Court of Appeal
Criminal Appeal No. 7 of 1977
5th November, 1977
MICHAEL HOGAN, P.
CLIFFORD INNISS, J.A.
W. A. H. DUFFUS, J.A.

Criminal Appeal against conviction and sentence for three counts of aggravated burglary and one count of housebreaking - Grounds of Appeal - Appellant alleging that he had an unfair tiral because Judge had passed a note to the Jury whenJury went to deliberate and that Jury had taken three days to arrive at a verdict - Ground not supported by evidence - Appellant alleging that Prosecutor had misled Jurors at trial knowing Appellant could not defend himself because he had no Solicitor - Appellant failing to make submissions in support of this Ground - Appellant alleging that trial Judge had misled the Jurors at trial by directing the Jurors to bring a guilty verdict - Record of summing up revealing trial Judge had properly and correctly directed the Jury as to presumption of innocence of Appellant, prosecution's burden of proof, that the Jurors were sole judges of fact, that an unsworn statement carried less weight that a statement on oath because it could not be tested by cross-examination - Effect of unsworn statement made by an accused person from the dock - Trial Judge misdirecting Jury as to what had to be proved in order to sustain the allegation of aggravated theft in each of first three counts - Misdirection held not to have prejudiced Appellant as on the evidence Jury would have found him guilty of stealing all the outboard motor engines if it found that he stole one of the motor engines - Effect of misdirection - Indictment - Several counts - When is it unproper to prefer several counts - Need to avoid duplicity - Particulars of offence of Aggravated Theft alleging stealing occurred from a "building" - The word "building" not within the six categories of places from which a theft would amount to Aggravated Theft - Section 155(b) of the Criminal Code - Effect of error - Appeal against conviction and application for leave to appeal against sentence dismissed.

J U D G M E N T

On 5th July, 1977, Appellant (to whom for convenience we will generally refer as the Accused) was convicted before the Supreme Court of Belize on three counts of Aggravated Theft and a fourth of Housebreaking. The first count related to the theft of one 20 horse power outboard motor, the property of Oscar O'Brien, the second to the theft of one 25 horse power outboard motor, the property of Bernado Corosica and the. Third to the theft of one 20 horse power outboard motor and one outboard motor gas tank, the property of David Teck, in each case from a building which was the warehouse of the National Fishermen Cooperative. The fourth count related to the breaking of the building of that Co?operative. In respect of these convictions the Accused was sentenced to two years imprisonment with hard labour on each of the first three counts and three years imprisonment with hard labour on the fourth count, all the sentences to run concurrently. He now appeals against all these convictions and sentences.

There was evidence that the National Fishermen Co?operative Limited owned a building at Angel Lane, Belize City, which included a storeroom used for the storage of outboard motors belonging to members of the Co?operative. There was also evidence that between 4:30 and 5p.m. on 7th March, 1977, David Teck, a member of the Co?operative, left his outboard motor and gas tank in the storeroom. Four days before that another member, Oscar O'Brien, had left his outboard motor in the storeroom; and yet another member, Bernard Corosica, was keeping his outboard motor there in the month of March, 1977, from an unspecified day.

There was no door leading from the main building to the storeroom. The entrance to the storeroom, or warehouse, was a door facing the Belize River. It was a metal door, which was fastened by drawing it down from above and securing it by a padlock on each side at the bottom.

At about 1 a.m. on the morning of 8th March, 1977, Kenneth Locke, watchman for the Co?operative, tested the padlocks by pulling them, and found them intact. Between 3 and 4 a.m., however, when on his next round of inspection, he found the locks broken but the door still shut. He reported the matter to the Police and waited until they arrived.

Witness Locke knew the Accused. That night, while on duty he had seen the Accused, who was a fisherman and familiar with the Co?operative building, bring a machine to be kept in custody. It was then 7 p.m. He later saw the Accused between 12:00 and 1:00 on one of the boats which were close to the building.

The Police arrived at the Co?operative building at about 5 a.m. on 8th March, 1977. Later that morning Sgt. Andrews also visited the scene. After inspecting the door to the storeroom and finding it broken in a way which indicated that a hacksaw or file had been used to break the locks, Sgt. Andrews, on information received, went in search of the Accused. He found him at the California Club, and invited him to the C.I.B. Office. There, not having made up his mind to charge Accused, Sgt. Andrews questioned him. As a result, Accused said he would show him where he had hidden some machines.

Accused took him to a house at the end of Caesar Road which was closed and had a padlock on the door. No one was in it. It had broken sidings through which Sgt. Andrews saw 3 Johnson outboard motors and a gas tank.

