R v Mayers
| Jurisdiction | Guyana |
| Judge | Luckhoo, J.A.,Massiah, J.A. |
| Judgment Date | 13 November 1981 |
| Neutral Citation | GY 1981 CA 9 |
| Docket Number | Criminal Appeal No. 6 of 1979 |
| Court | Court of Appeal (Guyana) |
| Date | 13 November 1981 |
Court of Appeal
Luckhoo, J.A. Fung-a-Fatt, J.A., Massiah, J.A.
Criminal Appeal No. 6 of 1979
B. De Santos for the appellant.
I. Chang, Senior State Counsel (ag), for the State.
Criminal practice and procedure - Directions to jury on corroboration — Robbery under arms — Indecent assault — Sentences of 10 years and 2 years imprisonment was imposed respectively — Ordered to receive a flogging of twelve strokes in respect of the offence of robbery under arms — Appellant appealed against his convictions — Whether the trial judge misdirected the jury on the issue of corroboration which directly arose because the virtual complainant was a girl aged eleven years who gave evidence under oath — Whether the identification parade was undesirable and manifestly unfair — Whether there were non-directions of the trial judge in relation to certain statements which the victim and her mother made to the police — Appeal allowed — New trial ordered in the interests of justice.
Without stating reasons I agree that the appeal be allowed. Having regard to the principles reiterated by this court in The State v. Ashraf Haniff (Criminal Appeal No. 23 of 1980 – judgment delivered 6 th March 1981), by which the court should be guided in the exercise of its discretion on the ordering of a new trial, I would agree that, on a consideration of the relevant factors to be borne in mind, there should be a new trial. See also Dennis Reid v. The Queen, [1979] 2 All E.R. 904, also reported in 27 W.I.R. 254, State v. Chandrica Persaud Sanichara (Criminal Appeal No. 30 of 1979 - judgment delivered on 27 th April, 1981) and State v. Lloyd Harris, (1974) 22 W.I.R. 41.
R. H. LUCKHOO, Justice of Appeal.
The facts which lie behind the issues in this case may be compendiously stated. On Holy Thursday, 23 rd March, 1978, an eleven-year-old school girl, to whom I shall refer merely as ‘Rhonda’, underwent an unfortunate and distressing experience, her own personal Gethsemane. She had just finished shopping for the Easter holidays and was on her way to meet her mother at a rendezvous in Regent Street. She had with her a pair of pants that she had just purchased and in a small red purse the a sum of $10.05.
A young man approached her in Robb Street and told her that a cousin of hers named Carol wished to see her, but as he spoke he held her hand and placed a knife to her side. When Rhonda asked the man where her cousin was, he told her that she was in a house near St George's Cathedral, and that she should follow him there, but that she should not scream. She was understandably afraid and followed him to a yard in North Road. There he left her outside, entered the yard alone and pretended to be calling Carol. He then returned to Rhonda and told her that Carol was calling her. He and Rhonda then entered the yard together. Soon the man lifted Rhonda's jersey professedly searching for what he called “a baptism mark” (whatever that is) and in doing so touched her breast. She remonstrated with him, but her remonstrance did nothing to put him off, for he proceeded to pull down the zip-fastener attached to her pants.
Claude Ivan Low who lives in a yard next to the one where the incident occurred, raised an alarm, whereupon the man snatched Rhonda's purse and ran out of the yard. Soon after Rhonda complained to her mother, and together they went to Brickdam Police Station and reported the incident.
At an identification parade held on 29 th March, 1978, Rhonda designated the appellant as the person who assaulted her and stole her purse and money. He was subsequently arrested and charged. At a trial in the High Court where he protested his innocence, he was convicted of robbery under arms and of indecent assault and sentenced to terms of imprisonment of ten years and two years, respectively. He was also ordered to receive a flogging of twelve strokes in respect of the offence of robbery under arms. He appealed to this court against his convictions.
