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Ibanez v. The Queen (Belize) [1998] UKPC 18 (3rd April, 1998)

Privy Council Appeal No. 76 of 1996

Marcutulio Ibanez Appellant

The Queen Respondent

FROM

THE COURT OF APPEAL OF BELIZE

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REASONS FOR REPORT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL,

OF THE 9th March 1998, Delivered the

3rd April 1998

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Present at the hearing:-

Lord Nolan

Lord Jauncey of Tullichettle

Lord Steyn

Lord Clyde

Lord Hutton

·[Delivered by Lord Hutton]

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1. This is an appeal from a decision of the Court of Appeal of Belize on 8th September 1994 dismissing the appellant's appeal against his conviction for the murder of Ernesto Guevara on 2nd October 1992. The appellant was convicted of the murder by a jury in the Supreme Court on 3rd March 1994 and he was sentenced to death. At the conclusion of the argument before the Board their Lordships stated that they would humbly advise Her Majesty that the appeal should be allowed and that the case should be remitted to the Court of Appeal of Belize to consider whether to order a new trial, and that they would deliver their reasons later. Their Lordships now set out the reasons for the decision which they had reached.

The facts which are not in dispute.

The evidence at the trial established the following facts. In October 1992 the appellant was an illiterate farm labourer aged 22. He was employed by Jesus Gongora to work on the latter's farm in the Silk Grass area. The appellant lived in a house on that farm together with another man, Saul Lopez Cruz, who was aged 36. The appellant had a 16 gauge shotgun and Saul Lopez Cruz had a 12 gauge shotgun.

2. On Thursday, 1st October 1992 Jesus Gongora requested Ernesto Guevara to go the next day to help the appellant to plant pineapples at the farm at Silk Grass. On the morning of 2nd October Ernesto Guevara went to the farm at Silk Grass on his bicycle. During the day Ernesto Guevara helped the appellant and Saul Lopez Cruz to plant pineapples. At a later stage in the day Ernesto Guevara was killed by a shot from a shotgun. The forensic evidence established that Ernesto Guevara was shot in the back at very close range with an exit wound on the front of the chest. Shotgun pellets were found in Ernesto Guevara's body, and either a 16 gauge or a 12 gauge shotgun could have fired the fatal shot.

3. When Ernesto Guevara did not report back to Jesus Gongora he became worried, and on Sunday, 4th October reported the matter to the police. On Monday, 5th October Detective Constable Santiago Ciau and Detective Corporal Russell Francis went to the Silk Grass area to look for Ernesto Guevara. On the way Detective Constable Ciau saw the appellant and asked him for Saul Lopez Cruz. The appellant was trembling and Detective Constable Ciau decided to detain him for questioning, and took him to Dangriga Police Station. Saul Lopez Cruz was also detained by the police and was taken to the same police station. Later on that day Detective Constable Ciau, Detective Corporal Russell Francis, Saul Lopez Cruz and the appellant went to the farm at Silk Grass. In the house where the appellant and Saul Lopez Cruz lived the police officers saw Ernesto Guevara's bicycle buried in a hole under a bed. The appellant then took the police officers to an area of ground outside the house and pointed out the place where Ernesto Guevara's body was buried, and the police officers then found his body buried at that location. At another place close by pointed out by the appellant the police officers found Ernesto Guevara's boots and a measuring rope.

The statements made by the appellant and by Saul Lopez Cruz.

In their evidence both Detective Constable Ciau and Detective Corporal Russell Francis stated that when the appellant and Saul Lopez Cruz met in the police station on 5th October and before they were taken by the police to the farm at Silk Grass, the appellant said to Saul Lopez Cruz that he killed a man because he (Saul Lopez Cruz) told him to do so. Detective Constable Ciau said that this statement was made in the charge room of the police station whereas Detective Corporal Francis said that the statement was made in the investigation section of the police station.

4. On 5th October at 4.20 p.m. in the police station, after he had pointed out where the body was buried at the farm at Silk Grass, the appellant made a lengthy written statement to the police after caution. At the trial the admissibility of this statement was not challenged and it was given in evidence by the prosecution. In the statement the appellant said that on the morning of Friday, 2nd October 1992 a short man arrived at the farm on a bicycle. The man had a measuring rope with him and told him that he had been sent by Mr. Gongora. He, Saul Lopez Cruz and the short man then began to plant pineapples. At one stage when the short man went to the house to get more pineapples Saul Lopez Cruz told him that he disliked the short man because he was a thief, and that he was a good friend of Hector Guerra who had stolen a tape recorder from him (Cruz). The statement then continued:-

"Saul then asked me if I had the courage to kill a man. I then told him that I don't have the courage to do that. Saul then told me `Well then aren't you a man, because if you aren't you will have to got the courage to kill'."

