Court of Appeal
Criminal Appeal No. 11 of 1994
SIR DENIS MALONE

Appeal against conviction and sentences of 10 years imprisonment each imposed for 2 counts of robbery and one count of burglary -Identification - Evidence of Crown witness who, after date of incident only saw appellant in cell after he was arrested, carried no more weight than a dock identification - Issue as to Crown witness' possible misidentification of appellant on two occasions between date of incident and date of his arrest - Directions given to jury flawed - Appeal allowed - Convictions quashed - Sentences set aside.

J U D G M E N T

The Appellant pleaded not guilty to an indictment containing three counts ? robbery of a gold chain from Maria Searle, robbery of a gold chain from Peter Searle and burglary of the dwelling house of Peter Searle. After trial he was convicted and sentenced to 10 years imprisonment on each count to run concurrently. From these convictions he has appealed. He was unrepresented both at his trial and on this appeal.

The issue at the trial was identification.

Maria Searle testified that at about 12.30 to 1.00 p.m. on September 5, 1992 she drove into her yard at the back of the building in which is situated the apartment in which she lives. As she stopped her car where she would normally park she saw a male person coming out of a workshop which is also part of the same building and also belongs to her.

She said that she recognized the person and knew that he had no permission to be in the workshop. She had seen the person twice before in the yard, the first occasion about 3 weeks before that day and the second occasion a week before. She had spoken to him on both occasions. On the second occasion he had told her that he was looking for work and she had told him not to come looking for work in the back there. He had then asked for bread and she had replied that she had none.

As she saw the man coming from the workshop she shouted "Pete thief". Pete is her husband's name. She expected him to be in their apartment. She had a clear view of the man, as was to be expected - it was midday and there was no one else around. She identified the Appellant in the dock as the man she had seen. He was wearing a T?shirt marked Belikin which bulged on the left side.

She got out of the van and put her hands out to stop him asking him to give her what he had under the shirt. The dogs began to bark. He asked her to let him go.

Her husband took some time to come and when he did the man was pushing her back towards the entrance of the yard. She was during that time looking at his face. She realized he was looking at the chain around her neck.

Her husband came out with a piece of PVC pipe, told the man to let go of his wife and hit him with the pipe. The man got hold of the pipe, threw her husband down and grabbed her husband's chain from his neck. He then grabbed her by the neck and took her chain. She scratched him on the face. She said the struggle lasted 20 ? 25 minutes.

She called the police. She was sent to the hospital. Her injuries were described as minor.

She stated that after the incident she saw the man twice in Orange Walk and Corozal. This sighting took place 2 to 3 months after the incident in her yard and she was sure it was he whom she had seen in Corozal. She was on the bus.

She further testified that one morning about 10 a.m. she was at her business place on Albert Street she saw the person who had robbed her passing in front of her shop. She called the police. Cpl. Guzman who was on mobile patrol went to Albert Street. He met Mrs. Searle who pointed the appellant out to him. He went up to appellant and informed him of the report against him. He cautioned him, arrested him and took him to the police station. The Appellant denied any knowledge of the subject matter of the report.

Peter Searle gave evidence supporting his wife's account of the incident in the yard. He also asserted that the appellant was the person involved. His evidence cannot carry much weight. After the date of the incident he next saw the Appellant in the holding cell after the police had told him that they had arrested the man and had him in custody.

The Appellant gave evidence on oath denying that he had ever been in Mrs. Searle's yard. He said that he did not know Mrs. Searle. He called as a witness Winton O'Brien the record keeper of Hattieville Prison who testified that the Appellant had been admitted to prison on September 11, 1992 and had been released on May 10, 1993. He could not possibly have been in Corozal or Orange Walk some 2 to 3 months after the date of the incident ? September 5, 1992.

The trial judge did give the jury what could be called the Turnbull formula stressing the need for carefully considering the opportunity which the identifying witness had for observing the person identified. In this case this hardly needed stressing since the occasion was a face to face confrontation in broad daylight when there were no other persons present.

He did toward the close of his summing up state ?

"In dealing with Maria Searle's evidence, where she said she recognized him in Corozal Town and Orange Walk Town when she was on the bus, and she was sure it was him. You may find as judges of facts that she made a mistake, that she could not have identified him as the person walking in this case because he was incarcerated in prison during that time the one month or two or three months after the alleged robbery because he was admitted to prison on the 11th of September, 1993 and he did not leave prison until the 10th of May, 1993.

