-Appeal Court frees him, citing bad identification
IN 1975, a married couple was sightseeing in Le Repentir Cemetery when the wife was attacked and relieved of her wristwatch and gold finger-ring by a gold-toothed robber. Later at a police identification parade, that gold-toothed robber was identified as Vibert Hodge.  He was subsequently arrested and charged, tried, convicted and sentenced to prison.

Dissatisfied with the decision, however, Hodge, represented by Malcolm Taharally, took the matter to the Guyana Court of appeal. The State had as its lawyer Mr. Nandram Kissoon , a Senior State Counsel who later became a Justice of Appeal.     The Court was constituted by Chancellor JOF Haynes, and Justices of Appeal, Messrs Victor Crane and Keith Massiah.

Hodge told the Court he felt he was wrongly accused since he was the only man with gold teeth on the identification parade, which he also thought was unfairly conducted. The hearing of the appeal lasted three days. The appeal was allowed and the conviction and sentence set aside after it was found that the identification parade at which the prisoner was identified was unfairly conducted.

According to evidence led in Court, the appellant, armed with a knife, attacked and robbed one Violet Ramadan of a wrist-watch and a finger-ring.  While removing the ring, he happened to open his mouth as if to bite her finger to get it off.  That’s when the woman saw he was wearing a gold tooth.  Some five weeks later, Ramadan positively identified Hodge as her attacker at an identification parade.

During the course of the trial, there were three different versions as to how the appellant was identified at the parade.  The first was given by Violet Ramadan herself who said she identified him initially by his appearance, but in order to make doubly sure, she asked him to open his mouth.  The second was by Inspector Troyer who conducted the parade.  Troyer said Ramadan asked him to cause the men on parade to open their mouths, and that when they did so, she then touched the accused on his shoulder.

The third version, which was given by the accused, was substantially the same as that given by Inspector Troyer, the only difference being that whereas Troyer said that there were others with gold teeth, the accused insisted he was the only man on parade  with gold teeth, which meant that he was urging that the parade was unfairly conduced, in that he was identified solely by his gold tooth.

The Appellate Court found that in his summing up, the trial judge did not bring to the jury’s attention the apparent conflict between Ramdan’s and Inspector Troyer’s evidence, nor the fact  that Troyer’s evidence that the accused was identified after he had opened his mouth tended to support the evidence of the accused.

Rather, the judge merely left it to the jury to find as a question of fact, if they were minded to believe Ramadan and Troyer, whether the identification parade had been properly conducted.

The accused also said in defence that the charge against him was a trumped-up one; that he had been “framed” by the police because he and the policeman who charged him had had an altercation over a girlfriend, and that said policeman had threatened “to throw the book” at him.   But according to the findings of the Appellate Court, nothing had been said to the jury about this important aspect of the defence.

The Court therefore held that:
(1)  The apparent conflict between Ramadan’s and Troyer’s evidence  should have been pointed out to the jury, who ought to have been advised to be cautious  about accepting  Ramdan’s testimony that she had primarily identified the accused apart from his gold teeth.

(2) The jury should have been told that if they accepted Troyer’s evidence,  then Ramadan’s identification at the parade was unsatisfactory, hence they should  attach little weight to her identification in court.

(3) The jury should have been directed that if they believed that the accused was the only man on parade with gold teeth, the parade would have been unfairly conducted, and they should attach little weight to it.

(4) The defence was not properly left to the jury.  The accused was alleging oppression and victimisation on the part of the police, and the judge should have told the jury to acquit if they believed this was so.

(5)  The trial judge was in error when he allowed the accused, after conviction, to plead to six other charges forming the subject of five outstanding indictable offences, with a view to having them taken into consideration and to proceed to sentence him in respect of those charges.

(6) The correct procedure was for the judge merely to ask the accused whether he admits his guilt on the outstanding offences; that the accused should  be sentenced only once, ie, in respect of the offence for which he was tried and found guilty; and that the idea of taking other offences into consideration was merely to measure the appropriate sentence.  

Delivering the judgment of the Court, Justice Massiah said:
“The appellant was indicted with, and convicted of, robbery under arms, contrary to Section 222 C of the Criminal Law (Offences) Act, Chapter 8:01.  The allegation of the State was that while armed with a knife, he had robbed one Violet Ramadan of a wristwatch and  a ring.  There was evidence that while she was in the Le Repentir Cemetery with her husband on March 30, 1975, at about 4:15 pm, the appellant went up to her, placed a knife to her chest, pulled her wristwatch from her left hand,  and opened his mouth as if to bite her finger to get off the ring.  Ramadan told him not to bite her, and in fear, handed the ring to him.

“Five weeks later, on May 4, 1975, at an identification parade conducted at the Ruimveldt Police Station, Ramadan identified the appellant as the person who had taken her watch and ring.  Counsel for the appellant contended in this court, as the appellant had complained in the court below, that the identification parade was unfairly conducted.

“At the trial, three different versions were given as to how the appellant came to be identified.  Ramadan said that she identified the appellant and then asked him to open his mouth ‘to be doubly sure,’ and that ‘the gold teeth in (his) mouth made (her) doubly sure.’  Inspector Hubert Troyer, who conducted the identification parade, said something different.  He testified that Ramadan ‘looked at the parade and asked (him) to cause the men on the parade to open their mouths,’ and that when they did so, Ramadan ‘then touched the accused on his shoulder.’   The appellant, in his statement from the dock, said that the men on parade were first asked to show their teeth, and that he was the only man who had gold teeth.   He was clearly saying that he was identified by his gold teeth.

“The sum total of Ramadan’s evidence on this issue is that she identified the appellant partly by his gold teeth, whereas Troyer’s evidence suggests that she identified him wholly by them.  What must be noted is that Troyer’s version  was the same as the appellant’s, save that whereas the  appellant  claimed  that he was the  only person  on the parade with gold teeth.    Troyer said that there were others.”

After citing a number of similar cases in which the Court of Criminal Appeal had allowed appeals and quashed the convictions,  Justice Massiah allowed the appeal quashed and set aside the conviction and sentence.

Both Chancellor Haynes and Justice Crane concurred.