Ical v The Queen
| Jurisdiction | Belize |
| Judge | Ducille JA |
| Judgment Date | 27 October 2017 |
| Neutral Citation | BZ 2017 CA 23 |
| Court | Court of Appeal (Belize) |
| Docket Number | CRIMINAL APPEAL NO 3 OF 2016 |
| Date | 27 October 2017 |
IN THE COURT OF APPEAL OF BELIZE, A.D. 2017
The Hon Mr Justice Samuel Awich Justice of Appeal
The Hon Madam Justice Minnet Hafiz-Bertram Justice of Appeal
The Hon Mr Justice Murrio Ducille Justice of Appeal
CRIMINAL APPEAL NO 3 OF 2016
A Sylvestre for the Appellant.
S Smith, Senior Crown Counsel, along with S Maharaj for the Respondent.
Ken Charles v. The Queen [2017] UKPC 47 – R v. Lamb (1980) 71 Cr. App R 198 – R v. Turnbull [1997] QB 224 – R v. Lawson [2007] 1 Cr App R 20 – Campbell v. The Queen [2010] UKPC 26.
Criminal Appeal - Rape — Robbery — Appeal against conviction and sentence — Identification — Whether the judge erred in not excluding the results of the identification parade from the jury's consideration — Whether the judge failed to warn the jury of the unreliability of the results of the identification parade — Circumstances surrounding photograph identification — Appellant's consent to participate in the identification parade — Whether the jury should have been discharged — Turnbull guidelines — Whether the judge adequately directed the jury.
This appeal is from Appellant's conviction of the offenses of rape and robbery and the resulting sentences to consecutive terms of 10 and 15 years respectively. This appeal came before us on June 12, 2017. We allowed the appeal, quashed the conviction and set aside the sentence, reasons to be given at a later date. These are those reasons.
The Appellant, who was undefended in the lower court, appealed to this court on three grounds, only the first of which will be discussed here, the Appellant having abandoned Ground Two and a discussion of Ground Three being unnecessary in light of our decision. As the convictions for both rape and robbery depend upon the issue of identification, and more particularly identification parades, we will not discuss each offence separately. The Appellant contends in Ground One that “[t]he learned trial judge erred in not excluding the result of the identification parade from the jury's consideration.” Counsel for the Appellant, in his Arguments expanded this ground to encompass two distinct issues:
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(i) The failure of the learned trial judge to warn the jury of the unfairness and unreliability of the results of the identification parade having regard to the prior photograph identification; and
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(ii) The failure of the learned trial judge to consider whether the oppression on the Appellant vitiated his consent to participate in the identification parade.
On the night of March 11, 2011 at about 8:45 p.m., Senaida Jones was on her way home from work when she was accosted by a man with a gun. The man, put a gun to her head, directed her towards some bushes and eventually led her to a drain where he took off her clothes and had sexual intercourse with her against her will. He then took $250 from her purse and also a ring that was on her finger at the time. After he left, she put on her clothes and went to the police station where she reported the incident and was taken to hospital. She said that the man who attacked her was short, of Mayan descent, had long hair and was wearing a red T-shirt and long grey pants. Ms. Jones stated that she was able to see the man clearly because when he first accosted her, he was standing under a lamppost and she was able to see his entire body and his face. She later stated that there was moonlight in the place where she was taken by her assailant. He was arm's length away from her at first and he was standing in front of her about four to five minutes. The entire incident lasted for about ten minutes.
Ms. Jones also stated that although she did not know the man, she had seen him about four or five times before in the market square or sometimes going to work. Six days after the incident, Ms. Jones picked the Appellant out at an identification parade where the line-up included some men of Mayan descent.
