R. v. FEDERICO AYALA and Another

IN THE COURT OF APPEAL

No. 466 of 1995
(Criminal)

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J U D G M E N T

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Keith, J. (giving the judgment of the Court):

INTRODUCTION

1. On 24th September 1994, the body of Liela De Guzman was found behind a container at a site in Ko Po Tsuen, Pat Heung, Yuen Long. She had died as a result of stab wounds to her body and other injuries to her face and head. On 14th June 1995, following a trial before Wong J. and a jury, the two Applicants, Federico Ayala and Rosalio Castilla, were convicted of Liela's murder. They had pleaded not guilty. They were sentenced to imprisonment for life. They now apply for leave to appeal against their convictions, and we shall refer to them as "Fidel" and "Rosal", which was how they were referred to at the trial.

THE CROWN'S CASE

2. The evidence which implicated the Applicants in Liela's death came primarily from two witnesses who gave evidence under immunity. They were Denesa Dela Vega and Florencio Ruiz ("Flor"). Like both Liela and the Applicants, they were Filipinos. They each described the events of the evening on which Liela met her death, as well as the particular circumstances in which her death occurred.

3. Denesa's evidence-in-chief was that she lived in the same boarding house as Rosal in Tai Kei Ling. Liela had recently moved into the boarding house as well, and was sharing Rosal's room. Rosal had told Denesa that Liela was his girlfriend and that they planned to get married. However, when Rosal came back to the flat on the evening of 23rd September 1994, he was angry with Liela. He accused her of making a fool of him. Denesa's evidence was not clear how she had done that, but it might have been because Liela had moved out of the boarding house a few days previously, and was staying with a man named Michael. As a result, Denesa and Rosal went looking for Liela.

4. One of the places at which they looked for her was the flat in which Michael lived, but they could not find it. However, they went to the hut where Fidel lived, because Fidel was married to Michael's aunt. When Denesa and Rosal got there, they discovered that Fidel was also angry with Liela. That was because he believed Liela to have been an informer, and to have revealed to the police or the immigration authorities that he, Fidel, was selling forged or stolen identity cards. Indeed, Denesa also wanted to see Liela because she wanted to get from Liela an identity card for which she had agreed to pay Liela $2,000.00. Fidel said that they should "fix this up", and Rosal said that he wanted to point a knife at Michael to get Michael to say where Liela was.

5. Fidel knew where Michael lived, and he went there with Denesa and Rosal. It was Fidel who asked the occupant if Liela was there. However, Liela was not there, and Denesa, Fidel and Rosal went back to the boarding house where Denesa and Rosal lived. One of their fellow lodgers was Gina Callibung. Gina was Flor's girlfriend, and Flor arrived at the boarding house soon after. It turned out that Flor was angry with Liela as well. That was because Gina had told him that Liela intended to kidnap their child. Flor wanted to see Liela and find out if that was true. Denesa added in cross-examination that before they left the boarding house again, Rosal took a knife from the kitchen, and put it in the back pocket of his trousers.

6. Denesa, Fidel, Rosal and Flor then returned to the flat where Michael lived. This time, they found Liela asleep there. Rosal woke her up and made her stand up. He told her that he loved her very much, and asked her why she was doing this to him - referring, we presume, to the fact that she had gone off with Michael. Liela asked him to let go of her arm, and suggested that they continued their discussion outside, and that was what they did.

7. After a while, the four of them took a taxi back to Fidel's hut. Denesa did not give evidence as to how it was that Liela came with them. She did not actually say that Liela went unwillingly, though Denesa's evidence was that Liela was very upset. Be that as it may, when they got to Fidel's hut, Liela was told by Fidel to go into the hut. Flor wanted to go into the hut to ask Liela if it was true that she planned to kidnap his child, but Denesa would not let him. Denesa did not explain why Flor could not have asked Liela that either at Michael's flat or in the taxi. While Liela was in the hut, Fidel had been talking to Rosal outside the hut a little distance away, with the result that Denesa could not hear what they were saying. Although Denesa did not go into the hut, she could see Liela inside. Liela was sitting down with her head lowered. Denesa did not give any other evidence about Liela's behaviour apart from that, and she did not therefore actually say that she got the impression that Liela suspected that something was going to happen to her, and that since there was nothing Liela could do about it she was resigned to her fate.

8. This, then, was Denesa's evidence-in-chief about the events leading up to the fatal attack on Liela. In his evidence, Flor took the story up from the time when he arrived at the boarding house that evening to see Gina. His evidence-in-chief was not as detailed as that of Denesa, but broadly speaking his version of these events was the same as hers.

