Ramirez v R

• Jurisdiction: Belize
• Judge: Mottley, P.,MOTTLEY, P.,SOSA, J.A.,MORRISON, J.A.
• Judgment Date: 27 October 2006
• Neutral Citation: BZ 2006 CA 21
• Court: Court of Appeal (Belize)
• Docket Number: Criminal Appeal No.20 of 2005
• Date: 27 October 2006

Court of Appeal

Mottley, P.; Sosa, J.A.; Morrison, J.A.

Criminal Appeal No.20 of 2005

Ramirez

and

R.

Appearances:

Mr. Michael Peyrefitte for the appellant.

Ms. Cheryl Lynn Branker-Taitt for the respondent.

Criminal law - Abetment to murder — Appeal against conviction — Elements of the offence — No requirement for prosecution to prove that the crime solicited was committed — Directions to the jury — Adverse inference — Trial judge failed to warn jury about drawing adverse inferences from allegations in the prosecution's case — Allegations of threats made in the presence of the jury — Judge should have discharged the jury and ordered a new trial — Appeal allowed — Re — trial ordered.

Mottley, P.

1 The appellant was convicted of the offence of abetment to murder and was sentenced to three years in prison. He appealed against his conviction and sentence. He filed two grounds of appeal. In his first ground, the appellant alleged that the conviction was unreasonable and cannot be supported having regard to the evidence. The gravamen of this submission is that the prosecution was under a duty to prove all the elements of the offence of abetment. It was submitted by Mr. Peyrefitte, who appeared for the appellant before this Court but not at trial, that one of the elements of the offence which the Crown had to prove was that Claudio Cardenas and, the person referred to in the evidence of Charles Bradley, the main witness for the prosecution as taxi man, were one and the same person. The second ground of appeal relates to the reception of evidence which the appellant alleged was prejudicial and therefore prevented him from having a fair trial.

2 The appellant had been jointly charged with Adrian Enrique Cruz and Juliana Theodora Ramirez on an indictment which contained three counts. The first count alleged that Cruz and Javier Ramirez on 19 September 2002 murdered Claudio Cardenas. The second count charged Javier Ramirez with abetment to murder in that on 20 August 2002 he solicited Charles Bradley to murder Claudio Cardenas. At the close of the case for the prosecution, the trial judge accepted a submission made on behalf of Cruz and Ramirez that they did not have any case to answer in respect of count 1. The jury duly returned a formal verdict of not guilty. However, the judge ruled that Ramirez had a case to answer on count 2, the count on which he was subsequently convicted.

3 Prior to the commencement of the trial, the Director of Public Prosecution entered a nolle prosequi discontinuing all proceeding against Theodora Ramirez who had been charged on count 3 with abetment to murder.

4 In the event, we allowed the appeal and ordered a new trial. We do not propose therefore to express any opinion on the evidence or to consider it in any great detail. The Crown's case against the appellant was that he had solicited Charles Bradley to kill Claudio Cardenas.

5 In ground 1 as stated earlier the gravamen of the complaint by the appellant was that the prosecution failed to establish that the person who Charles Bradley was required to kill namely Claudio Cardenas was also known as “Taxi man”. In other words the appellant submitted that the Crown had to prove that Cardenas and “Taxi man” were one and the same person. The appellant contended that by failing to do so, the Crown did not establish that the person who Charles Bradley said that appellant solicited him to murder had in fact been murdered. While the prosecution may have established that Cardenas had been murdered, counsel for the appellant stated there was no evidence to show that Cardenas was the same person that Bradley alleged that the appellant had pointed out as “Taxi man”.

6 This submission is based on a misunderstanding of the offence of abetment as provided for by section 20(1) and (2) of the Criminal Code Cap. 101. An examination of section 20(1) and (2) of the Criminal Code will be sufficient to dispose of this ground. Section 20(1) and (2) of the Criminal Code provides as follows:

20

(1) Every person who: (a) directly or indirectly instigates, commands, counsels, procures, solicits or in any manner purposely aids, facilitates, encourages or promotes the commission of any crime, whether by his act, presence or otherwise; or (b) does any act for the purpose of aiding, facilitation, encouraging or promoting the commission of a crime by any other person, whether known or unknown, certain or uncertain, shall be guilty of abetting that crime and of abetting the other person in respect of that crime. (2) Every person who abets a crime shall, if the crime be actually committed in pursuance or during the continuance of the abetment, be deemed guilty of that crime.

7 In Director of Public Prosecution v. Delita Chavez Criminal Appeal No. 34 of 2004, this Court said:

Under section 20(1)(a) the offence is committed where a person directly or indirectly, instigates, commands, counsels, procures, solicits or in any manner purposely aids, facilitates, encourage or promote the COMMISSION OF ANY CRIME (emphasis ours). The wording of section 20(1)(a) does not require a person to instigate command etc. ANOTHER PERSON (emphasis ours) to commit a crime. The offence under this subsection is completed with the instigation commanding counseling procuring soliciting etc. the commission of any crime. The subsection does not require that the crime must have in fact been committed before a conviction may be obtained under its provisions.

8 As provided, the subsection does not require that the crime solicited must have been committed. The offence is completed when the solicitation takes place. Nothing else is required under section 20(1). Applied to the instant case, what the subsection requires, is that Ramirez would have solicited Charles Bradley to murder Claudio Cardenas. There is no requirement that the Crown should prove that Cardenas was in fact murdered. As stated earlier, we do not see any merit in this ground.

9 In relation to ground 2, we find that there is substance in this ground. On the first day, when the trial resumed after lunch, Charles Bradley, who was about to undergo cross-examination, informed the judge, in the presence of the jury, that he wanted to say something to them. The following exchange then took place in the presence of the jury:

WITNESS: I would like to say something to you, My Honour. When I was at the police station in

the cell block – I would like you to speak to Mr. Javier cause I was threatened and he...