Sgt. Andrews made enquiries for the owner and learnt he was one Joe Almendarez, but he could not find Almendarez that day. Sgt. Andrews returned to the house that day with the Accused who, on Andrews' directions, took the motors and the gas tank out of the house through a window at the back, which was loose.

The motors and gas tank were deposited at the C.I.B. Accused then made a brief written statement after caution which simply related that on 8th March, 1977, he had taken the Police to a small house in Yarborough where three outboard motors were and had assisted them to take the motors out of the house.

The motors and the gas tank were subsequently identified by Teck, O'Brien and Corosica as being those they had left in the Co?operative Storeroom, and which were missing from it.

Sgt. Andrews had on 8th March left a message for Joe Almendarez with a neighbour. This was passed to Almendarez when the latter returned from work with Prosser Fertiliser and the next morning Almendarez went to the Police Station and gave a statement.

According to his testimony the Accused, whom he knew, had come to his house one morning in March about 3:00 to 4:00 a.m. and asked his permission to leave three machines there. Knowing Accused was a fisherman and thinking nothing of it, Almandarez allowed the Accused to leave the machines in his house and went to his work at Prosser Fertiliser. He paid no attention because to him it was getting late. He said he did not know at the time the machines were left that they were stolen and that had he done so, he would not have allowed Accused to leave them there.

In his Defence, Accused gave an unsworn statement from the dock. In it he denied having stolen the machines, and explained his knowledge of their whereabouts by saying that one morning in March, Joe Almendarez had taken him to Almendarez' house and asked him if he could get somebody to buy the three machines which he saw there. Accused agreed and went to the California Club where the Police met him.

It was as a result of the threat of force being used upon him that he took the Police to Almendarez' house. The suggestion that the Police had threatened to use force upon him was not put to Sgt. Andrews in cross?examination. Nor did Accused put to Joe Almendarez in cross?examination any suggestion that Almendarez had stolen the machines or that he had asked the Accused to sell them for him.

The Accused has stated four grounds in support of his Appeal. In the first he contended that he had had an unfair trial.

Apparently in support of this ground, although not having expressly alleged it, he said that the Judge had passed a note to the Jury after they had retired to consider their verdict and insisted that they had been locked down for three days before they gave their verdict.

The allegation relating to the note was unsupported by any affidavit, and the Director of Public Prosecutions, who appeared for the Prosecution at the trial, assured the Court that he knew nothing of any note from the Judge to the Jury. With regard to the length of time the Jury were in retirement, the Record states at p. 15 that on 5th July, 1977, the Jury retired at 11:25 a.m., and returned to Court at 3:10 p.m., and gave their verdict, all on the same day. This accords with the recollection of the Director of Public Prosecutions as expressed to us.

Unsupported in any way, as it is, this allegation seems to us an afterthought and not to merit serious consideration.

Accused made no submissions in support of his second ground of appeal, which was that the Prosecutor had misled the Jurors knowing that the Accused could not defend himself because he had no Solicitor.

In his third ground of appeal, the Accused alleged that the learned Trial Judge had misled the Jurors while he addressed the Court. Apparently, in support of this ground, he submitted that the Judge had told the Jurors to bring in a verdict of guilty. Nowhere in the record of the summing?up have we found any such direction to the Jury. On the contrary, it appears from the Record that the Judge told the Jury that the burden of proving the charges rested on the prosecution and that the Accussed was presumed to be innocent until the prosecution satisfied them so that on the evidence they felt sure of his guilt. He added, inter alia, that whenever they had a real doubt, they should resolve it in favour of the Accused. He also told the Jury that they were the sole Judges of the facts of the case and were not obliged to accept any opinion on fact from anyone, not even from the Judge. Further, he went through the Prosecution evidence at some length and also put to the Jury the Defence as stated in the Accused's unsworn statement from the dock, telling them, however, correctly (see per Shaw J. in Joseph John Coughlan (1977) 64 Cr. App. R. 11 at p. 17), that an unsworn statement carried less weight than a statement on oath because it could not be tested by cross examination, but that they must take it into account along with the evidence in the case. He also dealt with the circumstances in which they should find the Accused not guilty as well as those in which they should find him guilty. In our opinion, there is no substance in the Accused's allegations in this regard.

Questions arose, however, as to the sufficiency of certain directions given by the learned Trial Judge to the Jury. At p. 32 of the Record he told the Jury:?

"Well now looking at the case as a whole, if you believe his story that he was innocent in this whole thing, that he did not steal, that he was innocently disposing of these things for Almendarez, then you would have to acquit him of the crime of housebreaking and aggravated theft because he is not guilty".

