R v Dacres
| Jurisdiction | Jamaica |
| Judge | Rowe, J. |
| Judgment Date | 31 July 1980 |
| Neutral Citation | JM 1980 CA 42 |
| Docket Number | Criminal Appeal No. 6 of 1978 |
| Court | Court of Appeal (Jamaica) |
| Date | 31 July 1980 |
Court of Appeal
Zacca, J.A.; Carberry, J.A.; Rowe, J.A.
Criminal Appeal No. 6 of 1978
Mr. Richard Small for the applicant
Mr. A. Smellie for the Crown
Criminal Law - Appeal against conviction — Robbery with Aggravation
Criminal Law - Appeal against conviction — Illegal Possession of Firearm
The applicant was convicted on January 19 1978 before Orr J. sitting alone in the High Court Division of the Gun Court for the offences of illegal possession of a firearm and for robbery with aggravation. His conviction on the first count attracted the mandatory penalty of imprisonment with hard labour for life and for the aggravated robbery he was sentenced to ten years imprisonment at hard labour. The single judge refused an application for leave to appeal and when the matter came before this court after hearing arguments by Mr. Small, we refused the application for leave to appeal and as we then promised to do we now put our reasons in writing.
Edwin Graham, a 22 year old taxi-man was cruising for hire his station-wagon taxi along the Washington Boulevard on September 29, 1977 at about 9:15 p.m. At the intersection of Pembroke Hall Drive and Washington Boulevard a man in a green shirt later identified as Herman Graham flagged down the taxi. Graham wished to be taken to Brotherton Avenue to pick up “two beef” which term Grant understood to mean to be “two women.” As they conversed, a man walked from a nearby bus stop and joined Graham. Both entered the taxi, Graham in the front seat of the right hand drive taxi and the other man in the rear seat just behind the driver.
At Brotherton Avenue the taxi stopped. Graham asked what was the fare. Grant wanted to know if they were not going to make the return trip. Eventually he asked for $2.00. The left front door of the taxi was partly open so that the roof light in the car was turned on and three clocks in the taxi were also showing lights. Graham pushed his hands into his trouser pocket as if to take out money and came up with an open knife. He said, “this is a hold up you know star.” The man from the rear seat alighted from the car and came beside the driver's door. In one hand he held an open knife and in the other what Grant described as a gun. Grant could see the “round hole of the gun mouth” and there was a handkerchief covering the handle of the gun. That knife was pointed at his ears and the gun at his neck. The two men were face to face and Grant said he was able to recognize the features of that man by means of the roof light in his car. That man he said is the applicant Dacres. The armed men demanded money and Dacres after shifting the knife into his gun hand rifled the pockets of Grant. Graham did likewise and together they were enriched to the tune of $64.00 and a ring. They escaped taking the switch keys of the taxi with them.
Grant returned to the Brotherton Avenue area on the following day and while driving he saw Graham and Dacres walking down Waltham Park Road and together go into a business place on Waltham Park Road. Grant parked nearby and saw and stopped a passing policeman who went with him into the business place where he charged and identified the two accused. Graham protested innocence but Dacres said nothing. The policeman took Graham and Dacres into custody. Grant said both men were dressed in exactly the same clothes as on the previous night and in addition the police found on Dacres a pair of “mafia glasses” which Grant alleged Dacres had been wearing the night before. Grant also purported to identify Dacres by a “cut on his nose.”
Dacres defense was an alibi. He was at home all the previous evening and night with his girlfriend. The learned trial judge did not believe Dacres nor his girlfriend and after rejecting the alibi, he accepted Grant as a witness of truth.
