Matthews v The State

• Jurisdiction: Guyana
• Judge: Kennard, C.
• Judgment Date: 05 June 1998
• Neutral Citation: GY 1998 CA 6
• Docket Number: Criminal Appeal No. 15 of 1996
• Court: Court of Appeal (Guyana)
• Date: 05 June 1998

Court of Appeal

Kennard, C. Perry, J.A. Persaud, J.A.

Criminal Appeal No. 15 of 1996

Matthews

and

The State

Appearances:

Doodnauth Singh, S.C. and T. Munroe for the appellant.

Ian Chang, S.C., acting Director of Public Prosecutions, for the State.

Criminal law - Conviction for robbery under arms — Appellant sentenced to 7 years imprisonment — Appeal against conviction and sentence — Various grounds of appeal — Whether conviction unsafe and unsatisfactory — Finding that trial judge made omissions in summing up which rendered trial unfair — Appeal allowed.

Kennard, C.

1 The appellant was indicted for the offence of robbery under arms allegedly committed by himself and an unknown man on one Doodnauth Bhagwandas on 31st May, 1995, in respect of which he was convicted and sentenced to a term of imprisonment of seven years. He has appealed against his conviction and sentence on the following grounds:–

• “1. The evidence of the alleged confrontation at Sparendaam police station on 7th June, 1995 between the appellant and Doodnauth Bhagwandas was highly prejudicial and of no probative value whatsoever and ought to have been excluded by the trial judge.

• 2. Alternatively, the trial judge had erred in not dealing adequately with the above-mentioned evidence of confrontation and/or identification.

• 3. The trial judge had failed to deal adequately with the fact that (Doodnauth Bhagwandas) had not mentioned the name “Sugar Roll” when the initial report was made to Det. Cons McAllister.”

2 However, before dealing with the grounds of appeal I must refer to the facts of the case as revealed by the evidence given by the only two witnesses who had been called by the prosecution at the trial in the High Court.

3 The evidence of Doodnauth Bhagwandas was to the effect that on the evening of 31st May, 1995 at about 7.35 pm he was sitting on the seawall at Turkeyen, East Coast, Demerara, facing south. He had intended later to go to the University of Guyana campus in order to pick up his girl who was a student there. Two men approached him, walked passed him for about ten feet and then turned back. At that stage he was about to get up from the seawall when the two men went up to him. The taller of the two men, who (he said) was the appellant, pushed him towards the wall. That person then pulled out a cutlass from the waist of his trousers and held it towards his neck and began removing from his person a quantity of jewellery and a wrist watch, while the other man removed from his pocket his wallet containing a driver's licence and the sum of $9500 in Guyana currency. After this, both men walked away, and the appellant told Bhagwandas that if he followed them he would f—- him up. Bhagwandas said in evidence that he had known the appellant by the alias of “Sugar Roll” and that he had seen the appellant on several occasions prior to the incident when he had gone to collect his girl. However, he did not say where exactly he had seen the appellant, nor did he say when he had last seen him, that is to say before the incident.

4 Bhagwandas further testified that there was no street light or other lights n the area where he had been robbed. However, he said that he had been able to recognise the appellant because of the lights coming from motor vehicles which had been travelling north along the University of Guyana road, and also from the lights of vehicles which had been proceeding from west to east along the East Coast of Demerara Highway. The incident, according to him, lasted for about ten minutes and the two men had not been masked.

5 Later that evening (at about 7.45 pm), he made a report at Sparendaam police station to Det. Cons McAllister in which he had mentioned the name “Sugar Roll”. Det. Cons McAllister had not testified at the trial but the book in which he had recorded the report made by Bhagwandas was produced and it revealed that the name “Sugar Roll” was not recorded in that report book. However, there is a description of the men; that the men were of African descent and one was tall and the other was short. He said that the tall man had a funky dread hair style. As I said, Det. Cons McAllister did not testify at the trial but from the evidence of Wayne Paul it seems that Det. Cons McAllister was still alive, at least at the time of the trial, and was then stationed at Albion police station. No reason appears on record for his not being called as a witness at the trial. It is surprising that he was not called at the trial to indicate whether or not the victim had mentioned the name of “Sugar Roll” when he made the report. The failure of the prosecution to call Det. Cons McAllister left a void in the State's case, especially so as Wayne Paul testified that Det. Cons McAllister had given him the name “Sugar Roll” at about 9.00 pm on 31st May, 1995 at a time when the victim was not at the police station. According to Wayne Paul, Det. Cons McAllister told him that the victim had given him the name “Sugar Roll”. If this was in fact so, why did not Det. Cons McAllister record that name in the report book? Had Det. Cons McAllister been called at the High Court trial, all of this would have been cleared up and there would have been no need for suspicion.