5. The appellant then described in the statement how Saul Lopez Cruz told him to lie to the short man that they would go out in the evening to check a trap in order to persuade the short man to stay on at the farm. The short man remained at the farm during the afternoon. The statement then continued:-

"Saul then asked me if I had told the short fellow about the gibnut trapp and of going out tonight to hunt meat. I then told Saul that is why the short fellow had not left the house. Saul then told me afterwards `Now lets see if you have balls man' and to take the short fellow behind the farm where I told him where the gibnut trapp was. I hearing Saul repeating words on my gead got to my mind. I then told the short fellow to go with me to the trapp before it got too late. I then told Saul to hand me the 12 gauge shotgun to use it, but he told me no because it is too dangerous and it is better to use the 16 gauge. Myselg and the short fellow then left the house and went behind the farm to the back of the house. Saul came behind and started following us. Whenever I turned around to see Saul he would gave me signs indicating to kill the short fellow. Saul at that time had Pichingo 12 gauge shotgun and a machete. Myself and the shortfellow arrived at the spot there the gibnut trapp suppoed to be. Since it was a lie I had told the shortfellow about the trapp I told him it was somewhere near the bush. When I turned around to see Saul he gave me sign, saying what happen kill him, I seeing Saul with the gun I feared him a little. I then raised the gun firing the shot at the short fellow hitting him on the left side of the stomach. After I had killed the short fellow Saul came to the spot where he fell. Saul told me that it was late and that we have to bury him. At that time it was about 5:30 p.m. in the evening."

6. The appellant then described how he buried the dead man and Saul Lopez Cruz buried the man's measuring rope and his boots. He and Saul Lopez Cruz then buried the short man's bicycle under a bed in the house. At the end of the statement the appellant said:-

"I did all these things because I was afraid of Saul. Like how he had told me that he killed a man in Salvador I feared him. ... I killed the shortfellow because Saul insisted for me to do it and like how the devil was around I shot and killed him."

7. Saul Lopez Cruz also made a written statement to the police after caution. This statement was made on 6th October and in it he said that on Friday, 2nd October, about 7.00 a.m., he and his friend, Marcotulio Ibanez, woke at Mr. Gongora's farm. About 7.30 a.m. a short fellow arrived at the farm, whom Mr. Gongora had sent to work with them at planting pineapples. The three of them then started to plant the pineapples. The statement then continued:-

"It was at about 12:00 m.d. when we finished planting the pines when Marcotulio came next to me and told me that he would killed Chaparro. At this same time the said Chaparro shouted that he feel to eat gibnut meat. Hearing this Marcotulio told him that he had set some trapps and that they can go and see it. Once again Marcotulio approached me telling me to go at our house and make the meal meanwhile Chaparro and him go and see the trapps. Saying this he got hold of his gun that he had leaned on a stick and I got hold of my two shovels that I had taken to plant the pines. At this time it was at about 1:00 p.m. when I saw both of them left going through a pathway. Meanwhile I went towards the house to wait. As how he had told me that he was going to kill the shortman I stayed looking whilst walking towards them. I could see them about two hundred feet away when suddenly I saw Marcotulio pointed the gun and shot the short man. This happened in a recent falled trees area. After he had killed, he then ran towards the house and he told me `today I finished him'. Afterwhich he got hold of a shovel and went back to where he had killed the shortman to bury him. An hour and a half later after two o'clock in the evening he returned saying to me that he had buried the shortman also the shortman's rope and his boots."

8. The statement then described how the appellant went into the house and began to dismantle the short man's bicycle and dug a hole under his bed, and he (Cruz) then left to work on another farm about two miles away, and he then returned to the house on the Silk Grass farm, and before he went to sleep Marcotulio told him that he had put the short man's bicycle inside the hole under his bed and Marcotulio threatened him that he should not say anything to the police or anyone.

The trial.

Both the appellant and Saul Lopez Cruz were charged with the murder of Ernesto Guevara and they were jointly indicted. It was only on the morning of the trial that the indictment against Saul Lopez Cruz was withdrawn and a new indictment was substituted charging the appellant alone with the murder.

9. At the trial evidence was called by the Crown to prove the facts to which their Lordships have already referred. In addition the Crown called Saul Lopez Cruz as a witness for the prosecution. The trial judge's note of his evidence-in-chief is as follows:-

"I am 39 years old. I use to live at Gongora Farm where I use to work too. I am from San Salvador. I have never gone to school. I can't read nor write. I did agriculture work in Belize. I use to live with Marcotulio in one house.

10. Witness points to accused in the dock.

11. On Friday 2nd October, 1992 I went to work Tula's farm about 5.30 a.m. When I left that morning leaving Marcotulio on Gongora's farm I return that day 5.10 p.m. to the farm. When I came back I saw only Marcotulio at the farm. When I came back I spoke to Marcotulio. He also spoke to me. Marcotulio said to me that the problem had passed. That's all. He told me that he killed the man only that the man told him and nothing else. I don't know who he was referring to."

