Bhojwani v R

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Hogan, P.
• Judgment Date: 05 May 1979
• Neutral Citation: BZ 1979 CA 5
• Docket Number: Criminal Appeal No. 9 of 1978
• Date: 05 May 1979

Court of Appeal

Hogan, P.; Inniss, J.A.; Georges, J.A.

Criminal Appeal No. 9 of 1978

Bhojwani

and

Regina

Criminal Law - Appeal against conviction — Unlawful possession

Evidence - Exculpatory evidence — Unlawful possession

Facts: Whether trial judge misdirected jury by leaving jury in confusion on difference between direction on the law and expounding a principle of law — Whether trial judge misdirected jury on burden of proof — Need to look at summing up as a whole

Facts: This was an appeal against conviction — Whether exculpatory evidence contained in a statement by an accused which is otherwise an admission of guilt can be considered to be evidence at all in the case — Whether only portions of statement which are admissions by accused can be considered as evidence — Whether whole statement is evidence

Held: Jury not misdirected — Appeal dismissed.

Held: When Crown adduces statement relied on as an admission, it is for the jury to consider the whole statement, including any passages favourable to the defendant that bear upon the passages relied on by the prosecution; it is then for the jury to decide whether the statement viewed as a whole constitutes an admission. If it is found to be an admission, it may be relied upon as proof of the facts admitted. Regina v. Donaldson [1976] 62 Court of Appeal R.59, applied.

Hogan, P.

1 At about 5:30 p.m. on June 9, 1978, Elton Jones closed his office which was the bottom flat of a building at the corner of Douglas Jones and Cleghorn Streets and went upstairs where he lived. He testified that he secured all windows and doors with locks and bolts. He went out that evening, returning shortly after midnight. He gave a quick check to the office downstairs and found it secured as he had left it. He went upstairs and retired.

2 About 3:30 a.m., a neighbour called him. He went downstairs and discovered that his office had been broken into, a window having apparently been prised open. Missing were a Polaroid camera valued about $250.00, a pocket calculator valued about $20.00, a radio valued about 520.00 and 25 dozen T shirts valued about $812.50¢. Mr. Elton Jones manufactures T shirts and prints slogans and drawings on them. The missing T shirts were plain undecorated shirts, all of which had some defect. He had stored them in the office in 4 boxes and had not yet made up his mind what to do with them.

3 That morning Mr. Jones again secured his premises and returned to sleep. He reported the theft to the police next morning at 9:00 a.m. P.C. Banner visited the scene and his evidence confirmed Mr. Jones' observation of a broken window through which access had been gained.

4 Meanwhile Mr. Staines, an employee of Mr. Jones, set about visiting retail outlets in Belize City to see whether he could find the T shirts being offered for sale. At about 7:00 p.m., he went to Mr. Diab's store — which is across the road from the appellant's shop — the Majestic — and enquired whether T shirts were available. Mr. Diab took a T shirt from a box which was in front of the counter and showed it to Mr. Staines. Mr. Staines noticed that the box had markings on it similar to those on one of the boxes in which the T shirts had been stored in Mr. Jones' office and that the T shirt had a hole covered with masking tape — a method used by Mr. Jones to mark his seconds. According to Mr. Staines, Mr. Diab named a price.

5 Mr. Staines thereupon left and phoned Mr. Jones, who in turn phoned the police and by 7:30 p.m., Mr. Jones and Sgt. Reyes went to Mr. Diab's store. There Sgt. Reyes saw three boxes of white T shirts the “Jay Garments” brand, some with holes, some dirty, which he testified were exposed for sale at the store. He questioned Mr. Diab as to how he had come by these shirts and as a result of his answer, Sgt. Reyes sent a detective who had accompanied them to the store to fetch the appellant.

6 Shortly after the appellant arrived, Sgt. Reyes asked him whether he knew anything about the shirts. He replied that he had brought them to the store and in answer to a further question he said they were his. When asked where he had got them from he did not reply immediately. Sgt. Reyes then told him that Mr. Jones had reported the theft of these shirts. There was again a pause and then appellant stated that he had bought the T shirts from 2 boys that morning for $120. The boys had brought them in 4 boxes but that one box had been damaged and he had transferred its contents to the other 3.

