A WOMAN who was raped and robbed by three men in 1965 told investigators that she had identified the appellant by the side of his face and his voice. At the jury trial, she said: “I recognised the appellant, Wilkie, by his voice, his rising cheek bone, straight nose, large ears, and a cut on the nose-bridge between eyes.”

However, under cross-examination, she admitted: “I did not give such a detailed description either to the police or to the magistrate at the Preliminary Inquiry.”

As a consequence, on appeal, the Guyana Court of Appeal allowed the appeal and quashed the conviction and sentence.   Wilkie was freed.

The facts of the case disclosed that the woman was sleeping in a room with her four children whilst her husband was out at work.  At about 5am, three masked men entered the home, covered her face and proceeded to rob and rape her.

The next day, whilst the victim was sitting on her neighbour’s step, she saw a man who came up close to her and asked her to allow him to pass.   She said that having recognised his voice, she went to the gate, looked at him, and saw that he indeed had a high cheek bone.

Following the report of the matter to the police, the appellant was later arrested and taken to the police station where the victim subsequently confirmed that he was one of her assailants.

At the trial in the High Court, the woman said she recognized the appellant by his high cheek bones, straight nose, large ears and a cut on his nose-bridge between his eyes, but she admitted under cross-examination that she had not given such a detailed description either to the Magistrate or to the police, but had told the Magistrate that she had only seen the side of his face.

The Guyana Court of Appeal, constituted by Chancellor Kenneth Stoby,  Justices Luckhoo and Cummings at a trial in May, 1967, held that the verdict of the jury was unreasonable because: (i) It was clear that identification of the appellant  was really by voice,  since the victim  did not see his face, as it was covered,  and she only saw the side of the face when the men were leaving;  (ii) although  there may have be circumstances in which it may be proper to convict by the mere identification of a voice, this was not such a case; and (iii) it was the duty of the trial judge to have stressed  to the jury  (which he had not done) that what was originally a ‘voice’  identification became, at the  trial,  a ‘features’ identification.

Mr. C A Massiah represented the appellant, while Mr. CAG Pompey, then Senior Crown Counsel, appeared for the respondent.

Delivering the judgment in the matter, Justice Stoby said that on September 14, 1965, a woman was asleep in her room with her four children while her husband was at work, when, at around  5 o’clock in the morning, three men entered her room and committed a heinous crime.  “They robbed and raped her,” he said. “The appellant was convicted as being one of the three men concerned.  He appealed.”

At his trial, Justice Stoby said, the main issue was identification. “There was no doubt of the house being broken and entered; of the robbery; and of the rape. The appellant was identified in this way:  The day after the robbery,  the victim was sitting on the steps of the next-door house. A man came close to her and asked to be permitted to pass.  She said she recognized his voice, went to the gate, had a look at him, and recognized him by the high cheek bone.  A report was made to the police, the appellant was arrested, locked up, and the woman was sent for.   On arrival at the station, she confirmed he was one of the men.

“The judge told the jury that the question of identification was most important; the jury, as I have said, convicted.”

Continuing with his judgment,  Justice Stoby noted that while several grounds of appeal  were  argued, in view of the decision to which the court  had come, it was only necessary  to deal with the main ground, this being that the verdict of the jury was unreasonable.

“The principle on which the court proceeds in a matter of this kind, where a ground of appeal is that the verdict is unreasonable,” he said, “is well-known, and has been set out in a number of cases.”

After analyzing  a number of cases, Justice Stoby said: “If one analyses, very briefly, the evidence of identification in this case, this is what took place: The  man who entered the victim’s house had his face covered; the woman’s face was covered after the three men entered.

“In the Magistrate’s Court, she told the magistrate that she only saw the side of the face of the man who she alleged was the appellant.

“In the High Court, when giving evidence, she said that she recognized the appellant because of his rising cheek bones, a straight nose,  large ears, and  a cut on his nose-bridge  between the eyes.In cross-examination, when it was pointed out to her that she had not said that in the Magistrate’s Court, and indeed had not given that description to the police, she repeated that she recognized him because of his high cheek bones, the cut on his face, his large ears, and so on.   She admitted that she did not give that description to the police, and she admitted that she did not give those details in the Magistrate’s Court.”

According to Justice Stoby, “obviously then, there are certain disturbing circumstances about the identification.  It is quite evident that the identification was really by voice; that she came to the conclusion that the appellant was one of the three men who had raped her because of his voice.”

“Since she did not see his face; since her face was covered; and since the only time she had an opportunity of seeing the side of his face was when the men were leaving, it is quite clear to us that what aroused her suspicion was the tone of his voice,” he declared, as he allowed the appeal and set aside the conviction and sentence.

Both Justices Luckhoo and Cummings concurred.