– due to lack of corroboration, judge’s misdirection
IN 1953, the accused, Braithwaite, was convicted by the jury of receiving stolen property, and the trial judge sentenced him to prison. But, dissatisfied with the outcome, Braithwaite appealed the decision on the ground that he was unlawfully convicted because of alleged misdirection on the part of the trial judge.
The Court of Criminal Appeal, constituted by Chief Justice Edward Peter Stubbs Bell and Justices Frederick Malcolm Boland and Harold John Hughes, allowed Braithwaite’s appeal and set aside the conviction and sentence.
Senior Counsel, Mr. B. O. Adams, represented the appellant, while Solicitor-General, G.F.M. Farnum appeared for the respondent.
The facts of the case disclosed that Braithwaite was convicted of receiving stolen property. The evidence of an accomplice was not corroborated.
The prosecution invited the jury to regard as corroboration certain evidence  which could not be so regarded. The jury was directed regarding the meaning of corroboration, and the danger of convicting in the absence of it; but was not told that, in this case, there was no corroboration.
The Appellate Court held that the trial judge should have directed the jury that there was no corroboration.     His failure to do so may have led the jury to wrongly accept as corroboration what the prosecution was inviting them to consider as corroboration.
De Abreu vs. Queen, L.R.B.G. 1954 was extensively referred to, and, in the circumstances,  the appeal was allowed, and the conviction quashed.
At the Demerara Ciminal Assizes, the appellant was indicted jointly with others for larceny and receiving jewellery known to be stolen.  He was convicted of receiving. Judgment for the Court was delivered by Justice Boland.
According to Justice Boland, “Against the conviction of the appellant, there are the same objections of misdirection by the learned trial judge which were referred to in our decision  today on the appeal brought by  George De Abreu, who was charged jointly with the appellant, and was, like him,  convicted of the offence set out in the second count of the indictment, namely with  receiving articles of jewellery known to be stolen from the East Bank Pawn  Brokery at Meadow Bank, East Bank Demerara.”
Justice Boland said, “The same reasons we gave in that decision for upholding the contentions made by De Abreu’s counsel apply equally to the appellant Braithwaite. There is no need to refer again to the evidence given by the accomplice Da Silva, the material parts of which we set out fully in the decision in De Abreu’s appeal.
“We, however, would repeat that, as against De Abreu, the evidence of Ruby Thompson, as we pointed out, was in law cognizable by the jury for a finding by them of corroboration of Da Silva’s evidence.
“But Da Silva never spoke of the appellant as being at or about the koker when he and De Abreu passed the grip over to Singh. On the contrary, Da Silva said that he had left the appellant on the public road, and on his return to De Abreu’s house at Houston, after delivery of the grip to Singh near the koker, he saw the appellant at De Abreu’s house.
“Therefore, when Ruby Thompson testified about the appellant being with Da Silva  and De Abreu at the koker path when the grip was handed to Singh, she may have been speaking the truth, but certainly she was not corroborating Da Silva’s evidence relating to possession of the appellant of that grip containing the jewellery, the receiving of which was the offence for which the appellant was convicted.
“Also, we agree with counsel for the appellant that there was nothing in the statement given by the appellant to the police which could be considered as corroborative of Da Silva.
“Admittedly, the dispatching of the telegram  to Persaud was a material part of the case for the prosecution, but although the appellant in his statement stated that he was with Da Silva on that day, at some period not long before and also after the time when the telegram was proved to have been sent, but for purposes unconnected with the sending of the telegram, appellant denied he knew anything of the telegram as Da Silva had testified. Da Silva, it should be noted, stated that he had left the appellant at the corner of Camp and Middle Streets, far away from the Post Office at Carmichael Street, and that he rode on his bicycle to that Post Office.”
Justice Boland went on to state: “There was, we feel, no evidence at all corroborative of Da Silva in relation to the offence of receiving the jewellery for which the appellant was convicted.”
Counsel for the appellant cited authorities in support of a submission that where there is no corroboration in law of an accomplice’s evidence, the judge should warn the jury that on the evidence there is no corroboration, and he must go on to tell them that though they can convict on the uncorroborated evidence of the accomplice, it would be unsafe to do so.
The judge, it was  submitted, would be wrong to leave it to the jury to search for themselves for corroboration amidst the evidence, because the jury’s selection of some evidence as being corroboration would be wrong when there was none in law or in fact.
Apart from authority, this proposition would seem correct in principle. The jury may very well have accepted wrongly as corroboration what the judge told them the prosecution was inviting them to consider as corroboration.
“For the reason given above,” Justice Boland said, “it is our view that the learned trial judge failed adequately to direct the jury on the question of corroboration of the evidence of Da Silva with the accomplice.
“We also hold that, as we did in De Abreu’s appeal, the judge failed to direct the jury as to the conditions under which Singh’s statement could be received as against the appellant’s. This was a misdirection, which was very prejudicial to appellant’s defence, as we stated that it was to De Abreu’s.
“Counsel for appellant did not advance this prejudicial effect of Singh’s statement as a ground of appeal, but after reserving decision, we though we would invite the Learned Solicitor General to make any submissions he wished against this point.
“The Solicitor General addressed the court that he was of the view that it was a vital misdirection which, for the same reason we gave in De Abreu’s appeal, does not come  within the  scope of the proviso to Section 6 of the Criminal Appeal Ordinance of 1950.
“Accordingly, the appeal is allowed, and we set aside this conviction and sentence.”