Court of Appellant
Criminal Appeal No. 1 of 1993
14th May, 1993
KENNETH ST. L. HENRY, P.
SIR LASCELLES ROBOTHAM, J.A.
PROFESSOR TELFORD GEORGES, J.A.

Mr. Sooknandan for the Crown.
Mr. H. Elrington for the Appellant.

Court of Appeal - Conviction for robbery - Identification - Appellant by witnesses - Trial Judge gave clear directions on lighting - R. v Turnball (1976) 63 C.A.R. 132 - Matter for jury to determine whether or not they were going to accept the evidence of identification - Cogent evidence of identification put before the jury - Appeal dismissed.

J U D G M E N T

On 20th January, 1993, this appellant was convicted by a Jury on a charge of robbery of a silver floral medal and a gold chain the property of Diona Pilgrim and sentenced to seven years hard labour. The case turned solely on the identification of the appellant by two witnesses namely the complainant Diona Pilgrim, and her companion of that night Anthony Sanchez.

The facts briefly are that on the night of 31st August, 1991, Pilgrim and Sanchez left a night club on North Front Street at about 3:30 a.m. The route to get to Pilgrim's house necessitated their walking along North Front Street, over the bridge on to Regent Street West, then on to Turton Alley, and finally on to Vernon Street.

On entering Turton Alley they both saw and passed the Appellant Casey Allen. He was well known to Pilgrim for about 14 years. Sanchez whilst not naming any specific period said he knew the Appellant as a person who "hangs around" the neighbourhood in which he lives. The Appellant was wearing a red shirt, when he passed both Pilgrim and Sanchez. Pilgrim said that the Appellant uttered some words as he passed and Sanchez said the Appellant nodded to him and he nodded back. Both these witnesses subsequently identified him in Court and gave his name as Casey Allen.

Pilgrim said they proceeded along Vernon Street and as they reached in front of New Asia Restaurant, she heard a patter of footsteps from behind. She looked around and saw a person whom she did not then recognize running in their direction. She paid no further attention. Suddenly she felt herself seized from behind by someone who was attempting to take her chain off her neck. The person was unable to do so. The person then pulled a knife and in so doing faced her holding the knife. In that position he managed to get part of the chain from her neck as the chain burst. She recognized the assailant as the Appellant. He ran away with three quarters of the chain.

The witness Sanchez substantially supports Diona Pilgrim as to the circumstances under which the robbery took place, and the identity of the assailant as being the Appellant. A report was made to the Police that same night and Constable Smith testified that he immediately went searching for the Appellant without success. He was subsequently arrested on 6th September, 1991.

Diona Pilgrim was subjected to a very lengthy cross-examination by the Appellant, all directed mainly at the possibility of her being mistaken. It was suggested to this witness in cross examination -

"Q. Young lady don't you think you are mistaken?

A. No you have a scar on your face.

Court: Could you repeat that?

A. He has a scar on his face and 1 remember from ever since. Ever since 1 have known him he has that scar on his face."

During the hearing of this appeal, the scar on the appellant's face was pointed out to the Court and could be clearly seen.

Counsel for the appellant candidly stated that the only issue that arose at the trial was that of identity. It should be noted that no Counsel appeared for the appellant at the trial, but he subjected the two witnesses to lengthy and searching cross- examination on the issue of identity. Counsel at the commencement of this appeal initially stated that the only ground of appeal being argued was that the verdict was unreasonable and could not be supported having regard to the evidence. As submissions on this ground progressed however he sought the indulgence of the Court to argue a second ground viz that the learned trial judge erred in not withdrawing the case from the Jury on the conclusion of the Crown's case. Still at a later stage he was permitted to add a third ground namely that the judge misdirected the Jury on material facts. All these grounds are inter?related and will be dealt with as such.