Under cross-examination, the Appellant, who was unrepresented, questioned Ms. Jones as to the height and weight of her assailant, the distance between them at the time she first saw him and whether he was known to her before the incident. He also questioned her as to the ethnicities of the persons on the identification parade. Ms. Jones indicated that there were two who were not of Mayan descent. The rest were either Mayan or of Mayan descent. Ms. Jones also admitted that some people look alike, but stated that she remembered the Appellant's face perfectly because of what happened to her. She denied that she had been told to pick out number 4 at the identification parade. At this point in the cross-examination, Ms. Jones volunteered that “the way [she] recognized [the Appellant] is because that day [she] went in the station and [she] asked if they have some photos of persons that have done rape or crime or anything … [and] they showed [her] some photos.”
It was at this point that the learned trial judge intervened and told Ms. Jones to just answer the question whether she was told to pick number 4. Ms. Jones said no and the learned trial judge told the jury to disregard everything else that was said in answer to the question as it was not relevant to this matter. The Appellant then persisted in asking Ms. Jones whether she was shown pictures before the identification parade. The following then transpired:
THE COURT: I cannot allow those questions to be asked because they will prejudice you. So I cannot allow them to be asked. Perhaps we need the jury to leave so I can explain to you why that is so.
ACCUSED: I's like that Ma'am, I'd really appreciate that.
THE COURT: And Ma'am, I'd ask that you leave the witness stand for the moment. The jury was then excused and the learned trial judge proceeded to carefully explain to the Appellant that there was danger of prejudice to him because of the jury hearing about his past convictions or about where he currently resides. The Appellant then started to explain to the learned trial judge that there was a reason why he was mentioning the photographs, but at this point, there is clearly a gap in the Transcript of the trial. This is unfortunate because we are left with no clear idea of what happened next, except that the Appellant obviously made the decision not to proceed with that line of questioning. The Transcript continues with the further cross-examination of Ms. Jones, and the photographs were not mentioned again.
Under further cross-examination of Ms. Jones, this exchange occurred:
Q. You saw someone not known to you and assume that it was me being the accused; am I right?
A. Yes.
Q. So in other words you are stating you are not certain right?
A. I am sure of everything I said.
The Appellant then elicited from Ms. Jones that she was in fear at the time of the incident and challenged her recollection on the basis that persons who are frightened get confused and make mistakes. She admitted that she sometimes got confused but she never forgets.
Other witnesses at the trial were, for the most part, police officers. They testified as to the conduct of the identification parade, the arrest of the Appellant, the finding of a firearm at the Appellant's home, and the taking of a caution statement from the Appellant. This last is interesting because the learned trial judge, on a voir dire, excluded the statement and the conduct of the Appellant from the jury's consideration. The Appellant claimed that he had been beaten by the police before he gave the statement. One of the police officers who gave evidence, accepted that the Appellant had an injury to his hand, and confirmed that Appellant asked to be taken to the hospital. Another said that the Appellant appeared to be in pain when he approached him in the cell block. His hand was swollen and had a wound on it. This was supported by the evidence of a Justice of the Peace who was present when the statement was recorded and noted that the Appellant's hand was bandaged. There is also a suggestion from the evidence on the voir dire that a police officer made a call to Appellant's father against his wishes. Although the learned trial judge did not provide reasons for excluding the caution statement, it is obvious that she must have made a finding that one or all of Appellant's complaints were justified, and that the statement was not given freely and voluntarily.
Counsel for the Appellant argued that there were three factors that bore on the reliability of the identification evidence, namely the prior photograph identification, the fact that the Appellant was not known to Ms. Jones, and that her description of the assailant's height and weight differed from the height and weight of the Appellant.
Counsel for the Appellant contends that “there is no evidence as to how and what were the circumstances which led the complainant to pick out the Appellant in a photograph or photographs at the police station; whether it was after several attempts or any details of this nature.” Counsel referred to Ken Charles v The Queen [2007] UKPC 47, and R v Lamb (1980) 71 Cr App R 198. In Ken Charles, their Lordships stated that “[i]t is obvious that when the identifying witness … was shown photographs and picked out suspects from them, her identification at the subsequent parade was of materially less value, since there was the risk that she would pick out the persons at the parade whose faces she had in mind from her earlier identification.”
In that case, a witness who was shot and indecently assaulted was shown two albums of photographs and picked out an individual as “the...
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