The King v Zita Shol
| Jurisdiction | Belize |
| Judge | Bulkan, JA |
| Judgment Date | 28 September 2022 |
| Neutral Citation | BZ 2022 CA 30 |
| Court | Court of Appeal (Belize) |
| Year | 2022 |
| Docket Number | CRIMINAL APPLICATION NO. 2 OF 2018 |
Madam Justice Hafiz Bertram President (Ag.)
Madam Justice Minott-Phillips Justice of Appeal
Mr. Justice Bulkan Justice of Appeal
CRIMINAL APPLICATION NO. 2 OF 2018
IN THE COURT OF APPEAL OF BELIZE, A.D. 2022
C. Vidal SC, Director of Public Prosecutions, for the Applicant/Appellant
A. Sylvestre for the Respondent
The respondent was one of four persons tried on a single indictment comprising multiple counts, arising out of an incident that occurred on August 30 th, 2015 in Indian Creek Village in the Toledo District of Belize. The respondent along with her older sister, Santa Shol, were indicted on two counts, the first charging them with Harm, contrary to s. 79 of the Criminal Code, Cap. 101 of the Laws of Belize, and the second charging them with Abetment of Rape, contrary to s. 20(1)(a) read along with s. 46 of the said Criminal Code. For the sake of completeness, a third person (who is the husband of the respondent) was charged on a single count of Abetment of Rape while the fourth accused (the husband of the respondent's sister) was charged with Rape, contrary to s. 46 of the Criminal Code. All these charges were in relation to a single victim, a young woman of 23 named Gracelia Sam.
The respondent and her co-accused pleaded not guilty. At the conclusion of the trial on July 26 th, 2018, they were all found guilty, whereupon they were immediately remanded into custody pending sentence. A sentencing hearing was duly held and on October 29 th, 2018 the trial judge in an oral decision sentenced the respondent and her sister to time served for both offences, the third co-accused to five years' imprisonment for Abetment of Rape and the fourth accused to ten years' imprisonment for Rape, though the time spent on remand following conviction was deducted from the latter two sentences. This meant that for her convictions of Harm and Abetment of Rape, the respondent served a total of 3 months' imprisonment. It is against this decision that the Crown seeks leave to appeal under s. 49(1)(c) & (2)(c) of the Court of Appeal Act, Cap. 90 of the Substantive Laws of Belize, on the ground that the sentence imposed by the trial judge was “unduly lenient”.
Although a single ground forms the basis of the appeal, three substantive issues arise for consideration: first, was the trial judge entitled to depart from the mandatory minimum sentence fixed by statute for the offences of Rape and Abetment of Rape; second, if he was so entitled, was the sentence unduly lenient, as the Crown contends; and third, if the sentence was indeed unduly lenient, should any further proceedings against the respondent be permanently stayed, on the ground that the period which has elapsed for the hearing of this appeal is inordinately long and thus a breach of her right to be tried within a reasonable time under s. 6(2) of the Belize Constitution? Counsel for the respondent also raised a preliminary objection as to time, which must be determined at the outset.
Counsel for the Respondent noted that the Notice of Motion was filed on November 20 th, 2018, while the affidavit in support from Lucio Shal was filed 10 months later on September 16, 2019. Counsel acknowledges that the application was filed within the 21-day period as stipulated, but argued that under Order II, rule 18(2) of the Court of Appeal Rules it should have been supported by an affidavit. Since an affidavit was only filed 10 months later, the submission was that the application for leave to appeal was not properly filed within the prescribed time. In response, the Crown pointed out that Order II applies to civil appeals, while criminal appeals are governed by Order III. Rule 1 of Order III sets out the manner in which criminal appeals are to be made, and contains no requirement for an affidavit in support. Further, the Crown added, there is no rule which extends the requirements of civil appeals under Order II, rule 18 to the requirements for criminal appeals.
