LECTURE NO. 10
Identification Evidence
Corroboration
Character Evidence
A. IDENTIFCATION
Learning Objectives
On the completion of the reading, the research and the tutorial session, the student is expected
to:
Understand what constitutes ID evidence – direct and circumstantial evidence.
Understand how to lead this evidence in trial.
Know how to anticipate when leading ID evidence
Understand what the court consider when assessing the strengths and weaknesses of ID
evidence – What is a good ID and what is a bad ID?
5. The value of ID parades.
6. The problems with dock IDs and the value of such evidence.
1.
2.
3.
4.
Reading
Blackstone Criminal Practice and Procedure 18th edition, F18 ‘Evidence of Identification’.
Cases
R v Turnbull[1977] QB 224
The State v Greene and Alleyne (1979) 26 WIR 395
Ames (Royston) v The State (1994) 53 WIR 189
Anand Mohan Kissoon and Rohan Singh v The State (1994) 50 WIR 266
Evans v R (1991) 39 WIR 290
Jones v R 47 WIR 1
Daley v R [1994] 1 AC 117
R v Brown et al (2001) 62 WIR 234
Coley v R (1995) 46 WIR 313.
Kirpaul Sookdeo And Others v The State (1972) 19 WIR 407
Teper v R, [1952] AC 480
R v Popat [1998] 2 Cr App Rep 208,
Goldson v R (2000) 56 WIR 444
John v The State (2009) 75 WIR 429
Thurton v R - (2017) 91 WIR 141
Pipersburgh v R (2008) 72 WIR 108
Pop v R 62 WIR 18.
The State v Barrow (1976) 22 WIR 267
Johnson (Mark) and Edwards (Jeffrey) v The State (1999) 60 WIR 278
Tido v R [2009] 3 LRC 423
The State v Mohamed Khalil (1975) 23 WIR 50
1
Slinger v R (1965) 9 WIR 271,
Herrera and Dookeran v R (1967) 11 WIR 1,
R v Horsham Justices ex parte Bukhari (1982) 74 Cr App Rep 291).
B. CORROBORATION
Learning Objectives
On the completion of the reading and assignments in this area, the student is expected to
understand:
1. What is corroboration and why it is required in some cases and why it might be helpful
in other cases.
2. The kinds of evidence which may amount to corroboration.
(a) From circumstantial evidence
(b) From the defendant (his lies, conduct and even his evidence)
(c) From accomplices
3. That a magistrate may consider that in some cases the reliability of uncorroborated
would have to be carefully assessed.
4. That in some cases, the lack of corroboration will result in a dismissal of the charge.
Reading
R v Baskerville ([1916] 2 KB 658
The State v Mayers (1981) 30 WIR 189
R v Christie [1914] AC 545
R v Chandler [1976] 1 WLR 585
Parkes v R [1976] 1 WLR 1251
David And Watkins v R (1966) 11 WIR 37
Tido v R (2008) 75 WIR 26
Bridgelall v Hariprashad (2017) 90 WIR 300
R v Haye (1972) 18 WIR 360
Duporte v Director of Public Prosecutions (2009) 75 WIR 224
Outar v The State - (1982) 36 WIR 228
R v Lucas [1981] Q.B. 720
Spenser (Ryan) and Fraser (Rodewell) v The State (1996) 54 WIR 278
Pooran v R (1966) 10 WIR 51
C. CHARACTER EVIDENCE
Learning Objectives
On the completion of the reading and assignments in this area, the student is expected to
understand:
1.
2.
3.
4.
What is character evidence.
Why character evidence is not generally admissible.
When such evidence will be allowed.
The shield given to the defendant to be cross examined on his character.
2
5. The circumstance when that shield would be lost.
6. The court’s role in protecting the defendant.
7. In circumstances when the shield is lost, the relevance and use of bad character
evidence.
Reading
The State v Solomon - (1982) 33 WIR 149
R. v Rowton [1981 – 73] All ER 549
R v Lafayette - [2008] EWCA Crim 3238,
R v Donaldson And Edwards (1980) 31 WIR 317
R v George Thomas Clark [1955] 3 All ER 29
Ken Charles and another v Regina [2004] ECSCJ No. 120
R v Bishop [1975] Q.B. 274
Rouse [1904] 1 KB 184
R v Grout (1909) 3 Cr App Rep 64
R v Jones (1923) 17 Cr App Rep 117
Clark [1955] 1955 2 QB 469).
R v Rimamczy [2005] EWCA Crim 1834
Amoe v Director of Public Prosecutions [1992] LRC (Crim) 132.
R v James Turner - [1944] 1 All ER 599; See also R v HILL [1991] NI 150
R v Jenkins (1945) 31 Cr.App.R. 1.
R v Cook. [1959] 2 WLR 616
R v Campbell (1963) 6 WIR 170
Stirland v DPP
R v Varley [1982] 2 All ER 519 (CA)
R v. Lovett [1973] 1 WLR 241
A.
IDENTIFICATION
What is Identification Evidence
Any kind of evidence which tends to prove the identity of a person, usually the defendant
performing some relevant act, usually the crime.
