Non-direction by trial judge in 1986…

‘Frankie’ freed of rape, robbery and burglary

A trial judge’s failure to deal with weaknesses of the evidence of identification in 1986 resulted in the Appellate Court setting free Frank David, who was accused of Burglary, Robbery and Rape.

George Barclay
George Barclay

The Appellate Court was constituted by Chancellor Keith Massiah and Justices of Appeal Mr. Charles Fung-A-Fatt and Aubrey Bishop.
Attorney-at-law Mr. Stanley Moore appeared for the appellant.
W. Henry, Senior State Counsel, represented the State.
Following an incident on June 3rd, 1984 the appellant Frank David was charged with burglary, robbery and rape.
The prosecution’s case depended entirely on the evidence of identification by the complainant.
The complainant had reported the matter promptly to the Police on the June 3, but did not make a statement until June 6, some hours after she had identified the appellant who had been sitting in an office at the police station.
She then for the first time stated that she recognized her assailant as someone called “Frankie.” At his trial the appellant was not represented and, although he challenged the complainant’s evidence that she recognized him, the allegation of recognition was virtually unexplored.
In summing-up the trial, the judge did not criticize the identification at the police station, nor did he deal with weaknesses of the identification in the complainant’s bedroom. The appellant appealed for the quashing of his conviction.
It was held that the identification at the police station ought to have been strongly criticized by the trial judge and stigmatised as worthless; the jury should have been told that the failure to hold an identification parade tended to lessen the force of the prosecution case. Further, the trial judge’s failure to deal with the weaknesses of the evidence of identification in the bedroom was a serious non-direction.
It was unanimously agreed that an identification parade provides an excellent opportunity for riveting an observation and provides (or otherwise) some proof of the guilt of an accused. It is a safeguard valued and relied on by the courts in cases based wholly on visual identification of strangers.
Per Justice Bishop, the State prosecutor would have known that the witness, in testifying, had varied fundamentally from her statement to the police on a point that was directly related to her claim to have recognized her assailant, in a case where visual identification was the crucial issue, and she the only witness.
In the circumstances, it was the duty of the prosecutor, as a minister of justice, to submit the relevant part of the statement to the trial judge for his consideration and action, on behalf of the unrepresented appellant.
Chancellor Massiah, in delivering his judgment said, there has been built up, both locally and abroad, such a massive body of legal literature on the question of visual identification that “I had come to believe that the problems relating to that question had been securely interred and could therefore no longer beget any serious judicial difficulties.”
He added: “The present case illustrates that I was guilty of wishful thinking for a measured non-conformity to the principles embodied in the literature has caused the problems to arise from their grave like resurrected fiends complete with cerement, ready to haunt us all over again.
“When a young woman retired to bed…at her home in Thomas Street, in suburban Kitty, little did she imagine that in the early hours of the next day she would be visited by an unwelcome intruder whose immanity permitted him not only to burglarise her home and rob her at knife point of her jewels and other possessions , but to rape her as well. That unfortunate woman related her harrowing experience to a judge and jury when the appellant , Frank David , was arraigned at the criminal assizes in Georgetown, Demerara, in June 1986 to answer charges of burglary, robbery and rape.
“He was found guilty on all three counts and in the result he was sentenced to a term of imprisonment of ten years for each of the offences of burglary and robbery, and to a term or 15 years for rape, the sentences to run concurrently.
“The appellant has appealed against his convictions and sentences. The crucial point at issue is whether or not his trial was fair.
“The story told by the virtual complainant was that while she was in bed on the morning in question she saw ‘the outlines of a man’ over her.
The woman’s narration went thus: ‘“When I turned around and saw the man I saw his face. The building was well lit. I had a screw bulb burning. It was a 60-watt bulb. I recognized the man to be the [appellant]. Before this incident I knew the [appellant] about one and a half years.”
She then explained that the appellant raped her, took off her earrings and other rings, picked up two tape recorders and forced her to give him $200 from a wardrobe.
She said: “He took me to the wardrobe and told me to open it. Before I opened it I glanced into the mirror of the said wardrobe and I saw the left side of his face and his right shoulder.
“During the 18 months that I knew the appellant I have heard his voice. I looked at the appellant for about one second in the wardrobe mirror. All this time the light was still on in the bedroom and bright.”
According to the victim, the appellant then pushed her back on the bed and told her to lie down. He then left the home. Her husband arrived home almost immediately afterwards, and sometime about 6.30 a.m. that day they reported the matter to Police Cons 8627 Carlton Sutton at Kitty Police Station.
It does not appear from the evidence of the virtual complainant or of Police Cons Sutton that the virtual complainant told the police when reporting the matter that she knew who her assailant was, or that she gave them his name, although she said in evidence that she knew him by the name “Frankie” before the day in question, and used to see him near the Hollywood cinema almost every day.
It is instructive and significant that Police Cons Sutton said in evidence that he recalled the virtual complainant and her husband coming to the station.
They reported that thief broke into the house and stole a quantity of articles valued at about $8, 000.
Later in his judgment Chancellor Massiah had said: “The matters which I have referred are sufficient ground by themselves to cause the convictions to be quashed; but I must call attention to the failure of the trial judge to deal with the weaknesses of the identification said to have been in the victim’s boudoir.
“I do not propose to refer to those many weaknesses; would content myself with saying that they deserved to have been brought to the attention of the jury clearly and simply and their importance emphasized, to enabled the jury to appreciate fully every aspect of the question of identification dictated by the circumstances of the case.
“The failure of the trial judge to treat with those matters was a serious non-direction. There has been a grave miscarriage of justice in this case and the convictions cannot stand.
“Appeal allowed. Convictions and sentences set aside.”

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