6 Bhagwandas gave a statement to the police on 1st June, 1995 in which the name of “Sugar Roll” is mentioned. On 7th June, 1995, he returned to the Sparendaam police station where he pointed out the appellant as being one of the persons who had robbed him. In cross-examination on this issue he stated:

“I saw accused about 10.00 am. I know where the lock-ups are. The police did not take me to the lock-up that morning. I did not see the accused coming from the lock-ups with other prisoners. It is true that the police opened the lock-ups, all the prisoners came out and I pointed out the accused. They were six persons who came out of the lock-ups with the accused. The six persons were not all tall black men. I cannot recall how may Indians were there. He was the only one who came out with the hair style I described. I was not surprised that he had the same hair cut … I told the magistrate, the police took the prisoners out of the lock-ups. I was asked to identify the fellow who robbed me. It is true I told the magistrate Det. Robinson asked me to identify the person. It was after the men came out of the lock-ups he asked me to identify the fellow. When he came out I did not look for the short man.”

7 This type of identification has been criticised by this court in a number of cases which had been decided by this court, including David v. The State (1987) 41 W.I.R. 154, The State v. Mohamed Khalil (1975) 23 W.I.R. 50, The State v. Adams and Poole (1976) 23 W.I.R. 252 and the more recent cases, Ramesh Ramdat v. The State (1991) 46 W.I.R. 201 decided on 8th November, 1991, Osman Khan v. The State (unreported) and Anand Mohan Kissoon and Rohan Singh v. The State (1994) 50 W.I.R. 266 decided on 3rd February, 1994, to which reference will be made later, and also Seukarran v. The State (unreported).

8 Wayne Paul's evidence is to the effect that he arrested the appellant on 2nd June, 1995 at about 12.10 am on the railway embarkment at Plaisance, East Coast, Demerara, and that he had known the appellant by the name of “Sugar Roll”.

Grounds of appeal

9 It was the submission of Mr. Doodnauth Singh, S.C. that the evidence of the confrontation at the Sparendaam police station was inadmissible and he referred us to a number of cases to support his contention. I have read those cases and in none of them was it held that the evidence was inadmissible. Mr. Singh referred in particular to a statement made by Massiah, C. in David v. The State (1987) 41 W.I.R. 154 to support his contention. In that case Massiah, C. had said (at pp 159, 160):

“The entire approach was wholly and catastrophically wrong. In the course that he took the trial judge acted beyond the limits of legal principle. The identification at the police station ought to have been strongly criticised and stigmatised as worthless. The jury ought to have been told in plain terms to disregard it. The reason for this is obvious. The appellant was identified at a “one-man identification parade” while sitting by himself in the inquiries office.”

10 He had earlier said (at p 158):

“The naked assertion that he had been known to the virtual complainant was vague … if it is to carry much weight it must be based on something 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.”

11 In that case the appellant was charged with the offences of burglary, robbery and rape. The prosecution case depended entirely on the evidence of the identification by the complainant. The complainant had reported the matter promptly to the police an 3rd June, 1984 (the day of the robbery), but did not make a statement until 6th June, 1984, some hours after she had identified the appellant who had been sitting in an office at the police station. She then for the first time stated that she recognised her assailant as someone called “Frankie”. At his trial the appellant was not represented and, although he challenged the complainant's evidence that she recognised him, the allegation of recognition was virtually unexplored. In his summing-up the trial judge did not criticise the identification at the police station, nor did he deal with weaknesses of the identification in the complainant's bedroom, in that the victim had seen the reflection in a mirror of only part of the face of the person by the aid of a 60-watt bulb. The appellant appealed to the Court of Appeal.

12 It was held, allowing the appeal and quashing his conviction, that the identification at the police station ought to have been strongly criticised by the...