Buggery convict lost appeal against conviction and sentence

IN 2006, convict Vaughn Thomas appealed and lost against his conviction and 10-year sentence for buggering a male on March 27, 1999.

His contention at the Court of Appeal was that he was not the assailant.
He appealed that the jury should not have been allowed to rely on the visual identification and that his self-inculpatory statement should have been excluded from the trial as a fabrication of his arresting policeman.
The Appellate Court constituted by Justices of Appeal Singh, Kissoon and Chang held:

(i) The visual identification of the Appellant by the victim was weak, but in effect, the judge withdrew the case from the jury on the basis of the weakness of evidence of visual identification. If this was a mistake, it was to the benefit of the Appellant. Further, even had the judge not so withdrawn the case, the reliability of visual identification was supported by a number of items of circumstantial evidence from other witnesses.

(ii) The self-inculpatory statement made to the police should not have been excluded from the trial. Though the Appellant denied making the statement, the fact that his arrest preceded the victim’s visual identification does not demonstrate that that he was arrested solely on the self-inculpatory statement and not told about the allegation and cautioned. His claim that the policeman fabricated the self-inculpatory statement left it up to the jury to consider the evidence surrounding the policeman’s deposition and they weighed the evidence in favor of a guilty verdict.
Nigel Hughes with Roger Yearwood appeared for the Appellant and Jo-Ann Barlow for the respondent.
Justice of Appeal Chang, delivering the judgment of the Court said : The Appellant , Vaughn Thomas was indicted by the Director of Public Prosecutions on behalf of the State on a two-count indictment which alleged that on the 27th of March, 1999 in the County of Demerara, he committed the offences of Buggery and Common Assault on a male.
On arraignment before Justice Moore in the High Court, he pleaded not guilty to both offences. However, the jury found him guilty of both offences and he was sentenced to 10 years imprisonment. It appears that the sentence related to the offence of Buggery since only that offence of the two offences could have attracted such a sentence. It appears that the judge did not see it fit to impose any sentence in relation to the offence of Common Assault.
The accused appealed against the convictions and sentence.
At the trial, the main issue in the case was one of identification, since the Appellant denied that he was the assailant but did not deny that the offences were committed.
The case for the state was based on (1) Visual identification of the Appellant by the victim (2) Circumstantial evidence relating to identification (3) An oral self inculpatory statement to Assistant Superintendent of Police Lancelot Lawrence contained in Lawrence’s deposition made in the Magistrate’s Court at the preliminary inquiry.
It was not doubted that the visual identification of the Appellant as the assailant by the victim, R.A., was attended with weaknesses because:
(1) the victim had limited opportunity to observe the face of his assailant, since the occasion in which he had to focus on the face of his assailant with the aid of light was when a minibus approached the car in which he was the front seat passenger and the assailant was the driver; it was a side-view observation and for a limited period of time since, on that occasion, the assailant instructed him not to look at his face.
(2) He was in a state of fear during the time that he had opportunity to observe the Assailant.
(3) He gave a limited description of the assailant when he reported the matter to the Police.
(4) A.S.P. Hughes diminished the value of the identification parade by pointedly informing the victim immediately before the viewing that the suspect was on parade.

While the trial judge clearly took the view that the evidence of visual identification of the Appellant as the assailant by the victim was weak, he ought to have withdrawn the issue of visual identification from the jury.
It does appear from the summing up of the trial judge that the trial judge did just that when he told the jury at page 90 of the Record of Appeal.
The court carefully examined the deposition evidence of A.S. P. Lawrence. It was clear from the deposition that A.S.P. Lawrence was saying that the Appellant was not put under arrest until after the allegation was put to the Appellant and he was cautioned.
He was further saying that it was only after the Appellant had responded with an oral self-inculpatory statement, which amounted to a confession of buggery, that he arrested the Appellant after making a diary entry.
Clearly, A.S.P. Lawrence was saying that the Appellant made an oral self-inculpatory statement after the allegation was put to him and he was cautioned and consequently he arrested him.
By clear implication, A.S. P, Lawrence was saying that his decision to affect the Appellant’s arrest had to do with the self-inculpatory response he received from the Appellant.
In such circumstances, though, the trial judge omitted to instruct the jury that the arrest of the Appellant did not necessarily mean that he had made some self-inculpatory statement or confession, such an omission, though perhaps undesirable, could not have caused justice to have been miscarried.
Evidentially , the arrest was casually linked to the oral self-inculpatory by A.S.P. Lawrence and the trial judge was merely inviting the jury to consider whether A.S.P. Lawrence’s as to the arrest of the Appellant at Grove Police Station tended to lend support to his claim that the Appellant had voluntarily made an oral self-inculpatory statement to him – especially as no arrest was effected even at the stage when he put the allegation to the Appellant and cautioned him.
It should not be overlooked that the Appellant in his unsworn statement had accused the deceased A.S.P. Lawrence with having fabricated or concocted testimony of an oral self-inculpatory statement against him at the preliminary inquiry.
In the face of such a serious allegation of dishonesty and perjury against A.S.P. Lawrence, it was open to the trial judge to invite the jury to consider the evidence of A.S.P. Lawrence , it was open to the trial judge to invite the jury to consider the evidence of A.S.P. Lawrence as a whole as against the unsworn statement of the Appellant to determine whether it revealed any inconsistent or implausible conduct non his part which could cause them to reject or have doubts as to his story particularly in relation to making of the statement .
The jury was quite entitled to consider whether A.S.P. Lawrence would have gone to Grove Police Station that early morning, failed to put the allegation to the allegation to the Appellant or even to arrest him but then belatedly arrested him later at Brickdam Police Station without putting the allegation to him.
In the particular circumstances of this case, while the summing up of the trial judge was not without misdirections, such misdirections weighed heavily in favour of the accused and rendered the summing up unbalanced against the State.
The Court found no basis for interfering with the verdict of the jury. With proper directions, the jury would inevitably have rendered the same verdict of guilty.
The proviso is therefore applied and the conviction and sentence affirmed. The appeal is accordingly dismissed.