The question was whether the Judge should have added that if his story left them with a reasonable doubt as to his guilt, they should also acquit him.

In this connection the Director of Public Prosecutions, as we understood him, made two submissions-

(1) that the direction must be read in conjunction with the directions given at the very beginning of the summing?up in which the Trial Judge told the Jury - "Whenever you have a real doubt, that is a doubt of substance, you should resolve every such doubt in favour of the accused and you should not find him guilty unless you feel sure of his guilt. And this is so not only when you are considering the charges on a whole, but whenever you have such a doubt.";
and

(2) that by using the word "believe" in the passage at p. 32, the Trial Judge gave the Accused the benefit of having his unsworn statement treated as evidence, which he ought not to have done in the light of the decision in Coughlan (supra).

We agree with these submissions. The directions as to the standard of proof required which ware given at the beginning of the summing?up ware strong and clear, and indeed the passage cited above was reinforced by other directions similar in effect, notably at pages 28 and 29 of the record. It seems to us that these directions must have been present to the minds of the Jury throughout the summing?up, which was not a very long one, and it must have been clear to them that if they were left with a reasonable doubt, they should give the benefit of it to the Accused.

With regard to the second submission of the Director of Public Prosecutions, we are indebted to him for directing our attention to the case of Coughlan, 64 Cr. App. R. 11, decided in the current year. In that case Shaw J. said at p. 17???

"The section" (i.e. S. 1(h) of the Criminal Evidence Act, (1898)" 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. Nonetheless, in preserving his right to make an unsworn statement, the statute tacitly indicated that something of possible value to the person charged was being retained. What is said in such a statement is not to be altogether brushed aside; but its potential effect is persuasive rather than evidential. It cannot prove facts not otherwise proved by the evidence before the jury, but it may make the jury see the proved facts and the inferences to be drawn from them in a different light. In?as?much as it may thus influence the jury's decision they should be invited to consider the content of the statement in relation to the whole of the evidence. It is perhaps unnecessary to tell the jury whether or not it is evidence in the strict sense. It is material in the case. It is right, however, that the jury should be told that a statement not sworn to and tested by cross?examination has less cogency and weight than sworn evidence."

In the instant case the Accussed's allegations to the effect that it was Almendarez who had taken him to his house, shown him the motors and asked him to try to find a buyer, for them, rested entirely on his unsworn statement from the dock and were not proved otherwise by any evidence in the case. In these circumstances the Judge's direction that if the Jury believed the Accused's story, they should acquit him was indeed putting the matter in a manner over favourable to the Accused. In our view, a direction on an unsworn statement of an accused person from the dock should be along the lines indicated in the above?cited passage from Coughlan, adding, if it has not otherwise been made clear, that if on the whole of the case they are left with a reasonable doubt so that they are not sure of the guilt of the Accused, they should find him not guilty.

A question also arose as to the adequacy of the Judge's directions regarding what had to be proved in order to sustain the allegation in each of the first two counts that an outboard motor had been stolen and in the third count that an outboard motor and an outboard motor gas tank had been stolen.

At page 18 the learned Trial Judge told the Jury:?

"Well although the counts on the indictment charge the accused with stealing several articles, that is ? three outboard motors and one along with the gas tank, it would be sufficient for the purposes of this indictment, if you found that he had stolen only one of those items, a gas tank or one of the outboard motors, which one of them and that would be sufficient because stealing if any, as stealing a dollar is the same offence. It is only a matter of quantity."

In our view, there was a danger that the Jury might have understood this direction to mean that if they found that the Accused had stolen only one of the items alleged to have been stolen, whether it be a gas tank or one of the outboard motors, that would be sufficient to justify them in finding the allegation of stealing in all the first three counts proved.

In our opinion that would not be so, for each of the first three counts was a separate and distinct charge and all the allegations in it had to be proved.

At page 21 the learned Trial Judge to some extent corrected himself by telling the Jury:?

"Now there are counts of housebreaking and aggravated theft, for each and every one of them is a separate charge and it would be open to you to find the accused guilty of one not guilty of the other or to find him guilty of all of them or to find him not guilty of all of them. They are not in law what we call separate and alternative charges, they are cumulative charges."

At page 33, however, he reverted to his original direction when he told the Jury:?

"So these are the verdicts open to you as I say, although he is charged with stealing three outboard motors, it would be sufficient for this purpose, if you found he stole even one motor or just a gas tank."