9. We turn to the particular circumstances in which Liela died. After a while, Liela came out of the hut. Flor took her for a walk. They were deep in conversation. Denesa followed them with Fidel and Rosal. The effect of her evidence was that that was when they decided to attack Liela, because Denesa's evidence was that Rosal said: "Start [it] already ... don't prolong it"; and that Fidel replied that something bad had to be done to her. Denesa saw Fidel holding a knife. After their conversation, Flor and Liela returned to where Denesa, Fidel and Rosal were. After a short conversation about whether Liela had been planning to kidnap Flor's child, Rosal put his hand over Liela's shoulder, and told her to talk to Fidel. Fidel was walking towards a container, Liela followed him, and that was when Denesa lost sight of them. She never saw Liela again.

10. Denesa remained with Rosal and Flor. After a while, she heard Liela shout "Don't". She also heard her shout "kau ming". The literal translation of these words is "save life". We infer that she was calling for help as she regarded her life as being in danger. Denesa asked Rosal what that was, but Rosal simply patted her shoulder and told her to walk on. However, Rosal walked over to where Denesa had last seen Fidel and Liela, and went behind the container as well. She then heard the sound of something or someone being hit three times coming from where Rosal had disappeared, and about 5 minutes later, she saw Fidel and Rosal washing their hands in a puddle. She heard Rosal refer to a knife and an identity card, and Fidel then disappeared from her view. She did not refer to seeing Fidel again.

11. As for Rosal, Denesa's evidence was that after he had washed his hands in the puddle, he caught her up. She asked him what had happened, and he told her not to ask, and that she had not seen or heard anything. He then washed his sandals in a puddle. He was wearing a T-shirt and denim jacket at the time. He took his T-shirt off, and told Denesa to throw it away. When he, Denesa and Flor eventually got back to the boarding house that night, he took a shower, and washed his denim jacket in the washing machine.

12. Flor's evidence-in-chief about the particular circumstances in which Liela died was, broadly speaking, along the same lines as that of Denesa. He claimed that he actually saw Fidel pick up the knife which Denesa saw him holding. Flor did not, of course, hear the short conversation between Rosal and Fidel which Denesa gave evidence about, because he was talking to Liela at the time. He did not give evidence about hearing the sound of something or someone being hit three times, and he gave no evidence about Rosal's attempts to clean or get rid of any of his clothes.

13. In the light of the evidence of Denesa and Flor, the Crown could have put its case against Fidel and Rosal on two alternative bases. Its primary case could have been that Fidel and Rosal both participated in the attack on Liela which resulted in her death. Alternatively, if the jury was not satisfied that they had both attacked Liela, but that only one of them had, the Crown's secondary case could have been that Fidel and Rosal were acting in concert pursuant to an agreed plan to cause Liela at least grievous bodily harm, and that whichever of them had not joined in the attack on Liela had nevertheless helped to put the agreed plan into effect. In his summing-up, the judge did not give the jury a direction on the doctrine of joint enterprise, and we have inferred therefore that the Crown put its case only on the basis that Fidel and Rosal both participated in the attack on Liela which caused her death. Mr. Kevin Zervos for the Crown (who admittedly did not appear at the trial) did not suggest otherwise. For their part, Miss Charlotte Draycott and Mr. Roderick Murray (who represented Fidel and Rosal respectively both at the trial and on the application for leave to appeal) did not suggest that the judge should have given the jury a direction on the doctrine of joint enterprise, or that his direction on what the Crown had to prove was flawed.

THE DEFENCE CASE

14. Fidel's case was that on the evening in question he was visited by Rosal and Denesa. He had never met Denesa before, and had only met Rosal twice. They said that they were looking for Liela, who Fidel knew as Michael's girlfriend. They said that Liela had stolen Denesa's identity card, and had cheated her out of money. Denesa added that Liela had wanted to sell Flor's child, and Rosal said that Liela was his girlfriend. Denesa threatened to attack Michael with a knife. Fidel told them that Michael was no longer with him, and that he had nothing against Liela.

15. Fidel claimed that he was woken up later that night when Rosal, Denesa, Flor and Liela came to his hut. Initially, he told them to leave, but eventually he let them come in to talk things over. Flor was handling Liela roughly, and Fidel noticed what might have been a knife sticking out from Flor's back trouser pocket. Rosal, Denesa and Flor were all angry with Liela, and in due course the three of them left with her. Fidel said that he did not see any of them again that night.

16. Unlike Fidel, Rosal did not give evidence. However, the case which Mr. Murray put to Denesa during his cross-examination of her was that Rosal had gone with Denesa, Flor and Liela to Fidel's hut that night, but that Rosal had no intention of harming her. As he, Flor and Denesa were walking away from the hut, he heard Liela and Fidel arguing. He went over to the container behind which they were to see what was going on. However, by the time Rosal had got there, the attack on Liela was over.

