Cabral v R

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Hogan, P.,Inniss, J.A.,Duffus, J.A.
• Judgment Date: 05 November 1977
• Neutral Citation: BZ 1977 CA 9
• Docket Number: Criminal Appeal No. 7 of 1977
• Date: 05 November 1977

Court of Appeal

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

Criminal Appeal No. 7 of 1977

Cabral

and

R.

Criminal law - Appeal against conviction and sentence — Aggravated theft and housebreaking — Appeals found without merit.

1 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.

2 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.

3 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.

4 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.

5 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.

6 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.

7 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.

8 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.

9 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.

10 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.

11 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.

12 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.

13 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.

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

15 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.

16 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.

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

18 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.

19 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 accused 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...