Cowo v R

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Blair-Kerr, P.
• Judgment Date: 28 February 1980
• Neutral Citation: BZ 1980 CA 1
• Docket Number: Criminal Appeal No. 13 of 1979
• Date: 28 February 1980

Court of Appeal

Blair-Kerr, P., Inniss and Georges, JJ.A.

Criminal Appeal No. 13 of 1979

Cowo

and

Regina

Practice and procedure - Confirmatory evidence

Criminal Law - Confession — Confirmatory evidence

Facts: Conviction on a charge of murder — Duty of trial judge to warn jury they ought not to convict an accused person if the only evidence on which that conviction can be based is his confession — No such warning given to jury by trial judge — Whether trial judge erred in law in giving no warning — Whether statement from dock could be confirmatory evidence

Facts: Conviction on a charge of murder — Duty of trial judge to warn jury they ought not to convict an accused person if the only evidence on which that conviction can be based is his confession — No such warning given to jury by trial judge — Whether trial judge erred in law in giving no warning — Whether statement from dock could be confirmatory evidence

Held: The statement of an accused from the dock is a source of confirmatory evidence — The statement of the accused was not a confession or admission within the contemplation of s. 89 Evidence Ordinance — Appeal allowed — Retrial ordered.

Held: The statement of an accused from the dock is a source of confirmatory evidence — The statement of the accused was not a confession or admission within the contemplation of s. 89 Evidence Ordinance — Appeal allowed — Retrial ordered.

JUDGMENT.:

Blair-Kerr, P.

1 On the afternoon of Monday, November 13, 1978, between 3.30 and 4.00 p.m., Norman Myvett went to visit his mother, an old lady of 79 who lived alone in Rainbow Town, Corozal. He rapped, no one answered, he wen in and found the old lady lying on her back on the bathroom floor with her dress raised above her knees and a pool of dried blood near her head. She was dead. There were signs of the house having been broken into – a wooden louvre on a back door had been broken off and the old lady's purse was lying on the floor. Mr. Myvett called the police and investigations began.

2 The doctor established the cause of death as strangulation. A brassiere had been tightly tied around the neck and fixed in a knot on the right side. A plastic cord was also tied round the neck much more tightly with three turns and two knots. It was tight enough to leave a deep indentation.

3 On Monday, November 20, 1978, at about 8.00 p.m., Sgt. Reyes picked up the appellant at a club in Belize City, told him that the Corozal police wished to question him in connection with the death of Mrs. Myvett and took him to the C.I.B. office. Next day he cautioned the appellant who made a statement which was admitted without objection at the trial.

4 The gist of that statement was that he and a man called Fidel, after a week end of drinking, had agreed on Fidel's suggestion to “go and hustle some money”. They walked in the direction of the seaside and at the first lane, he remained on the street and Fidel went away. He came back very shortly after and gave him some money. They walked again, came to another house and Fidel went inside while he remained on the street. Fidel took long to come back and eventually returned looking tired and blowing. He asked what had happened and Fidel replied nothing. They walked away. Fidel gave him some money and a gold chain with a medal and told him that he must go to Belize City while he, Fidel, was going to Chetumal as otherwise he might be questioned by the police. This had happened on the night of Sunday November 12, 1978, and on the same night he had left for Belize City.

5 The appellant was taken to Corozal on the very day that he gave the statement at the C.I.B. At Corozal he made another statement which was also admitted into evidence without objection. In that statement he said that on Fidel's suggestion they decided to go into the house where the old lady was. After each of them tried unsuccessfully to open the back door with a screwdriver, they opened the board louvres and went in together, Fidel following him. While inside they heard a noise. Fidel went into the room and he followed. He saw Fidel holding the old lady around her breast and held her feet. They all fell on the floor. The old lady started to scream so he told Fidel to tie something around her mouth while he left to see whether anyone was passing. When he returned inside, he saw Fidel along with the old lady while he went on searching the house. He found nothing.

6 Later they broke into a big cement house – using the screwdriver and there he had found money which Fidel and himself had shared, his share including about 9,000 Mexican pesos. It had been agreed on Fidel's suggestion that to prevent suspicion they should part, Fidel going to Chetumal and he to Belize City.

7 Sgt. Reyes testified that a gold chain and medal had been found on the appellant when he was arrested. In executing a search at the house of the deceased, P.C. Vernon had found a screwdriver with blue paint on it resembling the blue paint with which the floor of the house had been painted. Just outside of the deceased's house P.C. Vernon also found a piece of metal with blue paint on it. That piece of metal appeared to fit perfectly on to the tip of the screwdriver which had been broken off. There were marks of blue paint as well on the front door of the deceased's house between the latch and face board which showed signs of having been tampered with.

8 There was also evidence that the house of Zenaida Mendez in Rainbow Town, Corozal – not far from the house of the deceased had been broken into on the night of Sunday, November 12, 1978. Among the items stolen was a gold chain and pendant. There were chips of blue paint at the edge of the door which had been forced open. Zenaida Mendez identified as hers the gold chain and medal found on the appellant but could point to no particular identifying mark.

9 The appellant was convicted of murder and from that conviction he has appealed. The notice of appeal sets out three grounds but at the hearing leave was granted to add a fourth. In...