Zetina v McKoy

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Inniss, C.J.
• Judgment Date: 29 October 1969
• Neutral Citation: BZ 1969 CA 1
• Docket Number: Criminal Appeal No.
• Date: 29 October 1969

Court of Appeal

Inniss, C.J.

Criminal Appeal No.

Zetina

and

McKoy

Mr. D. Lindo for the appellant

Attorney General, Mr J.K. Havers for the respondent before the Chief Justice

Criminal law - Appeal against Conviction — Evasion of Customs Duties

Criminal law - Appeal against Conviction — Grounds of Appeal — s. 130 (h) (j) — Supreme Court of Judicature Ordinance, Cap. 5.

Criminal law - Fraudulent evasion of customs duty

Practice and Procedure - Appeal — Grounds of Appeal

Customs and Excise - Customs Duty

Facts: This was an Appeal on finding of facts — Supreme Court of Judicature Ordinance Cap 5, s. 130(h) and (j) — Principles on which Appeal Court acts considered and explained — Whether the conviction was justified having regard to considerations relating to the character of the evidence adduced

Facts: This appeal was based on the question whether an appeal could be lodged on a ground exclusive of the issue whether the magistrate had erred in law in some particular respect or had based his decision on a wrong principle

Facts: This was an appeal against conviction

Facts: Supreme Court of Judicature Ordinance, Cap. 5, s. 130 (h) and (j) — Attempt to argue new grounds of appeal at hearing — Whether the Supreme Court of Judicature Ordinance Cap. 5, s. 133 excludes the appellant from arguing grounds of appeal not stated in his original appeal — whether the grounds of appeal stated in s. 130 (h) are exclusive of a ground which would raise the question whether the magistrate has erred in law or had based his decision on a wrong principle — Whether particulars of appeal must be stated in view of the fact that s. 130 does not provide for particulars

Facts: Appellant convicted of fraudulent attempt at evasion of customs duty, contrary to s. 114 (i)(g) Customs Regulation Ordinance — Whether magistrate erred in convicting appellant of attempt

Held: Verdict no unreasonable or unsupported by evidence — Conviction affirmed — Appeal dismissed.

Held: Both grounds raise the question of sufficiency of evidence — Finding that question for court is: was the case against the appellant proved with that certainty which is necessary in order to justify a conviction — Finding that consideration of this question is different from consideration of question whether the magistrate erred in law in some particular respect and whether the decision must be upset on that ground — Appeal dismissed.

Held: Necessary for prosecution to prove not only an intention on part of defendant that the customs duties should be evaded but also some act done by defendant directly connected with the evasion of customs duties — An act which only amounted to preparation for the evasion of customs duties would be an insufficient act — Necessary also to prove that the attempt at evasion of customs duties was fraudulent. Appeal dismissed.

Held: s.133 of Ordinance excluded appellant from arguing grounds of appeal not stated in his application — Leave of court must be sought to argue new grounds of appeal — Particulars of appeal must be stated. Conviction affirmed — Appeal dismissed.

Held: Two offences contemplated by section — Section contemplated a distinction between the two offences — Appellant rightly convicted of attempt — Appeal dismissed.

1 This is an appeal against a decision of the court of Summary Jurisdiction for the Corozal Judicial District whereby the Defendant/Appellant Matilde Zetina was convicted of the offence of being knowingly concerned in a fraudulent attempt at evasion of the customs duties on 32 cartons on Winston Cigarettes and 11 cartons of Camel Cigarettes the value of which exceeded $15.00 and ordered to forfeit $991.80, or treble the value of the said cigarettes, the Comptroller of Customs having elected to sue for that figure, and pay the same o the Comptroller of Customs. He was also ordered to pay the sum of $2.00 costs to the clerk of the court at Corozal Town. In default the defendant was ordered to undergo 6 months imprisonment.

2 The appeal is brought on three grounds, namely-

• (1) the decision was unreasonable;

• (2) the decision could not be supported having regard to the evidence;

• (3) the decision was such that the inferior court viewing the circumstances reasonably could not properly have so decided.

3 The first two grounds are those permitted by paragraph (h), and the third is one of the grounds of appeal permitted by paragraph (j) of s. 130 of the Supreme Court of Judicature Ordinance (Ch. 5 of the Laws of this Country.)

