THE accused Walter Alleyne, who along with fellow accused Michael Greene was convicted of burglary, robbery with aggravation and rape, was freed on appeal while his companion had his not-guilty appeal dismissed by the Court of Appeal of Guyana.The appellants were convicted by a jury of the offences of burglary, robbery with aggravation and rape.
The prosecution alleged that in the early hours of the morning of 14th April 1977, three men entered the bedroom of complainant Clara Sankar, where she had retired the previous night. They aroused her from slumber and covered her mouth, while some pieces of jewellery were removed from her person. Other pieces of jewellery and cash were taken from a bag in the room, before all three men raped her.

On the men’s departure, Sankar went and spoke to Kemragie Persaud, her next door neighbour, before going to the police station to make a report. Her report was followed by a written statement.

Kemragie, however, did not say that Sankar said she knew the man whom she later identified as the appellant Alleyne, nor did Sankar give her any description of him, although Sankar did reveal to her that she knew one of the men as ‘Green Boy’.

Again, in her statement in writing to the police, Sankar mentioned that if she should happen to see the other men, she would be able to identify them because she had seen their faces by the aid of a lighted wall lamp.

Sankar, however, told the jury that as soon as she had seen Alleyne in her house, she recognised 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 Sankar and her son Jairam Jaipaul, whereas Alleyne was identified by Sankar alone as two of the three men in question; but there was no other evidence to support these identifications.
Each appellant raised an alibi as his defence, and each called one witness in support of his defence, 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.

The Court of Appeal Held – (I) Sankar’s failure to disclose, in her complaint to her neighbor, 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 the matter, but failed to do so.
(ii) The written statement given by Sankar to the police, if it did not implicitly assert that the man she later identified as the appellant Alleyne was unknown to her, then it at least tended strongly to suggest so; and the jury should have known about it.

It would have been reasonable for the jury to imply that Sankar did not know the appellant, in the absence of an acceptable explanation. If she was 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 Sankar’s police statement 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, thus the conviction of Alleyne cannot stand.

(v) (As per K.S. Massiah J.A.) The trial judge approached the case as if the only consideration was Sankar’s credibility, without paying the record to the notable element of possible mistake on her part and Jaipaul’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.

W.G. Edwards represented the State, B. De Santos the first appellant, and Stanley Moore the second appellant. The Appellate
Court was constituted by Chancellor Haynes and Justices of Appeal K.S. Massiah and K. George.

In his judgment, Chancellor Haynes said: These two appellants, Michael Greene and Walter Alleyne, after a trial before a judge and a jury, were convicted at the Berbice Assizes on 21st March, 1978 of burglary, robbery with aggravation, and rape. Each was sentenced to seven years’ imprisonment and 10 lashes.
Each appealed to this court against his conviction. Several grounds of appeal were argued, but at the end of the hearing, we reserved decision only on the question of identification, which was the critical issue at the trial.

It was a short one. The victim Clara Sankar and her 14-year-old son Jairam Jaipaul identified Green, who was the first accused, and Sankar alone identified Alleyne, who was the second accused, as two of the three men involved in the offences. But there was no other evidence in the case to support these identifications. The defence was an alibi. Each appellant made an unsworn statement from the dock and called a witness in support of it.

After a deliberation of only 22 minutes, the jury reached a unanimous verdict of guilty on every count of the three-count indictment.

The case for the prosecution was uncomplicated: Sankar told the jury that on Wednesday, 13th April 1977, at her home at Lot 10 Church Street New Amsterdam, she and her three children (Jaipaul Jairam, Petula, six years old and Cecelina, four) retired to their bedroom at 19:30 hrs. She was on one bed, and they on another two feet away.

Around 02:30hrs to 03:00 hrs on April 14, she was aroused by the feel of a hand covering her mouth.
Thereafter, for a half to three quarters of an hour (her estimate of the time) she had a frightening and humiliating experience. Some pieces of jewellery were taken from her person, others and cash from a bag behind the bedroom door, and everyone raped her.
During all or most of this time, there was a knife at her throat, held there by one or the other of the three men.

Immediately after they left, Sankar went over to her next door neighbour Kemragie Persaud, called Sheila, and had a conversation with her. Then she went to the Central Police Station and made an oral report to Detective Constable Granger around 03:20 hrs.

Later the same day, between 09:00 hrs and 10:00 hrs, she gave written statement to him. The appellant Greene was arrested about 19:50 hrs on April 14, while Alleyne was arrested around 07:00hrs on the 16th.

On appeal, counsel for each appellant argued at some length that the summing up on the question of identification was insufficient and unsatisfactory.
Here it was alleged that this man, with two others, robbed and raped a woman in her home at night. She told the jury that as soon as she saw him in her house she recognised him as a man she knew, and knew where he was working, although she did not know his name.

In her written statement to the police, hours later when she must have been asked if she knew or recognised any of the men, she gave an answer which clearly and strongly suggests that she did not then recognise any of the men as this appellant.

It would have been reasonable for the jury to have made their decision in the absence of an acceptable explanation. She might have given one. But if she was unable to do so, her credibility might have been reduced and the jury might not have been convinced that this appellant was one of the criminals.

Perhaps he is; perhaps he is not. But because of the flaws in the summing-up and of the irregularity of withholding this information from the jury, his trial was not fair, and a miscarriage might have occurred. So Walter Alleyne’s conviction cannot stand, the Court ruled.

Errors of this kind can subject the State to the expense, and the accused to the expense and anxiety of a new trial. In such a case, the Court must not run the risk of convicting the innocent.
I would allow the appeal of the Appellant Walter Alleyne, set aside his conviction and enter a judgment of acquittal.

Chancellor Haynes in his judgment had also dismissed the appeal by accused Michael Greene and confirmed his conviction and sentence.

Justice of Appeal George entirely agreed with both judgments and with the reasons therefor.