Bardalez and Bardalez v R

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Hogan, P.
• Judgment Date: 01 January 1978
• Neutral Citation: BZ 1978 CA 1
• Docket Number: Criminal Appeals Nos. 8 and 9 of 1977
• Date: 01 January 1978

Court of Appeal

Hogan, P, Inniss and Georges, JJ.A.

Criminal Appeals Nos. 8 and 9 of 1977

Bardalez and Bardalez

and

Regina

Criminal Law - Evidence — Admissibility of Statements — Judges' Rules

Criminal Law - Appeal against conviction — Sentence

Facts: Appellants convicted of robbery and rape — Admissions to police officers while appellants undergoing questioning — Whether appellants in custody — Whether statements taken in breach of Judges' Rules — Whether trial judge erred in failing to exercise his discretion in admitting statements — Finding that the second appellant was not in custody and there was no breach of the Judges' Rules — Finding that the new Judges' Rules promulgated in England in 1964 did not apply in Belize, by virtue of Supreme Court of Judicature Ordinance, Cap. 5, s. 80A — Finding that first appellant was cautioned after oral statements were made to police — That those oral statements were not led in evidence — That the statement taken after the caution was administered was recorded after the questioning previously done by the police and that statement had not been obtained by methods which could be characterized as unfair or which could be said to have made the statement involuntary

Facts: Robbery and rape — First offenders — Sentence of 9 years for robbery severe

Held: That the discretion of the judge was rightly exercised — Appeals against conviction dismissed.

Held: Term varied to 7 years — Leave to appeal against sentence allowed.

Hogan, P.

1 The appellants Cornelius Bardalez and Bartolo Bardalez were charged together with Lewis Ford, who is not now before the court, with robbing Abe Loewen of money — United States and Belizean currency — and with raping his wife Elizabeth. They were convicted on both counts and sentenced to 9 years imprisonment on the robbery charge and 7 years on the rape charge, the terms to run concurrently.

2 As originally framed, the grounds of appeal included the contention that the verdict was unreasonable and could not be supported having regard to the evidence. At the hearing of the appeal, leave was granted to amend the grounds by substituting for the ground — that the learned trial judge had erred in failing to exercise his discretion in admitting statements made by the appellants which had been obtained in breach of the judge's Rules.

3 Since the argument centred solely on this ground, a detailed review of the evidence is not needed. Suffice it to say that on the 5th of September, 1976, at about 5:50 a.m., the Loewens who lived at Spanish Lookout, became aware that armed men were attempting to get into their house. Picking up their 2 ¹/₂ year old child, they ran through the back door in an attempt to reach their nearest neighbour who was some 200 yards away. Their attackers gave chase, caught up with them and took them back to the house. There were three men — one armed with a shotgun and two with knives. Under threat, the Loewens gave the men the money they had in the house US $247.00 in $100.00 bills and $20.00 bills and Bel. $100.00 approximately. Having got the money, the attackers forced Mr. & Mrs. Loewen to strip, compelled Mr. Loewen to hold the child facing the wall and each in turn had sexual intercourse with Mrs. Loewen against her will. They then tied both of them hand and foot in a crouched position and placed gags in their mouths. A vehicle then drove into the yard. The attackers checked and saw that people had arrived and they fled. Neither Mr. nor Mrs. Loewen could identify their assailants because their faces were either substantially or wholly concealed by masks.

4 In due course the Loewens freed themselves and a report was made to the police.

5 Corporal Lino received the report at San Ignacio Police Station at about 7:00 a.m. on September 5.

6 On September 6, Corporal Lino took statements from Joseph Torres and Dorothy Bell of Unitedville, a village across the river from Spanish Lookout where the Loewens lived. This established that Cornelius and Bartolo had made arrangements to borrow Torres' shot gun about 6:00 p.m. on September 4th, that Cornelius had collected the gun and five cartridges at about 4:00 a.m. on September 5, and had returned it and all the cartridges about 11:00 a.m. that same day.

7 After taking the statement from Torres, a message was despatched to C.I.B., Belize, as a result of which Corporal Reyes swore to an information and obtained a warrant to search a house in Racoon Street, Belize, where the appellants lived with their parents. He was searching for U.S. currency but found none. About 6:00 p.m. that day — September 6 — he saw Cornelius and another brother Rudolpho on Racoon Street near their house and to use his words – “I invited them to the C.I.B.”

