Gabb v R

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Inniss, J.A.,Georges, J.A.,Graham, J.A.
• Judgment Date: 19 June 1980
• Neutral Citation: BZ 1980 CA 4
• Docket Number: Criminal Appeal No. 7 of 1980
• Date: 19 June 1980

Court of Appeal

Inniss, J.A. (P.); Georges, J.A.; Graham, J.A.

Criminal Appeal No. 7 of 1980

Gabb

and

Regina

Evidence - Issue of identification of the appellant — Appeal allowed — Conviction quashed and appellant acquitted

Criminal Law - Appeal against Conviction for rape

Facts: Witnesses identify accused in dock at trial — No identification parade held prior to trial — Failure of trial judge to warn jury about possibility of a mistaken identification — Whether failure to warn jury sufficient to vitiate conviction

Held: Judges should follow guidelines on issue of identification as are recommended by court of appeal in England in Turnbull (1976) 63 Cr. App. R. 137. Appeal allowed — Conviction quashed.

JUDGMENT:

1 The appellant was charged with raping Sherry Middleton on November 11, 1979. He was convicted and sentenced to 5 years imprisonment. His notice of appeal states that he desired to appeal against both conviction and sentence but he stated quite positively to the court that it was his intention to appeal against conviction alone.

2 Two grounds appear in his notice of appeal. The first complains that the evidence of the complainant differed from that of the other witnesses and lacked corroboration needed to obtain a conviction. The second stated that the trial judge had failed to read the entire evidence in the case to the jury before they retired to decide upon their verdict. In addressing the court, the appellant sought to draw our attention to various bits of evidence which did not fit easily together or which struck him as implausible. There was no particular merit in his argument as the issues he raised were all matters which the jury would have considered and had they found against him on a proper direction, the verdict would have been unassailable.

3 At the close of his argument, the court raised what appeared to be a grave deficiency in the summing up. Mr. Ghandi, the Acting Director of Public Prosecution, quite properly agreed that they existed and that he would not be supporting the conviction.

4 The crux of the case was identification. Sherry Middleton's story was that she had left a disco club about 3:15 a.m. with a male friend and they went walking along West Street. The friend bought chicken which they ate and then the friend left her. Suddenly as she was walking she was grabbed from behind by the neck, hauled off the road underneath a house the flooring of which was raised some 3 ¹/₂ feet from the ground and raped. She did not recognise her assailant while he was actually raping her. He was choking her and she was fighting for her life. He was on top of her for about three minutes. After the assailant let her go, she saw his face. She is recorded as saying: “It was David Gabb. It is the accused.”

5 After he got off her, he jumped a fence. She ran until she reached the police station. Maureen Leslie, a policewoman, testified that Sherry Middleton reached the police station at 6:10 a.m. from which it can be inferred that the rape must have taken place shortly before 6:00 a.m.

6 Sherry Middleton stated that she had seen the appellant once before — the first time being “One Sunday morning when he passed by my sister's house”.

7 It was not made clear whether this meant that the appellant visited the sister or merely went by her house. There was no evidence that she knew his name at the time the rape took place.

“Her evidence was supported by that of Mavis Watson who testified that on that morning she heard a bawling. She opened her back door and as she did so, she saw a man coming over the fence. In her words — “Then he looked up and our two eyes met”. The man jumped over the fence and ran to the other corner. He fell on the ground and hit a gas tank. She told him — “Boy, don't pass through here”.

8 He did, however, pass through. She said she had a look at the person's face. It was the accused. She had never seen him before.

9 These events took place on November 11, 1979. The accused was arrested on December 14, 1979. No identification parade was ever held. Indeed the evidence does not disclose how it came about that he was arrested. The appellant gave no statement on arrest. He made a statement from the dock putting up an alibi which was not supported by witnesses.

10 This was a case in which there was particular need for the trial judge to warn the jury about the possibility of a mistaken identification. The appellant was not represented at his trial and this...