KEN BARROW was found guilty of felonious wounding and robbery-under-arms in 1974 and sentenced to five years imprisonment after he was identified by the victim, Richard Beharry, as the robber by means of a scar on the face. But on appeal, the Guyana Court of Appeal, constituted by Chancellor J.O.F. Haynes, and Justices of Appeal Victor Crane and R. H. Luckhoo, concluded  that the ID parade at which the accused  was identified was a farce.
This action by the court was taken because the complainant had based his identification on the scar only, and the accused was the only man on parade with a scar on the face.
The facts disclosed that the accused, in company with other men,  entered the yard of the complainant, Richard Beharry, and robbed his wife Edna of several pieces of gold jewellery.
Whilst three of the men were engaged  in robbing Edna inside the house, the accused was aiding and abetting them by holding on to Richard on the outside, violently assaulting him and at the same time  keeping a look out to facilitate the crime.
After the robbers had departed with their booty, Beharry reported the matter to the police, giving a statement  in which he described  his attacker  as a short, dark, negro man with a scar on the left side of the face.
Beharry’s information led to Barrow’s arrest, and when the police came to stage an identity parade, they did so with the accused as the only person with a scar on the left side of the face.
Barrow was convicted of felonious wounding and robbery-under-arms, and was sentenced to five years imprisonment on each count, concurrently.
On appeal, his lawyer complained that at the close of the case  for the prosecution at Assizes,  he sought the judge’s leave to make submissions in the presence of the jury,  but the judge  overruled the submission and said  they had to be made in the jury’s absence.
This, said counsel, was a grave  irregularity, since there was no jurisdiction in the trial judge to conduct any part of a criminal proceedings in the absence of a jury.
Complaint was also made that the identification parade was unfairly conducted  for two reasons, namely: That it was highly prejudicial to the accused  to place him on parade  with other persons  who did not have scars on their faces; and that it was not  made clear to Beharry that the suspect was not necessarily on the identification parade.   Yet another complaint was that inadmissible prejudicial evidence was led in during the course of the trial without any warning to the jury to disregard it .
Chancellor Haynes held that: (1) “… in the light of  very recent authority of what is the correct rule of practice, it cannot be said in the  instant case that the trial judge erred in ruling that the submissions  should be made in the jury’s absence in any event no injustice resulted from the judge’s decision to hear  the submissions in their absence;
(2)  “…the identification parade with the accused as the only man with a scar on the left side of the face was a farce; [that] it was no test at all, since Beharry could have picked out no other person than the accused;
(3)   “… the trial judge has a discretion as to whether he should or should not draw to the jury’s attention  the presence of inadequate  prejudicial evidence that has been inadvertently  let in, in the course of the trial;
(4)    “Justice of Appeal Crane said that the summing-up was of little or  no help to the jury,  in that it did not highlight the vacillating nature of Beharry’s testimony  on the matter of the scar as his means of identification;
(5)   “… it was unfair to mount a parade with the accused as the only suspect  with a  scar on the left side of his face; [and that] moreover, for the officer in charge of it to  fail to add a saving clause, to the effect  that the suspect should be identified  only  if he is on parade, vitiated the conviction and sentence;
(6)   “Justice of Appeal R.H. Luckhoo declared that the identification was unreliable; [and that] it was incumbent  on the trial judge to draw the jury’s attention  to all relevant factors as tended  to diminish the cogency of the identification.
The chancellor having made the foregoing observations, the appeal was allowed and the conviction and sentence set aside.
The Court of Appeal had referred to 30 cases in support of its judgment.
Attorney-at-law, Mr. J. A. Patterson (a former High Court Judge) had appeared for the appellant, while Mr. Loris Ganpatsingh, a Senior State Counsel (and a former High Court judge himself) represented the State.
According to the Chancellor in his summing up: “One cannot criticize the police in their conduct of the parade.  They had done their best in the circumstances, and one fully appreciates their difficulty in being  able to obtain  persons  to sit  in on a parade,  who are similar  in every respect  to the appellant.
“I do not think that Peter’s evidence  that ‘Beharry went immediately up to the accused  and touched him’ should be given the interpretation that there was no pause, no reflection on the part of Beharry, but that he entered the room and immediately walked up  to the appellant  and touched him. I say so because  if it had happened  in the manner contended, it would have been most unlikely for Beharry to testify.
“Of the seven men on parade, only one had a scar; that was the accused. The fact that he was able to discern  that only the appellant on the parade of seven  had a scar, bearing in mind  how insignificant  was the scar, shows  he must have looked carefully  at the faces  of the six others  also, before picking out the appellant.
“It might well be that he would have been able  to pick out from  others with a similar  scar . But it might equally  well be that there might have been some doubt s in his mind, which was only resolved when  he noticed  the scar on the appellant’s face.”