It may be proved by direct evidence – that is the opinion evidence of someone who asserts that
he saw the defendant.
It may also be proved by circumstantial evidence – several bits of evidence which leads to an
inference that the defendant was at a particular place at a particular time.
Hall v R - (2020) 95 WIR 201
3
The Turnbull Guidelines
Whilst this case deal with the warnings which a judge should give a jury who is about to
consider identification, it applies equally to magistrates who must give themselves the cautions
and warnings when they are about consider identification evidence.
R v Turnbull[1977] QB 224 per Lord Widgery CJ at 228 and 229
'First, whenever the case against an accused depends wholly or substantially on the correctness
of one or more identifications of the accused which the defence alleges to be mistaken, the
judge should warn the jury of the special need for caution before convicting the accused in
reliance on the correctness of the identification or identifications. In addition, he should instruct
them as to the reason for the need for such a warning and should make some reference to the
possibility that a mistaken witness can be a convincing one and that a number of such witnesses
can all be mistaken. Provided this is done in clear terms the judge need not use any particular
form of words.
'Secondly, the judge should direct the jury to examine closely the circumstances in which the
identification by each witness came to be made. How long did the witness have the accused
under observation? At what distance? In what light? Was the observation impeded in any way,
as for example by passing traffic or a press of people? Had the witness ever seen the accused
before? How often? If only occasionally, had he 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 given
to the police by the witness when first seen by them and his actual appearance? If in any case,
whether it is being dealt with summarily or on indictment, the prosecution have reason to
believe that there is such a material discrepancy they should supply the accused or his legal
advisers with particulars of the description the police were first given. In all cases if the accused
asks to be given particulars of such descriptions, the prosecution should supply them. Finally,
he should remind the jury of any specific weaknesses which had appeared in the identification
evidence.
4
'Recognition may be more reliable than identification of a stranger; but even when the witness
is purporting to recognise someone whom he knows, the jury should be reminded that mistakes
in recognition of close relatives and friends are sometimes made. All these matters go to the
quality of the identification evidence. If the quality is good and remains good at the close of
the accused's case, the danger of a mistaken identification is lessened; but the poorer the quality,
the greater the danger.'
The Turnbull rules were adopted by this court in their entirety in The State v Greene and
Alleyne (1979) 26 WIR 395. In that case, Haynes C, after a review of Turnbull and the several
other cases on challenged identification that had up to then been considered, concluded as
follows (at page 402):
The typical Turnbull case is one where the identification is based upon a “fleeting glimpse” of
or a “fleeting encounter” with a person unknown to the identifier.
The Turnbull’s guidelines has also been applied to cases where the identifier had more than a
fleeting glance at the face of the person later identified as the accused, but then unknown to
him.
It is clear that it is intended to be applied in fit cases even where the identifier had prior
knowledge of the person he identified later, but where the conditions for identification were
poor or difficult. He might have had only a brief glimpse, or a longer observation from a
distance, or in very poor lighting conditions or the like.'
Ames (Royston) v The State (1994) 53 WIR 189
Identification Evidence is only Evidence against Defendant
The prosecutor must be alert to whether the identification evidence is the only evidence against
the defendant.
The prosecutor must be alert to those areas of the identification evidence which is weak or has
certain challenges, such as the ‘fleeting glance’ quality of the evidence, or the fact that there
5
are some ‘credibility issues’ in relation to the identifying witness. Anand Mohan Kissoon and
Rohan Singh v The State (1994) 50 WIR 266
A weak id case may lead to a successful no case submission. A magistrate may dismiss a case
where it depends only on the weak identification evidence of a single witness. Evans v R
(1991) 39 WIR 290; Jones v R 47 WIR 1; Daley v R [1994] 1 AC 117
Alibi and Identification Evidence
A prosecutor must disprove the alibi evidence and focus on drawing out all the strengths of the
ID evidence.
Note that the fact that a witness may be found to be lying on his alibi does not automatically
mean that he is guilty - A rejection of alibi evidence is not conclusive of guilt see the case of
R v Brown et al (2001) 62 WIR 234 - unless he has fabricated it solely to deceive. See the
case of Coley v R (1995) 46 WIR 313.
Evidence allowed that the witness has identified the person at some other time that during
the commission of the crime
The prosecution is allowed to lead evidence that the eyewitness has subsequent to the
commission of the crime, identified the defendant as the person as the offender. A typical
example is the ID at an identification parade.
The witness is allowed to say that he attended an ID parade (or some other kind of line-up) and
identified the person often by pointing out the person and saying: “I pointed out number 4 in
the line-up and told the officer that is the man I saw committing the crime’.
This is direct evidence and is admissible.
