Herrera v Pech et Al

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Barrington-Jones, J.
• Judgment Date: 31 July 1980
• Docket Number: Appeal No. 1 of 1980
• Date: 31 July 1980

Supreme Court

Barrington-Jones, J.

Appeal No. 1 of 1980

Herrera

and

Pech et al

H. Elrington, Esq., for the appellant

G. Godfrey, Esq., for the respondents

Criminal law - Knowingly harbouring uncustomed goods — Appeal against dismissal of charges against respondents by magistrate

Barrington-Jones, J.

1 This is an appeal by the Crown against the dismissal of charges against the four respondents by the learned magistrate, Cayo Judicial District, on the 25th February, 1980 and whilst the precise charge laid against the respondents is not disclosed in the record the charge and particulars are to be found in the opening paragraph of the learned magistrate's reasons for decision viz:–

Charged with fraudulent evasion of duty contrary to Section 114(1) (g) of Chapter 36 of the Laws of Belize. Particulars: That on the 23rd July, 1979, the four defendants at the Western Border Station (Cayo) were knowingly concerned in the fraudulent evasion of customs duty on 157 sheets — 12' 26 gauge corrugated roofing valued at $3,200. 100 vehicle tyres — 26 tyres 700 x 15 x 6; 12 tyres 750 x 16; 19 tyres 735 x 14; 23 tyres 855 x 15; 20 tyres 855 x 15 valued at $8,000 all to the value of $15,056.40.

2 The original grounds of appeal filed by the Crown complained that the magistrate's decision was unreasonable or could not be supported having regard to the evidence.

3 Leave was given at the hearing to argue an additional ground, i.e., that the decision was erroneous in point of law in that the learned magistrate misdirected himself as to the burden of proof imposed on the defendants by Section 124 of the Customs Ordinance, Chapter 36 of the Laws of Belize.

4 Mr. Elrington said the appeal was based both on law and fact and urged this Court to set aside the adjudication made by the learned magistrate and order a new trial. It was his submission that the learned magistrate had come to wrong conclusions on the facts and that he had misdirected himself on the law in reaching his final adjudication. Mr. Godfrey on the other hand submitted that the learned magistrate had reached correct and proper findings of fact and that he had not misdirected himself on the law, and he urged that the adjudication of the lower court remain undisturbed.

5 Fortunately for this court the learned magistrate has annexed comprehensive reasons for decision and from those reasons it becomes quite evident how the learned magistrate reached his conclusions both as to the law and the facts.

6 In regard to the charge: Section 114(1) (g) provides –

“Every person who ………… is in any way knowingly concerned in any fraudulent evasion of any duties of customs, or the laws and restrictions of the Customs relating to the importation, unshipping, landing and delivery of goods, or otherwise contrary to the customs law, shall be guilty of an offence …………”

7 In support of the charge the Crown called Albert Elrington who is the Senior Customs Examiner at the Western Border Station. This witness gave evidence of observing the border on the 22nd July, 1979 and later crossing the border on foot into Melchor where he saw Perez's pick-up being loaded with zinc and tyres by Pech and Solis. He later picked up P.C. McCullock and apparently they both observed the Western border station from some 200 yards away. Later McCullock left Elrington who then proceeded to a position about 170 yards from the border station. And he says that at about 1:30 a.m. on the 23rd July, 1979 he saw a white Ford pick-up come from the Melchor side of the border and to the customs barrier. He says that the barrier was closed but that someone came out and opened the barrier and the vehicle proceeded on to the Benque Viejo road towards where Elrington was stationed. He says that at this stage he got into his vehicle and flicked his lights and tooted his horn, that the pick-up slowed down but did not stop, and then increased its speed. Elrington says that he then gave chase and eventually the pick-up came to a stop and he says it was the pick-up that he had seen earlier to the Melchor side of the border. He said that it was being driven by Pech and that Solis was with him. Elrington said that Pech told him that the truck was not for him but for Oscar Perez and that they should go to speak to Perez.

8 It appears that on Elrington's instructions the truck was driven to Benque Viejo Police Station where Elrington instructed P.C. McCullock to detain Pech and Solis. Elrington said that Pech told him at that time that the goods were for Oscar Perez and that he was only the driver and that the arrangements were made by Perez to cross the border. The vehicle was then checked and found to contain the items which are the subject of the charge.

