David v The State

JurisdictionGuyana
JudgeMassiah, C.,Fung-a-Fatt, J.A.,Bishop, J.A.
Judgment Date15 January 1987
Neutral CitationGY 1987 CA 4
Docket NumberCriminal Appeal No. 17 of 1986
CourtCourt of Appeal (Guyana)
Date15 January 1987

Court of Appeal

Massiah, C.; Fung-a-Fatt, J.A.; Bishop, J.A.

Criminal Appeal No. 17 of 1986

David
and
The State
Appearances:

Stanley Moore for the appellant.

W. Henry, senior State counsel for the State

Evidence - Identification parade — Appellant chosen from a one—man identification parade — Witness varying fundamentally from her statement — Prosecutrix failing to subscribe to high ethical standard required — Appellant allowed, conviction and sentence set aside.

Massiah, C.
1

In recent years there has been built up both locally and abroad such a massive body of legal literature on the question of visual identification that I had come to believe that the problems relating to that question had been securely interred and could therefore no longer beget any serious judicial difficulties. The present case illustrates that I was guilty of wishful thinking, for a measured nonconformity to the principles embodied in the literature aforesaid has caused the problems to arise from their grave like resurrected fiends complete with cerement, ready to haunt us all over again.

2

When a young woman retired to bed on 2nd June, 1985, at her home in Thomas Street, in suburban Kitty, little did she imagine that in the early hours of the next day she would be visited by an unwelcome intruder whose impunity permitted him not only to burglarise her home and rob her at knife point of her jewels and other possessions, but to rape her as well.

3

That unfortunate woman related bar harrowing experience to a judge and jury when the appellant, Frank David, was arraigned at the Criminal Assizes in Georgetown, Demerara, in June, 1986, to answer charges of burglary, robbery and rape. He was found guilty on all three counts and in the result was sentenced to a term of imprisonment of ten years for each of the offences of burglary and robbery, and to a term of fifteen year for rape, the sentences to run concurrently. The appellant has appealed against his convictions and sentences. The crucial point at issue is whether or not his trial was fair.

4

The story told by the virtual complainant was that while she was in bed on the morning in question she saw “the outlines of a man” over her. Her narration follows:

“When I turned around and saw the man I saw his face. The building was well lit. I had a screw bulb burning. It was a 60 watt bulb. I recognised the man to be the accused. Before this incident I knew the accused about 1 1/2 Years.”

5

She then explained that the appellant raped her, took off her earrings and other rings, picked up two tape recorders and forced her to give him two hundred dollars from a wardrobe. She said:

“He took me to the wardrobe and told me to open it. Before I opened it I glanced into the mirror of the said wardrobe and I saw the left side of his face and his right shoulder … During the 18 months that I knew the accused I have heard his voice. I looked at the accused for about one second in the wardrobe mirror. All this time the light was still on in the bedroom and bright.”

6

According to the victim the appellant then pushed her back on the bed and told her to lie down. He then left the house. Her husband arrived home almost immediately afterwards, and sometime about 6.30 a.m. that day, the 3rd June, 1984, they reported the matter to P.C. 8627 Carlton Sutton at Kitty Police Station.

7

It does not appear from the evidence of the virtual complainant or of P.C. Sutton that she told the police when reporting the matter on 3rd June, 1984, that she knew who her assailant was or that she gave them his name, although she said in evidence that she knew him by the name “Frankie” before the day in question, and used to see him near the Hollywood Cinema almost everyday. It is instructive and significant that P.C. Sutton said in evidence that he recalled “the virtual complainant and her husband coming to the station. They reported that thief broke into the house and stole a quantity of articles valued at about $8,000.” There is no mention in that report of “Frankie” who loiters by the Hollywood Cinema, (which would have been useful information for the police) but merely an indeterminate reference to “thief”.

8

Nevertheless, it must be remembered that the virtual complainant claimed that she mentioned the name Frankie to the police, but she did not say when she did so. If she knew her assailant's name it would be expected that she would have given it to the police when making her report, not at some future time, because she would have been understandably anxious to give the police as much assistance as she could. If the name was not given at the earliest opportunity, the question arises: “Why was it not done?” And it is not unreasonable to answer: “Perhaps because it was not then known.” If it was not known, the value of the virtual complainant's evidence would be considerably diminished.

