ONE April night in 1977, Michael Green and Walter Alleyne entered the bedroom of a woman, whom they robbed of cash and jewellery, and raped in the bargain.

At their trial at the Berbice Assizes, both accused pleaded not guilty, and led alibi defences; but the mixed jury found them guilty as charged.

The trial judge sentenced each to seven years’ imprisonment, with a flogging of 10 lashes.

The men appealed their convictions and sentences; and Attorney-at-Law Mr. W.G. Edwards, Assistant Director of Public Prosecutions (Ag), appeared for the State; Mr. Bernard De Santos, S.C., represented the first appellant, and Mr. Stanley Moore represented the second appellant.

The Court of Appeal of Guyana, constituted by Chancellor J.O.F. Haynes,  with Justices of Appeal Mr. Keith Massiah and Mr. Kenneth George, (who later became Chancellors) heard the appeals, dismissed the appeal by Michael Greene  and affirmed his conviction and sentence.

But the Appellate Court allowed the appeal by convicted accused Walter Alleyne. His conviction and sentence were set aside on the ground that the identification evidence against him was insufficient. Judgment of acquittal was entered.

The facts of the case disclosed that a jury convicted the appellants of the offences of burglary, robbery with aggravation, and rape. The prosecution alleged that in the early hours of the morning of   April 14, 1977, three men entered the bedroom of the complainant, Clara S, where she had retired the previous night.
There, they awoke her from slumber, and covered her mouth while some pieces of jewellery were removed from her person. Other pieces of jewellery and a bag were taken from her room. All three men then raped her.

After the men had departed, Clara S went and spoke to Kemragie, her next door neighbour, and then she went to the police station, where she made a report, followed later by a written statement.

Kemragie, however, did not say that Clara S said she knew the man who had committed the crime, whom she later identified as the appellant Alleyne; nor did Clara S give her any description of the man, although Clara S did reveal to her that she knew one of the men as ‘Green Boy’.

Again, in her written statement to the police, Clara S had mentioned that if she should happen to see the other men again, she would be able to identify them, because she had seen their faces with the aid of a lighted wall lamp.
Clara S, however, told the jury that as soon as she saw Alleyne in her house, she recognized him as a man known to her, and she knew where he was working, although she did not know his name.

The appellant Greene was arrested on the evening of the day of the incident, and Alleyne was arrested early on the morning of April 16.    Greene was identified by Clara S and her son Jai …, whereas Alleyne was identified by Clara S alone, as two of the three men in question; but there was no other evidence to support those identifications.

Each appellant raised an alibi as his defence, and each called one witness in support of his alibi, but they were convicted on all three counts of the indictment.

On appeal to the Guyana Court of Appeal, counsel on their behalf argued at some length that the summing-up was insufficient and unsatisfactory on the question of identification.

Chancellor Haynes had held that:
(i) The failure of Clara S to disclose in her complaint to her neighbour the fact that she knew the man she later identified as the appellant Alleyne was a notable weakness in her identification, to the extent of the weight the jury gave it. The trial judge should have dealt with this matter, but failed to so do.

(ii) The written statement given by Clara S to the police, if it did not impliedly assert that the man she later identified as the appellant Alleyne was unknown to her, it would have been reasonable for the jury to imply that Clara S did not know the appellant in the absence of an acceptable explanation. If she were unable to give one, her credibility might have been reduced, and the jury might not have been convinced that Alleyne was one of the robbers.

(iii) It was the duty of prosecuting counsel to show the police statement of Clara S to the defence directly, or to the trial judge in the first place, who in turn would have had to make it available to the defence.

(iv) The trial was unfair because of the flaws in the summing-up and the irregularity of withholding the information from the jury. A miscarriage of justice might have occurred, and the conviction of Alleyne cannot stand.

(v) Justice of Appeal  Massiah noted that the trial judge approached the case  as if the only consideration was the credibility of Clara S, without paying due  regard to the notable element of possible mistake on her part and Jai’s, and the consequent requirement for caution and the need to be sure that no mistake was made.

(vi) The evidence concerning the appellant Green’s identification was so cogent and compelling that a reasonable jury properly directed would inevitably have convicted him.

(vii) There was no miscarriage of justice in the respects in which the trial judge’s summation was flawed in relation to the appellant Michael Greene, and his appeal must be dismissed.

Justice of Appeal Kenneth George entirely agreed with both judgements, and with the reasons therefor.

Appeal of first appellant, Michael Greene, was dismissed. Appeal of second appellant, Walter Alleyne, allowed, and judgment of acquittal entered.

The Guyana Court of Appeal referred to 25 cases in arriving at its decision.
During his judgment, Chancellor Haynes had said, “At criminal trials, the common sense and the common experience of men and women on a jury must guide them when they have to decide what measure of credence and dependence they
should accord to evidence that they have heard.

“All the rules which have been evolved are in accord  with the central principle  of our criminal law, that a person should only be convicted of a crime if those in whose hands the decision rests are sure  that guilt has been established.

“It has been recognised, however, that the risk or danger of a wrong decision being reached is greater in certain circumstances than in others. It is where those circumstances exist that rules aimed at reducing to a minimum – as far as is humanly possible – the likelihood of error  resulting in a miscarriage of justice have been introduced into the practice of the courts from time to time. The problems of identification generally and in special circumstances fall within this category,” Chancellor Haynes said.