12. In cross-examination by defence counsel the answers of Saul Lopez Cruz were contradictory. In the first part of the cross-examination Saul Lopez Cruz said that in his police statement he said the same as he had said in his evidence-in-chief at the trial, and he stated in cross-examination that he did not tell the police officer who took the statement from him that at 7.30 a.m. a short man reached the farm and that Mr. Gongora sent the short man to work with him and Ibanez. He admitted that he knew Hector Guerra but he said that he was not his friend.

13. Later in the course of the cross-examination the statement made by Saul Lopez Cruz to the police was read out and the trial judge's note of the answers then given by Cruz is as follows:-

"I was at Gongora's farm on 2nd October, 1992. I was telling a lie when I said I went to work at Tula's farm. It is not a lie that Ibanez told me in the evening that he had killed someone. The statement I made to the Police is true. I don't know but Ibanez told me so. ... Ibanez did not tell me at the Police Station that I told him to kill Guevara. I don't know who is the owner of the bicycle Exh. J.G.2 (deceased bicycle). ... Yes Hector Guevara stole a tape recorder from me."

14. The cross-examination concluded as follows:-

"Q.Since the evidence you gave in Court is not true when questioned by Mr. Gamalath [Crown counsel], would you now tell the Court what happened on 2nd October, 1992.

15. A.That day I went to work."

16. Their Lordships observe that whilst it is clear that defence counsel put it to Saul Lopez Cruz in cross-examination that he was an untruthful witness, it appears that counsel did not put it directly to him that he, and not the appellant, was the person who had shot and killed Ernesto Guevara.

17. There was no re-examination and the jury then put the following questions to Saul Lopez Cruz:-

"Q.How did you know that Marcotulio planted the pineapples when you were not there?

18. A.Because he is the one that worked at the farm.

19. Q.Who killed Ernesto Guevara and why?

20. A.Marcotulio killed Ernesto Guevara. I don't know why he did it.

21. Q.How do you know that Marcotulio Ibanez killed Ernesto Guevara?

22. A.Because he told me that he killed him. He gave me no reason for so doing."

23. It is apparent that Saul Lopez Cruz was a totally unreliable witness and in his summing up to the jury the learned trial judge said with reference to him:-

"The next witness you had was the star of the case, Saul Lopez Cruz. I say star because his name seems to come up over and over and over again, Saul, Saul, Saul.

...

24. Madame Chairperson and Members of the Jury, you may find that this witness, his demeanour as you saw him, you may find that he was not a very impressive witness.

...

25. What is the credit of this witness? You may find Madame Forelady and Members of the Jury, that his evidence is not evidence that you would wish to be guided on in this matter but these are questions of facts for you to decide."

26. The appellant did not go into the witness box to give evidence in his own defence and no witnesses were called on his behalf, but the appellant made an unsworn statement from the dock. The first parts of his unsworn statement corresponded with the statement under caution which he had given to the police on 5th October. He described how a man came to the farm on the morning of 5th October and helped him and Saul Lopez Cruz to plant pineapples. He described how Saul Lopez Cruz told him that the man was a friend of Hector Guerra's and that the man had stolen an iron and a tape recorder from him, that Cruz told him that he did not like the man and asked him if he had the power to kill him. He described how, on Cruz's suggestion, he told the man that they would go to examine a trap when it was getting dark. He then described how he and Cruz and a man went to see the trap and that he (the appellant) carried a shotgun. His statement from the dock then continued as follows:-

"Whilst walking when we reach close to the top Saul told me to kill the man. Saul speak to me angry that he want me to shot the man. Then I saw Saul was backing a shot gun 16, that boss gave me at the farm. Saul told me again to shot the man and I told him I don't want to do that. Then he was so mad that he told me I am batty man and I don't have no balls. I stand up behind and like how Saul see I was vexed he hold the shot gun and point after the man as the man was walking. Then Saul told me I done kill the man. Then Saul told me to go home and bring a shovel. I went home and bring the shovel and I gave it to him."

27. The appellant then said that the dead man was buried and his bicycle was hidden in a hole inside the house. Later in his statement the appellant said:-

"He told me if anybody do him anything he could kill anybody with negro mancie. He knew a lot of people that know how to kill people and he told me if Mr. Gongora came to the farm and asked for the man I must say I don't see the man and he would do the same." (The trial judge told the jury that "negro mancie" meant voodoo).

