Khan and Others v The State
| Jurisdiction | Guyana |
| Judge | Kennard, J.A.,George, C.,Bishop, J.A. |
| Judgment Date | 23 October 1989 |
| Neutral Citation | GY 1989 CA 10 |
| Docket Number | Criminal Appeal Nos. 47, 48, 49, & 50 of 1988 |
| Court | Court of Appeal (Guyana) |
| Date | 23 October 1989 |
Court of Appeal
George, C.; Kennard, J.A.; Bishop, J.A
Criminal Appeal Nos. 47, 48, 49, & 50 of 1988
And Others
Doodnauth Singh, S.C. for the No.1 appellant.
S. Moore for the Nos. 2,4 and 5 appellants.
D. De Santos for the No. 3 appellants.
D. Christian, Assistant Director of Public Prosecutions for the State.
Criminal evidence - Admissibility — Identification evidence — Discrepancies in evidence of prosecution witnesses — Manner of identification evidence — Acting in concert — Withdrawal of count of receiving from the jury by trial judge — Unsatisfactory identification in police station.
Criminal evidence - Admissibility — Identification evidence — Visual identification — When directions are to be given to jury — Improperly conducted confrontation — Need to warn jury of possibility of earlier images formed at confrontation.
I have had the pleasure of reading in draft the judgment of the learned Chancellor with whose conclusions I am in total agreement. I would therefore, concur in the orders proposed by him. However, I would wish to deal very briefly with two matter, namely: (i) the withdrawal of the count for receiving stolen property from the jury by the trial judge, in so far as it relates to the appellant Osman Khan and (ii) the issue of identification as it relates to the other appellants.
There is no evidence on record that the appellant Osman Khan was on the premises of the Rampersauds or that he was seen in the immediate vicinity thereof. The prosecution relied on evidence which showed that he was found in possession of certain articles alleged to have been stolen from the premises of the Rampersauds in order to secure convictions against him on the counts relating to burglary and robbery under arms (also receiving stolen property). At the time of his apprehension, the appellant Khan is alleged to have said that he had received the articles found in his possession from one “Chico”, if the evidence of Lance Corporal Johnson is believed. If this was in fact so, the appellant Khan could not have been convicted on counts relating to burglary and robbery under arms. So far as the offence of robbery under arms is concerned, the appellant Khan could only have been properly convicted if he were found by the jury to have been a party to a common plan with others to use violence on the occupants of the premises in order to secure the removal of articles therefrom. It was most important for the learned trial judge to have directed the jury along these lines. [See R -v- Samad et al [1969]p.35; R v Harry Persaud et al [1969] 20 W.I.R. p.49; The State v Balkarran Singh et al - Criminal Appeal Nos. 3, 4, 5 and 6 of 1981 and Zainool Hack et al v The State - Criminal Appeals Nos. 10, 11, 12 and 13 of 1987]. This he failed to do. There being agrave non-direction amounting to a misdirection, the conviction for the offence(robbery under arms) cannot stand, as I do not feel that if the correct directions ware given, the jury would inevitably have convicted. [ Kowshall Persaud v The State [1974] 27 W.I.R. p.82].
So far as the count for burglary is concerned, the evidence does I not point solely to that offence, as was the position in R v Christ [1951] 35 C.A.R. p.69, there being the evidence of Lance Corporal Johnson which as I said earlier, indicates that the appellant Khan may be guilty of receiving stolen property. In the circumstances, both the burglary and receiving counts should have been left to the jury to decide which of the two offences, if any, the appellant Khan was guilty of [see R v Loughlin [1951] 35 C.A.R. p.69].
In Rex v Langmead [1864] 9 Cox CG 464 it was held “where an indictment contains counts for larceny and receiving, unless the evidence excludes the probability of one or the other offence having been committed, the case should be left to the jury on both counts”. I am of the view that the learned trial judge erred in withdrawing the receiving count from the jury as the appellant Khan was entitled to have had both of those counts considered by the jury. No verdict having returned by the jury in respect of the offence of receiving this count “is still alive” and, therefore, this court can substitute a conviction for that offence under the provisions of section 14(2) of the Court of Appeal Act, Cap. 3:01. [See also R v. Seymour [1954] 38 Cr. App..R. p.68 and R v Sparkes (1960) 3 W.I.R. 154].
