CRIMINAL APPEAL NO. 5 OF 2001

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BEFORE:

The Honourable Mr. Justice Ira Rowe - President
The Honourable Mr. Justice Elliott Mottley - Justice of Appeal
The Honourable Mr. Justice Manuel Sosa - Justice of Appeal

APPEARANCES:

Appellant - Unrepresented.
Mr. Rory Field, Director of Public Prosecutions, with
Ms. Cheryl Lyn Branker-Taitt for the Crown.

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2001: June 20 and October 25.

JUDGMENT

ROWE, P.

1. The appellant was convicted in the Supreme Court at its criminal session on February 13, 2001 for the crimes of committing dangerous harm to Paul Ysaguirre, contrary to section 78 of the Criminal Code and of using deadly means of harm against the said Paul Ysaguirre. He was sentenced to seven (7) years imprisonment on the first count and to five (5) years imprisonment on the second count. The sentences were ordered to run concurrently. At trial as well as in this court, the appellant was unrepresented by counsel.

2. At the time of the commission of the offence the appellant and his victim were both serving custodial sentences. The evidence led by the prosecution at trial through witnesses, Paul Ysaguirre, the victim; William Nicholas, a Prison Officer and Dr. Jose Rivera, established beyond any shadow of a doubt that the appellant attacked Paul Ysaguirre with a machete and inflicted a cut on the flipper and flexor tendons of the middle, index, ring and little fingers of his left hand which affected the middle nerve. He also inflicted a deep cut on the left wrist with the result that the victim is unable to move the four fingers of his left hand. The doctor testified that the victim received a deep injury which was bleeding and if he had not received assistance he could have died from excess bleeding. Paul Ysaguirre was under surgery for three hours. The doctor described the injuries as dangerous harm.

3. The course of the trial presented some problems to the court. However, we applied the proviso to section 31 of the Court of Appeal Act. We dismissed the appeals against conviction and allowed the appeals against sentence in part. We reduced the sentence of seven (7) years imprisonment on count 1 of the indictment to a sentence of five (5) years imprisonment, ordered the sentences on both counts to run concurrently with each other and concurrently with the sentence then being served by the appellant. We discovered that the commitment warrant that had been issued to the Superintendent of Prison by the Registrar on February 13, 2001 had incorrectly stated that the appellant should be imprisoned for the space of 12 years to run concurrently. The learned Chief Justice had ordered that the sentence of seven years on count 1 and five years on count 2 should run concurrently. The commitment warrant to be issued following our decision will put that matter right.

4. The unusual features of this case are these. Following the incident on February 27, 2000 when the appellant attacked and injured Paul Ysaguirre at the Prison at Hattieville, Belize, Visiting Justices purporting to act under section 110(52) of the Subsidiary Laws of Belize, ordered that the appellant be subjected to corporal punishment for the offence of gross personal violence. We were told by the appellant that he received six strokes as part of that punishment. It was not admitted by the prosecution at trial that the Visiting Justices had power to exercise that level of punishment. The appellant contended in the courts below that he had been tried and punished by the Visiting Justices and therefore his trial in the criminal court was a breach of his constitutional right against doubt jeopardy. He also relied upon the fact that Paul Ysaguirre had told the Magistrate at the Preliminary Examination and the jury at the trial that he was making no complaint against the appellant. When asked to plead to the first count of the indictment charging causing dangerous harm, the appellant responded, "double jeopardy".

5. The procedure to be adopted on a plea of autrefois convict is governed by sections 98 and 99 of the Indictable Procedure Act. The plea should be in writing and should be filed with the Registrar not less than 24 hours before the arraignment of the accused - section 98(5). All that the accused has to do to perfect his plea of autrefois convict is to state that he has already been convicted of the crimes now charged in the counts of the Indictment. The issue of autrefois convict must then be tried and decided before the arraignment is taken - section 98(3).

6. In this case there is no recorded evidence that the appellant complied with section 98(5) by filing his written plea of autrefois convict in a timely manner. The point was not taken by the Crown and the court proceeded to try the issue.

7. Section 99(1) of the Indictable Procedure Act provides as follows:

"On the trial of an issue on a plea of autrefois acquit or autrefois convict to any count or counts, if it appears that the matter on which the accused person was tried on the former trial is the same, in whole or in part, as that on which it is proposed to try him, and that he might on the former trial have been convicted of all the crimes of which he may be convicted on the count or counts to which that plea is pleaded, the court shall give judgment that he be discharged from that count or those counts".

8. It was submitted for the prosecution that the plea of autrefois convict was not open to the appellant on the basis that the proceedings before Visiting Justices in the Prison were domestic proceedings and the appellant was not subject to conviction and punishment for a criminal offence in those proceedings. We unanimously agreed with this submission and the acceptance thereof by the learned Chief Justice. The defence of autrefois convict applies where the previous conviction was on indictment or summary complaint before a court of competent jurisdiction after a hearing on the merits. This special defence does not apply where the prior hearing was before a domestic tribunal. See Lewis v Morgan [1943] K.B. 376 and R v Hogan; R v Tompkins [1960] 2 Q.B. 513; 44 Cr. App. R. 255. The tribunal that conducted the previous proceedings must have been a "court" established by law and not before a domestic tribunal. In the earlier proceedings the appellant must have been put in peril of being convicted for the offence for which he is now being charged. Connelly v D.P.P. [1964] A.C. 1254. The Privy Council in Appeal DRA No. 12 of 2000, H. M. Advocate and H. M. Advocate General of Scotland v Robert McIntosh held that for the principle of autrefois convict to apply, the defendant must show that he was "charged with" or "accused of" a criminal offence.

