BURGLARY accused, Charles James who, at his trial in 1958, was described as a ‘known thief’, ignored the trial judge’s advice to stop the trial and elected to proceed, which resulted in his conviction by the jury. James, sentenced to five (5) years imprisonment by trial judge, Mr. Kenneth Stoby, appealed against his conviction and sentence, blaming the judge for failing to stop the trial after the disclosure of the witness, and of directing the jury to observe that the accused, who was conducting his own defence, had failed to give evidence on oath.
The Court of Criminal Appeal, British Guiana, constituted by Chief Justice Frank Holder and Justices of Appeal Phillips, who dissented, and E.V. Luckhoo, affirmed the conviction and sentence by a majority judgment.
The fact of the matter was that the appellant, James, was indicted for burglary. During the course of the trial, a witness for the prosecution blurted out words to the effect that the appellant was “a known thief.”
Thereupon, the trial judge informed the appellant, who was undefended, of his right to apply for the trial to be stopped, and urged that he should do so. The appellant, nevertheless, elected to have the trial proceed.
The trial judge, in his summing-up, commented on the appellant’s failure to give evidence on oath. The appellant was convicted and appealed against conviction on the ground that the trial judge should have stopped the trial when the witness for the prosecution blurted out the offending words, and on a further ground, the appellant submitted that the comment by the trial judge on his (the appellant’s) failure to give evidence on oath was unfair.
With Justice Phillips dissenting, the Appellate Court held that:
The trial judge, having informed the appellant of his right to apply for the trial to be stopped, did not err in not stopping the trial after the appellant had elected not to make such an application;
the trial judge’s comments on the failure of the appellant to give evidence on oath was, in the circumstances of the case, not unfair to the appellant, and that there was no ground for interfering with the exercise of the trial judge’s discretion in making the comments.
At both the hearing of the case and the appeal, the accused conducted his own defence, while Crown Counsel, Mr. E.A. Romao represented the Crown.
In the judgment by Justice Luckhoo, with Chief Justice Holder concurring, the appellant was convicted at the Demerara Sessions on October 15, 1958, upon an indictment charging him with burglary, contrary to Section 288 of the Criminal Law (Offences) Ordinances, Chapter 10 [B.G.], and was sentenced to imprisonment for five years. It was from this conviction that he’d appealed.
The case for the prosecution was to the effect that between 7:15-7:30pm on April 8, 1958, the appellant was seen by Police Constable Ogle and Detective Constable Sharma on the Albouystown Public Road holding a Raleigh bicycle. The licence on the cycle was numbered 83319 and issued in 1958. He then rode the bicycle south along the Albouystown Public Road into the La Penitence Public Road, then east into Alexander Village, followed by Sharma, who saw him dismount in Second Street, Alexander Village and speak to a man.
The appellant then rode to Duncan Street, Newtown, Kitty where he entered a house, changed his clothing, and then rode back to Second Street, Alexander Village, reaching there at about 1:15am.
At the time, Constable Ogle and Babb, and detective Sharma were in hiding on the northern side of Second Street, about 15 yards from a house on the southern side of the road which was occupied by one Mangri.
They saw the accused walk up the front steps of Mangri’s house, which appeared to be closed and was in darkness. He later came downstairs, went to the back steps and pushed the door, then return downstairs and ride off on his bicycle in a westerly direction. He then dismounted and leaned the cycle against a lantern post, locked it, and walked back to Mangri’s house. He walked up the back steps, pulled at the eastern window, which was opened, and pushed his head through the window into the house.
Thereafter, the back door was seen to open, and the appellant entered the kitchen. A noise was then heard as if a bucket had fallen in the kitchen, and the appellant was seen to jump through the western kitchen window into the yard and run along Second Street into a yard in which P.C. Babb had gone into ambush.