Kirpaul Sookdeo And Others v The State (1972) 19 WIR 407, BOLLERS CJ cited R v
Fitzpatrick (1926), 19 Cr App Rep 91with approval where it is noted by Avory J, “that a great
authority had said that the state of a man's mind is as much a question of fact as the state of his
digestion. Gail da Silva had, therefore, given an explanation as to why she did not identify the
6
No 1 appellant at the identification parade, and no matter how weak that explanation might
have been, or what little probative value it may have had, it was entitled to receive the attention
of the jury, and it was for them to say whether they accepted it or not. Evidence of thought
processes does not offend the hearsay rule and does not, in my view, fall into the category of
consistent statements made which confirm a witness' testimony and which are plainly
inadmissible.”
Teper v R, [1952] AC 480, PC, Lord Normandsaid: “Identification is an act of the mind and
the primary evidence of what was passing in the mind of a man is his own testimony where it
can be obtained.”
Identification Parades
An Identification Parade is to be held:
Where an eye-witness has identified or purported to have identified a suspect, or there is a
witness who expresses an ability to identify the suspect, or where there is a reasonable chance
of the witness being able to do so; and
The eye-witness has not been given an opportunity to identify the suspect in a video or group
identification or identification parade; and
The suspect disputes being the person the witness claims to have seen committing an offence.
If these conditions are satisfied, an identification procedure must be held unless it is not
practicable or it would serve no useful purpose in proving or disproving whether the suspect
was involved in committing the offence.
R v Popat [1998] 2 Cr App Rep 208,
Goldson v R (2000) 56 WIR 444
John v The State (2009) 75 WIR 429.
At the opposite extreme lies a case where the suspect and the witness are well known to each
other and neither of them disputes this. It may be, of course, that on the critical occasion when
the witness saw the crime being committed (or, for example, the person concerned en route),
7
he thought it was the person he knew but was mistaken as to this. An identification parade
obviously cannot help in this situation.
The objective of the well-established rules for the holding an identification parade to have
suspects identified is intended to ensure that the identification of a suspect by a witness takes
place in circumstances where the recollection of the identifying witness is tested objectively
under safeguards by placing the suspect in a line made up of like looking suspects.
Where the witness’s identification of a suspect is going to be critical to the case, it is best that
the police conduct an identification parade rather than have that witness make a dock
identification. See the case of Thurton v R - (2017) 91 WIR 141; Pipersburgh v R (2008) 72
WIR 108; Pop v R 62 WIR 18.
The ID Parade must be fair – The State v Barrow (1976) 22 WIR 267 - the identification
parade with the accused as the only man with a scar on the left side of his face was a farce. It
was no test at all, since Beharry could have picked out no other person than the accused
The State v Mayers - (1981) 30 WIR 189 – whether or not the defendant was the only man with
afro hair and a beard.
A court will be concerned about irregularities which occurrs in the conduct of the identification
parade such as where an accused is put on parade with persons of different races, complexions,
height and build so that he stands out. The court must consider whether this affected the
reliability of the ID. - Johnson (Mark) and Edwards (Jeffrey) v The State (1999) 60 WIR
278
So too where there is conflicting evidence on what took place at the parade, a court may be
concerned about the reliability of the ID. See The State v Hodge (1976) 22 WIR 303
See also Henry v The State (1986) 40 WIR 312
Note the Parade must be practicable as among other considerations, the consent of the suspect
is always necessary. See Tido v R [2009] 3 LRC 423
8
Dock Identification
A ‘dock identification’ is where the identifying witness in court, points out the defendant for
the first time in court as the person who committed the offence.
Where there is no other direct or circumstantial evidence linking the defendant to the crime, a
dock identification of the defendant should be avoided. It is nonetheless admissible evidence.
Note Tido v R [2009] 3 LRC 423 - where E had seen T in good lighting and at a short distance
and where there was circumstantial evidence to support the identification, the trial judge had
correctly exercised her discretion to permit E to identify T in the dock.
If the ID Parade is not conducted fairly, the magistrate may be entitled to reject the dock
identification. See Hodge, Massiah JA. After drawing attention to the deficiencies in the
identification parade, said (at page 309): 'The trial judge should therefore have directed the
jury's attention to the relevance of the unfairness of a parade to the identification from the
witness-box, and impressed on them that if they believed that the identification at the parade
was not fair, then they could hardly rely on the identification at the trial. The jury not having
been thus directed might well have felt, quite wrongly, that although the identification parade
was unfair, nevertheless Ramadan had identified the appellant in court, and that was sufficient
proof that he had committed the offence, without realising the importance and significance of
the relationship between the identification parade and identification from the witness-box. Had
they been told of the relationship, they might well have decided the matter differently, or they
might have found the appellant “Guilty” in any case but this is not for me to say. Suffice it to
say that the failure of the trial judge to afford the jury adequate guidance on the issue of
identification was a fatal flaw.'
Case Commentary
In The State v Mohamed Khalil (1975) 23 WIR 50, the appellant and another man had robbed
their victim in his store and, as they were making good their escape, a woman who was about
twenty yards from the store claimed to have seen the appellant. She did not know his name but
gave a description of him to the police. Four days later the appellant was arrested. He was
shown to the witness at the police station and she identified him as one of the men she had seen
9
running from the premises. No identification parade was held. In the Court of Appeal two issues
were debated, viz (a) should the police have held an identification parade? And (b) in the
absence of a parade, was the summing-up of the trial judge ample, fair, proper and adequate?