THE EVIDENCE OF EMMA ALMAZAN

17. Emma Almazan was called by the Crown as a witness. In his summing-up, the judge did not remind the jury of her evidence at all. At the conclusion of the summing-up, prosecuting counsel asked him if he intended to deal with her evidence. The judge said that he did not propose to deal with it, and added that the jury would remember it. In the course of his summing-up, the judge had given the jury the standard direction that if he did not mention a part of the evidence which the jury regarded as important, they should take that evidence into account.

18. Both Miss Draycott and Mr. Murray argued that the judge's failure to remind the jury of Emma's evidence amounted in the circumstances to a material irregularity. They acknowledged that there was no question of the jury having forgotten her evidence: they agreed that Miss Draycott at least had reminded the jury in detail of Emma's evidence in her closing speech, and had relied heavily on it. Their argument was a much more refined one. The failure of the judge to remind the jury of Emma's evidence, they said, undermined its significance. Because the judge did not refer to it, the jury might have been tempted to think that the judge regarded it as insignificant, and that if the judge did not regard the evidence as important, they should not treat it as important either.

19. The thrust of Emma's evidence was that Michael was a lodger where she lived, and that on the evening in question Denesa and Rosal came to her flat. They were alone. Denesa asked Emma where Liela was, and Emma told her that Liela was not there. On hearing that, Denesa and Rosal left. The significance of the evidence is that it supported a key part of Fidel's case, which was that he had not been involved with Denesa and Rosal in the search for Liela at all. Moreover, it contradicted one of the aspects of the evidence of Denesa, who on any view was the Crown's key witness. Denesa had claimed that Fidel had accompanied her and Rosal on the first visit which she and Rosal had made that evening to the flat in which Michael was living. Emma's evidence potentially constituted the only oral evidence from an untainted source capable of supporting Denesa's evidence. Yet here was a witness with seemingly no axe to grind contradicting her. The defence case was that Emma's evidence not merely supported Fidel's case in an important respect, but cast doubt on the credibility and reliability of Denesa as a witness. In those circumstances, it is said that the judge should have reminded the jury of it.

20. We think that there is considerable substance in this argument. The judge should have referred to Emma's evidence in his summing-up in view of the undoubted reliance which the defence, in particular Fidel, placed on it. The judge's failure to remind the jury of her evidence is likely to have created the impression that he thought that Emma's evidence was insignificant. It is true that, in the course of his summing-up, the judge gave the jury the standard direction that if he happened to express his personal view about any aspect of the evidence, the jury should disregard that view unless they happened to agree with it. However, we do not think that this direction overcame the problem. Emma's evidence was of such significance that the judge should not have relied on the standard direction to neutralize the effect of his failure to refer to it.

DENESA'S PREVIOUS INCONSISTENT STATEMENTS

21. Denesa had given two statements under caution to the police officers investigating Liela's murder. They were given on 25th and 27th September 1994. Following the second statement, she was herself charged with Liela's murder. Eventually, on 19th October 1994, the charge was withdrawn, and on the following day she made a lengthy witness statement. The immunity from prosecution which she received was conditional upon her giving evidence in accordance with that witness statement.

22. In the course of her cross-examination, Denesa admitted that there were a number of discrepancies between (a) her evidence, (b) the contents of her two statements under caution, and (c) the contents of her witness statement. Thus, in her statement under caution of 25th September, she denied that she had seen Liela on the evening in question at all. Moreover, in her statement under caution of 27th September, she said that Fidel went behind the container, that Flor and Liela followed him there, and that it was Fidel who had told her afterwards to keep quiet about what had happened. That was in sharp contrast to her evidence that it was Fidel who took Liela behind the container, that Rosal followed them there in due course, and that it was Rosal who told her that she had not seen or heard anything. Indeed, her statement under caution of 27th September made no reference to Rosal going behind the container at all.

23. The differences between her evidence and the contents of her witness statement were, not surprisingly, less pronounced. Unlike her statement under caution of 27th September, we have not been provided with a copy of her witness statement, but in cross-examination she accepted that her witness statement did not refer at all to the first visit which she claimed she made with Rosal and Fidel to Michael's flat, or to Fidel saying that they should "fix this up". She also accepted that she had described Rosal's treatment of Liela when they eventually found her that night as gentle, and that in the conversation which took place between Fidel and Rosal outside Fidel's hut just before Liela was taken behind the container, she had in her witness statement ascribed to Fidel what she claimed in evidence Rosal had said, and had ascribed to Rosal what she claimed in evidence Fidel had said.

24. The only one of these inconsistencies to which the judge referred in his summing-up was Denesa's denial in her statement under caution of 25th September that she had seen Liela on the evening in question. Indeed, the judge did not refer to any of the answers she gave in the lengthy cross-examination of her, except for her evidence about Rosal taking a knife and putting it in the back pocket of his trousers.