4 At the beginning of his submissions Mr. Lindo directed attention to the judgment of Graham J. in the appeal Adolphus Rosales v Sgt. 23 Oliver Gibson delivered on 11th Nov. 1967. He then adverted to the Reasons of the Magistrate for his decision and in particular to the words “I am satisfied” He was then arguing that the law was that the magistrate must be satisfied beyond reasonable doubt or, as said in the above-mentioned judgment of Graham J., “completely, satisfied”

5 At this point the court felt obliged to ask Mr. Lindo whether he was entitled to argue that the magistrate was wrong in law in that regard the point not having been taken in any of the grounds of appeal.

6 Mr. Lindo suggested that it would come under the third ground. The court having intimated that it would be prepared to hear argument on that question, Mr. Lindo did not pursue the matter, stating that he was not taking the point as a matter of law or on the basis that the magistrate applied the wrong principle on the question of the burden of proof, because he had not raised it as a ground of appeal. He submitted, however, as I eventually understood him, that the magistrate words “I am satisfied” indicated that the necessary degree of certainty was not present in the magistrate's mind and that this was a circumstance which the court could take into account in determining whether the case had been proved beyond reasonable doubt. He did not apply to the court under s. 133 of Ch. 5 for an order permitting the appellant to go into the additional question whether the magistrate was wrong in law in the matter of the quantum of proof necessary.

7 Although that was Mr. Lindo's final submission as I understood it, it appeared to me that he might well have been reading too much into passages in Graham J's judgment in the Appeal of Adolphus Rosales in which the grounds of appeal were identical with those in the present Appeal and it may be useful for future reference to consider this matter.

8 In the course of his judgment Graham J. said-

“These grounds of appeal are based upon Section 130 (h) (j) of the Supreme Court of Judicature Ordinance, Chapter 5 of the Laws of this Territory, the wording of which follows the original wording of section 4 (1) of the Criminal Appeal Act, 1907, providing that the verdict of a jury, the tribunal of fact, may be “set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence”. Decisions on appeals brought under that Act are therefore relevant as showing how these words have been interpreted and applied.”

9 Later in his judgment he said — “It is now necessary to look at the case as a whole in relation to the duty of a court reviewing a case on the alleged ground that the Magistrate's decision” is unreasonable or cannot be supported having regard to the evidence.” The words quoted have received judicial interpretation. In the case of R. v. Barnes (1942) 28 Cr. App. R. 141 at p. 142. Humphreys J. referring thereto said in the Court of Criminal Appeal “These words have been interpreted in more than one case in this court as amounting to this: If the court thinks that the verdict is, on the whole, having regard to everything that took place in the court of trial unsatisfactory”.

10 If by these passages Graham J. may be thought to be stating that the interpretation put on the words “is unreasonable or cannot be supported having regard to the evidence” by the English Court of Criminal Appeal and put into words as abovementioned by Humphreys J. means that every thing that took place in the court of trial, including, for example, questions as to whether the magistrate was wrong on a specific point of law or based his decision on a wrong principle or admitted inadmissible evidence, is to be taken into account by the Appellate Court in arriving at its decision and that such an interpretation is to be put on those words as they appear in s. 130 of Ch. 5 of the Laws of this country, I would not find it easy to accept such a view.

11 If the interpretation placed on the words by the English Court of Criminal Appeal carries the meaning suggested above I think it must be read in the light of the context in which these words occur in the English Statute in question, namely the Criminal Appeal Act, 1907. A glance at the provisions of that statute indicates that they are of a very different nature from those of the local Ordinance. S. 3 of the Criminal Appeal Act, 1907, which confers a right of appeal is in the following terms-

“A person convicted on indictment may appeal under this Act to the Court of Criminal Appeal-

• (a) against his conviction on any ground of appeal which involves a question of law alone

• (b) with the leave of the court of criminal appeal or upon the certificate of the judge who tried him that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal; and

• (c) with the leave of the court of criminal appeal against the sentence passed on his conviction, unless the sentence is one fixed by law.”

12 It will be seen that under this section the grounds on which an appeal against conviction may be brought are lumped together under four heads only, i.e. those involving only a question of law, those involving...