The main thrust of Counsel's submissions centered around the identification of the appellant by these two witnesses. In particular, he submitted that the lighting was insufficient to allow the witnesses to make a proper identification of the Appellant. There was evidence that the street lights were on that night. It is true that the witness Sanchez at one stage said in his evidence that the light was inadequate "to the side". However when pressed he said he was able to see but not fully and it was "not bright like a football field". In this respect however it must be remembered that these witnesses were not identifying a person who was totally unknown to them before that night. Further the evidence is clear that both Pilgrim and this witness Sanchez were at the time of the robbery seeing the Appellant for the second time that night in close proximity, and within a short period of time.

The learned trial judge gave clear directions on the lighting. He reminded the Jury to use their common sense and experience to determine how much lighting is needed for a named person to be recognized, bearing in mind that the two witnesses had passed the Appellant a short time before this incident. He said:

"Identification in any case and especially in a case of this nature has to be to your satisfaction... There are instances when the approach to identification made by a witness is satisfactory, and in fact you may find that the evidence given here in Court is sufficiently clear that there is no need for an identification parade.

But in your view you as sole judges of the facts must be satisfied so that you feel sure from the evidence and in this case as Diona Pilgrim and Anthony Sanchez said that it was this accused, Casey Allen, who took Diona's chain and medal in the way in which they described. Bear in mind that wrong identification may occur. There are instances when this will occur and this could be wilfully or by honest mistake.

A witness may honestly believe that it is this particular person that he or she sees but is mistaken or the person might willfully do so. But in the end, it is for you when you consider all the evidence to come to the conclusion whether or not these two witnesses were mistaken; whether they identified this accused in your presence willfully or whether they are making an honest mistake or whether they are correct. I think they gave clear evidence and it is for you in the end when you look at it, when you consider the cross-examination, to decide whether or not they were correct. It is your duty to weigh identification evidence very carefully. You exercise caution if you are considering convicting on the identification alone. As I said there is evidence that these two witnesses did pass the accused. That is not disputed, He is saying that they did pass and both of them are saying why they were able to and how they were able to identify him. And I went over that before."

There the judge was conforming generally with the guidelines laid down in R. V. Turnbull, (1976) 63 C.A.R. 132, the thrust of the Appellants defence being one of mistaken identity.

It is convenient at this stage to dispose of Counsel's submission that the trial judge erred in not withdrawing the case from the jury. From what has been said before relative to the evidence adduced at the trial, it is clear that this ground of appeal must fail. It is patently a matter for the jury on the state of the evidence to determine whether or not they were going to accept the evidence of identification tendered by the crown, or whether they were left in a state of doubt in which case they would acquit the appellant on the charge. The trial judge on the evidence adduced would in our view have been quite wrong in withdrawing the case from the jury.

The third ground added during the hearing of the appeal was that the judge misdirected the jury on material facts. This related to the position of a red shirt on the head of the appellant at the time of the robbery. In cross examination Pilgrim was asked if she did not tell the Policeman that she did not know the person who robbed her because he had a red shirt over his face. Her reply was:

"No I did not state that to the Police. I stated to the Policeman that the shirt he had on was a red T shirt. He pulled it over his face but I could have seen the scar on his face. He didn't cover the whole entire face coming back to the shirt."

At a later stage in cross-examination she admitted that he did have the shirt over his face. Then the question was asked by the appellant ? How could you identify a person when they have a shirt over their face. Her answer was:

"Could you let me answer your questions please. I know it was you by the scar. You had a cap over your head about here (indicating) flapping back. You could not have been able to rob me if you had it over your entire face and at the same time robbed me. You had opening holes on your face and at the same time robbed me."

The judge in his summing up said -

"He puts the question that shirt being over the head as described suggesting that there were holes before the eyes. I don't think that was in evidence not as he is suggesting."

The last sentence here amounted to a misdirection on the evidence but it could hardly have affected the verdict of the jury once they were satisfied that both Pilgrim and Sanchez were positive in their identification of the Appellant.

In our view, there was cogent evidence of identification put before the jury. The directions were adequate and we do not share the view of Counsel for the Appellant that the verdict is unreasonable.

The appeal is accordingly dismissed.

-----------OO-----------