He was apprehended by P.C. Babb, who held him by the wrist but the appellant drew something from his pocket, which was believed to be a weapon. The appellant somehow managed to free himself, and with Babb, Sharma and Ogle in hot pursuit, made good his escape.
A report was made by Sharma at Ruimveldt Police Station and later the Police returned to Mangri’s house. Neither Mangri nor her granddaughter had been awakened by the appellant’s entry into her house. Mangri’s husband, who was employed as a watchman, was at that time away from home. One of the two kitchen windows was found to be defective, thus making it possible for the fingers to be inserted in a crevice under the window and reach to a wire securing that window.
That wire which Mangri had put in position securing the window on the evening of April 8, 1958, was found to be broken on the arrival of the police after the appellant had made good his escape.
Continuing his judgment, Justice Luckhoo said a warrant of apprehension for the appellant, in connection with this matter, was sworn to by P.C. Ogle in April 1958, but the appellant was not located and arrested until May 15 of the same year.
Luckhoo said that the case for the appellant was to the effect that he was, from 9 pm to 10:30pm on April 8, 1958, in Robb Street; that he then went to his home at 10 Sheriff Street [Campbellville] where he resided with a friend and remained there from 10:30pm on April 8, 1958, until 11am the following day, and that he’d discovered that his bicycle, which he had locked on the previous night and left under his house, was missing.
After making a search for it without success, he reported the loss to the police at the Kitty Police Station. On the following day, he returned to that station and enquired whether the bicycle
had been recovered.
The appellant alleged that he had been framed by the police, who claimed that he had been seen breaking into Mangri’s house on the night in question.
The Appellate Court, by a majority judgment, dismissed the appeal and affirmed the conviction and sentence.
But Justice Phillips, who dissented, said, among other things: “There is no universal rule that a conviction cannot be quashed on the ground of improper admission of evidence prejudicial to the prisoner, unless his counsel applied for the trial to be begun again before another jury.
“I am not convinced that if the character of the appellant had not been disclosed and the comment not been made of the appellant’s failure to go into the witness box to be cross-examined, that the jury inevitably would have come to the same conclusion.
“I am not satisfied that the verdict is based purely on the evidence established by the Crown, and not also on extraneous, irrelevant and prejudicial circumstances.
“I would quash the conviction and order a new trial.”
The Court of Criminal Appeal, British Guiana, constituted by Chief Justice Frank Holder and Justices of Appeal Phillips, who dissented, and E.V. Luckhoo, affirmed the conviction and sentence by a majority judgment.
The fact of the matter was that the appellant, James, was indicted for burglary. During the course of the trial, a witness for the prosecution blurted out words to the effect that the appellant was “a known thief.”
Thereupon, the trial judge informed the appellant, who was undefended, of his right to apply for the trial to be stopped, and urged that he should do so. The appellant, nevertheless, elected to have the trial proceed.
The trial judge, in his summing-up, commented on the appellant’s failure to give evidence on oath. The appellant was convicted and appealed against conviction on the ground that the trial judge should have stopped the trial when the witness for the prosecution blurted out the offending words, and on a further ground, the appellant submitted that the comment by the trial judge on his (the appellant’s) failure to give evidence on oath was unfair.
With Justice Phillips dissenting, the Appellate Court held that:
The trial judge, having informed the appellant of his right to apply for the trial to be stopped, did not err in not stopping the trial after the appellant had elected not to make such an application;
the trial judge’s comments on the failure of the appellant to give evidence on oath was, in the circumstances of the case, not unfair to the appellant, and that there was no ground for interfering with the exercise of the trial judge’s discretion in making the comments.
At both the hearing of the case and the appeal, the accused conducted his own defence, while Crown Counsel, Mr. E.A. Romao represented the Crown.
In the judgment by Justice Luckhoo, with Chief Justice Holder concurring, the appellant was convicted at the Demerara Sessions on October 15, 1958, upon an indictment charging him with burglary, contrary to Section 288 of the Criminal Law (Offences) Ordinances, Chapter 10 [B.G.], and was sentenced to imprisonment for five years. It was from this conviction that he’d appealed.
