Accused appealed convictions – alibis were not put to jury

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Appellate Court affirmed convictions, sentences

IN 1967 the Guyana Court of Appeal affirmed the convictions and sentences of appellants, robbery accused Carlton Adams and James Lawrence, despite allegations that the trial judge erred by not putting the appellants’ alibis to the jury.

Dismissing the appeal and affirming the conviction and sentence, the Guyana Court of Appeal, constituted by Chancellor of the Judiciary Mr Kenneth Stoby and Justices of Appeal Mr Percival Cummings and Mr Victor Crane, held that :

“It is not necessary for the trial judge to give a special direction as he must in respect to certain other defences such as provocation, self-defence and drunkenness, etc.”
The facts of the case disclosed that one man was robbed by one of the appellants as he was about to enter a shop. Two constables who were on duty in plainclothes at a nearby corner were attracted by shouts of “thief” and saw when one of the appellants joined the other, who had a bicycle and the two of them rode away.

The two constables gave chase and subsequently apprehended the appellants who, at their trial, gave sworn evidence testifying that they were somewhere else: one said he was shopping, whilst the other said he was making enquiries about work.

In his summing up, the trial judge directed the jury on the burden of proof and the standard of proof, but at no time did he specifically explain that the defence was an alibi or give any specific direction regarding the alibis.

On appeal against the convictions and sentences, the Appellate Court held (i) an alibi, as such , is not a defence and accordingly, there is no evidential burden cast upon the accused ; (2) where an alibi has been set up, as here, then it is not necessary for the trial judge to give a special direction, as he must where certain defences such as provocation, self-defence, drunkenness, etc., are raised, once he makes it quite clear that the jury must be satisfied beyond reasonable doubt that the accused committed the offence. If this is not done, then the accused is entitled to the benefit of any reasonable doubt.

Mr Desmond Christian represented the appellants, while Senior Crown Counsel, Mr W. G. Persaud appeared for the respondent.

Delivering the judgment of the Guyana Court of Appeal, Chancellor Stoby said, “This appeal, which was admirably argued by Mr Christian for the appellants, raises once again the question of what is the proper direction to be given to a jury when the accused’s answer to the charge is an alibi.

“The appellants were charged with robbery with violence. A witness gave evidence that as he was about to enter a shop in Regent Street, one of the accused attacked and robbed him. This witness chased that accused and saw him join the other accused who was waiting on a bicycle at Regent and Alexander Streets. The two accused rode away and were pursued a considerable distance by this witness. Unknown to the participants of this incident, two police constables on duty in plainclothes were standing at the corner of Alexander and Regent Streets, Attracted by shouts of “Thief” they saw one of the accused join the other accused and saw them both ride away. They followed on a motorcycle and caught up with them some distance from the starting point. As the policemen approached the two accused, the later abandoned their cycle and ran into a nearby yard; the police followed.

After a chase which involved entering into various yards and out on to various streets, one accused was apprehended by one policeman at the corner of Light and North Streets and the other at Light and Robb Streets. The policemen and the two accused were always within their vision and the effect of their evidence was that the men arrested, were the men who were pursued from Alexander and Regent Streets.

Both accused gave sworn evidence. One said that he had shopped that morning at the material time with his mother in the market. After concluding his purchase he walked to Light and North Streets, where he was arrested.
The other accused said he was sent to Robb Street to do some work about 1;15 p.m. He went there and made enquiries at the first house between Light & Cummings Streets and was sent farther down Robb Street. While walking in Robb Street he was arrested.
One accused called two witnesses to support his alibi.

According to the chancellor, in his summing-up, the judge directed the jury on the burden of proof and the standard of proof, but at no time did he specifically explain that the defence was an alibi or give a specific direction regarding an alibi. He did, however, deal very fully with the defence in language which will be referred to hereafter.

He also said that counsel for the appellants in submitting that the convictions should be quashed for non-direction, amounting to misdirection, referred to R. v. Maraj (i), where it was contended that the trial judge erred in not giving to the jury the direction that ought to be given where a defence of alibi is set up.

In delivering the judgment of the court, GOMES C.J. said (1961-1962), 4, W.I.R. 277, at p. 278):
“Where the defence of alibi is set up, the requirement for an adequate direction to be given by the judge to the jury is of such an elementary nature that it should not require constant repetition. The fundamental principle is that before a jury can return a verdict of guilty, they must feel sure that the prosecution has discharged the onus of establishing the guilt of the accused.

“Where an alibi is set up as a defence, not only does that onus remain on the prosecution, but the trial judge is required to go a step further and direct the jury that, even if they reject or do not believe the defence of alibi, they must nevertheless still consider whether the prosecution has proved all the ingredients of the charge that must be established before they can convict.

“The main reason why that further direction or reminder is required to be be given is that, where an accused person gives evidence or calls witnesses, or does both of those things in support of his alibi, the jury is confronted with two opposed versions which are created by the presentation of evidence, the truth or falsity of which can be tested and be determined by them. In such event, a jury, in the absence of further direction, might think that if they reject the alibi, they must or can only accept the version put forward by the prosecution.

“That situation, however, does not arise where no evidence in support of an alibi is given by the defence or otherwise appears, as is the case here, and the trial judge was therefore not required to give to the jury the further direction mentioned above.”

According to the chancellor, counsel for the appellant had argued that the appellant had not only given sworn evidence of their alibis, but had called witnesses and consequently the case came equally within the rule laid down by GOMES, C .j.

After dismissing the appeal and affirming the convictions and sentences, Chancellor Stoby said that while accepting that in certain circumstances a judge should follow the pattern laid down by GOMES C. J., he noted that the reason why in some cases a judge ought to give a special direction in respect of an alibi is solely to make sure that the jury approaches the consideration of a verdict in the correct way.