Usher v R, Eid v R

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Hogan, P.,Inniss, J.A.,Duffus, J.A.
• Judgment Date: 14 January 1976
• Neutral Citation: BZ 1976 CA 1
• Docket Number: Criminal Appeals Nos. 6 and 7 of 1975
• Date: 14 January 1976

Court of Appeal

Hogan, P.; Inniss, J.A.; Duffus, J.A.

Criminal Appeals Nos. 6 and 7 of 1975

Usher

and

Regina

Eid

and

Regina

Criminal Law - Appeal against conviction — Arson and conspiracy

Practice and procedure - Conspiracy and arson

Practice and procedure - Trial — Joint trial — Arson and conspiracy

Facts: The issue was whether on the finding of the facts there was evidence on which the jury could reasonably find the appellants guilty — No criticisms made of Chief Justice's address to jury

Facts: The issue was whether a conspiracy count should be tried separately from a substantive count

Facts: The issue was whether the trial judge ought to have ordered separate trials of the arson and conspiracy counts — No application by accused/appellants for separate trials — Ordering of separate trials a matter for the discretion of the judge

Held: Appeals dismissed — Leave to appeal against sentence refused.

Held: There was no general rule laid down that where there are two counts, one for conspiracy and one for the substantive offence, that the trial judge was required to deal with them in any particular order — Appeal dismissed.

Held: Where there was no application made for separate trials an appellant could not avail himself of a complaint that they had not been ordered — Appeals dismissed.

1 These two appeals were consolidated and heard together.

2 Both appellants were convicted on each of two Counts in each case by a majority verdict of 7 – 2. On the First Count they were charged, along with a third accused, Ayoub Mothman Eid (who was acquitted) with Conspiring together intentionally and unlawfully to cause the dwelling-house at 93 Albert Street, Belize City, the property of Nigel Anson Slusher, to be set on fire; and on the Second they were charged jointly with the crime of Arson in respect of the said dwelling-house.

3 On each Count the Appellant David Eid was sentenced to 15 years at hard labour, the sentences to run concurrently, and the appellant Dennis Usher to 12 years at hard labour, these sentences also to run concurrently.

4 Against their Convictions and Sentences they have both appealed. As Counsel for appellant David Eid addressed the Court first, we will refer to David Eid as the First appellant, and to Dennis Usher as the second appellant.

5 The charges arose out of a disastrous fire in Belize City which began at about 4:30 a.m. on Easter Monday, 31st March, 1975, in which several buildings were destroyed, most of the buildings in the area being of wood.

6 The trial lasted nine days. There were 44 witnesses for the Prosecution and numerous exhibits. None of the Accused gave evidence on oath or called witnesses; but each made a statement from the dock, and there were in evidence one statement from the First appellant and two from the second appellant, both of which were contested and the second of which in effect amounted to a confession.

7 The case for the Prosecution in brief was that the fire had been deliberately started by the second appellant in the store of the First appellant, who, for the purpose of gain, had employed the second appellant to start it.

8 The evidence was circumstantial.

9 It appeared that Nigel Anson Slusher, a witness, was owner of a two-storey wooden building at 93 Albert Street, Belize City, and, together with his wife, Nora Slusher, lived in the upper flat of this building.

10 The lower flat, which had, been let to the First appellant since July, 1962, was divided into two portions by a partition, with a door in it which gave access from one portion to the other. The First appellant with his wife and family, lived in one these portions, which measured 9' x 22', until September, 1974.

11 In the other portion First appellant carried on a dry goods business. It was known as Ramallah's Store.

12 On 16th September, 1974, witness William Johnson rented his house at No. 5 Simmons Alley to First appellant, who in that month, with his family, went to live at that house. No. 5 was behind No. 93. According to Samira Eid, daughter of First appellant, who pointed out a distance in Court, it was about 20' from No. 93. Witness Herman Brackett, however, who was Chief Draftsman in the Lands and Surveys Department, and who produced a map of the area in question, said that in the distance between No. 5 and No. 93 was 50'. The two properties were separated by a low fence which could be jumped over. In this fence there was a gate but according to witness Nigel Slusher, it was kept padlocked and he had the key in his possession.

13 To get to Ramallah's Store from No. 5, First appellant could not use the gate in the fence but had to go into Simmons Alley and on to Albert Street, the only entrance to the Store being from that street.