The case for the prosecution was to the effect that between 7:15-7:30pm on April 8, 1958, the appellant was seen by Police Constable Ogle and Detective Constable Sharma on the Albouystown Public Road holding a Raleigh bicycle. The licence on the cycle was numbered 83319 and issued in 1958. He then rode the bicycle south along the Albouystown Public Road into the La Penitence Public Road, then east into Alexander Village, followed by Sharma, who saw him dismount in Second Street, Alexander Village and speak to a man.
The appellant then rode to Duncan Street, Newtown, Kitty where he entered a house, changed his clothing, and then rode back to Second Street, Alexander Village, reaching there at about 1:15am.
At the time, Constable Ogle and Babb, and detective Sharma were in hiding on the northern side of Second Street, about 15 yards from a house on the southern side of the road which was occupied by one Mangri.
They saw the accused walk up the front steps of Mangri’s house, which appeared to be closed and was in darkness. He later came downstairs, went to the back steps and pushed the door, then return downstairs and ride off on his bicycle in a westerly direction. He then dismounted and leaned the cycle against a lantern post, locked it, and walked back to Mangri’s house. He walked up the back steps, pulled at the eastern window, which was opened, and pushed his head through the window into the house.
Thereafter, the back door was seen to open, and the appellant entered the kitchen. A noise was then heard as if a bucket had fallen in the kitchen, and the appellant was seen to jump through the western kitchen window into the yard and run along Second Street into a yard in which P.C. Babb had gone into ambush.
He was apprehended by P.C. Babb, who held him by the wrist but the appellant drew something from his pocket, which was believed to be a weapon. The appellant somehow managed to free himself, and with Babb, Sharma and Ogle in hot pursuit, made good his escape.
A report was made by Sharma at Ruimveldt Police Station and later the Police returned to Mangri’s house. Neither Mangri nor her granddaughter had been awakened by the appellant’s entry into her house. Mangri’s husband, who was employed as a watchman, was at that time away from home. One of the two kitchen windows was found to be defective, thus making it possible for the fingers to be inserted in a crevice under the window and reach to a wire securing that window.
That wire which Mangri had put in position securing the window on the evening of April 8, 1958, was found to be broken on the arrival of the police after the appellant had made good his escape.
Continuing his judgment, Justice Luckhoo said a warrant of apprehension for the appellant, in connection with this matter, was sworn to by P.C. Ogle in April 1958, but the appellant was not located and arrested until May 15 of the same year.
Luckhoo said that the case for the appellant was to the effect that he was, from 9 pm to 10:30pm on April 8, 1958, in Robb Street; that he then went to his home at 10 Sheriff Street [Campbellville] where he resided with a friend and remained there from 10:30pm on April 8, 1958, until 11am the following day, and that he’d discovered that his bicycle, which he had locked on the previous night and left under his house, was missing.
After making a search for it without success, he reported the loss to the police at the Kitty Police Station. On the following day, he returned to that station and enquired whether the bicycle
had been recovered.
The appellant alleged that he had been framed by the police, who claimed that he had been seen breaking into Mangri’s house on the night in question.
The Appellate Court, by a majority judgment, dismissed the appeal and affirmed the conviction and sentence.
But Justice Phillips, who dissented, said, among other things: “There is no universal rule that a conviction cannot be quashed on the ground of improper admission of evidence prejudicial to the prisoner, unless his counsel applied for the trial to be begun again before another jury.
“I am not convinced that if the character of the appellant had not been disclosed and the comment not been made of the appellant’s failure to go into the witness box to be cross-examined, that the jury inevitably would have come to the same conclusion.
“I am not satisfied that the verdict is based purely on the evidence established by the Crown, and not also on extraneous, irrelevant and prejudicial circumstances.
“I would quash the conviction and order a new trial.”
