Sewkaran v The State
| Jurisdiction | Guyana |
| Judge | George, C.,Bishop, J.A.,Kennard, J.A. |
| Judgment Date | 13 January 1988 |
| Neutral Citation | GY 1988 CA 1 |
| Docket Number | Criminal Appeal No. 6 of 1987 |
| Court | Court of Appeal (Guyana) |
| Date | 13 January 1988 |
Court of Appeal
George, C.; Kennard, J.A.; Bishop, J.A
Criminal Appeal No. 6 of 1987
B. DeSantos for appellant.
D. Christian for the state
Criminal evidence - Admissibility — Appellant convicted of burglary, rape and robbery — Adequacy of summing—up — Identification evidence — Whether trial judge should have followed Turnbull guidelines — Duty of trial judge to inform jury of need for caution and to outline issues affecting quality of identification evidence — Corroboration — Direction not required where no evidence of corroboration — Weight to be given to child's evidence in absence of corroboration — Whether proviso to Court of Appeal Act, Laws of Guyana, Chapter 3:01, s.13(1) could be applied in this case.
The appellant was convicted at the Demerara Assizes for the offences of burglary, rape and robbery under arms on facts which have been amply related by my brother Bishop, J.A. and was sentenced to five years his conviction on several grounds, the main ones being the inadequacy of the summing up on the following issues:
-
(i) The law relating to the offence of burglary;
-
(ii) The law relating to robbery under arms.
-
(iii) The law relating to identity evidence.
-
(iv) The law relating to the burden of proof and
-
(v) The law, relating to the offence of rape and more particularly as it relates to corroboration.
In my opinion, except as regards the third and fifth grounds, although the summing-up could have been more effectively structured, it embraced all the relevant legal principles which a judge is enjoined to advert the attention of a jury to. But the challenges as regards the sufficiency of the summing-up as it relates to the issues of identification and corroboration re more comprehensive responses. Identification evidence and the proper direction which a judge should give in the case of dispute identity have been the subject matter of many recent decisions. So much has been written that one would have expected that by now the guidelines and practices would have become as familiar and common place as the burden of proof in a criminal cause. R v Turnbull and others [1976] 2 All E.R. 549 was the turning point. It stemmed from public disquiet in England about the possibility of miscarriage of justice in this class of case and sets out guidelines and practices that judges should follow in cases of disputed identity. And in a series of cases this court has accepted and endorsed these guidelines and practices as being applicable to Guyana. See the State v Greene and Alleyne 26 W.I.R. 395 and the State v Robinson [1976] 26 W.I.R. 41, and also the earlier decisions of the State v Mohamed Kalil [1975] 23 W.I.R. 267, State v Hodge [1976] 22 W.I.R. 303; State v Barrow [1976] 22 W.I.R. 267. In Green v Alleyne, (supra) Haynes, C., examined and reviewed several of the relevant English decisions and concluded as follows: at p. 409:
“In the light of these authorities it would appear safe to say this. The typical Turnbull case is one where identification is based upon a ‘fleeting glimpse’ or a ‘fleeing encounter’ with a person unknown to the identifier. But its guidelines have not been restricted to such cases as we have seen. It has been applied where the identifier had more than a fleeting glance at the face of the person later identified as the accused, but then unknown to him. It is clear that it is intended to apply in fit cases even where the identified claim prior knowledge of the person he identified later but where the conditions for identification were poor or difficult. He might have had only a brief glimpse, or a longer observation from a distance or very poor lighting conditions or the like. It may well be that the general approach should be to apply Turnbull wherever the conditions of identification are difficult or poor or otherwise such that the possibility of mistake is real, whether the person identified was known to the identifier or not”.
and at page 409 Massiah J.A. encapsuled his perception of the cases thus:
“It is not every case where identification is an issue that the trial judge would be required to follow in full guidelines offered by Turnbull, though in my view in every case where the issue arises the jury should be advised as to the need for caution. But the nature of the evidence adduced in each case would determine the approach the trial judge should take and indicate to him the range and degree of help and guidance he should afford the jury. For example, evidence of identification were the witness had only a fleeting glance of the wrongdoer would require fuller directions than would be called for where the witness professes to have known the accused for some time before the incident in question. And there is, of course, no special incantation of words which the trial judge is required to use, once the jury is alerted to the besetting dangers and weaknesses which the case presents, each summation must of necessity be tailored to the particular circumstances of the case.”