28. The appellant ended the statement from the dock by saying:-

"Saul told me I must not tell nobody what happen. Like how Saul was insisting I was afraid for him Saul told me if I talk about what happen he would hambug him so that he will be. Every minute he told me to say nobody came there. I was afraid of him that is why I did not tell Mr. Gongora nor the Police anything. Three months since I knew Saul and I don't know what Saul could do so I was afraid of him. I was afraid he do me something bad with. Because I fraid of Saul I never told the Police and nobody what happened what happened what I am standing here. I was afraid to talk because I was afraid of Saul not even to my lawyer until now I am standing here."

29. In his statement from the dock the appellant did not say in express words that Saul Lopez Cruz shot the man, but it is clear, as the trial judge told the jury in his summing up, that this is what the appellant meant by the words "... like how Saul see I was vexed he hold the shotgun and point after the man as the man was walking. Then Saul told me I done kill the man".

The summing up.

Therefore, when the trial reached the stage for the judge to sum up to the jury and having regard to what the appellant had said in his statement from the dock, there was, in reality, only one issue for the jury to consider: was Ernesto Guevara shot by the appellant or by Saul Lopez Cruz? Moreover, although the appellant had given a very detailed statement to the police after caution, which had been admitted in evidence without challenge, describing how he had shot the deceased, the jury had also to consider the issue of who had shot the deceased with the knowledge that Saul Lopez Cruz was clearly a most unreliable witness who had given totally differing accounts as to whether he was present when the shooting had taken place. In directing the jury in respect of the appellant's statement from the dock the trial judge should have directed them in accordance with the guidance given by this Board in its judgment in Director of Public Prosecutions v. Walker [1974] 1 WLR 1090, 1096E where Lord Salmon said:-

"The jury should always be told that it is exclusively for them to make up their minds whether the unsworn statement has any value, and, if so, what weight should be attached to it; that is for them to decide whether the evidence for the prosecution has satisfied them of the accused's guilt beyond reasonable doubt, and that in considering their verdict they should give the accused's unsworn statement only such weight as they may think it deserves."

30. Therefore the trial judge should have directed the jury that it was for them to make up their minds whether the appellant's statement from the dock had any value, and, if so, what weight should be attached to it and that, if they thought that some weight should be given to it, then it raised the issue whether it was Saul Lopez Cruz who had shot the deceased, and this issue must be considered by them. However the trial judge did not direct the jury in this way, but instead told the jury that they must disregard entirely the appellant's statement from the dock, and he stated:-

"Also, a statement made by the defendant not made under oath in the course of this trial is not evidence against nobody else at all, it is not evidence against Saul Lopez and it must be entirely disregarded, this is the law. ... And furthermore, the accused did not say these matters about Saul Lopez on oath here when he gave evidence and you will recall that he made an unsworn statement. So whatever the accused says against Saul Lopez in law must be disregarded, it is not evidence against Saul Lopez."

31. If Saul Lopez Cruz had been a co-accused with the appellant, both being charged with the murder of Ernesto Guevara, it would have been correct for the judge to direct the jury that the unsworn statement of the appellant from the dock was not evidence against Saul Lopez Cruz as an accused person, but, as Mr. Guthrie Q.C. for the appellant submitted, it was a serious misdirection and contrary to the guidance given in Director of Public Prosecutions v. Walker to tell the jury in this case where Saul Lopez Cruz was not a co-accused that, in considering the case against the appellant, the jury must entirely disregard his statement from the dock.

32. This point was not raised in the appellant's appeal to the Court of Appeal. Before that Court the main point argued was that the learned trial judge had erred in directing the jury that there was confirmatory evidence of the confession made by the appellant in his statement under caution to the police. The Court of Appeal rightly rejected this argument but their Lordships consider, with respect, that the Court of Appeal erred in stating that "The case turns solely on the above confession ...". As their Lordships have stated, the case should also have turned on what weight the jury gave to the statement from the dock.

33. Therefore, notwithstanding the strength of the case against the appellant constituted by his unchallenged statement under caution to the police, their Lordships consider that the trial judge's direction to the jury to disregard entirely the statement from the dock effectively withdrew the appellant's defence from the jury and gave rise to the risk of a serious miscarriage of justice and accordingly the conviction must be quashed.

34. Their Lordships also observe that the trial judge erred in telling the jury that they must disregard the contents of the appellant's statement to the police in considering what part Saul Lopez Cruz might have played. This was a misdirection and was contrary to the law stated by the House of Lords in Reg. v. Sharp (Colin) [1988] 1 W.L.R. 7 and Reg. v. Aziz [1966] 1 A.C. 41 that the whole statement of the accused must be considered by the jury. However, as in his statement to the police the appellant said that he shot Guevara, this misdirection was less serious than the misdirection in respect of the statement from the dock.

35. In the circumstances of the case their Lordships consider it right to remit the case to the Court of Appeal of Belize to consider, in the light of the guidance given by the judgment of this Board in Reid v. The Queen [1980] AC 343, whether to order a new trial.