Belasco v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Hassanali, J.A. |
| Judgment Date | 29 April 1983 |
| Neutral Citation | TT 1983 CA 17 |
| Docket Number | Criminal Appeal No. 46 of 1981 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 29 April 1983 |
Court of Appeal
Hassanali, J.A.; Braithwaite, J.A.; Bernard, J.A
Criminal Appeal No. 46 of 1981
I. Khan for the appellant
A. Benjamin for the respondent
Criminal Law - Appeal against conviction — Robbery with aggravation
Judgment delivered by Hassanali, J.A. The appellant was convicted on 23 rd March, 1981 of robbery with aggravation, the particulars of the offence being that on 17 th May, 1974 at Port of Spain together with other persons unknown he robbed one Jerome Cortez of $222.00 in cash; and on the 24 th March, 1981 he was sentenced to seven years' imprisonment with hard labour. He appealed against both the conviction sentence.
At the close of the hearing on 22 nd April, 1983 we dismissed both appeals and affirmed the conviction and the sentence. Pursuant to what we then indicated we give our reasons for those orders.
The evidence for the State was to the following effect:
At about 10:30 p.m. on the 17 th May, 1974 the appellant, armed with a knife, and some other men who were also armed with weapons, including guns, together entered the Alchemist Drug Store on Duke Street, Port-of-Spain. It was then open for business and was fully and brightly lit by fluorescent lighting. In the drug store at the time among others were Stanley Pearce the manager, Jerome Cortez the cahier and Anthony Bartholomew a customer. One of the men entering the drugstore announced that it was a “hold up.” The appellant jumped over the counter, held, the knife menacingly against Cortex ‘s body and ordered him to open the cash drawer. As Cortex hesitated, another pointed a gun at him, and the customers were ordered to “lie flat” on the floor. Cortez opened the cash drawer; the appellant took the cash from it; and jumped back over the counter and the men left the drug store. The incident lasted about 8 to 10 minutes. A report was made to the police who arrived on the scene shortly afterwards. On 21 st May, 1974 the appellant was arrested; and on the following day he was put on an Identification parade conducted by Superintendent of Police, Osmond Kerr. The appellant was identified by Cortez and by Bartholomew as the assistant who had jumped over the counter and threatened Cortez with a knife before taking the money from the cash drawer.
The evidence clearly established that the men acted in conceit in committing the offence charged.
In his Defence the appellant elected to make an unsworn statement as follows:
“On 17 th May, 1974 I was at my mother's home in Long Circular, Maraval. I now nothing about this robbery. I know nothing about knife. The first time I saw those two men (the witnesses Cortez and Bartholmew) was at the C.I.D., and the other one (the witness Pearce) at the Court House. That's all.”
The grounds of appeal filed read:
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“(1) The learned trial judge failed to give the fury adequate directions end/or assistance as to how they should assess the contradictory evidence in relation to the crucial aspect of the Identification Parade in that:
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“(a) He failed to direct the jury that if Cortez and Bartholomew were telling the truth when they said the men on the identification parade were of varying heights then this implies that Inspector Kerr was not telling the truth when he said the men were generally of the same height; and that if they accepted Cortex rind Bartholomew's evidence as truthful on this aspect then the identification parade would have been bad or unfair and thus they should acquit the Accused.
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(b) He failed to direct the jury that if Inspector Kerr was telling the truth when he said that the men on the identification parade were generally the same height, and size anal, they were all dressed similarly then Cortex and Bartholomew were either not telling the truth or they were mistaken about this aspect of the case and if they could be so mistaken then their evidence must be looked upon with great suspicion and should be deemed unreliable via a via the actual identification of the accused as one of the men who committed the offence.”
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Then there is cited the following passage from the judge's summing up:
“Another matter which you will hove to consider and give to it the importance you deem fit is the Identification parade. Cortez and Bartholomew both said on the identification parade men were of different heights; some tall. Cortez says, some short; some were of different sizes.
“You remember Inspector Kerr I think who conducted the parade said the men were all of uniform height, but both Cortez and Bartholomew said the man were of different heights … You would have to decide whether Cortez and Bartholomew were telling the truth when they said the men were of varying heights, or whether Inspector Kerr was telling the truth when he said the men were same height.”
