolver valued at $500.00 Belize Currency; two gold esclavas valued at $200.00 Belize Currency, one gold chain valued at $90.00 Belize Currency and one pair of gold Earrings valued at $70.00 Belize Currency, all to the total value of $10,160.00 Belize Currency or thereabouts.

Julia Lemus and her husband Miguel Lemus lived on San Francisco ranch. Their daughter Leticia who lived at Melchor came daily to the ranch to assist her mother at the shop in one of the buildings on the ranch. Above the shop there was an apartment. At about 7 p.m. on 23rd September Leticia locked up the shop, leaving her father asleep in the kitchen nearby and handing the watchman, Demetrio Hoil, her father's 16 gauge shotgun. When she returned early the following morning she found the shop had been broken into and its contents scattered. On going into the kitchen she saw her father lying dead on a bed his hands and feet tied together and his head covered with a cloth. He had been shot in the head. She looked around for the watchman but could not find him and then left for Melchor to report. About 9 a.m. Julia Lemus returned from a visit to Flores and found that money and jewellery she kept in her shop and apartment which corresponded to the details thereof described in the indictment had disappeared as well as a revolver and a box of bullets which she kept in the shop. Later the same day, Leticia returned and found the dead body of the watchman, Hoil in a plantation near the ranch building but the 16 gauge shotgun had disappeared.
Scope

The three appellants were well known to the Lemus family. The first appellant Mario Orlando Lopez assisted by the third appellant Jose Hernandez Salinas cultivated a vegetable patch on the ranch. The second appellant Jose Francisco Alvarado Valdez worked on the ranch with Julia Lemus.

On 20th November 1982, the first appellant arranged to hire transport from the witness Trinidad Mendez, who lived in Benque, to take six persons, four men and two women to Champon on 29th November. On that day the third appellant loaded the luggage on the vehicle and the first appellant asked Mendez to take care of a revolver and a box of bullets which Mendez put in the locker of his vehicle and returned to the first appellant when they reached Champon.

On 4th December the witness Pedro Hernandez was approached by the first appellant for work at his ranch near Iguana Creek. The first appellant and his group were given work by him. Next day, 5th December, Pedro Hernandez saw first and second appellants fifing a revolver at a tree near the road. It appears that by then the third appellant had left. He was later seen by Mendez in Benque.

On 8th December Police Sergeant Palacio with other police officers surrounded the hut the first and second appellants and their wives were occupying. Inside the police sergeant saw a 16 gauge shot-gun on the bed and found a .38 Smith and Wesson revolver and a box of bullets in a kit bag. He took possession of the weapons and bullets; arrested first and second appellants and took them to Benque police station.

On 9th December the shotgun was identified by Julia Lemus to Police Sergeant Palacio as that which had disappeared from the ranch on 23/24 September. She again identified it at the trial. Leticia also identified the shotgun at the trial.

On the same day, 9th December, the first appellant gave a statement in spanish to Police Corporal Sanchez at Benque police station which Sanchez recorded in English. On the same day the second appellant also gave a statement to Police Corporal Sanchez in Spanish recorded in English.

On 20th January 1983 Julia Lemus went to Chetumal, Quintana Roo, Mexico. There she found the third appellant selling tacos from a little cart near the Vicano Cinema. She reported his presence to the Mexican police and came back with three police officers. All returned to the police station with the third appellant. Two of those officers gave evidence at the trial namely Commandant Alpuche Courtinay and Assistant Judicial Police Officer Porfirio Mai.

Each of them said the third appellant made an oral statement in Spanish which was then repeated to the Commandant who recorded it in Spanish. The third appellant remained in custody until P. Sgt. Palacio came to Chetumal and escorted him to Benque where on 22 January 1983 he made another statement to P. Cpl. Sanchez in Spanish which he recorded in English.

The case against the second and third appellants rested on their recorded statements which were accepted in evidence at the trial. The case against the first appellant rested on the identity of the shotgun and revolver found in his possession on 8th December 1982 and his statement to the police.

It will be convenient to consider first the appeal of the third appellant. He was represented by Mr. W. Elrington who argued three grounds of appeal the first and third of which challenged the admissibility in evidence of the third appellant's statements to the police at Chetumal and Benque which were admitted in evidence by the learned trial judge on a voire dire - after submissions by counsel that they were not admissible on evidence.