It is true that Johnson's evidence at the preliminary injury differed somewhat from the evidence which he gave at the trial but at the end of the day there remains his evidence that the gold ring, claimed by Janak Rampersaud as being hers and which according to her was removed from one of her fingers, was found in the sock of the appellant Khan. So far as Johnson's inconsistent statements are concerned, I feel that the learned trial judge gave adequate assistance to the jury in that regard. [See pages 101, 113 and 124 of the record. Also The State v Mootoosamy and Budhoo (1974) 22 W.I.R. p.83 and Frank Martin v The State - Criminal Appeal No.54 of 1987 reported in (1989) 15 C.L.B. p.821].
I am in agreement with the learned Chancellor that this court should substitute a conviction on the count for receiving in place of the convictions on the counts for burglary and robbery under arms. The appellant being a first offender, I would order that he be imprisoned for a period five years.
In dealing with this issue the learned trial judge dealt with weaknesses in the identification evidence of Janak Rampersaud and her son Ganesh. In my view, he dealt adequately with this aspect of the matter. Commencing at p.95 of the record the learned trail judge told the jury this:–
“I shall first deal with the weakness of the identification. The weak circumstances and conditions that I deal with are not the only weak circumstances. You may find others. I shall first take the weak circumstances and conditions of the identification of Janak Rampersaud. The first thing is that she was awakened about eleven thirty p.m. from her sleep. You will know members of the jury, as adult members of our community, that a person who is aroused from sleep, whether that person will be able to observe or will be in a state of shock. You will have to decide whether that person will be able to collect all of her faculties so as to be able to observe properly the persons in the house”.
The learned trial judge went an to tell the jury, among other things:–
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(a) That there was confusion that nigh.
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(b) That an honest witness can be mistaken in his or her identification of a person (this he did more than once).
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(c) That the witness Janak Rampersaud and her son Ganesh had to focuses their attention on more than one person.
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(d) That at one stage some of the men had masks or covering over their faces.
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(e) That they had to consider the length of time that the witnesses had to observe the faces of the men in the house.
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(f) That the witnesses had made certain inconsistent statements.
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(g) That they had to consider the lighting conditions existing at the time.
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(h) That there were discrepancies between the evidence of Janak Rampersaud and that of her son Ganaeh.
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(i) That witnesses Janak Rampersaud and her son Ganesh had not known the men before the incident.
The trial judge went on to tell the jury this:–
“If you accept their evidence that these were the four persons in the house, if you believe their evidence, if you can rely on their evidence, if their evidence is dependable then you may convict the numbers one to four accused. The most important question in this case is that of the identification. You must be absolutely sure that the accused persons are the men who broke and entered the home of Janak Rampersaud and robbed her of her property before you can return a verdict of guilty against them and if you have any doubt of the identification of the accused persons than you must acquit them. Before you can convict you must be absolutely sure. I do not know hour I can impress that upon your minds that you must be absolutely sure that these are the men. If you find that you are not satisfied about the way they were identified, then you must have no hesitation in finding them not guilty”.
In dealing with the confrontation at the police station the learned trial judge said this:–
“As Corporal Johnson told you no identification parade was held. There was no conducting officer. There was not assembled a number of person of similar height, race, complexion, built and station in life for the witnesses Janak Rampersaud and her son Ganesh to pick out the accused persons from Janak Rampersaud told you that there were about eight persons sitting on a bench, six negroes and two Indians. Only the number three accused who was a negro, had a beard. If that was the only person, who had a beard, members of the jury, would she not have gone straight away and pick him out? Is that fair? Do you find that it is fair for the police to come and just put a man there and tell the witness to identify him? That is what Corporal Johnson told the witness: identify the person. How would she have known that the persons were sitting there? Wasn't that clearly an indication that the persons were there? The police ought not to have persons there and tell the witnesses to pick them out. It is unfair. It is morally wrong. I will ask you to reject the evidence of what transpired at the police station when the witnesses Janak Rampersaud and Ganesh Rampersaud went and identified these four persons. It is unfair members of the jury to have them to be identified like that. This is clearly a case that cries out for an identification parade. It is where the witnesses never knew the persons before and if you do not know a person before, then it is...
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