As regards the first issue, E V Luckhoo C, who delivered the judgment of the court, said (at
page 51): 'In these circumstances there was every reason why an identification parade should
have been held. By the very token that Mangra was taken to the station to see whether the
person at the station was the one she had seen running away, the desirability and indeed the
necessity of having a parade should have commended itself to the police.' And (at page 52) he
said: 'The method of identification employed in this case was not dissimilar to a dock
identification which courts in the past have deprecated as a substitute [for] an identification
parade, because the witness in court would almost automatically fasten his gaze on the prisoner
in the dock and might yield to the temptation of making a positive identification even where
uncertainty exists, on the basis that if the person were not the right person, the police would
not have had him in the dock.'
See also
Slinger v R (1965) 9 WIR 271,
Herrera and Dookeran v R (1967) 11 WIR 1,
R v Horsham Justices ex parte Bukhari (1982) 74 Cr App Rep 291).
Identification from Social media, photo lineup, location visit.
Just as evidence of the witness pointing out the defendant at an ID parade is admissible, so too
is evidence that the witness picked out the photo of the defendant on social media, in a photo
line-up or at a location visit or some other place subsequent to the commission of the offence.
Where it is photo line-up, again the police must conduct this fairly, so that the photograph of
the suspect is among others of similar characteristics.
Where it is a different kind of ID entirely such as where the witness claims that he saw the
defendant on social media, it is important that the witness gave as much details as possible so
that the court can assess the reliability of the ID.
10
A location visit is where the witness goes back to the general area of the crime (such as the
market place) and through general observation over a period of time, points out the defendant
as the offender.
B.
CORROBORATION
Corroboration
As a general rule, the evidence from a single witness is sufficient to ground a conviction. There
are some offences, however, which require independent confirmation, corroboration as a matter
of law. There are also some offences where a judge must caution a jury and a magistrate must
caution herself before acting on the uncorroborated evidence of a single witness.
Corroboration Defined
The Guyana Courts has adopted the classic definition R v Baskerville [1916] 2 KB 658, Lord
Reading CJ observed:
'We held that evidence in corroboration must be independent testimony which affects the
accused by connecting or tending to connect him with the crime. In other words, it must be
evidence which implicates him, that is, which confirms in some material particular not only the
evidence that the crime has been committed, but also that the prisoner committed it. The test
applicable to determine the nature and extent of the corroboration is thus the same whether the
case falls within the rule of practice at common law or within that class of offences for
which corroboration is required by statute… It would be in high degree dangerous to attempt
to formulate the kind of evidence which would be regarded as corroboration, except to say that
corroborative evidence is evidence which shows or tends to show that the story of the
accomplice that the accused committed the crime is true, not merely that the crime has been
committed, but that it was committed by the accused.' [emphasis supplied] - The Guyana Court
of Appeal in The State v Mayers (1981) 30 WIR 189
At a high court trial, the trial judge should point out to the jury everything which may amount
to corroboration. The prosecution would do well to assist the magistrate in identifying all that
amounts to corroboration.
11
Corroboration may only be necessary for that single element which is disputed. It may be the
only thing which is uncertain in a case is the identity of the defendant.
Evidence which may amount to Corroboration
A.
Circumstantial Evidence
Note lecture on circumstantial evidence. Several pieces of evidence coming together and
leading to certain inference.
B.
Evidence from the Accused
1.
Silence/Conduct of the Defendant
Where the defendant’s silence or conduct in response to an allegation amounts to an admission,
this would amount to corroboration to the extent of his admission.
R v Christie [1914] AC 545
R v Chandler [1976] 1 WLR 585
Parkes v R [1976] 1 WLR 1251
Note that if the defendant remains silent on a caution, or upon being question by a person in
authority, generally his silence cannot amount to any adverse inference against him. So too a
non-denial of an accusation made by the police cannot amount to any adverse inference
David And Watkins v R (1966) 11 WIR 37
But note:
Tido v R (2008) 75 WIR 26 - at common law adverse inferences could be drawn from
unhelpful conduct other than silence. Where the defendant fails to provide an intimate sample.
See also Bridgelall v Hariprashad (2017) 90 WIR 300 making reference to R v Haye (1972)
18 WIR 360. In the latter case, several accused were charged with joint possession of ganja
12
found in a car. All but the owner and driver of the vehicle were dismissed at close of
prosecution case. The magistrate found both owner and driver guilty. On appeal, it was held
that they could properly be regarded as having joint physical control of the car. This, the court
said, gave rise to an inference that they were jointly in control of the ganja found in the car.
The court further said that for this physical control, the magistrate was entitled to infer guilty
knowledge, this inference being strengthened by the reaction of silence up to the time of
arrest.”