25. The judge himself recognised the need for the jury to subject Denesa's evidence to careful scrutiny to determine the extent to which it was credible and reliable. In dealing with her evidence and that of Flor, the judge said :

"You will no doubt scrutinise their evidence very carefully and do so with a microscope ..."

The list of exhibits shows that none of Denesa's previous statements were made exhibits in the case. In view of that and of the critical importance of Denesa's evidence, we think that the judge should have reminded the jury of the inconsistencies in her evidence on which the defence relied, and about Denesa's explanations for that in her cross-examination. Without being reminded of the inconsistencies by the judge, it would have been difficult for the jury to conduct the microscopic examination of her evidence which he regarded as desirable. In the circumstances of the case, we do not think that the mere reproduction in narrative form of her evidence-in-chief constituted a sufficient summary of her evidence. Her evidence-in-chief had to be balanced by the admissions she made in cross-examination about the extent to which that evidence was a departure from her previous statements.

THE OTHER GROUNDS OF APPEAL

(i) The judge's comments on Fidel's evidence. The judge made two comments on Fidel's evidence which are criticised. He said that the jury may think that Fidel's case was "perhaps too simple". He also said that it did not sound either rational or logical for Denesa and Rosal to take Liela to Fidel's hut if all they wanted to do was talk to Liela. They could have talked to her at Michael's flat where they found her, or they could have taken her to where they lived. The criticism is that these comments would have disparaged Fidel's evidence in the eyes of the jury, and that the latter should have been balanced by reminding the jury of Fidel's evidence that Denesa and Rosal knew that his hut was in a quiet area.

We think that the judge's comment that Fidel's case was "perhaps too simple" was unwise. Fidel's case was a simple one, but we do not see how a case can be said to be too simple. We think that the judge was entirely within his rights to comment on why it was necessary for Liela to be taken to Fidel's hut. But we also think that having decided to make that comment, the judge should have reminded the jury of what Fidel's explanation for it in evidence had been. However, these criticisms of the summing-up are modest, and by themselves they could not remotely have formed the basis of a successful appeal.

(ii) The judge's warning about the evidence of Denesa and Flor. In his summing-up, the judge explained to the jury the significance of the immunity from prosecution which Denesa and Flor had been granted. He referred to the temptations on them to give false evidence, and added that "they might know much more about the incident than they were prepared to tell. Their involvement is, to say the least, highly suspicious.".

Mr. Murray argued that this warning did not go far enough. The judge should, it was said, have told the jury that there was no reliable evidence which corroborated the evidence of Denesa and Flor, that their evidence should not be regarded as mutually supportive of each other, and that the jury should be cautious about convicting Fidel and Rosal on the uncorroborated evidence of Denesa and Flor. We do not think that that is a fair criticism of the judge. He went almost as far as Mr. Murray claimed he should have done. He made it clear that the evidence against Fidel and Rosal implicating them in Liela's death came from Denesa and Flor. He expressly told them to approach their evidence with care and caution, and to have given them the direction which Mr. Murray claims should have been given would have added little to the direction which the judge in fact gave.

(iii) Rosal's admission to the police. When Rosal was told in English that he was being arrested, he was alleged to have said: "I did not mean it". Mr. Murray argued that the judge should have excluded this evidence. It was an equivocal statement, the probative value of which was outweighed by its prejudicial effect, and since Rosal only had a limited understanding of English, he may not have expressed himself in accordance with what he really wanted to say. We reject that argument. What meaning could be attributed to it and what weight was to be attached to it was for the jury to decide.

CONCLUSION

26. We have had to consider whether the summing-up, when taken as a whole, presented the jury with a sufficiently balanced summary of the salient parts of the evidence. Not without hesitation, we have come to the conclusion that the summing-up did not do that. The judge's failure to refer to the significant evidence of Emma Almazan could have led the jury to believe that her evidence was less important than it really was. The consequence was that when the jury came to assess Denesa's credibility and reliability as a witness, they may not have given the effect of Emma's evidence on it the weight which it deserved. Moreover, the judge's failure to remind the jury of the full extent of Denesa's previous inconsistent statements increases our unease that the jury may not have received the help in determining Denesa's veracity which they needed. This is not a case in which we can say for certain that the verdicts would have been the same if the jury had been properly reminded of the evidence. It is therefore not a case for the application of the proviso. For these reasons, we grant the Applicants leave to appeal against their convictions, we treat the hearing of the application as the hearing of the appeal, we allow the appeal, we quash the convictions, and we set aside the sentences of life imprisonment.

27. Mr. Murray submitted that this was not an appropriate case for a retrial of Rosal to be ordered. He argued that even if the summing-up had not been susceptible to criticism, a lurking doubt as to the correctness of Rosal's conviction would have remained. We do not accept that. In these circumstances, we order that both the Applicants be retried on a date to be fixed, and they must remain in custody until then.