It is true that the only evidence implicating the applicant in the crimes the subject of this appeal was that of the victim. That by itself we do not consider to be a weakness in the case. There was no suggestion at the trial that Grant had concocted a tale of his being robbed and the case proceeded on the basis that he was a truthful witness as to the fact of the robbery but was either mistaken or deliberately lying as to the identity of his attackers. Here was a case in which the victim did his own investigation and within twenty-four hours he found, as he testified in court, two men answering the physical description of those who had robbed him at gunpoint, they were dressed in exactly the same manner as on the pervious night and if Grant is to be believed the dress of one of the men was so unusual as not to be easily forgotten as he was wearing “green shirt and yellow pants.” The apparel of the other man was only a little less distinctive as he was wearing “a whitish colour shirt with some little flower business on it; some little black flowers on it,” and in his pocket was a pair of mafia glasses. Again, if Grant is to be believed, the two men were found together in the same vicinity of the robbery. Although the lighting was artificial and the observation of the assailants made when the victim must have feared for his life as on more than one occasion one of the assailants encouraged the other to shoot Grant, the proximity between the robber and the victim was so close that the young man Grant, had every opportunity to make an observation of the physical features of the robber.
Accordingly we did not find any merit in the second ground of appeal argued by Mr. Small wherein he complained: “That the learned Trial Judge by his comment:–
“…As I have told you already I may be wrong, but I believe you had Mr. Grant into this area and held him up, a taxi man,”
clearly indicated that he was in some doubt in relation to the evidence and therefore was wrong in law in arriving at a verdict of guilty.
The learned trial judge could not have meant, and could have been understood to have meant, anything more than that no human being is infallible and that in view of the protestation of innocence of the applicant, he the judge was trying the case and deciding it on the rules of law and on the evidence and he was not claiming for himself any divine powers. Having said that, however; we wish to make it clear that in the act of passing sentence the remarks of a trial judge should be considered and relevant, otherwise they can become otiose.
In a very able argument, Mr. Small developed ground 1 of the Supplementary Grounds of Appeal which was framed thus:–
“The Learned Trial Judge failed to adequately direct, warn and advise himself of the law and evidence in relation to identification.”
He submitted that the Court of Appeal should pronounce as a rule of practice applicable to the trial of cases in the High Court Division of the Gun Court that in cases involving identification evidence the judge sitting alone is required to direct, warn and advise himself of the law and evidence in relation to identification in particular to analyze the weaknesses and any other features of identification evidence which may effect the reliability of such evidence. He said the Court of Appeal should apply the same principle in relation to identification evidence when the judge sits alone as that which exists when the trial is by judge and jury.
In practical terms this submission means that in giving judgment the trial judge should articulate fully all the principles of law governing identification evidence and if he fails to articulate those principles this should amount to a non-direction in law sufficient to warrant the allowance of the appeal. For the purpose of this submission the strength or other state of the evidence, in a particular case would be immaterial as it would be a pure question of law as to whether the trial judge had given himself the proper directions in law.
Mr. Small referred us to some West Indian and some English decisions. These cases in the main dealt with situations requiring corroboration in cases tried by magistrates or judges sitting alone and canvassed the need for them to properly direct themselves on corroboration. These we now proceed to examine.
We begin with the West Indian case of Jacobs v. Mattehws (1962) 5 W.I.R. 442. There the magistrate trying a postman for larceny or destruction of postal articles acted on the evidence of a girl of eleven years and omitted in his reasons for decision to say that he had warned himself of the risk of acting on the uncorroborated evidence. Giving the judgment of the Court of Appeal in Trinidad and Tobago Wooding C.J. at p. 445 E observed that the magistrate had indicated by the care with which he approached the case that:–
“He realized the necessity for corroboration; that he realized that there was a risk in acting on her uncorroborated evidence; and that he realized the necessity for him to be convinced of its truth before he proceeded to act upon it.”
Wooding C.J. in delivering the judgment of the Court of Appeal of Trinidad and Tobago in Bates v. James (1964 – 65) 7 W.I.R. at 203 followed the decision in Jacobs v. Matthews (supra) and at page 207 B he said:–
“The criticism which was leveled against the magistrate however was that in his reasons he said nothing specifically about corroboration. The same point was taken before us in Jacobs v. Matthews and we pointed out there that it was not necessary for magistrate to state specifically that he had considered the matter of corroboration if there was in fact corroborative evidence on which he could and did reply. Our function, therefore, in this court is to consider...
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