“…it is apparent that there is abundant material from which the magistrate could have inferred
that mens rea in the appellants existed. Firstly, the magistrate must have felt entirely sure that
they were jointly in physical control of all the ganja found in the car. This, as we have shown,
was a conclusion well within the competence of the evidence adduced by the prosecution. From
this fact of physical control, the magistrate was entitled to infer guilty knowledge in both
appellants. This inference is strengthened by the consistent reaction of silence which the
appellants maintained, on the Crown's case, right up to the time of arrest. As a matter of sheer
common sense, it is reasonable to think that if the appellants were in no way concerned with
the ganja in the car, if they were not aware of its existence, or if knowing that there was
something in the bags, they were nevertheless ignorant of the fact that it was ganja, they would
have uttered some disclaimer the moment the discovery was brought to their attention by the
police.”
2.
Silence/Evidence in Court
The defendant silence at his trial cannot lead to any adverse inference - Duporte v Director of
Public Prosecutions (2009) 75 WIR 224
So too his unsworn cannot be taken as leading to any adverse inference against him - Outar v
The State (1982) 36 WIR 228
Evidence from the defendant may corroborate the prosecution’s case.
3.
Lies
13
Demonstrable lies out of court by an accused may amount to corroboration against him. There
may be occasions when the only inference to be drawn from certain falsehoods is that they
were contrived to conceal guilt in which case they may afford evidence of corroboration against
the maker.
The test in R v Lucas [1981] Q.B. 720
‘For a lying statement made out of court to be capable of amounting to corroboration it had to
be deliberate and relate to a material issue, the motive for lying had to be a realisation of guilt
and a fear of the truth, and the statement had to be shown to be a lie by admission or evidence
from a witness who was independent and other than the accomplice to be corroborated;
Lies told in court which fulfilled those four criteria were available for consideration by the
court as corroboration, but that the mere fact that the court preferred the evidence of an
accomplice to that of the person charged, who therefore must have been lying in the witness
box, did not enable the court to treat the lying evidence as corroborative of that of the
accomplice; that, since the appellant's lie had not been shown to be such by evidence other than
that of the accomplice who was to be corroborated, the accused’s false evidence could not
corroborate the accomplice’s evidence.
Note - Pooran v R (1966) 10 WIR 51
Note that the mere fact that the accused made a false statement is not in itself corroboration;
since a false statement could be due to a multiplicity of motivating factors eg through fear of
being charged, panic, shame—to disguise the truth for family reasons; and not necessarily out
of a sense of guilt.”
Corroboration Required as a Matter of Statute
There are some offences which require corroboration as a matter of law. In the absence of such
corroboration, the defendant may not be convicted on the sole evidence which is required to be
corroborated.
Evidence Act, Cap 5.03
14
Breach of Promise of marriage – Section 61(1)
Paternity cases – Section 61(2)
Unsworn evidence of a child – Section 71(3) except for sexual offences see Sexual Offences
Act No. 7 of 2010.
Perjury – Section 62
Treason – Section 63
Motor Vehicle and Road Traffic Act – Speeding offences
Criminal Law Offences Act Cap 8.01
Section 72 and 73
The Evidence of an Unsworn Child
A child may be permitted to give unsworn evidence in any criminal trial where the court
considers that he is of competent understanding. As a general rule, the defendant is not liable
to a conviction on the unsworn evidence of that child unless the evidence is corroborated by
some material evidence support implicating the defendant. See Section 71(3) of the Evidence
Act.
Section 71(3) does not apply to sexual offences. The Sexual Offences Act No. 7 of 2010 has
abolished the common law rule and excluded the operation of section 71(3) which would have
ordinarily required corroboration for any unsworn child.
Corroboration for Sexual Offences Abolished
The common law requirement that a judge must caution a jury and a magistrate must caution
himself that it is dangerous to convict on the uncorroborated for the evidence of a virtual
complainant in a sexual offence case has been abolished.
This is by virtue of section 69 of the Sexual Offences Act No. 7 of 2010.
69. (1) No corroboration of the evidence of the complainant or the sworn or unsworn evidence
of a child shall be required for a conviction of an offence under this Act, and the judge shall
not direct the jury that it is unsafe to find the accused guilty in the absence of corroboration.
15
Corroboration and Accomplices
As a matter of law, a magistrate must consider the reliability of uncorroborated evidence and
that it is dangerous to convict on such uncorroborated evidence but may nonetheless convict.
See generally - Spenser (Ryan) and Fraser (Rodewell) v The State (1996) 54 WIR 278
C.
CHARACTER EVIDENCE
As a general rule, in a criminal trial, the defendant has a shield protecting him which prevents
the prosecution from leading evidence or asking him any questions which shows that he is of
bad character.
Thus, the defendant in the witness box may not be asked any question “tending to show that he
had committed or been convicted of or been charged with any offence other than that wherewith
he is then charged or is a bad character unless” he has lost his shield.
He may of course, be cross-examined as to any of the evidence he has given in chief, including
statements as to his good record, with a view to testing his veracity or accuracy, or to showing
that he is not to be believed on his oath.
Character as a Fact in Issue
Where the fact of the defendant’s character is a fact in issue, then evidence may be led on this
issue in the normal way.
An example is provided in Keene on Evidence as arising in the case of a defendant who pleads
autrefois convict – that he has been convicted on the very offence for which he is now charged
with.