8 Presumably they accepted the invitation — Rudolpho entering the land Rover first. The Corporal noticed at that stage that Cornelius put his hand into his pocket and on taking it out, threw something like paper under the land rover. Corporal Reyes asked him what he had thrown there. Cornelius gave no answer. The driver reversed the land rover and there on the ground were 4 $1.00 US notes and $2 in Belize notes. When asked why he had thrown the money away, Cornelius made no reply. Corporal Reyes took both Rudolpho and Cornelius to C.I.B., Belize, left them there and set out for the Police Training School where he met Bartolo who was stationed there training as a police recruit.

9 He told Bartolo that he had information that there had been a rape and robbery at Spanish Lookout about which Bartolo could give information. Bartolo replied that he had not been in Cayo District over the week-end, he had been to Corozal. Corporal Lino searched him and found 1 US $20 bill and 4 Belize $20 bills. He stated that Valencia had given him these.

10 Corporal Lino and Bartolo left for C.I.B. Belize. There is no evidence of the conversation preceding their departure, but in cross-examination Corporal Lino said that they came to Belize because Bartolo was going there in any event and he had no facilities for taking a statement at the Training School.

11 In route to Belize, Lino informed Bartolo that he had information that Bartolo had been in Unitedville over the week end. Bartolo then stated that he had gone there on September 4 with Lewis and Santiago Valencia in a land rover and that they had spent the night there.

12 At C.I.B., Lino asked Bartolo whether he would give a statement in writing. He gave no caution, he said, because he was treating Bartolo as a witness not as a suspect.

13 At the trial Bartolo objected to the statement alleging that he had been slapped and bullied by the Corporal who had questioned him in a hostile manner and had then prepared a statement which he had been forced to sign without being allowed first to read it. He had seen the statement only afterwards when Lewis Ford had given him a copy.

14 Although the statement confirmed his presence on the scene, it was basically exculpatory in purpose. He denied taking part in the rape. He indicated that he had no idea that any criminal act was being planned but that he was suddenly aware that his cousin Ford and his brother Cornelius were masked with lady's stockings. He described the knocking on the Loewen's door, with himself in the background, the Loewen's flight and the chase by his brother and his cousin, he remaining behind. Later he heard screaming and went up to see what had happened, first placing over his head a lady's stocking they had given him because he did not wish to be recognised. He sought to have his companions leave but they refused. They returned to the house, he remaining by the door. He saw his cousin hit the man with the barrel of the gun and again he asked them to leave. He went outside himself and as he left he heard his cousin ordering the man and woman to strip. The man was crying that that was all the money he had. Again he went back asking his brother to leave but his brother would not. The man and woman were naked and his cousin said that he would have sex with her. Again he went outside. He heard the lady screaming and the man asking God for help. After a while he went inside again and saw the man and woman tied up. He could only suspect that his brother and his cousin had had sex with the woman. He walked away in the direction they had come and as he walked he saw his brother and his cousin following him. In due course they reached the land rover and drove to Belize City reaching there about 11:00 a.m. Later they left for Corozal and then Orange Walk. On their way there, Lewis shared the money he had got from the robbery and gave him 4 Belize $20 notes and 1 US $20 note — the money the police had recovered from him.

15 After Bartolo had made this statement, he was allowed to return to the Police Training School. Inspector Hamilton took him there. He carried on with his normal duties and late next day he was arrested and charged with the offences of which he was convicted.

16 The contention in the case of Bartolo is that he was in custody from the moment Corporal Lino took him to the C.I.B. and that, according to the judges' rules, he ought not to have been questioned at all and certainly he should have been cautioned before a written statement was taken from him.

17 The case of Cornelius is somewhat different. He had been left at C.I.B. Belize by Corporal Reyes when that officer set off for the Police Training School. Presumably he spent the night there and next day Corporal Reyes took him to San Ignacio reaching there somewhere between 7:00 a.m. and 8:00 a.m. Corporal Reyes handed him over to Corporal Lino and gave tile Corporal the statement recorded from Bartolo.

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