“(2) The verdict of the Jury is unreasonable or cannot be supported having regard to the evidence”
Under ground 1, counsel submitted. That in what he considered “an otherwise impeccable summing up” the omission complained of amounted to a give misdirection because the Defence rested on mistaken identity and the Identification Parade was of paramount and crucial importance.” He submitted that a “special issue” arose for the Jury's determination viz who was speaking the truth the witness Superintendent Kerr or the witnesses Cortez and Bartholomew. The jury were invited to mine this crucial question ‘brat were not assisted in that exercise; and therefore the conclusions indicated in the complaints under paragraphs a) and b) under the ground of appeal were valid. The appellant, he finally submitted, thus lost a chance of acquittal.
In support of his argument counsel referred to the local case of Sona Lalloo et al v. The State Cr. App. 12 and 14 of 1980 and to the observations of this Court therein (pages 9 — 11) on the leading principles governing the object, form and content of a summing up. We respectfully adopt those statements without repeating them here.
Counsel referred also to R v. Samad and Ralph [1969] 15 W.I.R. 37; to Abdullah v. The State (1971) 17 W.I.R. 266 268E–269B and to Dickman [1910] 5 Cr. App. 135, 142, 143.
In R v. Samad and Ralph (supra) Luckhoo. C. expressed the view that “it was the trial judge's duty to ensure that what is necessary and fair to state was not omitted, lest the result of the jury's verdict might be affected thereby,”
The reason the learned Chancellor made those observations were that in his judgment the jury had been “left to room at large over the rugged terrain of critical evidence without the guidance and enlightenment which would aid in its estimation or appreciation”. He was of opinion that the trial judge had “failed to direct the jury on the various conclusions that could be drawn from the unsworn statements of the accused” (which substantially constituted the evidence for the prosecution) and “to give the jury proper directions on circumstantial evidence.”
Those observations are inapplicable in the instant case because we cannot say trot here the learned judge foiled in his duty to assist the jury or “to unsure that what was necessary and fair to be stated was stated;” or that by any omission on his part he left the jury to “roam at large …”
In Abdullah et al v. The State (supra.) the only eye witness to an offence of robbery was the virtual complainant Rajdai Budhram. In the course of its majority judgment the Guyana Court of Appeal after reciting the conflicting testimony of that witness and a P.C. Dorsett declared:
“We are of the view, however, that in the light of the defence of alibi and mistaken identity, the situation called for a more thorough direction in view of Rajdai's insistence that she was not asleep in bed, and Dorsett's volte face under re-examination. In our view the jury ought to have been told that if they believed Dorsett was speaking the truth under cross-examination when his own recollection and his written record made at the time were in accord, then they could not at the same time believe Rajdai that she was not asleep in bed, in which case her credibility would be thereby seriously shaken and the circumstances of her identification altered. If on the other hand, for some unknown reason, they were to disbelieve what Dorsett said in re-examination, which was against his statement on oath under cross-examination, and his own record, then his evidence could not aid in any way in the advancement of the credit-worthiness of Rajdai's testimony”
“In the circumstances, it seems obligatory for the judge to have reminded the jury of what he had said before as to where the onus of proof rested; that since Rajdai's was the only evidence on the crucial point of identification, they ought not to convict the accused in view of the uncertainties already alluded to in her evidence unless they felt sure of their guilt, and that if they had any reasonable doubt about the matter the accused were entitle to the benefit of it.”
And the Court concluded:
“We are decidedly of the opinion that was the kind of direction to which the accused were entitled in view of the contradictory state of the evidence of prosecution witnesses Rajdai Budhram and P.C. Dorsett.
“The principle involved is greater that the case, for we cannot feel certain that the accused, by reason of the non-direction, did not 1ose the chance of an acquittal. For the trial judge to have ‘left it to the jury to say whether P.C. Dorsett was on unreliable witness in the particular respect of which he spoke, without saying more than he did, was, in our opinion, a non-direction amounting to a. misdirection which vitiated the convictions and sentence.”
The cited passages speak for themselves. That case is distinguishable. The circumstances before the Guyana Court of Appeal, were of quite a different character from those with which, we are dealing; and it...
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