Another instance is where the previous conviction is relevant as an element of the offence with
which he is now charged.
16
Evidence of Character may also be relevant after conviction – when a defendant is about to be
sentenced. At this stage his record of convictions is relevant. This may be proved by the mere
provision of the ‘record of conviction’ unless the defendant challenges the reliability of the
record.
Where Character is not ordinarily in Issue
Statutory recognition of the Defendant’s shield is found in sections 21 and 22 of the Evidence
Act, Cap 5.03
Section 21 states:
“The fact that a person is of a particular character is inadmissible in evidence on any
inquiry respecting his conduct, except in the cases hereinafter mentioned.”
See generally, The State v Solomon - (1982) 33 WIR 149
Section 22 states:
(1) In criminal causes or matters, the fact that the defendant or accused person, as the case
may be, has a good character may be proved, but the fact that he has a bad character
is inadmissible in evidence, unless it is itself a fact in issue, or unless evidence has been
given that he has a good character, in which case evidence that he has a bad character
is admissible.”
(2) When anyone gives evidence of his good character who –
(a) Being on trial for any felony not punishable with death, has been previously
convicted of felony; or
(b) Being on trial for any offence involving fraud or dishonesty punishable
under the Summary Jurisdiction (Offences) Act or the Criminal Law
(Offences) Act, has been previously convicted of any offence punishable on
summary conviction or on indictment; or
(c) Being on trial for any offence in respect of coin punishable under either of
the said Acts has been previously convicted of any offence in respect of coin;
17
The complainant or prosecutor, or the State, may, in answers to the evidence of good
character, give evidence of any of those previous convictions before the magistrate
gives his decision, or before the jury return their verdict, in respect of the offence for
which the offender is charged.
(3) In this section, the word ‘character’ means reputation as distinguished from
disposition, and evidence may be given only of general reputation, and not of particular
acts by which reputation or disposition is shown.’
NOTES:
The Guyana section 22 codifies the common law position. See the case of R. v Rowton [1981
– 73] All ER 549
1. The defendant in a criminal trial is entitled to give evidence of his good character, and
when such evidence has been given the prosecution is entitled to call rebutting evidence
of bad character. In both cases the evidence must be confined to evidence of the general
reputation of the defendant, and evidence of particular facts to establish his disposition
or the tendency of his mind, to show his capability or incapability to commit the offence
charged, is inadmissible.
2. The negative experience of a witness to character is not to be excluded. When a witness
says: "I have known the prisoner for a number of years and never heard anything against
him," that is cogent evidence of a man's character.
3. A witness to character is entitled to give evidence founded on his personal experience
of the prisoner's character.
In R v Rowton, a witness who was called to rebut evidence of general good character of the
prisoner, who was charged with committing an indecent assault, said that he knew nothing of
the opinion of the neighbourhood as to the prisoner's character,because he was only a boy at
school when he knew the prisoner; but his own opinion and that of his brothers who were also
pupils of the prisoner was that his character was that of a man capable of the grossest indecency.
18
Held: the answer was inadmissible, as it was in the nature of a statement of a particular fact.
Note the Defendant may lead evidence of his good character by giving that evidence himself
or through his own witnesses. Or he may seek to extract that evidence in cross-examination of
the prosecution witnesses.
Section 22 is complemented by section 52(f) of the Evidence Act which gives the defendant a
shield against questions pointing to his bad character. This section states –
“(f) A persons charged and called as a witness in pursuance of this Act, shall not be asked,
and if asked, shall not be required to answer, any question tending to show that he has
committed, or been convicted of, or been charged with, any offence other than the one that
wherewith he is then charged, or is of bad character, unless –
(i)
The proof he has committed or been convicted of that other offence is admissible
evidence to show that he is guilty of the offence wherewith he is then charged.
(ii)
He has personally or by his advocate asked questions of the witnesses for the
prosecution with a view to establish his own good character, or the nature or
conduct of the defence is such as to involve imputations on the character of the
prosecutor or the witnesses for the prosecutions; or he has given evidence
against any other person charged with the same offence;…””
The shield may be lost, and section 52(f) therefore allows cross examination to show that the
defendant has committed, has been convicted or been charged –
Section 52(f)(i)
In similar Fact situations – Section 52(f)(i)
Section 52(f)(ii)
(a) Asked questions of prosecution’s witnesses to establish the
defendant’s good character;
(b) the nature or conduct of the defence is such as to involve imputations
on the character of the prosecutor or the witnesses for the
prosecutions
(c) Has given against any other person charged with the same offence;
19
Note rebuttal can be given by the prosecution where the Defendant has given evidence himself
of his own good character – section 22.
In R v Lafayette - [2008] EWCA Crim 3238, the court stated:
Where “the nature or conduct of the defence is such as to involve imputations on
the character of the prosecutor or the witnesses for the prosecution”, then, in the words of Lord
Lane CJ in Powell [1985] 1 WLR 1364 in a passage starting at 1369:
“In the ordinary and normal case the trial judge may feel that if the credit of the
prosecutor or his witnesses has been attacked, it is only fair that the jury should have
before them material on which they can form their judgment whether the accused
person is any more worthy to be believed than those he has attacked. It is obviously
unfair that the jury should be left in the dark about an accused person's character if the
conduct of his defence has attacked the character of the prosecutor or the witnesses for
the prosecution within the meaning of the section . . . .”