As to the statement taken in Chetumal the evidence of Commandant Coutinay was that he invited the third appellant to accompany him to the police station because of accusations made by Julia Lemus. She accompanied them. At the police station the Commandant asked the third accused what had happened. He made an oral statement which the Commandant said was given voluntarily without any warning. Following this oral statement the Commandant placed paper in a type writer and first type in Spanish a preamble containing the name, age, nationality, domicil and occupation of the third appellant. In the preamble it was recorded that the appellant "was informed of the penalties which are incurred on giving false testimony to tell the truth and gave his general description ……" After completing the preamble, the Commandant said "after I finished the first part I asked him to repeat what he had told me and I typed it." The Commandant describing Mexican procedure in this regard said:

"The warning applies only to the first part. It has nothing to do with the second part. We do remind him to tell the truth. We warn him about telling lies in either part. If he lies in either part he will be punished by a judge. After I had warned him against giving false antecedents and after I took it down I reminded him of the need to tell the truth. I do not threaten him about the second part. I did not threaten him about the first part either. The difference between the two parts is that in the first part we are determining the identity of the person before us, whereas in the second part he is telling his own account of what occurred."

Counsel submitted on the voire dire that the warning given as to penalties for telling lies rendered the statement inadmissible.

In his ruling the trial judge said:-

"I shall for the purpose of deciding how I will exercise my discretion presume that warning a person of the penalties for giving false testimony amounts to an inducement when made in the circumstances spoken of in this case and would make any statement recorded as a consequence of such an inducement inadmissible.

However in this case the evidence clearly establishes that the accused told the Police Officers what had happened immediately upon being asked and before any warning was given and then repeated it so that it may be recorded. One cannot say therefore that what he told the Police before any such warning was induced even though it was recorded after what I accept was an inducement. What he said before any inducement cannot be said to have been induced.

I am also assuming that the accused was in custody, even though the witness Courtinay never admitted that. According to our Rules he should have been cautioned. However, I am satisfied that the failure to administer the caution does not affect my decision, on the evidence, that the statement of the accused was made voluntarily by him. I admit it in evidence."

It appears to us, that the trial judge having expressed the opinion that the warning of penalties for giving false testimony amounted to an inducement which would make the recorded statement in-admissible, should have refused to admit in evidence the recorded statement. At that stage the appropriate course would have been for the prosecution to lead evidence through the Commandant of his recollection of what the third appellant had told him in the oral statement. The inadmissible written statement could not be accepted as a substitute for the oral statement and its contents disclosed to the jury. Without the written statement there would have been no evidence before the jury of what the third appellant had told the Commandant before the written statement was recorded, and the jury would have been left with the statement recorded in English by Cpl. P. Sanchez at Benque.

The Benque statement was recorded on 22 January. According to P. Cpl. Sanchez it was given in Spanish in by the third appellant after caution but recorded by him in English because he could not write well in Spanish. The statement thus appears to be the result of a mental translation of what was said to him by the third appellant in Spanish which he recorded in English. On the voire dire the trial judge accepted the evidence of P. Cpl. Sanchez and held that the statement was voluntary. Mr. Elrington has challenged the addmissibility of this statement firstly that it was inadmissible because it was recorded in English and secondly that a statement thus recorded had little evidential value. For the first proposition he relied on an English Home office Circular dated in 1978 which provides in para. 5(a) that an interpreter should take down the statement in the language in which it is made. In Bardalez & Bardalez v. R. (Criminal Appeals Nos. 8 & 9 of 1977) this Court said:-

"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, (now Supreme Court of Judicature Ordinance Sec. 60 Ch. 82) 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 Police in following the Old Judges' Rules and as to certain other matters". The Old Judges' Rules are set out in that document."

These rules and notes for guidance still apply to the courts of Belize, and in para. 9 -which is headed "Statements in a language other than English" it provides in-

9(b) if it is not practicable to write the same (i.e. the statements, in the language spoken by the person making the statement, they shall be written in the English language.

Thus the fact that the statement of the third appellant recorded in English by P. Cpl. Sanchez was not in breach of the Judges Rules. As to Mr. Elrington's other submission there is this comment in Archbold 40 Ed. para. 346 upon which he relies:-

Apart from the question of apparent - unfairness, to obtain the signature of a suspect to an English translation of what he said in a foreign language can have little or no value as evidence if the suspect disputes the accuracy of this record of the statement.

On the voire dire the third appellant stated when shown the statement P. Cpl. Sanchez recorded-

"This is my signature. I cannot read the statement ……………. I did not say what it says I said I signed this document because I was ordered to sign it."

Thus the fact that the appellant signed the statement, not understanding what was written in it in English, does not mean that he acknowledged it as his and admitted its contents. In other words by signing it he did not adopt the contents. There was no police witness to the recording of the statement to support P. Cpl. Sanchez or to say what the appellant was supposed to have said. It follows that, not understanding English the appellant cannot be said to have, by his signature, voluntarily adopted its contents. In those circumstances in our view it should not have been admitted in evidence.

Mr. Elrington also appeared for the second appellant and argued similar grounds of appeal to those for the third appellant. The statement of the second appellant which P. Cpl. Sanchez said was given in Spanish and recorded by him in English, was also we find, inadmissible for similar reasons to those already outlined in regard to the third appellant. On the voire dire the second appellant admitted he made an oral statement but that what was recorded in the written statement was not the evidence he gave.

