IN 1967, the Guyana Court of Appeal rejected an alibi appeal against a break & enter conviction, and held that the trial judge was right when he told the jury: “Alibi or no alibi…whether you disbelieve the alibi or not, the onus is on the Crown to prove the case against the appellant”.

The accused, Harold Narine, was found guilty by the jury on a charge of breaking and entering the dwelling house of Sumair Ramnarine with intent to steal, and for robbery under arms committed in the said house. He appealed.

The accused had led an alibi defence, alleging that he was far away from the scene when the crime was being committed. But the Appellate Court, constituted by Chancellor Kenneth Stoby and Justices of Appeal Luckhoo and Cummings, affirmed the conviction and sentence, and dismissed the appeal of Harold Narine.

The facts of the case disclosed that the appellant lived about six rods away, and was, for some years, known to Sumair Ramnarine and his family. The defence was an “alibi” to the effect that he was far away from the scene on the night in question, and Narine called a witness to support that evidence.

Narine was convicted, and his sole ground of appeal was that the trial judge did not properly put his defence to the jury, in that he did not explain to the jury, as he should have done, the proper way in which an alibi is to be considered.

The Appellate Court held that “although the trial Judge did not tell the jury that not only is the onus of disproving an alibi always on the prosecution, but also that even if they rejected or did not believe the alibi, it was their duty to go back to the case for the prosecution to see whether all the ingredients of the charge had been established before they could convict.”

Nevertheless, when all the relevant passages in the summing-up were looked at as a whole, it was clear that the trial judge was telling the jury in no uncertain terms that, alibi or no alibi, whether they disbelieve the alibi or not, the onus was on the Crown to prove the case against the appellant.

The appeal was dismissed, and the conviction and sentence affirmed.

Attorney-at-Law Mr. R. Hanoman appeared for the appellant. Mr. E. A. Romao, Director of Public Prosecutions, represented the respondent.

Chancellor Stoby, who delivered the judgment of the Appellate Court, disclosed that, at the appellant’s trial on the 1st day of March, 1965, in connection with an offence which took place at Sumair Ramnarine’s dwelling house, the prosecution led evidence to show that the appellant had broken and entered the dwelling house, and had stolen a quantity of articles from that house, and had severely assaulted several people in the house.

The appellant’s defence was that he was not the person concerned with the incident. Most of the witnesses for the Crown were members of the dwelling house – father, mother, daughter.

Although independent evidence was led, that independent evidence was offered in order to establish that the incident of breaking and entering the dwelling house did take place, and a doctor was called to show that, on the night in question, violence was committed on the members of that dwelling house.

The appellant’s defence was an alibi. He gave evidence from the dock, in which he said that he was far away from the scene on the night in question, and he called a witness to support that evidence.

He was convicted, and his sole ground of appeal was that the trial judge did not properly put his defence to the jury, in that he did not explain to the jury, as he should have done, the way in which an alibi is to be considered.

After referring to cases cited by Mr. Hanoman on the question of alibi, which he claimed that the trial judge did not follow, Chancellor Stoby said: “We, of course, accept that as a correct statement of the law.

It is the manner in which judges usually sum up, and we would commend it for judges to follow this method of summing up when dealing with an alibi. But the fact remains that there is no set pattern, no stereotyped language which must be used by a judge in summing up. What can be extracted from the passages which I have just read is that a judge must make it clear to the jury that the onus is on the prosecution and never shifts, and to do so in an alibi lets the jury get the impression that if the alibi is disbelieved, they must automatically convict without considering whether the onus was on the prosecution to prove the case or not.

“Let us look at the pattern of the summing up in this case. What the judge did in this case was (that) he dealt with the case for the prosecution. (He) explained the elements, pointed out that although nothing is admitted in a criminal case, the plea of “not guilty” puts everything in issue.

“Nevertheless, the case was conducted, the breaking and entering and the robbing were not being seriously challenged. In other words, there was really no issue at the trial on those points. The real issue in this case was whether the appellant was the person who committed the acts of breaking and entering and robbing….”

Chancellor Stoby added that the trial judge dealt with that issue in admirable language, and pointed out, over and over again, that the onus was on the prosecution to prove the case against the appellant.

He declared, “As I said before, the summing up must be read having regard to the facts which were in issue and the facts which were proved.
“Then the trial Judge also said to the jury: “If you are satisfied that this man came into the house, did all that the family said he did, created havoc, that pandemonium reigned – remember, a man’s home is his castle -– then your duty, if you are so satisfied, will be to convict.”

According to the Chancellor, when that passage is read in relation to all the other passages in summing up, it seems that although the judge did not use the language which is recommended that judges should use in a case of this kind, he was nevertheless telling the jury in no uncertain terms that, alibi or no alibi, whether you disbelieve the alibi or not, the onus is on the Crown to prove the case against the appellant.

“We think that, for these reasons, the appeal ought to be dismissed. The appeal is dismissed, and the conviction and sentence affirmed”.
 

By George Barclay