Onus on Prosecution to prove case
GUILTY robbery accused,  Harold Narine, in 1967, asked an Appellate Court  to set aside his conviction and sentence  for burglary, house-breaking and robbery under arms, because he alleges that the trial judge did not properly put his alibi defence to the jury. The Appellate Court, constituted by Chancellor Kenneth Stoby, and  Justices of Appeal Edward Luckhoo and P.A. Cummings, which heard the matter  disagreed with the appellant and ruled:
“The fact remains  that there is no pattern, no stereotyped language, which must be used  by a judge in his summing up to the jury. We find that the trial judge had used his own words to correctly addressed the jury  on the question of alibi and that the prosecution had proved the case against the appellant.”
The appeal was dismissed.  Conviction and sentence were affirmed.

The facts of the case disclosed that the appellant  was charged for breaking and entering the dwelling house of Sumair Ramnarine  with intent to steal and for robbery under arms  committed in the said house.

He lived about six rods away and was known for some years  to Sumair Ramnarine and his family .

The defence was an ‘alibi’, to the affect that he was far away from the scene  on the night in question  and he called a witness to support that evidence.

He was convicted  and his sole ground of appeal was that the trial judge did not properly put his defence to the jury  in that he did explain to the jury,  as he should have done,  the proper way in which an alibi is to be considered.

The Appellate Court held, although the trial judge did not tell the jury that not only is the onus of disproving an alibi always on the prosecution but also that even if they rejected or did not believe the alibi, it was their duty to go back to the case for the prosecution to see whether all the ingredients  of the charge  had been established  before they could convict.

Nevertheless,  when all the relevant passages in the summing-up were looked at as a whole, it was clear that the trial judge was telling the jury  in no uncertain terms that, alibi or no alibi,  whether they disbelieved the alibi or not, the onus was on the Crown to prove the case against the appellant.

Dictum of Gomes, C.J. in  R. vs.  Maraj  et al (1962) 4 W.I.R. 227 at pp. 278-79 approved and recommended  as a model for all trial judges to follow when dealing with an alibi.

At the hearing of the appeal,  Attorney-at-law Mr. R. Hanoman  appeared for the appellant, while Mr. E.A. Ramao, Director of Public Prosecutions, represented the respondent.

Chancellor Stoby, who delivered the judgment of the court stated  that at the appellant’s trial for breaking and entering the dwelling house of  Sumair Ramnarine with intent to steal, and for robbery under arms  on the 1st day of March, 1965,  in connection with an offence  which took place at Sumair Ramnarine’s dwelling house,  the prosecution led evidence  to show that the appellant  had broken and entered  the dwelling house and stolen a quantity of articles from that home, and had assaulted, severely, several people in the house.

The appellant’s defence was that he was not the person concerned with the incidents.  

Most of the witnesses for the Crown were members of the dwelling house – father, mother, daughter.  

However, independent evidence was also offered in order to establish that the incident of breaking and entering the dwelling house did take place, and a doctor was called to show  that on the night in question violence was committed on the members of that dwelling  house.

According to Chancellor Stoby, the appellant’s defence was an alibi.   He gave evidence from the dock in which he said that he was far away from the scene on the night in question, and he called the witness to support that evidence.

He was  convicted  and his sole ground of appeal is, that the trial judge did not properly put his defence to the jury in that he did not explain to the jury, as he should have done,  the way in which an alibi is to be considered.

Mr. Hanoman, for the appellant, referred us to the case of R. vs. Maraj et al where  Sir Stanley Gomes, President of the Federal Supreme Court, in delivering the judgment of the Court said this:

“Where the defence of an alibi is set up, the requirement  for an adequate direction to be given by the judge to the jury is of 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 remains 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 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  diametrically  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 the further direction,  might think that if they reject  the alibi, they must or can only accept the version put forward by the prosecution.”

Referring to the above,  Chancellor Stoby had said, “We, of course, accept that as a correct statement of the law.  It is the manner  in which judges usually sums-up and we would commend it for judges to follow this method of summing-up when dealing with an alibi.   But the fact  remains that there is no set pattern, no stereotyped  language which must be  used by a judge in summing-up.

“What can be extracted from the passages which I have just read  is, that a judge must make it clear  to the jury  that the onus is on the prosecution  and never shifts, and it is important  to do so  in an alibi lest the jury get the impression  that if the alibi is disbelieved,  they must automatically convict  without considering whether  the onus was on the prosecution to prove the case or not.

In concluding his judgment, Chancellor Stoby noted that during the summing-up, the trial judge had told the jury: “If, however, members of the jury, let me finally tell you, if you accept the alibi,  that it was not the accused, then your clear duty would be to acquit.   Equally, if you do not accept it, but have a reasonable doubt, it may be true, it may not be true,  then acquit.  The law says give the benefit of the doubt to the accused.”

Chancellor Stoby added, ”What counsel for the appellant has said is, at that stage the judge should have interposed what the Federal Supreme Court said should always  be done  – to tell the jury  to go back  to the prosecution’s case  – because if he did not do that,  the jury might well come to th
e conclusion  that the moment they negative  the alibi, disbelieve him, they would feel it their bounden duty to convict.

“As I said before,  the summing-up must be read having regard to  the facts which  were in issue and the facts which were proved.

“Then the judge also said this; if you are satisfied  that this man came into the house, did all that the family said he did – created havoc, that pandemonium reigned; remember a man’s home is his castle – then your clear duty,  if you are so satisfied, will be to convict.”

The Chancellor declared when that passage is read in relation to all the other passages in the summing-up, it seems that although the judge did not use the language which is recommended  that judges should use in a case of this kind, he was, nevertheless,  telling the jury in no uncertain terms that, alibi or no alibi, whether you disbelieve the alibi or not, the onus is on the Crown to prove the case against the appellant.

We think that for these reasons the appeal ought  to be dismissed.  The appeal is dismissed and the conviction  and sentence affirmed.
The other Justices of Appeal concurred with the judgment.

“Where the defence of an alibi is set up, the requirement  for an adequate direction to be given by the judge to the jury is of 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 remains 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.”