Several grounds of appeal were argued but I shall deal fully with three of them only, not because the others are of no moment, but because the former contain matters of the gravest importance to this case and bear directly on the whole question of tyre fairness of a criminal trial.
It was contended for the appellant that the trial judge misdirected the jury on the issue of corroboration which directly arose because the virtual complainant was a girl aged eleven years (twelve years at the time of the trial) who gave evidence under oath. In each a situation corroboration is not required as a matter of strict law, but it is an imperative rule of that the trial judge must warn the jury that it is dangerous to convict on the uncorroborated evidence of a child so young. This cautionary approach is embodied in Lord Hailsham's statement at p.447 of Director of Public Prosecutions v. Kilbourne, [1973] All E.R. 440 that –
“Side by side with the statutory exceptions is the rule of practice now under discussion by which judges have in fact warned juries in certain classes of case that it is dangerous to found a conviction on the evidence of particular witnesses or classes of witness unless that evidence is corroborated in a material particular implicating the accused, or confirming the disputed items in the case…. By now the recognised categories also include children who give evidence under oath….”
[See also the Guyanese case of The State v. Alfred Kellman, (1975) 26 W.I.R. 438, and Director of Public Prosecutions v. Hester, [1972] 2 All E.R. 1056.]
The issue of corroboration invited even greater attention because the indictment contained a count for indecent assault relation to which the principles just discussed would equally apply. The cases bearing on this aspects both local and foreign, contain principles that are deeply entrenched in the common law possess mush compulsive power, but they are legion and so well known that it becomes unnecessary to refer to them.
I think I have said enough to show, however, that the issue of corroboration formed a prominent and vital part of the case (applying as it did to both counts of the indictment) and required clear and careful directions by the trial judge. The abstract direction to which Lord Hailsham referred in Director of Public Prosecutions v. Kilbourne (supra) and to which I earlier alluded was given in unexceptionable terms. But the learned trial judge fell into grave error when he attempted to explain is what meant by the concept of corroboration. Basically, corroboration is nothing more than evidence that strengthens or support evidence, rendering it more probable. As has been said so often, there is no magic in the form of words to be employed in explanation of the concept; the verbal collocation and architecture are matters for the judge himself. The watchwords must be clarity and preciseness of content, and a definition, if one is to be employed, must contain the essential elements of the concept so that its true hypostasis would manifest itself. The trial judged defined corroboration as “evidence of an independent nature which tends to make you feel more sure that the incident occurred.”
Although that definition is basically sound, it was, for a criminal trial, inadequate, and its scope was too wide and imprecise, inasmuch as it did not include the restrictive requirement that the evidence must tend to implicate the accused in some material particular, that is to say, it must connect or tend to connect him with the crime. Sixty-five years ago in The King v. Baskerville, [1916] 2 K.B. 658, Lord Reading, Chief Justice, in explaining the conception, employed the classic formulation which appears at p. 667 of his judgment and which has won universal approbation. I propose now to quote it in full. He observed:
“We held that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offenses for which corroboration is required by statute… It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed but that it was committed by the accused.” (emphasise mine.)
In The State v. Gowkarran Persaud & Others, (1976) 24 W.I.R. 97, Chancellor Haynes, in discussing this subject, said (p. 103):
“What juries were exhorted or advised was not to act on such testimony unless they found some additional evidence which they believed, and which tended to fortify his credibility, or to provide some assurance, or to make it probable or reasonable to believe that the story of the accomplice was true in its implications of the accused.” (emphasise mine.)
And at p. 105 (ibid.) he observed:
“It is important that the jury-understand that corroboration had to implicate the accused; not to tell them so could be fatal.” (emphasise mine.)
Those passages are a clear expression of accepted cardinal principles.
In R. v. Mussin, (1966) Crim. L.R. 331, the Court of Appeal applied the proviso to s. 4 of the Criminal Appeal Act, 1907, and sustained a conviction because there was overwhelming evidence capable of amounting to corroboration, but the court of the view that the trial judge's general...
To continue reading
Request your trial