What amounts to an ‘imputation’
Usually, allegations that a prosecution witness has committed some act of misconduct will
amount to an imputation and will cause the defendant to lose his shield.
Where defence counsel cross examines and attacks the police officers as to the voluntariness
and genuine nature of the confession statement - R v Donaldson And Edwards (1980) 31 WIR
317
Eliciting evidence that a high ranking officer dictated to a constable what to write in the
statement and that the defendant signed it as he was frightened was considered a serious
imputation even in the absence of any other evidence that there had been any any threat or
inducement was made or held out to the defendant. – R v George Thomas Clark [1955] 3 All
ER 29. See also Ken Charles and another v Regina [2004] ECSCJ No. 120
20
The character of a witness was impugned by an allegation of homosexual conduct made against
him and an imputation of homosexual immorality against a witness might reflect on his
reliability, generally or in the witness box; that a defendant who made such an attack but
disclaimed the intention to discredit the testimony of the witness nevertheless was still subject
to the risk of cross-examination as to his own record – See v R v Bishop [1975] Q.B. 274
Suggestions to a prosecution witness that her evidence was a pure invention, fabricated because
she had a grievance against the defendant pierced the shield – R v Dunkley [1926] All ER 187
If what is said amounts in reality to no more than a denial of the charge, expressed, it may be,
in emphatic language, it should not be regarded as coming within the section (Rouse [1904] 1
KB 184; R v Grout (1909) 3 Cr App Rep 64; R v Jones (1923) 17 Cr App Rep
117; Clark [1955] 1955 2 QB 469).
Where it can properly be said that what was asked of the witness, when no more than questions
which amounted a denial, and did not of themselves carry a further implication of impropriety
or other allegation, which goes to the character of the witness, then the shield is not lost.
A suggestion that the complainant is lying without more – shield not lost - R v Rimamczy [2005] EWCA Crim 1834
Where the conduct of the defence involved an allegation that a principal prosecution witness
had invented his evidence, this amounted to an imputation on the witness’s character, so the
prosecution was entitled to put the appellant's character in issue. The trial judge had a discretion
to allow such questions and the test governing the exercise of such discretion was that of
fairness. - Amoe v Director of Public Prosecutions - [1992] LRC (Crim) 132.
Exception - Note Sexual offence Cases – Where the evidence is directed to the proof of consent
and, although it made imputations on the character of the prosecutrix, it would not deprive the
accused of the protection given by the section - R v James Turner - [1944] 1 All ER 599; See
also R v HILL [1991] NI 150
21
Court to Ensure Fairness
In R v Jenkins (1945) 31 Cr.App.R. 1. The Court stated:
“The subsection was intended to be a protection to an accused person. A case ought to be tried
on its own facts and it has always been recognised that it is better that the jury should know
nothing about an accused person's past history if that is to his discredit. Just as it was recognised
by the legislature that this was fair and proper, so it was recognised that if the nature or conduct
of the defence was such as to involve imputations on the character of the prosecutor or the
witnesses for the prosecution, it was equally fair and proper that counsel for the prosecution
should have the right to ask questions tending to show that the accused person has committed
or been convicted of an offence other than that which is under investigation. If and when such
a situation arises, it is open to counsel to apply to the presiding judge that he may be allowed
to take the course indicated, as was done in this case. Such an application will not always be
granted, for the judge has a discretion in the matter. He may feel that even though the position
is established in law, still the putting of such questions as to the character of the accused person
may be fraught with results which immeasurably outweigh the result of questions put by the
defence and which make a fair trial of the accused person almost impossible. On the other hand,
in the ordinary and normal case he may feel that if the credit of the prosecutor or his witnesses
has been attacked, it is only fair that the jury should have before them material on which they
can form their judgment whether the accused person is any more worthy to be believed than
those he has attacked. It is obviously unfair that the jury should be left in the dark about an
accused person's character if the conduct of his defence has attacked the character of the
prosecutor or the witnesses for the prosecution within the meaning of the section. The essential
thing is a fair trial and that the legislature sought to ensure by section 1 (f ).”
The court is obliged to caution an unrepresented defendant (and in some cases even an attorney)
that a particular question or line of questioning has put the shield at risk of being broken. R v
COOK. [1959] 2 WLR 616
“…it has always been the practice for prosecuting counsel to indicate in advance that he is
going to claim his rights under the subsection, or for the judge to give the defence a caution.
This is especially needful when the prisoner, as here, was not represented, though it is fair to
22
say that he professed familiarity with the law and rejected the legal aid that had been assigned
to him. We have come to the conclusion that the questions ought not to have been put.
