Sho v R

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Hogan, P.
• Judgment Date: 05 May 1979
• Neutral Citation: BZ 1979 CA 8
• Docket Number: Criminal Appeal No. 10 of 1978
• Date: 05 May 1979

Court of Appeal

Hogan, P., Inniss, J.A. and Georges, JJ.A.

Criminal Appeal No. 10 of 1978

Sho

and

Regina

Criminal Law - Appeal against conviction and sentence — Rape

Evidence - Corroboration — Rape

Facts: Victim made complaint two days after incident — Whether trial judge should have directed jury as matter of law that there was a strong presumption that victim's complaint was false since it was not made to independent person at first opportunity — Trial judge told jury that victim's torn dress and remnant found at scene could be regarded as corroboration — Whether jury misled

Facts: Torn dress and remnant of dress found at scene left by judge with jury as evidence of corroboration — Evidence directed towards confirming occurrence of crime rather than connection of accused with crime

Held: Unsafe and unsatisfactory verdict — s. 31, Court of Appeal Ordinance invoked — Appeal allowed — Conviction quashed.

Held: There was a necessity for trial judge to emphasize that this in itself is not sufficient to provide the measure of corroboration as defined in R. v. Baskerville [1916] 2 K.B. 658 — Appeal allowed — Conviction quashed.

Hogan, P.

1 The appellant appeals against his conviction on a charge of rape for which he received a sentence of 5 years. The effect of the prosecution's evidence at his trial was broadly as follows. On Christmas Day, 1977, Basilia Cal, aged some 55 years, and her husband visited their daughter at Waha Leaf, which they left at about 3 p.m. Basilia had some bread and $50 in her handbag which was carried by her husband.

2 On the road home, at about 7 p.m., they were set upon by the appellant and another man or boy called Cal. Cal seized Basilia, loosed her skirt and flung her on the ground whilst the appellant pulled the handbag from the husband. It was not seen again. Cal held her by the throat and had sexual intercourse with her. The appellant followed and then they both had it again and, when they had finished, made off into the bush, where the frightened husband had already taken refuge. Basilia said she bled from the nose as the result of a blow and from her vagina, and produced in court a blouse, muddy at the back, and a skirt, muddy at the back and torn in front, which she said she wore at the time. She also identified in court a black hat which she saw on the appellant's head and a cloth hat that she saw on Cal's.

3 She said the men came on bicycles, but that she did not see the bicycles after the incident. She and her husband continued their journey slowly, as she was still bleeding, reaching home at about 11 p.m. Two days later she reported to the Chairman of the Council in the Village of Maya Mopan which has no policeman. She explained the delay by referring to pain after the incident and, if the record is correct, maintained that she had never seen either of the men before whilst almost simultaneously claiming that she knew their names as they were fellow villagers. But counsel are agreed there may have been some confusion in interpretation at this point.

4 A doctor who examined Basilia on the Wednesday following the incident on the Sunday, found multiple scratches on the back of both arms which had scabs indicating the scratches were at least 36 hours old. He also found an erect mate penis could have caused bruising of the vaginal walls which. He found no other injuries.

5 Mr. Hun, the Chairman of the Village Council, gave evidence of the complaint on the Tuesday, when Basil “looked sick”. He also gave evidence of finding, about 300 yards from Maya Moan, at a spot in the bush which was “mashed up”, the hats of the appellant and Cal, already identified by Basil, and also a piece of cloth torn from the dress which she had identified. When making this find, he was accompanied by some villagers and he said the hats and the torn cloth were in “one spot'”.

6 Police Corporal Cod, had, however, already visited the area with Basil and her husband, and, whilst he saw bush “mashed down” both by the main road and at a wet and muddy spot some 15 yards off the road, he did not see the hats or the cloth, but, when he returned to the spot some two days later on the 30th December with Mr. Hun, he saw these articles behind a rotted tree stump. He claimed that he did not make a thorough search on the first occasion.

7 The appellant and Cal acknowledged to Corporal Codd that the hats were theirs, but told him they had been lost on...