CONFLICTING evidence between a virtual complainant and a detective constable for the prosecution resulted in a convicted burglar being set fee by the Guyana Court of Appeal in 1968. Early one morning, a householder and his wife were awakened by the presence of an intruder in their home. The intruder managed to escape.

Among property found missing were certain foreign currency notes which had been kept in a paper bag bearing the wife’s handwriting. It so happened that the householder had also written on one of the notes.

Later that morning, the suspected intruder – Randolph De Mendonca, the appellant in this case — and his reputed wife were arrested, and some foreign currency was found on his person, including the one that the householder had written on. The paper bag on which the householder’s wife had written was also found.

Both the appellant and his reputed wife were charged.

In her evidence, the householder’s wife said she could not identify the intruder because he was masked. However, a detective constable testified that, in his presence and hearing, the householder’s wife had positively identified the appellant at the police station as the person whom she had seen in her bedroom.

The constable also said that the appellant, on hearing the accusation, had threatened the woman.

In his review of the evidence to the jury, the trial judge drew attention to the obvious conflict between the evidence of the householder’s wife and that of the constable, inviting the jury to resolve it.   (Despite the conflict, the appellant was convicted by the jury. His wife was acquitted.)

The Court of Appeal, constituted by Chancellor E.V.Luckhoo and Justices of Appeal Mr. Guya Persaud and Victor Crane, held that:
(i)  In the interests of fair play towards the accused, the trial judge should have excluded evidence of the nature referred to, where there is nothing in the evidence to indicate that the accused had admitted  any part of the accusation;
(ii) Even if he felt constrained to leave the constable’s evidence to the jury, the trial judge should have told them that the appellant’s response amounted to a denial which rendered the accusation nugatory;
(iii) In view of the appellant’s explanation that he had received the articles from his reputed wife, and her confirmation of this, the court did not feel justified in applying the proviso, as the jury had acquitted the latter.

The appeal was allowed.
Mr. Fred Wills appeared for the appellant. Mr. J.C. Gonsalves-Sabola represented the Crown. Justice of Appeal Persaud delivered the Court’s judgement.

According to him, the appellant was charged, together with his reputed wife, for burglary and larceny, the particulars of the offence being that they broke and entered the dwelling house of one Cyril Chand, and stole therefrom a quantity of jewellery and money, property of the householder Cyril Chand.

A report was made to the police soon after the loss was discovered. On that same morning, the appellant and his reputed wife were seen on the ferry crossing from New Amsterdam to Rosignol.

They were apprehended, and on the person of the appellant was found some money, including the marked note, an American dollar, a Dutch guilder, and the two money paper bags which Savitri Chand claimed were the ones she had written on, and which were among the articles stolen.

The householder’s evidence given at the trial was that he and his wife were disturbed while asleep, and recognising that there was an intruder in their home, shouted for “Thief!”, whereupon the intruder, who was a man, made his escape.

They made a check and found the articles mentioned in the indictment missing, the clear inference being that the person who made his escape was the person who had committed the offence of burglary and larceny.

Neither of them recognised the person who had made his escape, although they were both sure that it was a man. In fact, in the course of her evidence, Savitri Chand said:
“I was not in a position to recognise the person. He had a handkerchief tied around his neck.”

The incident occurred at around 2.30 a.m. on September 10; and later that same day, Savitri Chand attended the Albion Police Station, where she was able to identify both the marked note and the money bags as some of the things lost earlier that morning.

There is no evidence that Savitri Chand identified anyone on an identification parade, or indeed that an identification parade had been held. Yet, Detective Constable Smith had averred that not only did she positively identify the property, but that when she went to the police station, the appellant and his reputed wife were sitting in the enquiries office; and, upon seeing the appellant, Savitri Chand had said to Smith in the presence of the appellant: “This is the same man I saw in my bedroom,” whereupon the appellant  “jumped up and said in a  threatening  manner, “Your husband is a businessman,  be careful of what you are saying.”

This evidence, it is to be noted, was not given by Savitri Chand, Justice of Appeal Persaud declared in his judgement.

The Justice of Appeal added that exception had been taken both to the admissibility of this evidence and to the manner in which the judge dealt with the situation in his summing up, the complaint being that the judge erred in misdirecting the jury as to probative value of that piece of evidence.

The judge recognised that identity of the person or persons who committed the offence was an important (if not the important) aspect of the case, for he said:

“…so that if you are not satisfied about the identity of the accused persons, or any one of them, you will have to acquit. If you have any reasonable doubt as to the identity of the accused persons, or any one of them, then, again, you must acquit”.

“Well, members of the jury, the Crown has not led evidence to say that these two people, or any of them, was seen breaking the home of Cyril Chand. They have not led evidence to show that the accused persons, or any one of them, was seen breaking the home of Cyril Chand. They have not led evidence to show that the accused persons, or any one of them, (was/were) found inside the home of Cyril Chand. The Crown seeks to prove the indictment by what is known in law as the doctrine of recent possession.”

Having cited from the trial judge, Justice of Appeal Persaud explained, “It is clear that the judge was directing the jury that there was no evidence of identification, as indeed there was none, and that (the jury) must decide the issue on the doctrine of recent possession, the meaning of which he explained to them immediately afterwards in terms adequate for the purpose of this case.

“It seems to us, therefore, that a trial judge should — out of fair play towards the accused, if for no other reason — exclude such evidence where there is nothing on the part of the accused, either words or conduct, to indicate that the latter had admitted any part of the accusation.

“In the instant case, the judge not only did not exclude this evidence, but, as we have already pointed out, left it to the jury to resolve what he described as a conflict between the evidence of Savitri Chand and Constable Smith. This he should not have done in the manner in which he did, having regard to the authorities referred to.

“The judge omitted to remind the jury that Smith had said, when giving evidence of the alleged identification, that the appellant had used words which amounted to a denial of the accusation. If he felt impelled to leave Smith’s evidence of the allegation to the jury, then he should also have told them of the denial, and of its effect, which was to render the accusation nugatory.

“So that, in either event, his directions fell short of what is legally required.

“There is no doubt in our minds that there has been a misdirection; or rather, an omission to direct on an important issue in this case, and the question remains whether this non-direction has resulted in a miscarriage of justice.

“A miscarriage of justice occurs not only when the court comes to the conclusion that the verdict  of guilty was wrong, but also when it is of the opinion that the mistake of fact or omission on the part of the judge may reasonably  be considered to have brought about that verdict, and when, on the whole of the facts and with a correct direction, the jury might  fairly and reasonably have found the appellant not guilty.

“We are not satisfied that, on a proper direction, the jury would inevitably have returned a verdict of guilty. It could be argued with some degree of force that there was overwhelming evidence against the appellant, in that found in his possession were articles  positively identified by  the owner; and the jury, having convicted him, must have rejected his explanation of his possession of those articles. But when it is remembered that his explanation was that the other prisoner had given him the articles to keep, and she herself had admitted this, and the jury acquitted her, the inconsistency of the verdict in convicting the appellant and acquitting the other prisoner becomes apparent.

“For the reasons we have given, the appeal would be allowed, and the conviction and sentence set aside.”