Convicted robber freed on appeal

THE Appellant, Mohamed Khalil, had been convicted for robbery with aggravation on the evidence mainly of the visual identification of a single witness, Mungia.
The witness claimed that Khalil had run five yards in front of her from a distance of twenty yards away, where the alleged robbery had taken place.
The witness had been shown the appellant at the Police station and there she pointed him out as the robber.
No identification parade was conducted and the explanation by the police for not doing so was that the name of the robber was given. This was clearly in conflict with Mungia’s evidence. The appellant’s defence an oath consisted of an alibi.

The Court of Appeal, constituted by Chancellor E. V. Luckhoo, G. L. B. Persaud and Victor Crane, Justices of Appeal held the following:
(1) That there were two issues namely: (a) Was there a necessity for the police in the circumstances of this case to hold an identification parade? (b) Was the summing up of the trial judge ample, fair, proper and adequate?
(2) That identification ought to have been held to ensure the ability of the witness to recognise the suspect so that any suspicion of unfairness or risk of erroneous identification would have been excluded. Identification must be sufficiently positive and not be grounded on mere similarity or resemblance.
(3) That when, at the police station, the police brought the appellant out for the witness to see him this amounted to a dock identification as it may have tended to suggest to the witness that the prisoner was believed by the authorities to be the culprit.
(4) That a witness’ identification of a person should as far as possible be unaided and that nothing should be done to influence or affect the recollection of a witness and thus destroy the value of his/her evidence of identity.
(5) That, in the circumstances, the jury ought not to have been left to consider whether it was reasonable of the police to decide whether or not to hold an identification parade. It ought to have been pointed out by the trial judge, to the jury, the circumstances under which the identification was made and the weakness in it. The trial judge’s summing-up was not sufficiently fair and the jury was misdirected on a number of occasions.

The Appeal was allowed, and the conviction was set aside.
The Appellant Khalil appeared in person, at the trial, while Acting DPP Mr. G. H. R. Jackman appeared for the State.
In his Judgment Chancellor Luckhoo said: The jury found the appellant guilty of the offence of Robbery with aggravation. He was sentenced to two years’ imprisonment and to receive a whipping of six strokes.

On 14th March, 1975, this court heard his appeal and little difficulty in quashing the conviction and sentence.
The conviction rested wholly on the visual identification of a single witness, one Mungia. The appellant had at all material times strenuously denied any involvement in the crime. His defence on oath consisted of an alibi.
On 10th December , 1973 Mungia, was selling ice-blocks at a school some 20 yards from a store owned by one Badrie who was on that day, assaulted and robbed in his store at about 10.30 a.m. by two East Indian boys whom he did not recognize or know. He shouted “Thief,” and people came; they shouted, but the intruders escaped. The attack on Badrie must have been swift and sudden, for although he came face to face and to grips with his assailants, he confessed his inability to identify anyone.

This day was a “rainy” one. Mungia saw two persons running out of Badrie’s yard; they ran past her at a distance of five yards; she gave a statement to the police the same day.
In evidence, in answer to the, appellant she said: “I did not tell the police your name. I gave a description of the person I saw.”
The police arrested the appellant on 14th December and took him to the station. Gordon Howard, a detective corporal, told him that it was reported that on 10th December he, in company with another East Indian boy, robbed Badrie of $30. He cautioned and the appellant said, “Nah me”. The day after the appellant was arrested Mungia was taken to the police station. She said this in evidence, as recorded:
“On 15. 12. 73, I went to Providence Police station. I saw the accused there. The police brought him out to me.
“In his presence I told the Police, ‘That is the boy I saw running out of Badrie’s yard.’
“He said that it was not he, but it was somebody else.”

Immediately the question arises: Why did the police not hold an identification parade , but instead presented the appellant alone to Mungia for her to say whether he was the one of the boys she saw running out of Badrie’s yard?
Cpl. Howard said he did not think it was wise to place the appellant on an identification parade “because the name was mentioned to him” but the appellant’s name could not have been mentioned to him by Mungia because she said she did not “tell” the police the appellant’s name but only gave a “description” of the person she saw.
She said further that, “When the (appellant) was coming out of the yard I did not know his name … I had given the police a statement on 10th December, 1973, the same day the story happened In that statement I did not mention his name because I did not know it then.”

In these circumstances, there was every reason why an identification parade should have been held. By the very token that Mungia was taken to the station to see whether the person at the station was the person she had seen running away, the desirability and, indeed, necessity of having a parade should have commended itself to the police.
The attempt at an excuse hazarded by Cpl. Howard – that he did not think it was “wise” to do so because the “name” was given to him – should have been rejected out of hand.
How could it be “wise” to have a “one-man parade and not a “proper” parade to test the witness in a fair way? If a potential witness is shown the person to be identified singly in circumstances to indicate, as in this case, that the police suspect that person, the witness would be much more likely, however fair and careful he might be, to assent to the view that the man he was shown corresponded to his recollection, and when this happens courts, will, in the absence of other evidence, be inclined to set aside a conviction as being unjust and unsafe.”

Chancellor Luckhoo noted that the law does not require a judge in this kind of case to give a specific warning about the dangers of convicting on visual identification.
He added that a judge must be fair and in cases in which guilt turns upon visual identification by one or more witnesses, it is likely that the summing-up would not be fair if it failed to point out the circumstances in which such identification was made and the weaknesses in it.
The Chancellor cited Lord Morris of Both-y-Gest, in Arthurs v. Attorney – General for Northern Ireland (1970) 55 Cr. App.R 161 at p. 167, in dealing with the question as to whether the particular summing-up was fair and ample, said (p,168):
“It is the aim of all to strive to reduce to a minimum the risks of the conviction of one who is innocent. A judge will have this aim constantly in mind during his conduct of a trial and in his direction to the jury.

“It is manifest that in cases where the vital issue is whether the identification of the accused is certain and reliable, the judge must direct the jury with great care.
“However, careful is his general direction as to the onus of proof the judge will feel it necessary to deal specifically with all the matters relating to identification.
“A summing-up that fails to give adequate direction or which in the circumstances and in relation to the facts of a particular case, fails carefully to alert them to the risks of convicting an innocent person, might in any event be held to be defective and to warn the use by the Court of Criminal Appeal (Northern Ireland) of certain of its ample powers.
“A summing-up does not follow a stereotyped pattern.

“It need contain no set form of words. Each case has its own features and a summing-up must be related to those features and to the problems of the particular case. A judge will invite the jury to give due consideration to the special issues which are presented by the evidence. He will be guided by his duty as well as by his desire to ensure, so far as he could ensure, that no innocent man is convicted.”
The Chancellor then said: “In this case not only were the police remiss in not holding an identification parade, but the trial judge had misdirected the jury on a number of occasions which would justify quashing of the conviction and sentence which this Court was forced to do on 14th March, 1975.”
Justices of Appeal Persaud and Crane concurred.