Solomon Marin Jr v The Queen
| Jurisdiction | Belize |
| Judge | Sir Manuel Sosa P |
| Judgment Date | 02 November 2020 |
| Neutral Citation | BZ 2020 CA 13 |
| Court | Court of Appeal (Belize) |
| Year | 2020 |
| Docket Number | CRIMINAL APPEAL NO 24 OF 2011 |
The Hon Sir Manuel Sosa President
The Hon Madam Justice Minnet Hafiz Bertram Justice of Appeal
The Hon Mr Justice Murrio Ducille Justice of Appeal
CRIMINAL APPEAL NO 24 OF 2011
IN THE COURT OF APPEAL OF BELIZE AD 2020
K L Arthurs for the appellant.
J Chan, Crown Counsel, for the respondent.
This is an appeal by Solomon Marín junior (“the appellant”), who, on 5 July 2011, filed at the Registry of this Court a notice of appeal (“the notice”) according to which he was convicted of the crimes of kidnapping and robbery in the court below sitting in Belmopan on 29 June 2011. It further appears from the notice that, on 30 June 2011, he was sentenced to a term of imprisonment of ten years in respect of each offence, such sentences to be served concurrently. By his notice of appeal, he evinced a desire to appeal against his convictions and sentences. Five questions set out in a standard form questionnaire appended to the notice were required to be answered by him. He answered the second of these questions, which was whether he desired this Court to assign him legal aid, in the negative and the third, which was whether any solicitor was then acting for him, in the affirmative. The appellant also chose to answer a subsidiary question which he was only supposed to answer if his answer to the second question was in the affirmative. That question was as to whether he had any means to enable him to obtain legal aid for himself; and he answered it in the negative. For the reason that this question should not have been answered by him at all, this Court considers that his answer thereto ought properly to be disregarded and shall disregard it. Given his affirmative answer to the third question, the appellant was required to comply with a consequential request to give the name and address of the solicitor then acting for him. The names “Simeon Sampson, Belize City” appear in the corresponding space provided in the questionnaire. Mr Sampson is a well-experienced Senior Counsel of the Belize Bar who has frequently appeared for appellants before this Court over the years, going back well beyond 2011.
The Court finds itself unable, without more, now to proceed to describe the facts of the case under appeal. The reason for this is that use of the document produced in the registry of the court below, self-styled Record of Proceedings, is strenuously objected to by Mr Arthurs, for the appellant, through one of the grounds of appeal, ie ground 2. Mr Arthurs has thus confronted the Court with what is, in all but name, a preliminary objection (hereinafter variously to be called the “preliminary objection”, the “virtual preliminary objection”, the “ de facto preliminary objection” and the “so-called preliminary objection”). In essence, the ground of the objection is that the document in question is not a record of appeal (hereinafter, for convenience, “record”) as such in that it is made up only of the trial notes of prosecuting counsel provided by him pursuant to case management directions. At the heart of this ground is the proposition that the appellant is entitled to be furnished with a record, whatever may be the proper definition of that term, before he can be heard on his appeal. Unless this objection is found to be lacking in merit, the Court will be left with no means of ascertaining, inter alia, the bulk, if not all, of the pertinent factual background. The appellant's position is that, in the absence of a record, there can be no hearing by this Court, let alone a fair one. In those circumstances, says the appellant, his appeal should simply be allowed, his convictions quashed and judgments and verdicts of acquittal ordered to be entered.
The objection of counsel, which received strong support from a member of the Court at the hearing, relied in part on provisions of the CA Act and Court of Appeal Rules (“the CA Rules”). It is convenient at this stage to set out the relevant and potentially relevant provisions, starting with those found in the CA Act.
Part IV of the CA Act comprises sections 23 to 49, inclusive, thereof and is headed Criminal Appeals.
Before setting out provisions of Part IV which are of relevance or potential relevance to the discussion of records and other documents in the present appeal, the Court will remind itself of those provisions under which it, a creature of statute, is empowered to quash a conviction and direct the entry of a judgment and verdict of acquittal. The Court will, in a sense, here set the cart before the horse and go direct to the provisions in point. They are to be found in subsection (2) of section 30 of the CA Act, which reads:
“(2) Subject to the special provisions of this Part, the Court shall, if it allows an appeal against conviction, quash the conviction and direct a verdict of acquittal to be entered …”
Now to the horse. When is this Court empowered to allow such an appeal? The answer lies in the preceding sub-section of section 30, which provides as follows:
“(1) The Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal.”
If the appellant's objection is to prevail, his case must be shown to fall under one of the three categories of case specified in subsection (1).
The Court now turns to deal with identification of any provision of the Act in which the word “record” is found. The goal must be to find an applicable definition of that word. Section 28(1) of the CA Act, which imposes a duty on no one but the intending appellant and is the only section in Part IV in which such word occurs, states, in material part, as follows:
“28.-(1) On every appeal or application for leave to appeal to the Court notice of the grounds of appeal shall be filed within twenty-one days after receipt by the intending appellant from the Registrar—
(a) in the case of an appeal against conviction by the Supreme Court on indictment …, of a copy of the record which shall include a copy of the judge's summing up,
(b)
(c) in all other cases, of a copy of the order against which he desires to appeal and the judgment on which it was based and the judge's notes of evidence, if any.” (underlines added)
As has already been noted at para [1], above, in the present case, the appellant originally indicated that he was desirous of appealing against his convictions as well as his sentences. At the hearing, however, he refrained from seeking leave to appeal his sentences. The question of possible application of section 28(1) (c), relating to notes of evidence, does not therefore arise.
It is to be noted that the term “record”, used, as has just been seen, in section 28(1)(a), is not defined anywhere in the CA Act.
Section 38 of the CA Act, concerned with the duty of a judge to provide “notes of trial” and a “report” to the Registrar and no one else, reads as follows:
The judge of any court before whom a person is convicted shall, in the case of an appeal under this part against the conviction or against the sentence … furnish to the Registrar, in accordance with rules of court, his notes of the trial, and he shall also furnish to the Registrar in accordance with rules of court a report giving his opinion upon the case or upon any point arising in the case.” (underlines added)
As the underlined words, which might easily have been left out of this section, clearly indicate, the discharge of this judicial duty presupposes the existence of applicable rules of court. It would be of academic interest (if nothing else), after identifying those provisions of the CA Rules relevant to this part of the present appeal, to consider whether the applicable rules contemplated by this section were, in fact, included in the CA Rules which were made by the legislature itself and promulgated in the schedule to the CA Act. (It is clear from section 11(3) of the CA Act that the CA Rules are merely deemed to have been made by the first President of the Court.) Such a question can hardly be of practical importance for present purposes given that this section does not provide for a right on the part of an appellant to be furnished either with the notes of trial or the report.
The duty of the Registrar to lay documents and other items before the Court in connection with the hearing of criminal appeals and applications is the subject of section 42(1) of the CA Act, which provides:
The Registrar shall take all necessary steps for obtaining a hearing under this Part of any appeal or application notice of which is given to him under this Part, and shall obtain and lay before the Court in proper form all documents, exhibits and other things relating to the proceedings in the Court before which the appellant or applicant was tried which appear necessary for the proper determination of the appeal or application.”
It is to be noted, in passing, that similar provisions (making, like these, no mention of the word “record”) are to be found in Part II of the CA Act, which is headed General Provisions, at section 9(2), as well as at Order III, rule 29(a) of the CA Rules.
Provision is made for the keeping of such documents and other items by section 42(3) of the CA Act in the terms following:
“Any documents, exhibits or other things connected with the proceedings on the trial of any person on indictment...
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