– Claim that alibi defence not put to jury does not wash

by George Barclay IN 1967, the Guyana Court of Appeal affirmed the convictions and sentences of robbery accused Carlton Adams and James Lawrence despite allegations that the trial judge erred by not putting the alibi defence to the jury.
Dismissing the appeal and affirming the conviction and sentence, the Appeal Court, then constituted by Chancellor of the Judiciary, Mr. Kenneth Stoby and Justices of Appeal Messrs Percival Cummings and Victor Crane held that it was “not necessary for the trial judge to give a special direction, as he must, in respect to certain other defences such as provocation, self-defence and drunkenness, etc…”

The facts of the case disclosed that a man was robbed by one of the appellants as he was about to enter a shop. Two constables who were on duty in plain clothes at a nearby corner were attracted by shouts of “Thief!” and saw when one of the appellants joined the other one, who had a bicycle, and the two of them rode away.
The two constables gave chase and subsequently apprehended the appellants who, at their trial, gave sworn evidence testifying that they were somewhere else at the time the incident occurred; one said he was shopping, whilst the other said he was making enquiries about work.
But in summing up, the trial judge directed the jury on the burden of proof as well as on the standard of proof, but at no time did he specifically explain that the defence was an alibi, or give any specific direction regarding the alibis.
On appealing against conviction and sentence, the Appellate Court held that:
(1) An alibi, as such, was not a defence, and accordingly, there was no evidential burden cast upon the accused;
(2) where an alibi has been set up, as was the case in this instance, then it was not necessary for the trial judge to give a special direction as he must where certain defences such as provocation, self-defence , drunkenness, etc. raised, once he makes it quite clear that the jury must be satisfied beyond reasonable doubt that the accused committed the offence charged. If this was not done, then the accused was entitled to the benefit of any reasonable doubt.
Mr. Desmond Christian represented the appellants, while Senior Crown Counsel, Mr. W. G. Persaud appeared for the respondent.
At the hearing of the appeal, Justice Stoby declared:
“This appeal, which was admirably argued by Mr. Christian for the appellants, raises once again the question of what is the proper direction to be given to a jury when the accused’s answer to the charge is an alibi.
“The appellants were charged with robbery with violence. A witness gave evidence that as he was about to enter a shop in Regent Street, one of the accused attacked and robbed him. This witness chased that accused, and saw him join the other accused who was waiting on a bicycle at Regent and Alexander Streets. The two accused rode away and were pursued for a considerable distance by this witness.
“Unknown to the participants of this incident , two police constables on duty in plain clothes were standing at the corner of Alexander and Regent Streets. Attracted by shouts of ‘Thief!’ they saw one of the accused join the other accused and saw them both ride away.
“They followed on a motorcycle and caught up with them some distance from the starting point. As the policemen approached the two accused, the latter abandoned their cycle and ran into a nearby yard. The Police followed.
“After a chase, which involved entering into various yards and out on to various streets, one accused was apprehended by one policeman at the corner of Light and North Streets and the other at Light and Robb Streets. The policemen and the two accused were always within their vision, and the effect of their evidence was that the men arrested were the men who were chased from Alexander and Regent Streets.
“Both accused gave sworn evidence. One said that he had shopped that morning at the material time with his mother in the market. After concluding his purchase, he walked to Light and North Streets, where he was arrested.
“The other accused said he was sent to Robb Street to do some work at about 1:15pm. He went there and made enquiries at the first house between Light and Cummings Streets and was sent further down Robb Street. While walking in Robb Street, he was arrested. One accused called two witnesses to support his alibi.”
According to Justice Stoby, in his summing-up, the trial judge did direct the jury on the burden of proof and the standard of proof, but at no time did he specifically explain that the defence was an alibi, or give a specific direction regarding a alibi. To his credit, however, he did deal very fully with the defence in language referred to thereafter.
He also said that counsel for the appellants, in submitting that the convictions should be quashed for non-direction, amounting to misdirection, had referred to R. v. Maraj (i), where it was contended that the trial judge erred in not giving to the jury the direction that ought to be given where a defence of alibi is setup.
He noted that in delivering the Judgment of the court, GOMES C.J. was quoted as saying (1961-1962), 4, W.I.R. 277, at p. 278):
“Where the defence of alibi is set up, the requirement for an adequate direction to be given by the judge to the jury is of such an elementary nature that it should not require constant repetition. The fundamental principle is that before a jury can return a verdict of guilty, they must feel sure that the prosecution has discharged the onus of establishing the guilt of the accused.
“Where an alibi is set up as a defence, not only does that onus remain on the prosecution, but the trial judge is required to go a step further and direct the jury that, even if they reject or do not believe the defence of alibi, they must nevertheless still consider whether the prosecution has proved all the ingredients of the charge that must be established before they can convict.
“The main reason why that further direction or reminder is required to be given is that where an accused person gives evidence or calls witnesses, or does both of those things in support of his alibi, the jury is confronted with two diametrically opposed versions which are created by the presentation of evidence, the truth or falsity of which can be tested and be determined by them. In such event, a jury, in the absence of the further direction, might think that if they reject the alibi, they must or can only accept the version put forward , by the prosecution.
“That situation, however, does not arise where no evidence in support of an alibi is given by the defence or otherwise appears, as is the case here, and the trial judge was therefore not required to give to the jury the further direction mentioned above.”
According to the Chancellor, counsel for the appellant had argued that the appellant had not only given sworn evidence of their alibis, but had called witnesses, and consequently the case came equally within the rule laid down by GOMES, C .J.
After dismissing the appeal and affirming the convictions and sentence, Chancellor Stoby said that while accepting that in certain circumstances a judge should follow the pattern laid down by GOMES C. J., the reason why in some cases a judge ought to give a special direction in respect of an alibi is solely to make sure that the jury approach the consideration of a verdict in the correct way.