Court of Appeal
Criminal Appeals Nos. 12 and 13 of 1993
8th September, 1993
KENNETH ST. L. HENRY, P.
SIR IASCELLES ROBOTHAM, J.A.
PROFESSOR TELFORD GEORGES, J.A.

Appellant Acevedo in person
Mr. B. Sampson for Appellant Lima
Mr. Adolph Lucas, (Ag.) Senior Counsel for the Respondent

Court of Appeal - Robbery and attempted murder - Sentences to run concurrently - Appellants relied on an alibi as defence - Direction of trial judge on the defence of the alibi - Whether Judge failed to direct the jury adequately - Judge direction adequate - Whether Judge erred in law in failing to warn the jury on conviction of uncorroborated evidence - Adequate directions given by trial Judge - Appeals dismissed.

J U D G M E N T

These Appellants were tried jointly and convicted on the 7th June, 1993, on Charges of Robbery of $2,030.00 the property of Thomas Gonzales, and attempted Murder of Lawrence Gillett. They were each sentenced to 7 years imprisonment on each count to run concurrently.

Briefly the facts are that on the 24th November, 1991, at approximately 6:30 p.m. both Appellants entered the shop of Thomas Gonzales at Trial Farm Village and robbed him of the sum of $2,030.00 in cash. Present in the shop at the time along with Gonzales was his 14 year old niece Orisis Funez.

Gonzales testified that when the Appellants entered the shop they asked for two soft drinks and having had the drinks, one of them produced a gun saying it was a hold up. Gonzales was then robbed at gun point of $2,000.00 which he had in his wallet.

During the course of the robbery the young girl Orisis Funez having seen that both Appellants had guns managed to escape from the shop and run to the bar of Papa Gallo which was next door to Gonzales' shop. There she made an alarm and Lawrence Gillette immediately left for the shop of Gonzales. On entering the shop he saw both Appellants, each of whom he had known for the past 5 years in the course of their doing taxi jobs.

It is appropriate to point out at this stage that Gillette's evidence disclosed that earlier at approximately 5:00 to 5:30 that same evening he had seen these two Appellants drinking in Papa Gallo's bar from which place he was summoned by the young girl Orisis Funez. This fact was admitted by the Appellants.

Gillette further testified that as soon as he entered the shop and asked what was happening, both Appellants started firing shots at him. Dr. Waight's evidence showed that several shots entered his body being one in the left wrist, two in the region of the left shoulder, one in the right side of the abdomen, one on the left side of the chest, one in the right upper abdomen and one in the region of the scrotum. It was the opinion of the Doctor that if early surgery had not been undertaken Gillette would most likely have died.

Both men made their escape from the shop and Gillette was removed to the Hospital where he remained for a period of three weeks. Subsequently at an identification parade Gonzales pointed out the Appellant Acevedo as one of the men who robbed him, but failed to identify Lima. The identification of Lima thereafter rests solely on the evidence of Gillette, to whom he was known as stated previously for five years.

At the trial each Appellant relied on an alibi as his defence and gave evidence on oath. The kernel of the alibi raised by each is that he was nowhere near the scene of the crime at the time it was committed. Acevedo's assertion is that he was at his home at San Antonio Road in Orange Walk at 6:00 p.m. having been dropped off there by the Appellant Lima. Thereafter he left for the home of one Freddy where he remained for sometime and then returned home. In cross-examination he admitted that both the witness Gillette and himself were well known to each other.

The Appellant Lima in his defence said he left home the Sunday afternoon of the robbery to watch a football match. He stopped in Orange Walk to buy gas for his motor cycle and ended up at Papa Gallo's bar drinking beer with Acevedo. He got home at about 6:30 p.m.

The grounds of appeal were centered solely on the direction of the trial judge on the defence of the alibi raised by each Appellant.

Ground (a) alleged that he failed to direct the jury adequately on the Appellants defence of Alibi. This is incorrect in that the judge pointed out to the jury that the Appellant Acevedo said that having spoken to one Freddy the Appellant Lima dropped him off at home in San Antonio Road at approximately 6:00 p.m. Lima gives evidence to the same effect, so there was mutual corroboration between the two Appellants that they were at their respective homes in San Felipe at the time of the robbery. After telling the jury that there was no burden cast on either Appellant to prove anything he went on to say:

"Both accused have presented a defence of alibi in this trial. The accused Acevedo, like the accused Lima, is saying that he was not at the scene of the crimes when they were committed. As the Prosecution has to satisfy you are sure of his guilt, he, Rene Acevedo, does not have to prove that he was elsewhere at that time. So he does not have to call this Freddy or anyone else to prove the alibi he has raised. On the contrary the Prosecution must disprove the alibi. And even if you conclude that the alibi is false that does not of itself entitle you to convict the accused Acevedo. The Prosecution must still satisfy you so that you feel sure of his guilt."

On a careful review of the Judge's summing-up, the Court is unable to say that the overall direction of the trial judge on the Appellants defence of an alibi was inadequate and this ground of appeal must fail.

Ground 2 alleged that the judge erred in law in failing to warn the jury of the special need for caution before convicting in reliance upon uncorroborated visual evidence of honest but mistaken witnesses who may even have been well known to the Appellant. In this respect he directed the jury as follows:-

"Mr. Foreman and Members of the Jury, I will deal now with the question of identification evidence and Identification Parades.

In this case the question of the identification of both accused is a matter of great importance and you will have to approach this matter carefully because the truth is sometimes people make mistakes. Both accused in this case are saying that all the witnesses who gave identification evidence against them made mistakes. A mistaken witness can be a convincing witness and a number of such witnesses could all be mistaken. You have to closely examine the circumstances in which the identification of both accused came to be made. How long did the witnesses have the accused under observation? At what distance? In what light? Was it day time or night time? Was the observation impeded in anyway by passing traffic or a crowd of people, for example if a street ran in between? Have the witnessses ever seen the accused persons before? If so, how often? If only occasionally, have the witness any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the Police? Was there any material discrepancy between the description of the accused persons given to the Police by the witnesses when first seen by them and their actual appearances. It is my duty to remind you the Jury of any specific weaknesses which appear in this identification evidence. If the quality of the identification is good and remains good the danger of a mistaken identification is lessened and the poorer the quality of the identification the greater the danger of a mistaken identification.

In the final analysis it is for you the sole judges of the facts to determine whether you are satisfied so that you feel sure that both accused were positively identified as the persons who held up the shop, fired the various shots, shot Lawrence Gillette (Big Bill) and ran off from the shop. In this regard the accused are not disputing they were in the nearby Bar, Papa Gallo Bar, that Sunday afternoon up to about 5 o'clock.

On the evidence it was clearly shown that both Appellants Lima and Acevedo were well known to the witness Gillette. There were three flourescent lights burning on the premises. Whilst it is true that Gonzales identified Acevedo but failed to identify Lima at an identification parade Gillette knew them both for a period of five years. We are of the view that there was adequate directions given by the trial judge on the question of identification and it was open to the jury to convict on the evidence before them.

At the hearing of the appeal Acevedo conducted his own appeal and could urge nothing in support thereof. He said his witnesses were not called but the record shows that he said he had none.

We are of the view that the judge gave adequate directions to the jury in relation to all aspects of the case in so far as it affected the Appellants. In the circumstances both appeals are dismissed.

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