Mohammed or Sheik et Al v R

• Jurisdiction: Trinidad & Tobago
• Judge: Wooding, C.J.
• Judgment Date: 19 December 1966
• Neutral Citation: TT 1966 CA 165
• Docket Number: No. 53 and 54 of 1966
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 19 December 1966

Court of Appeal

Wooding, C.J.; McShine, J.A.; Fraser, J.A.

No. 53 and 54 of 1966

Mohammed or Sheik et al

and

Regina

Appearances:

Mr. R. Archbald, Q.C. appeared for No.1 appellant.

Mr. H. Hudson-Phillips, Q.C., and Mrs. M. Hudson-Phillips appeared for No.2 appellant.

Mr. G. de Iles, Acting Solicitor-General, appeared for the crown

Criminal Law - Larceny — Appeal against conviction — Appellants were charged on an indictment containing 2 counts: stealing a motor car and receiving a motor car knowing it to have been stolen. Second charge was withdrawn from the jury by the judge. Both convicted of larceny only. Appealed against conviction. — The appellant Sheik had been identified as the person driving the stolen car. He was also one of the 4 men seen distributing among themselves parts of a motor car which had been stripped. Appeal accordingly dismissed. Conviction and sentence affirmed.

Criminal Law - Larceny — Appeal against conviction — Appellants were charged on an indictment containing 2 counts: stealing a motor car and receiving a motor car knowing it to have stolen. Second charge was withdrawn from the jury by the judge. Both convicted of larceny only. Appealed against conviction. Appellant Mohammed argued inter alia that judge erred in directing jury. Had told them that if they believed he was seen sitting in the car on the day on which it was stolen, that constituted evidence of recent possession on which they could find him guilty of larceny. — The jury would need to understand what was meant by a common plan before they could infer that both prisoners were in possession in pursuance of a common plan to steal. There was however a complete failure to explain to the jury what was meant by a common plan. The court also cannot be certain that if properly, fully and adequately directed the jury would have come to an affirmative verdict against Mohammed on the court for receiving. Appeal accordingly allowed. Conviction and sentence against Mohammed quashed.

Wooding, C.J.

1 The two prisoners were charged on an indictment containing two counts: the first, that they stole Zephyr motor car P.E.4342, the property of Ralph Chadee; the second, that they received that motor car knowing it to have been stolen. In his charge to the jury the trial judge, Corbin J., withdrew from them the count of receiving and so left to them the count of larceny only. In the result they convicted both prisoners on that count and from these convictions they have both appealed.

2 We propose in the first instance to deal with the appeal of Malay Sheik. Two limbs of what was really one ground were out forward on his behalf, that the evidence was not such as to make it reasonable, or alternatively was not sufficient, for the conviction to be sustained against him. It is necessary therefore to see what the evidence was.

3 First, there was Sgt. Mayers who stated that he was driving his car from south to north along the Southern Main Road, and that getting into a traffic jam somewhere near Chase Village he saw Chadee's car being driven in the opposite direction and in it the two prisoners. The prisoner Sheik was the only one actually driving and thus undoubtedly in control of the car. In cross-examination he maintained that, notwithstanding the brief time at his disposal and the limited opportunity which he had, he was not at all mistaken about the identity of either of the two men, and indeed he pointed out both of them at an identification parade held some time later.

4 Next, there was the evidence of P.C. Marshall who stated that three days afterwards he saw four men in a sandpit and that they were distributing among themselves parts of a motor car which had been stripped. He recognised the two prisoners among the four men, all of whom, he said, fled when they saw him. He did not identify the car which he said he saw being stripped, so it cannot be predicted to have been the same as had been stolen from Chadee. Nevertheless, his evidence bore this importance, that he was identifying Sheik as being one of the four men whom he saw participating in the stripping of a car three days after Chadee's car had been stolen and that he had no doubt as to his identification of Sheik. Therefore, when Sheik set up that as to his elsewhere on March 22, the day of the larceny, the issue arose whether Sheik was a credible witness or whether his evidence could be relied upon for any purpose. If Marshall's evidence was accepted thereby shaking the credibility of Sheik, then to that extent at least it gave support to the evidence of Mayers who was clear and positive, despite the alibi set up by Sheik, that Sheik was the person whom he had seen driving Chadee's car on March 22.

5 We have been pressed by counsel with the authority of certain cases to which I shall briefly refer. First, R. v. Redman (1965) 8 W.I.R 119, where the Jamaica Court of Appeal held that there was a failure on the part of the learned trial judge to mention certain facts in his summation to the jury and, in consequence, that he failed to put before the jury adequately the circumstances which would have enabled them to arrive at a just assessment of the case before them, wherefore it made their verdict unsafe. But it is to be observed that in that case the facts to which the Court of Appeal referred included the following – that the evidence of the principal witness against the prisoner was evidence of an accomplice or at least of a person with an interest to serve, which required the judge to warn the jury, and he omitted to do so; that the goods the subject of the charge were found on the premises of her “boy-friend” - to use the language of the Court - premises in which she herself lived and premises in respect of which a search warrant, referring to them as the premises of her “boyfriend”, had been taken out. Those facts if they were pointed out to the jury may well have led them to think that it was either the “boyfriend” who was guilty and that the woman who was the principal prosecution witness was seeking to protect him, or that she herself was ‘part ceps criminis’. Those circumstances should therefore have been put to the jury clearly and fully so as to enable them to arrive at a just appreciation of the evidence taken as a whole. There is nothing of the sort here.

6 We were referred next to R. v. Cassells (1965) 8 W.I.R. 270 in which there was a conviction for cultivating ganja. There was a conflict of evidence between the police and the prisoner, the prisoner maintaining that he had not been found planting ganja as the police alleged, that in fact they had asked him who grew ganja on lands in the area and that, when he said he did not know, they had beaten him up, taken him into custody and charged him with the offence. The police denied his charges against them and, so as to explain the extensive injuries which were undoubtedly found on the body of the prisoner, they claimed that he had received them in a fall. But the medical evidence – and this is important - the medical evidence which was unimpeached, and was clearly unimpeachable, was that he had suffered very grave injuries which could not all have been caused by falls and that the distribution of the blows was such as to lead to the conclusion that he had been severely beaten. That was a grave and vital matter which went radically to the credit of the police...