9 The second witness was Woman Sgt. Henry who gave evidence of taking a statement from the respondent Pech.

10 The third witness was P.C. McCullock who gave evidence of assisting Elrington on the night of the incident and taking Pech and Solis into custody, and his evidence corroborated that of Elrington regarding their earlier observation at the border and of what took place after the vehicle was taken to the police station.

11 The fourth witness was P.C. Jorge Manzanero and he gave evidence of taking a statement from the respondent Solis.

12 The Crown then closed its case and it was at this stage that Mr. Godfrey submitted that the respondents had no case to answer. The magistrate after hearing the prosecutor held that the respondents did have a case to answer.

13 Here I think that I must assume that the learned magistrate was mindful at that stage that it was for the prosecution to establish a prima facie case on the 1st and 2nd element of the charge viz:

• (1) that the goods in question were dutiable goods; and

• (2) that the respondents were knowingly concerned in the fraudulent evasion and that having established a prima facie case on those two elements the onus then shifted to the respondents in regard to the 3rd and 4th elements of the charge viz:

• (3) that the goods were uncustomed; and

• (4) that the respondents knew the goods to be uncustomed.

14 The defence first called Cpl. D. Vaughan who told the court that he had visited the vicinity of the house and restaurant of Perez in Benque Viejo between 8:30 p.m. and 9 p.m. on the 22nd July and had observed a small white Ford truck in the street in front of the house owned by Perez being loaded by two Spanish descent fellows. The witness said that he spoke to Perez and noted that the vehicle contained zinc and that they were loading what looked like tyres into the vehicle. The witness said that he did not recognize the two fellows in Court and further said that he had later seen the same vehicle in the police compound on the 23rd July, 1979. He said that the things he saw at the station looked the same as the goods he had seen being loaded on the 22nd July. The witness said that he had not reported what he had seen on the 22nd July, 1979.

15 The second witness for the defence was Oscar Perez who said that on the morning of the 22nd July, 1979 he was at his house supervising the loading of his truck and recalled Cpl. Vaughan stopping and speaking to him for a short while. The witness said that he later arranged with the respondent Pech to take the vehicle with the loaded goods to Belize City and that Pech said that he would find the respondent Solis to go with him.

16 The third witness for the defence was Augustine Yacab who is an agricultural quarantine officer at the border. It was this witness's evidence that he was on duty on the 22nd/23rd July, 1979 for some eight hours. The witness averred that no vehicle crossed the border during the period 11 p.m. to 2 a.m. on the 22nd/23rd July. He further said that customs officer Eiley and P.C. Dawson were also with him on duty at the border.

17 In cross-examination the witness admitted that he slept from about 11:30 p.m. to 12 midnight and that he did not wake up until about 4 a.m. to 5 a.m. He agreed that he could say whether a vehicle passed over the border up to midnight but could not say if one passed over whilst he was asleep.

18 This witness said that he saw a white pick-up at the border and he heard the respondent Pech tell Eiley that he was going to Melchor. He said that he did not see Pech receive immigration permission from P.C. Dawson to go over the border. He said that the barrier was closed and locked some minutes after 11 p.m. on the 22nd July.

19 The witness in further cross-examination said that the pick-up did not pass through the border that night after he had seen it on the Belize side of the border. In re-examination he said that the respondent Pech went across the border that night.

20 The fourth witness for the defence was Hubert Eiley, and it was his evidence that he went on duty at about 4 p.m. on the 22nd July, 1979 and remained on duty until 8 a.m. on the 23rd July. He confirmed that the respondent Pech came to the border in a white pick-up and that Pech went over the border with his permission. The witness did not recall if Pech returned. The witness said that he did not get along with his superior P.W.I. He said that P.W.I. had promised to punch him and had threatened him with discharge or a transfer. This witness concluded by saying that he did not see any vehicle go through the checkpoint that night.

21 The fifth witness was the respondent Pech and he confirmed that Perez had asked to make a trip for him and confirmed that he would seek out Solis to assist him on this errand. He said that he drove the vehicle to the border and parked it there and confirmed Eiley's evidence that he went across the border after telling Eiley that he was going to Melchor. The witness said that he found Solis at the border and that they then returned to the border and drove the vehicle back towards Benque but that they were stopped outside Benque by P.W.I.,...