The Jury found the Accused guilty of Aggrevated Theft on each of the first three counts and had the evidence in the instant case been other than it is, these errors in the Judge's direction might have had substantial consequences. As it is, however, in our opinion, the circumstances indicated by the evidence are such that if the Jury found that the Accused had stolen any one of the items in question, as they clearly did, they must have found that he stole all of those items. In other words, in our opinion, on a right direction, the Jury must inevitably have come to the same conclusion as was expressed by their verdict, namely, that the Accused stole the item or items mentioned in each of the first three Counts. There is therefore no cause for us to interfere on the ground of this misdirection.

Two questions were also raised as to the correctness of the indictment. The first was whether it was proper to make each of the motors the subject of a separate count, or whether they should all have been included in one count. On this question, the Director of Public Prosecutions submitted that the motors being heavy and each hanging on its own railing, each must have been the subject of a separate taking and carrying away. He added that each had been made the subject of a separate count in order to avoid allegations of duplicity.

In Director of Public Prosecutions v. Merriman, 756 Cr. App R. 28 Lord Morris of Borth?y?Gest said at p. 775?

"It is furthermore a general rule that not more than one offence is to be charged in a count in an indictment ……….. The question arises ? what is an offence. If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five. If A in the dwelling house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances".

In Jemmison and Priddle, 56 Cr. App R. 229, Widgery L.C.J. said at p. 233:??

"The principles which determine the circumstances in which an information will or will not be bad for duplicity are not clearly laid down. There are various landmarks, as it were, in the subject for guidance, but there is a substantial area in between where the court must, in my judgment, retain a measure of discretion."

Having adverted to the two above?mentioned cases and also to Ballysingh 37 Cr. App. R. 28, we do not think it was improper in the circumstances of this case to make each motor the subject of a separate count in the indictment.

The other question which arose on the Indictment was whether the allegation of Aggravated Theft in the Statement of Offence in each of the first three counts was sufficiently sustained by the relevant allegations in the respective Particulars of Offence, which were "stole from a building, that is to say, the National Fishermen Co?operative situate on Angel Lane ......". The word "building" in this part of the Particulars did not fall within any of the six categories of places stealing from which, by virtue of s. 155 (b) of the Criminal Code, amounted to Aggravated Theft.

The Director of Public Prosecutions readily conceded that in the case of each of the three counts the words "warehouse of the National Fisherman Co?operative" should have been included in the Particulars of Offence instead of the words "building ……… Co?operative".

We have addressed our minds to the question whether the error had any effect on the relevant convictions.

In Archbold Criminal Pleading Evidence & Practice (39th Edition) 913 it is stated?

"Where it is alleged that the indictment is bad for duplicity in that it charges more than one offence in one count, an appeal lies as of right and the court, if they so find, will quash the conviction though objection was not taken at the trial ……. Where other defects of less gravity are alleged, generally no effect is given to this ground."

In the instant case, the evidence clearly indicated that the outboard motors were kept in a storeroom (or warehouse) of the National Fishermen's Co?operative and in the summing?up at p. 18, the trial Judge told the Jury:?

"Aggravated Theft is merely stealing in particular circumstances. In this case, it is stealing from a warehouse"; and at the bottom of page 18 he further told them:?

"to make the offence aggravated theft, it has to be in this case, from a warehouse or storeroom."

In our view, it must have been clear to the Jury that in order to find the Accused guilty of the charge of Aggravated Theft as laid in each of the three counts, they had to be sure that the stealing was from a warehouse. Consequently, no injustice resulted to the Accused from the defect in the relevant Statement of Offence and we see no reason for interfering on this ground.

We have also given careful consideration to the question whether the issue of accomplice vel non arose on the evidence in relation to the witness Almendarez and have come to the conclusion that it did not and that the Trial Judge was right in not leaving it to the Jury.

For the reasons we have given, we see no reason for interfering with any of the convictions recorded against the Appellant before the Supreme Court.

We turn now to the Appellant's application for leave to appeal against sentence.

The sentences imposed on him were 2 years imprisonment with hard labour on each of the first three counts and 3 years imprisonment with hard labour on the fourth, all the sentences to run concurrently.

The Appellant has submitted that the sentences were too heavy seeing that he had no previous conviction.

We bear in mind on the other hand that each of these motors was of considerable value and that by stealing them the Appellant was depriving the owners of their means of livelihood since without the motors they could not put to sea to fish. The Director of Public Prosecutions has assured us that in passing sentence the learned Trial Judge observed that because of these considerations, he took a serious view of the case.

We agree with this view and see no reason for interfering with any of the sentences, the total effect of which will be 3 years imprisonment with hard labour.

The appeal against conviction and the application for leave to appeal against sentence are accordingly dismissed and the convictions and sentences affirmed.

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