9. In this case the appellant was not charged with a criminal offence before the Visiting Justices. Like the Master of a Ship who has jurisdiction to punish for breaches of discipline while at sea, the Visiting Justices are empowered to punish for gross breaches of discipline involving personal violence that take place in a prison. The procedure governing such proceedings are quite different and distinct from those applicable to a court established by law. The range of punishments that might be administratively administered by Visiting Justices is quite different from the range of punishments normally provided as the sanction for criminal offences. There is no comparison between the two sets of proceedings.

10. The terms of section 99(1) of the Indictable Procedure Act require a former trial of the accused on which he was convicted of a criminal offence or was likely to have been convicted of a criminal offence. In our view, therefore, the statutory provisions and the case law show that the sanctions imposed on the appellant by the Visiting Justices were not as the result of charges preferred against him for the commission of one or more criminal offences and that in those proceedings he was never in jeopardy of being convicted of any criminal offences.

11. The fact that Paul Ysaguirre asked the court if he could withdraw the charges and told the court that he did not want to have a case against the appellant arising out of the issues raised in the Indictment was not a ground for withdrawing the case from the consideration of the jury. The judge properly admonished the victim by advising that the charge is brought as a public matter in the name of the Sovereign and the virtual complaint had no control of the proceedings. Mr. Ysaguirre might have had very good reasons for not wanting to give evidence against another prisoner, but gross violence in a correctional institution is a matter of great public interest and furthermore it is not in the public interest to permit one citizen to inflict gross violence upon another, even with his consent. We are not here commenting upon certain sporting events in which the participants might receive injuries.

12. The court sua ponte raised some issues with the learned Director of Public Prosecutions. The record at page 13 line 24 shows the following:

"Jury duly empaneled

It was not clear from this note by the Court Reporter and the colloquy between the Judge and the appellant whether the appellant had been given the opportunity to challenge jurors before they were sworn and if he was advised by the Marshall or by the court of the extent of his peremptory challenges and or challenge for cause. On inquiry, however, Crown Counsel who appeared at trial confirmed from her notes that the appellant was afforded the opportunity to challenge jurors before they were sworn. In our view, the better practice is for the Court Reporter to record in time sequence the events that occur during the trial, including the process of the selection of the jury.

13. At the end of the prosecution's case, the trial judge addressed the appellant as to his options for presenting his defence as follows:

14. This exchange between the Bench and the appellant did not, in our view, demonstrate clearly whether the appellant was exercising a discretion to remain in the dock and say nothing or to remain in the dock and make an unsworn statement from the dock. The response "Stay right yah so" was equivocal. It is clear from the record that the appellant said nothing. However, as the appellant was unrepresented, it was the duty of the trial judge to ensure beyond doubt that the defendant, by words, clearly indicated that he did not want to make any statement in his defence.

15. In the absence of the jury certain discussions ensued between Crown counsel and the court as to whether the judge could leave both counts of the indictment to the jury as substantive counts. Crown counsel declined an invitation from the judge to address the jury on the issues raised as to the indictment. The jury was recalled and the record shows that the learned trial judge then commenced his summing up.

16. It does not appear from the record that the provisions of section 112 of the Indictable Procedure Act were fully complied with. That section provides:

"The accused person or his counsel shall be allowed, if he thinks fit, to open his case and, after the conclusion of the opening, the accused person or his counsel shall be entitled to adduce evidence in support of the defence and, when the evidence is concluded, to sum up the evidence".

17. There is no record to show that the appellant was asked if he had any witnesses to call in his defence or if he was given any facilities to call such evidence. There is no record that the appellant was given the opportunity to address the jury on the evidence that had been adduced against him by the prosecution. Crown counsel could not assist from her notes taken at trial whether the procedure laid down by section 112 above had been fully complied with. We inquired of the appellant whether he had had any witnesses that he would have called at trial or could call if a new trial were to be ordered. He replied that all the possible witnesses were prisoners, that at least one of the prisoners had been released from prison and deported and that it was not really his intention to call any prisoner as a witness.

18. The uneasiness which we encountered during the hearing of the appeal concerned the fact that it was not clearly demonstrated on the record that the appellant had exercised his right to remain silent; or that he was given the opportunity to call witnesses or to sum up the evidence in his address to the jury. Crown counsel was right to decline to address the jury on any matter after the close of the prosecution's case because the right to reply is governed by section 113 of the Indictable Procedure Act and may only be exercised in cases in which the defendant calls any witness other than the defendant himself.

19. We are satisfied that the appellant intended to rely on the two issues that he raised at the commencement of the trial, to wit, the point as to double jeopardy and that Paul Ysaguirre was not pressing a charge against him. The appellant was not seriously challenging the facts of the case and in our view the facts overwhelmingly proved the offences charged. For these reasons we determined that notwithstanding the deficiencies in the procedure at the trial as shown in the record, no substantial miscarriage of justice has actually occurred and the appeals against convictions were dismissed.

20. In respect of the sentence of seven (7) years on Count 1, we decided that the doubts expressed by the learned Director of Public Prosecutions as to the appropriateness of the disciplinary sanction ordered by the Visiting Justices was not sufficiently taken into consideration by the learned Chief Justice in passing sentence, and we reduced the sentence on Count 1 to five years imprisonment and entered the orders already referred to herein.
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ROWE, P.


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MOTTLEY, J.A.


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SOSA, J.A.