7 Sgt. Reyes took possession of the boxes and the shirts and took them to C.I.B. When checked, the boxes were found to contain 20 dozen and 9 T shirts. He handed the appellant over to P.C. Banner.

8 P.C. Banner's evidence was that he questioned the appellant preparatory to taking a statement from him. In the course of the questioning the appellant told him that he had got the shirts from 2 boys. Having got that answer, he asked the appellant whether he wished to give a statement in writing. The appellant agreed and he was cautioned. As P.C. Banner was writing the caution, friends of the appellant came in who advised him not to give a statement and the matter ended there. According to P.C. Banner he tore up the paper on which he hart written the caution.

9 Mr. Diab, in whose custody the shirts had been found, testified that the appellant had come to his shop at about 10:00 a.m. on the morning of June 10, and enquired whether he wanted some damaged T shirts cheap. At that time his sales lady was absent. He agreed to take the shirts if they were cheap but no price was agreed. The appellant returned after 2:00 p.m., with one box with shirts and showed what the shirts were like. He left the box again with no price agreed. About 4:00 p.m., the appellant's clerk, Sandra Bennett came with 2 more boxes with shirts. Sandra Bennett confirmed this as did Cynthia Clare, Mr. Diab's sales lady. Mr. Diab said that he never checked the shirts but appellant had told him that they were 20 dozen,

10 At the trial the appellant gave no evidence but he made from the dock a statement that he knew nothing about stolen shirts.

11 The conduct of the defence, according to Counsel for the appellant, followed two lines-a denial that the appellant was ever in possession of the shirts putting the Crown to proof of that and, should the Crown so prove, a denial that the appellant had any knowledge that the shirts were stolen — again putting the Crown to the proof.

12 To establish possession in the appellant the Crown relied on the evidence of Mr. Diab and of the appellant's clerk who had brought 2 of the boxes from the appellant's store to Mr. Diab's store and also on the admission allegedly made by the appellant to Sgt. Reyes in the presence of Mr. Jones and Mr. Diab that he had bought the shirts from 2 boys. Mr. Diab's evidence was that he had not heard appellant say anything when the police talked to him in the shop. Mr. Jones testified that he did hear appellant say that he had bought the shirts from 2 boys, but he conceded that he had not mentioned that fact in his statement to the police. The defence suggested to Sgt. Reyes that he had concocted this piece of evidence.

13 There was also the alleged admission to P.C. Banner. It was argued before us that the defence was not denying that the appellant had given a statement to P.C. Banner. Indeed the contention was that he had given an exculpatory statement which had been suppressed. The judge's note of the answer to a particular question to P.C. Banner does convey the impression that it was being suggested to him that the appellant had told him that he had bought the shirts from 2 boys.

14 It is, of course, difficult to appreciate why, if that admission to P.C. Banner was being conceded, an earlier admission in identical terms to Sgt. Reyes should have been so rigorously contested. We are satisfied that the tenor of the defence was a vehement denial of both admissions and that the suggestion put to P.C. Banner that the appellant had told him that he had bought the shirts from 2 boys was put merely for the purpose of establishing that that was P.C. Banner's evidence in order to point out contradiction between that statement and another statement in his evidence to the effect that he (P.C. Banner) had questioned the appellant that night without success. This is confirmed by a question put to Mr. Diab suggesting to him that he had bought the shirts from someone other than the appellant. Accordingly we do not agree that the trial judge in any way misunderstood the tenor of the defence. The appellant was not stating, as counsel now contends, that he had given a statement to P.C. Banner admitting having bought the shirts but denying that he knew they were stolen. He was denying ever having had possession.

15 Counsel for the appellant has contended that there were two possible situations which the trial judge confused. The first situation was one where a suspect charged with being in possession of stolen goods denied ever having been in possession. If subsequently it was established that he was in possession, then his denial would be evidence of guilty knowledge. The second situation was one where a suspect admitted possession when challenged but subsequently at the trial denied ever having been in possession putting the prosecution to proof shortly after the passage quoted above, the trial judge did say that he was turning to the second aspect of his summing-up and the conclusion must be that he must have been setting out general principles of law by which the jury would have considered themselves bound.

16 The argument is attractive but not convincing. For one thing, it is plain that the trial judge is dealing with the evidence in the case and not merely with general principle with...