He said:-

"Cpl. Sanchez told me that I was under their dominion and had to sign whatever they ordered".

Again by his signature on the statement, the contents of which he did not understand as the statement was written in English, he cannot be said to have voluntarily adopted its contents by signing it in the circumstances. The prosecution produced no other evidence which would implicate the second appellant other than that he was present in the hut at Champon when the police found the 16 gauge shotgun, revolver and bullets on 8th December 1982.

The evidence relating to the movements of the first and second appellants from 29th November to 8th December has been set out at the beginning of this judgment from which it may be observed that the first appellant had possession of a revolver and also a 16 gauge shotgun. The shotgun was similar to that which disappeared from the Lemus ranch. But the first evidence of possession of the 16 gauges shotgun by the first appellant related to 8th December, the day of his arrest. On that day the first appellant gave a statement to the police and mentioned that a Salvadorean named Ernesto or Huanaco attempted to get him to join a group of men to assault and rob people but he refused. In his unsworn statement from the dock the first appellant said he received the weapons from Salvadoreans on 1st December 1982.

The learned trial judge dealt with the circumstantial evidence in the following way:

"The first accused - the case against the first accused is circumstantial and is tied to the guns. The first accused in his statement denies having had anything to do with the robbery or the killing. What the prosecution is saying in effect is that you should examine the evidence. If you are satisfied so that you feel sure that this shot gun; .16 gauge shot gun; and this revolver, .38 or .357 magnum revolver were in fact the gulls of Mrs. Miguel Lemus or the husband then if you are also satisfied so that you feel sure that those guns were stolen on that night of the 23rd or even if you are satisfied only that the shot gun was stolen on the night of the 23rd and also if you are satisfied so that you feel sure that the explanation of the first accused does not cause you to have any reasonable doubt about the identity of the gun or how he came by it then you will consider whether that does not prove to your satisfaction that he was one or the people who participated in the robbery at which the guns were lost."

Later he said:

"Now if you are satisfied that he had a gun, a revolver before any Salvadorean gave him a revolver how did he come by that revolver? You follow? He is merely saying "The two guns they found on me were given to me by Salvadoreans". He is not talking of any other guns. So which gun or what gun did he have that he gave Mendez to keep and that he fired or some one fired on arrival at Champon, if he had that gun from before any Salvadorean gave him the guns? Then if you are also satisfied that they are in fact or at least the shot gun is in fact the gun that was stolen from the farm, then you will consider whether that satisfies you so that you are sure that he is also one of the persons who robbed the farm that night because the guns were lost during the robbery or at least the shot gun was lost on the night of the robbery. Don't worry about the revolver. The revolver is important merely to establish that he had a revolver before any Salvadorean gave him a revolver. The shot gun was missing from the morning after the robbery and if you are satisfied it is the same shot gun and it was not given him by any Salvadorean, then are you satisfied so that you can say with certainty that he is also one of the robbers?"

This approach by the learned trial judge ignored entirely the possibility that the appellant had received the weapons from the persons who committed the robbery, knowing that they were stolen, but that he himself was not one of the robbers. If the Jury found that this was an equally reasonable inference to be drawn from the evidence they could not convict the appellant of robbery, and, there being no alternative count in the indictment for handling stolen goods, they would have to acquit the appellant. Although, in the light of McGreevy (1972) 57 C.A.R. 424 there may be no requirement in law to give the time honoured directions which have received the appellation of the "rule in Hodge's case", in cases which rest on circumstantial evidence it is not sufficient for a judge to point a jury to one conclusion only if on the evidence other valid conclusions may be reached. The directions of the learned trial judge may well have deprived the appellant of the opportunity of an acquittal.

Mr. Sampson, Counsel for the first appellant also pointed out that the doctrine of recent possession could have been invoked as the 16 gauge shotgun had been identified as having been stolen from the Lemus ranch. But the date on which the gun was found in first appellant's possession on 8th December was seventy-five days after its disappearance from the ranch. This doctrine is enacted in Sec. 95 of the Evidence Ordinance, Ch. 75. It provides:-

"Possession by a person of property recently stolen is, in the absence of a reasonable explanation by that person as to how it came into his possession, some evidence that he either stole it or handled it knowing it to have been stolen according to the circumstances of the case, but if the accused gives an explanation which raises a reasonable doubt as to his guilt, the judge shall direct the jury that it ought not to say that the case has been proved to its satisfaction on that evidence alone."

The question arising here is whether the possession can be considered to be recent in the circumstances of this case when the first appellant is found in possession of the shotgun after a lapse of 75 days. This was clearly a question for the jury to decide having regard to all the circumstances and the learned trial judge ought to have directed them on the application of the doctrine of recent possession. His failure to do so as we have indicated may have deprived the first appellant of the opportunity of an acquittal.

In the result, for the reasons given we would allow the appeal of all three appellants against both conviction and sentence. They are therefore acquitted and discharged.

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