Stevens v The Queen

• Jurisdiction: Belize
• Judge: Smith P.,Henry, J.A.,Luckhoo, J.A.
• Judgment Date: 14 December 1988
• Neutral Citation: BZ 1988 CA 14
• Docket Number: Criminal Appeal No. 8 of 1988
• Court: Court of Appeal (Belize)
• Date: 14 December 1988

Court of Appeal

Smith P.; Henry, J.A.; Luckhoo, J.A.

Criminal Appeal No. 8 of 1988

Stevens

and

The Queen

Denys Barrow for the appellant

F. Lumor for the Crown

Criminal Law - Appeal against conviction — Murder — Whether judge erred inter alia in directing jury on treating homicide as accident.

JUDGMENT:

1 The appellant, Moses Stevens, was charged with the offence of murdering Lloyd Rubio, on November 2, 1987, and was found guilty on July 29, 1988, of offence of manslaughter. He was sentenced under the Juveniles Offenders Act, Cap. 94, to be detained for a period of three years. His application for an extension of time within which to appeal against conviction was granted by the court.

2 The prosecution adduced evidence to the following effect. At the time of the alleged offence the appellant was 13 years of age and Lloyd Rubio was five. They both attended Lake Independence Methodist School. The appellant was Standard V in the Upper School and Lloyd was in the Infants School. The Upper School occupied the second floor and the Infants School occupied the ground floor of the same building. Lloyd's uncle, Earl Rubio, then 15 years old, was in Standard VI of the same school. Earl and Lloyd resided with Lloyd's mother Phillipa Rubio at her home which was about half a mile away from the school. Lloyd attended school on Monday November 2, 1987, but did not return home after dismissal of the Infants School at 2:30 p.m. for the day. Phillipa Rubio, after making enquiries and searching without success for Lloyd reported him missing to the police that night. On the following day at about 7:30 a.m. one Arthur Ottley was driving a skiff on the Belize River when he saw the body a small boy, fully clothed, floating face down in the river about 40 yards from the Belcan Bridge. With the assistance of another person he pulled the body ashore. The boy was dead. Shortly thereafter, in response to a report received at Criminal Investigation Branch that the body of a young child had been found floating in Belize River, a police party was despatched to the scene. The body was subsequently identified as that of Lloyd Rubio and upon a postmortem examination conducted at about 2:00 p.m. that day, Dr. Cobb found that death was due to drowning.

3 Joseph Stevens, the 15 year old brother of the appellant, testified that on November 3, 1987, he was at the Princess Royal Youth Hostel when the appellant arrived there at about 3:00 p.m. The appellant, who sold newspapers, told him how a boy stole his money and newspapers and beat him up. The appellant did not tell him the name of the boy who did this to him nor did he say where the beating took place. They spoke of other things. The appellant told him he took a boy to Belcan Bridge and “he told me how he shoved the boy into the water and the current started to drift the boy away” but did not tell him when this happened. He (Joseph) reported this to Mr. Morris a member of the hostel staff who told him to report to Mr. Panton the officer on duty and he did so.

4 Bernard Panton, Assistant Supervisor at the Princess Royal Youth Hostel, testified that the hostel was one for boys 8–18 years with uncontrollable behaviour in the home. At about 4:00 p.m. on Tuesday November 3, 1987 he was at a staff meeting when Joseph Stevens, who was an inmate at the hostel, interrupted the meeting and spoke about his brother Moses Stevens. He spoke with Moses who told him that he had shoved a little boy in the river and indicated the circumstances under which that happened. During the course of cross-examination Panton said that he asked Moses what he actually did. Thereupon he was asked the question “What did he say?” to which he gave the answer “I cannot say precisely”. Panton said that the Superintendent of the hostel called the police who came for the appellant on the following day, November 3, 1987. In the meanwhile the accused was allowed to stay at the hostel overnight.

5 At about 2:30 p.m. on Wednesday November 4, 1987, Sergeant of Police Robert Rosalez went to the Princess Royal Youth Hostel where he arrested the appellant and took him to the police station. After trying unsuccessfully to locate the appellant's father and having been informed that the appellant's mother was then in prison, he cautioned the appellant in the presence of a social welfare officer, Mrs. Cayetano. The appellant said he would give him a statement which he proceeded to write down. The appellant signed the statement after it was read over to him. This statement, attributed to the appellant, was tendered in evidence by the prosecution. Objection to its admissibility was taken by the defence on the ground that it was not freely and voluntarily given and was in fact a concoction by Sgt. Rosalez. After a voire dire was held, the learned trial judge, in a reasoned ruling, admitted the statement in evidence. The statement is set out hereunder:

“On Monday the 2nd day of November 1987 about 3:00 p.m. I was at school at the Lake Independence Methodist School. Classes were not over for me, but classes were over for another little boy who is in infant I who was in a white shirt and brown pants. I took the little boy by his hand and I told him to go with me by Belcan Bridge. The reason I wanted to take him to Belcan Bridge was because I wanted to push him into the water because his bigger brother had beaten me up earlier in the day. The little boy I learnt to be one Rubio but I do not know his first name. The boy beat me by the Boulevard because he wanted to strong my newspaper that I was selling. When we got to Belcan Bridge underneath, I took him and I push him in the water. The little boy stayed on top and afterward he sink. I push him with his clothes and his tennis. After the boy sink, I went home. I know that he drown because he sink. I did not want to drown the little boy. I just push him like that. Before I push him I asked him if he could swim, and he said no. I did not tell anyone what I did, until about 4:00 p.m. yesterday when I went to Hostel to tell my bigger brother Joseph Stevens. I then stayed at Hostel till today when the police went for me.”

6 Earl Rubio testified that at some time before November 2, 1987, he had a quarrel with the appellant about a football game. He, however, denied that he ever had any quarrel. fight or misunderstanding with the appellant concerning newspapers or money.

7 The appellant made the following statement from the dock in his defence: “Me and the little one went under the bridge to play. Then I shoved the little boy and I did not expect him to drop into the water, and all the statement which the police wrote is pure lie. That's all.”

8 The first ground of appeal is that the learned trial judge erred in law in directing the jury that it was not competent for them to treat the homicide as an accident. The directions given by the learned trial judge on, this aspect of the matter were as follows:

“Members of the jury a submission from the Bar has been made by counsel for the defence that this was an accident. If accident was an issue or became an issue the burden of proving or negativing accident is on the prosecution throughout and if they fail to disprove or negative accident the accused person is entitled to an acquittal. But it is a matter of law for me to decide whether the issue of accident is fit to be left to the jury and I direct you as a matter of law that there is no evidence and that means sworn evidence from any body whether in chief from...