-four-year sentence set aside, new trial ordered
IN 1961, the Federal Supreme Court, constituted by Chief Justice Sir Stanley Gomes and Justices C. Wylie and A.M. Lewis, found that the jury had convicted an accused on inadmissible evidence and set aside his conviction of larceny.But in the circumstances of the case, the court decided that in the interest of justice there should be a new trial.
Chief Justice Gomes had delivered the judgment and the other judges concurred.
In the criminal case of Hamilton v. R. of the Law Reports of British Guiana, it was inferred that hearsay evidence of identification may have influenced the jury.
The facts of the case disclosed that while in a restaurant R’s pocket was picked by a man. R. pursued the man but gave up the chase in a school yard.
Evidence was admitted that some of the children in the school yard shouted. “Is Niter! Is Niter!”
The jury asked questions with regards to this evidence and in summing up the trial the judge said that the case would never probably have arisen but for the fact of these “words of wisdom,” as he described them, coming from the school children.
The Appellate Court in allowing the appeal and ordering a new trial held that the evidence was clearly inadmissible and it could be said that the jury was not in any way influenced by it.
Senior Counsel Fred R. Wills represented the appellant, Hamilton while E. A. Romao, Senior Crown Counsel, represented the Crown.
Delivering the judgment Chief Justice Gomes said: “In this case the appellant was convicted of larceny from the person and sentenced to four years imprisonment.”
“A man by the name of Roopchand was in a restaurant and as he was about to leave he felt someone pick his pocket. He turned around and according to what he said in evidence, he saw the accused with a coil of dollar notes in his hand amounting to $305 which he, Roopchand, had in his pocket.”
The accused immediately ran out of the restaurant and he pursued him. The course that the accused had taken was through a school yard and he gave up the chase because, as he said, there were too many children about the place.
The accused appealed against his conviction on four grounds, the most important of which dealt with inadmissible evidence which was led at the trial.
The evidence to which he referred was the evidence which was put before the jury of some of the children shouting: “Is Niter! Is Niter! ” It was conceded by the counsel for the respondent that that evidence was inadmissible and ought not to have been led.
The question is: Why is it inadmissible? There again it was conceded that it was inadmissible on the ground that it was hearsay evidence.

The Court was of the view it does not come within the rule which permits that type of hearsay evidence to be admitted, that is, words used at the time, and the place and in the circumstances that bring it within the rule. They were not proximate enough to the act to make it part of the res gestae (things done).
However, although that was conceded, what the court had to determine was what course ought to be adopted in the circumstances.
In the case of Tepper [1952] A.C. 480,P.C., Lord Normand laid down the rule which he considered should be applied in cases where improper evidence has been put before the jury. He stated that the test is whether on a fair consideration of the whole proceedings the tribunal or the board must hold that there was a probability that the improper admission of the evidence turned the scale against the accused.
In this case there appeared to be very strong evidence of identification – the identification that was made by two witnesses at identification parades. Notwithstanding that evidence, however, there appears on the record two references to the evidence, after the evidence of identification had been put before the jury. In the first place the jury directed a question to one of the policemen with regard to this inadmissible question.
There again the answers that were given in reply to those questions were inadmissible, but it seemed to the Court that the jury must have been influenced, or impressed to a degree, by this inadmissible evidence that was admitted about the children calling out ‘Is Niter! Is Niter!”
Furthermore, the trial judge, at the very commencement of his summing-up, informed the jury that this case would never probably have arisen but for the fact of these “words of wisdom, ”as he described them, coming out from the school children.
“We have listened to arguments of both counsel and we have given consideration to this matter and we consider that we cannot say that the jury, in any way, were not influenced by this inadmissible evidence.”
“We consider that they were impressed by it and we cannot say that the verdict would necessarily have been the same without it. For those reasons counsel for the appellant has submitted that if the court is minded to allow this appeal it should reemit it for retrial.”
“ We consider that in the circumstances of this case the conviction ought to be quashed by reason of the fact that this inadmissible evidence was put before the jury , but we also consider in the circumstances of this case that the interests of justice require that there should be a new trial,” Chief Justice Stanley Gomes declared.
By George Barclay