So this brings us to another question. If you find that Maria Searle made a mistake in identifying him as the person while she was on the bus, you will have to ask yourselves the circumstances how she was able to say he was the man. She says she was in the bus and she is sure he is the man. But the prison authority says that he was in prison at that time. If you find that she made a mistake in identifying him, while she was in the bus, you will have to ask yourself could she have also made a mistake in identifying him as the person who committed these offenses, as the person who robbed her on the 5th of September, 1992?

So these are questions that you will have to decide. If she has made a mistake, Did she satisfy so that you feel sure that she did not make a mistake?"

He also stated shortly after ?

"You will have to decide whether you can accept Mrs. Maria Searle's evidence as to the identification of the accused having given evidence that she had seen him in Corozal and Orange Walk Town while riding the bus when the prison officer said he was in prison.

Therefore, you will have to decide whether you find her evidence reliable, or whether you cannot accept her evidence. Or you may find if you accept yes there is something in that portion of the evidence which I cannot accept, but maybe you may say that there is other evidence and I will accept her evidence. These are all questions of facts that you will have to decide as judges of facts."

The jurors deliberated for 3 hours and stated that they had a difficulty in these deliberations and wished to have directions about doubt and identification of the accused.

Among the further directions were the following ?

"Now Mr. Foreman and members of the Jury, I think I recall I said to you the circumstances under which she identified the accused must be considered you have to examine the circumstances. Unfortunately the Crown did not get into details of this.

In other words, what are the circumstances that was revealed in the evidence. I thought that was a matter really for re?examination. But the question is, was the bus moving when she saw the accused or was the bus stationary? Was it daytime or was it nighttime? Because if it is daytime the possibility of mistaking the accused or anyone of that person, you may say that it may be less difficult for her. If it is nighttime you may say nighttime shadows play tricks on people if you regard it as so. Was it a rainy day? In this case what if the windows of the bus because these windows on the bus sometimes they are not always clean. Question on that should have been put like that. Was the window of the bus clean nobody knows. You see these buses have been coming up and down the road, do you find that it was clean so that you can see clearly through? These are matters that you will have to decide. Was it a fleeting glance, or was the bus at a standstill or was the person walking by or was the person standing there. This did not come out. So I didn't want to comment on that very much. Because there is nothing in this about that, since it did not come up in the evidence, and it is not for the judge to speculate. But these are matters that you will have to deal with. Because you have to consider your verdict. And you have to be sure that Maria Searle and Peter Searle could not have been mistaken in their identification of this man. In his evidence Peter states yes this is the man. Maria's evidence you have to watch, because if you accept that she could not have seen him there in Orange Walk and Corozal during that time because he was elsewhere if she saw him she must have been mistaken."

This formulation was unsatisfactory. The trial judge appears to be asking the jury to regard Peter Searle's evidence as being of some value in supporting the evidence of Maria Searle. As has been noted, after the date of the incident he next saw the appellant in a cell. His evidence of identification would have had no more weight than would a dock identification.

The earlier part of the passage cited appears to be aimed at explaining why the identifications at Corozal and Orange Walk were unsatisfactory. Quite correctly the judge states that the circumstances he was setting out were speculation and it was not for the judge to speculate. Equally the jury as the judges of the fact should not speculate. They should decide on the evidence, yet the judge invites them to deal with the matters to which he has referred which were matters of speculation.

Fairness to the appellant should have required the judge to point out that had the circumstances at Orange Walk or Corozal been such that the person whom Mrs. Searle was sure she had identified had been arrested, another person would have been in the dock being tried for the offence.

The trial judge stressed how deeply etched on the mind of Mrs. Searle would have been the face of the person with whom she had the confrontation in her yard. This might well be so. The issue here, however, was her positive misidentification on two previous occasions ? on the assumption that the Appellant was the trespasser and not the person identified on those two other occasions.

In all of this it must be borne in mind that the issue is not Mrs. Searle's honesty or credibility. The issue is her being mistaken and clearly she was.

The record makes plain that a jury deeply in doubt needed further careful instructions. The directions given on their return were flawed.

In the circumstances the appeal must be allowed, the conviction quashed and the sentence set aside.

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