This preliminary point can be disposed of shortly, for the applicable rules are indeed separated into distinct categories governing civil and criminal appeals. Whereas counsel for the respondent has relied on rules pertaining to civil appeals, the Crown's application was made in a criminal matter pursuant to s. 49(1)(c) and s. 49(2)(c) of the Court of Appeal Act, Cap. 90. The possibility of an appeal by the prosecution after a verdict of acquittal is a reform to criminal practice and procedure, which traditionally did not allow such appeals. Unfortunately, however, while this substantive change was made to the law, many of the details were not addressed to govern this newly inserted procedure. Thus, the time for filing criminal appeals (or applications for leave) has come to be governed by s. 27 of the said Act, which stipulates a period of 21 days after conviction or sentence for doing so. Moreover, criminal appeals are governed by Order III and not Order II of the Rules and, as pointed out by the learned Director of Public Prosecutions, nowhere in Order III is there any requirement for any application for leave to be supported by an Affidavit. The requirements specific to civil appeals, and particularly that in rule 18(2) requiring a supporting affidavit, do not apply to criminal appeals.
We note that some of this uncertainty may have been occasioned by the fact that not all of the procedural requirements and the accompanying forms governing appeals have caught up with the “new” procedure of prosecution appeals. However, such a critical matter as that of time cannot be read into the legislation by implication. The current framework as contained in s. 27(1) of the Act stipulates that notice of an application for leave to appeal must be brought within 21 days of conviction or sentence, and in such manner as directed by the appeal rules of court. Nowhere in the latter is there a requirement for an affidavit in support of any application. In this matter, since the application for leave was duly filed within the 21-day period, it complied with the extant procedural requirements, so the Respondent's preliminary objection must therefore be dismissed. We turn now to the substantive issues raised in the appeal, though before addressing them it would be useful to summarize the events that gave rise to these charges and the eventual conviction.
On the day in question, August 30 th, 2015, a marathon football match was held in the village, attended by both parties and their respective friends. Later in the day, as the victim was returning home along the highway, accompanied by two friends and a cousin, an altercation broke out with one of the four accused. Words were exchanged and things quickly escalated. One group comprising the respondent and three others attacked the victim, in the course of which she was beaten about her body. In a bizarre twist, they tore off the victim's blouse and bra, pulled her into the bush at the side of the road, and then began to encourage the fourth accused to rape her. The third accused then held her hands as the respondent and her sister loosened the victim's belt. The fourth accused then pulled down her pants and penetrated her with his penis. This ordeal only came to an end when the victim's two friends finally intervened and pushed the fourth accused off. She barely had time to pull up her pants when another resident of the village drove up in a vehicle and the victim, now naked from the waist up, was helped inside. She went home first to get properly dressed, and then directly thereafter went to report the incident – first to the Alcalde and then to the Punta Gorda Police Station. After giving a statement, she was taken to the hospital where she was medically examined by a doctor.
It was on the basis of this evidence that the jury convicted all four defendants, finding the respondent and her sister guilty of Harm and Abetment of Rape. Given the strength of the evidence led and the pivotal role played by the respondent, this verdict was hardly a surprise. Aside from the victim's testimony, the prosecution led independent evidence from the driver of the vehicle who rescued the victim and confirmed that she emerged with a torn blouse and without a brassiere. Further, and crucially, the medical examination conducted that very night revealed that the victim not only sustained bruises and scratches “all over her body”, but that she was also bleeding in the walls of her vagina. According to the doctor who testified at trial, the latter condition was consistent with genital bleeding following sexual intercourse.
At the sentencing hearing, which was conducted over several days, the acting Chairman of the Village, a relative of all four convicted persons, testified on their behalf. He described them as “honest, well behaved, [and] hard-working”. Assessing the involvement of the respondent and her sister as “a far cry from the rape of the victim”, the trial judge concluded that the mandatory sentence of 8 years' imprisonment was wholly disproportionate, excessive and a breach of s. 7 of the Belize Constitution which guarantees protection against the imposition of inhuman and degrading treatment or punishment. He then proceeded to sentence the respondent and her sister to time served, which amounted to 3 months' imprisonment on both convictions, and ordered their immediate release from detention. That sentence was viewed with such consternation by the Crown as to inspire this present application for leave to appeal. I turn therefore to the issues raised for determination.
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