14 There was a door to the rear of the lower flat of No. 93 which lead into the portion in which appellant and his family had lived. This door was kept bolted from the inside.

15 It appeared that the First appellant was in the habit of taking dry goods in his car, No. C-3674 (which was described as “yellow” or “creamish” in colour), to the Districts for sale. When he was in Belize City he kept the car on the street in front of Ramallah's Store:

16 According to Nigel Slusher and his wife Nora, even after the First appellant and his family had moved to No. 5 Simmons Alley, some of them always slept in Ramallah's Store. First appellant had told Mr. Slusher that he had to sleep in the store because he was afraid someone would break in. When the First appellant was away in the Districts, his wife and small children would come over from the house and sleep in the Store. This continued until December, 1974, when Ayoub Mothman Eid arrived from Kuwait and came to live with First appellant and his family. After that, when the First appellant was away in the Districts, it was Ayoub, and not Mrs. Eid and the children, who slept in the Store (or shop). When the two padlocks were not on the front door of the shop Mr. Slusher would know that there was someone in the shop.

17 According to Samira Eid, when her father was in Belize City, he slept in the shop when he was out In the Districts Ayoub slept in the shop; and when both her father and Ayoub were out of town, no one slept in the shop. A light was always left burning in the shop when the shop was closed. That was so whether anyone was sleeping in it or not. If her father and Ayoub were both out of town, her mother would go and put on the light in the shop. Usually Samara and the children went with her, but sometimes she went alone. On Easter Sunday her mother went alone to put on the light in the shop and also to put on the light facing Albert Street.

18 No one slept in the shop on the Easter Sunday night in question.

19 It appeared from the First appellant's Statement from the dock, if we understand it correctly, that after he and his family had moved to No. 5, the portion of the lower flat of No. 93 in which they had lived was used as a warehouse. In March 1975, however — according to Mrs. Slusher on 21st March — a grocery shop was opened in that portion of the lower flat.

20 There was evidence to the effect that in September, 1972, first appellant on one policy, insured the stock in trade of his shop at Albert Street for $35,000 with Manson Byng (International) Ltd. through the agency of Victor L. Bryant & Co. The risks covered were Fire, Hurricane and Earthquake. This policy was renewed in 1973 and 1974, and was good until September, 1975.

21 In November, 1973, First appellant on another policy, insured the stock in trade of his premises at 93 Albert Street for $35,000 with the Commercial Union Insurance Co. Ltd, again through the agency of Victor L. Bryant & Co. The risks covered were again Fire, Hurricane and Earthquake. This policy was renewed in November, 1974.

22 The Managing Director of Victor L. Bryant & Co. was the witness Mr. Phillip Gallaty, and it will be convenient to refer to these two policies as the “Gallaty Policies”.

23 Under the Gallaty Policies the stock in trade of First appellant's store at 93 Albert Street was insured in the total sum of $70,000. The premia on these policies had been paid and apparently they were in force on 31 ^st March, 1975, for claims were made on them.

24 On 31 ^st August, 1974, First appellant applied to Mr. James Rogers, Chairman of the Belize Insurance Company, for insurance in respect of his stock in trade (dry goods) at Ramallah Store, 93 Albert Street. The coverage sought was $40,000 and the risks to be insured against included Hurricane, Fire and Earthquake. The Proposal Form for this Insurance, filled out, was put in evidence as Ex. J.R. 1. On this form the answer to the question whether the property was already insured was ‘yes’, and the name G. A. Roe & Sons Ltd. was given as the insurer. No mention was made of the Gallaty Policies.

25 Mr. Rogers at the time was ill in bed and granted the insurance although, knowing the place well he was not satisfied with the stock to be covered. The premium of $520.00 was paid partly in cash and partly by cheque. The cheque, which was for $335.00, was returned from the Atlantic Bank unpaid. The insurance was therefore cancelled; but the bouncing of the Cheque was not the only reason for the cancellation. The other reason was that Mr. Rogers was in doubt as to the stock.

26 On 21st September, 1974. First appellant insured his stock of dry goods at 93 Albert Street for $60,000.00 with the West Indian National Insurance Company Limited through the Agency of Belize Insurance Centre Ltd., for one year. The risks covered included Fire, Explosion, Hurricane, Strike and Malicious Damage. The Proposal for this policy was put in evidence as Ex. L. H. 1. It is signed by First appellant. On this form, the answer ‘No’ is entered to Question No. 17 which asked if the property was already insured; and the value of the Stock...