In the prevent case the evidence of identification of the appellant came from the victim Gangadai and one of her daughters. The evidence of the former was that she lived in a cottage at Cane Grove with her eleven children four of whom were there on the night of the incident. Her husband was away in the interior. At about 3'oclock in the morning of the 8th February, 1982 she was awakened from her sleep by a rapping at her front door. She asked who it was and a voice answered ‘Policeman’, She then stood on a chair and peeped through a glass window. It was a bright moon-lit night and she saw the appellant who was a policeman stationed at Cane Grove-police station and whom she had known for some time before. He told her that he had a warrant for her son's arrest and she suggested that he return when it was daylight. He insisted that he wanted to search the house immediately as he suspected that the son was there. She opened the door and saw that the appellant was armed with a revolver which he pointed at her. He told her that his real mission was not to search for the boy but to have sexual intercourse with her. She began to cry and reminder him that she had children of his age. He demanded that she go into a room and threatened to shoot her should she shout. There was a lighted lamp in the room. Through fear she complied and he push her onto a bed, took off his trousers and her undergarment and had sexual intercourse with her. On completion he insisted that she gave him the money which her husband had left her and she complied. He then told her to take a lamp which was in the hall and sighted into the other room. There he instructed her to look under the bed that was in the room. She did so. He also peeped and soon after left, but not before threatening to shoot her if she left the house. Whilst they were in the house one of her daughters, Ackleema, awoke and in the presence and hearing of the appellant asked her what was the matter but through fear and shame she gave a negative reply.
The daughter who said that she was fifteen years old at the time of the incident but whom the mother had said was eleven, also said that she had known the accused before the incident. She was, she said, awakened by talking in her bedroom and saw her mother and the appellant. Her mother had a lighted lamp and the appellant a revolver. He told her mother to put the lamp under the bed. Her mother who was crying, protested that no one was there but the appellant peeped under the bed. She spoke to her mother but only gave evidence of the latter's response which was “Nothing, the police was searching for your brother”. Finally there was the supportive evidence of Monica Peetram who said that about 2.30 p.m. on the 8th February, 1982 she and her husband were returning home from a fishing expedition. As they passed the complainant's home she heard a rapping at her door. She looked and saw that it was a person in police uniform.
In his defence the appellant denied being present at the virtual complainant's home on the morning in question. Indeed this has been his consistent story since the allegations were first made in his presence at the Cane Grove police station later in the morning of the 8th February, 1982. He further stated in his statement at the trial, and this was also suggested by counsel in cross-examination, that she was motivated by spite and a desire to remove him from the station and so prevent him from arresting and charging her son. The trial judge did not follow the Turnbull guidelines and the question therefore arises whether this is a case in which he ought to have done so. Should he, for example, have warned the jury to view the evidence of identification with caution. Should he have instructed them of the dangers and weaknesses inherent in identification on evidence in general and pointed out to them such specific weaknesses as were disclosed by the evidence? Should he have charged them that they must not only be satisfied that the witnesses were truthful but that their identification was reliable? In R v Keane (1977) 65 Cr. App. R, 248 although Scarman, L.J. observer that “it would be wrong to interpret or apply Turnbull inflexibly”, and noted that it imposes “no rigid pattern, establishes no catechism” which the judge in his summing up must answer, if the verdict is to stand. And he went on to say:
“But it does formulate a basic principle and sound practice. The principle is the special need for caution when the issue turns on evidence of visual identification the practice has to be a careful summing up, which not only contains a warning but also exposes to the jury the weakness and dangers of identification evidences both in general and in the circumstances of the particular case”.
In my opinion, therefore, although the thrust of the appellant's defence was that the complainant's...
To continue reading
Request your trial