9

I called for and perused the statement which the virtual complainant made to the police. Significantly, that statement was made, not on 3rd June, 1984, when the virtual complainant reported the matter to the police, but on 6th June, 1984, and, surprisingly, some hours after she identified the appellant at the police station. Nevertheless, in that statement she said that her assailant was someone she knew as “Frankie”. She knew him, she said, “by seeing him passing through the street” and “walking around the area.”

10

The appellant was unrepresented and lacked the skill to probe those matters and bring them to the jury's attention. He made a short unsworn statement protesting his innocence when called upon to lead his defence. He did not address the jury.

11

On 5th June, 1984, two days after the offence was said to have been committed, P.C. Sutton “received further information.” No one knows what that information was, but as a result of it P.C. Sutton went to 47, Delph Street, Campbellville, where he saw the appellant and told him that it was alleged that he had broken and entered a certain house, raped a women there and had stolen a quantity of articles from her. The appellant denied the allegation by telling the policeman that he could search his home. This was done but nothing was found.

12

It seems to me that those circumstances made it obvious that it was both prudent and fair to hold an identification parade. It is all well and good to assert that you have known a person for some considerable time, that you knew his name and whereabouts, and that the opportunity and circumstances for proper observation were good, (assertions that are easy to state) but the identification parade, fairly conducted, providing as it does an excellent opportunity for riveting observation, is the exercise that puts all those assertions to the test and provides, or does not provide, some proof of the guilt of the accused. “The identification parade is a safeguard valued and relied on by the courts in cases based wholly on visual identification of strangers to the witnesses, to reduce the likelihood of misidentification”, per Haynes, C., in The State v. Ken Barrow (1976) 22 W.I.R. 267, at p. 271.

13

In my opinion, the learned trial judge, in his summation, ought to have dealt with the failure of the police to hold an identification parade, and should have directed the jury that it tended to lessen the force of the prosecution's case. The naked assertion that he had been known to the virtual complainant was quite vague, but it was left virtually unexplored in cross-examination. Previous knowledge of your assailant is useful evidence, but if it is to carry much weight it must be based on something rather more substantial than seeing the person on the street or loitering by a cinema, especially where the charges are as grave as burglary, robbery and rape. Admissibility of evidence is one thing, its cogency is another. It is clear, however, from the appellant's five lines of cross-examination of the victim that he was challenging her evidence that she had know him before the day of the alleged incident.

14

After P.C. Sutton saw the appellant at his home on 5th June, 1984, he took him to the Kitty Police Station and “placed (him) in custody.” Instead of holding an identification parade, P.C. Sutton arranged what is now called “a confrontation”, a method of “identification” that appears to be growing in popularity and one that must be strongly deprecated. The situation should be explained in P.C. Sutton's own words:

“On Wednesday 6th June, 1984, at about 7 hours, I was on duty at the said police station (Kitty) at the Criminal Investigation Department Office when (the victim) came in to me and said something to me. As a result I went into the Enquiries Office with (her) where she pointed to the accused and said ‘This is the man’. I took the accused into the Criminal Investigation Department Office where (she) repeated the allegation in his presence … When she repeated the allegation on the accused said that (she) is telling lies on him.”

15

It is also interesting to refer to the virtual complainant's evidence on this aspect of the matter. She said:

“On the morning of the 6th June, 1984, my husband spoke to me. As a result we went to Kitty Police Station. There I saw the accused at the station. In the presence and hearing of the accused I told P.C. Sutton that the accused was the person who stole my two rings, two tapes, currency $200 and sexually assaulted me.

The accused replied and said ‘Lady, me been in your house and rob you?’”

16

The virtual complainant's reply to the appellant's question is very significant. She said: “I said in answer: ‘Yes, I saw your face in the mirror’.”

17

That assertion appears to me to suggest that it was upon the reflection in the mirror that the virtual complainant was mainly relying for her identification of the appellant, but it must be borne in mind that in the mirror she saw the reflection of “the left side of his face and his...

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