The Prosecutor must seek the court’s permission to cross examine the defendant on his
character and the court must be made aware of the type of evidence which the prosecutor seeks
to introduce. R v Campbell - (1963) 6 WIR 170
Note in R v Campbell (1963) 6 WIR 170 - The appellant was convicted of two charges of
burglary and larceny. The defence was that a witness for the prosecution had made up a story
against the appellant out of malice because the appellant had caught the witness in a most
compromising position with a young man in a bedroom. The appellant cross examined the
witness, putting these suggestions to him despite a warning by the trial judge that if he persisted
in doing so his own character might be investigated. When he gave evidence, the appellant was
cross-examined as to his character and he admitted that he had been previously convicted of
burglary and larceny and of being found in an enclosed place by night without lawful excuse.
He also admitted that he had 17 other previous convictions.
Held: the authorities seem to establish, with regard to the reception of this type of evidence,
that firstly, the prosecuting counsel should indicate that he intends to claim his right to crossexamine. Secondly, the judge should give a caution to the defence, and he should, after
application made to him by Crown counsel, go on to rule whether in his discretion the evidence
of previous convictions was or was not admissible. If he decides that the evidence is admissible,
he should then decide which way he should exercise his discretion. If the evidence is admitted
the judge should give the jury proper directions as to the limited effect of the accused's bad
character and should direct them that such evidence goes to credibility, and ought not to be
taken as an indication that the accused was a person disposed to commit crimes. In the
particular circumstances of this case it was difficult to imagine evidence of a more prejudicial
nature and in the interests of a fair trial it ought not to have been admitted. The matter was
further aggravated by the trial judge's failure to warn the jury of the limited effect of the
evidence.
The Evidence which may Led when the Shield is Lost & the Use of Such Evidence
23
Once the shield is lost, the Subsection gives the court a discretion to allow questions tending
to show that he has committed, or been convicted of, or been charged with, any offence other
than the one that wherewith he is then charged, or is of bad character.
Note An accused who puts his character in issue puts his whole past record in issue. – Stirland
v DPP
BUT not all questions will be allowed. Generally, he may be cross examined only on past
convictions.
The fact that he is charged or has been previously acquitted would hardly be relevant to show
anything, unless he has given affirmative evidence or has sought to show through cross
examination that he was never charged with an offence. Stirland.
Evidence of the Defendant’s bad character goes only to his credibility and cannot be used to
show that he has any particular disposition.
Where the Defendant has Given Evidence Against a Co-Defendant
The following principles are identified in R v Varley [1982] 2 All ER 519 (CA)
1. 'evidence against' a co-defendant in the subsection meant evidence which supported the
prosecution case in a material respect or which undermined the defence of the co-accused.
2. Where it was established that a person jointly charged had given evidence against a codefendant, that defendant had the right to cross-examine the other as to previous
convictions, and the trial judge had no discretion to refuse an application to do so.
3.
Evidence against a co-accused might be given either in chief or during cross-examination,
(d) that it was to be objectively decided whether the evidence supported the prosecution
case in a material respect or undermined the defence of the co-defendant, hostile intent
being irrelevant.
24
4. Where consideration had to be given to the question whether the co-accused's defence was
undermined, care had be taken to see that the evidence was clearly to that effect;
inconvenience to or inconsistency with the co-accused's defence was not of itself sufficient,
(f) that a mere denial of participation in a joint venture was not of itself enough to rank as
evidence against a co-defendant; for the subsection to apply the denial had to lead to the
conclusion that if the witness did not participate then it must have been the other defendant
who did.
5. Where one defendant asserted a view of the joint venture which was directly contradicted
by the other, that contradition might be evidence against the co-defendant
The prosecution may be allowed by the court to cross examine under this exception - REGINA
v. LOVETT - [1973] 1 WLR 241. Again, the question is one of fairness.
25
WORKSHEET NO. 10
Identification Evidence
Corroboration
Character Evidence
A.
IDENTIFCATION
Learning Objectives
On the completion of the reading, the research and the tutorial session, the student is expected
to:
Understand what constitutes ID evidence – direct and circumstantial evidence.
Understand how to lead this evidence in trial.
Know how to anticipate when leading ID evidence
Understand what the court consider when assessing the strengths and weaknesses of ID
evidence – What is a good ID and what is a bad ID?
5. The value of ID parades.
6. The problems with dock IDs and the value of such evidence.
1.
2.
3.
4.
Reading
Blackstone Criminal Practice and Procedure 18th edition, F18 ‘Evidence of Identification’.
Cases
R v Turnbull[1977] QB 224
The State v Greene and Alleyne (1979) 26 WIR 395
Ames (Royston) v The State (1994) 53 WIR 189
Anand Mohan Kissoon and Rohan Singh v The State (1994) 50 WIR 266
Evans v R (1991) 39 WIR 290
Jones v R 47 WIR 1
Daley v R [1994] 1 AC 117
R v Brown et al (2001) 62 WIR 234
Coley v R (1995) 46 WIR 313.
Kirpaul Sookdeo And Others v The State (1972) 19 WIR 407
Teper v R, [1952] AC 480
R v Popat [1998] 2 Cr App Rep 208,
Goldson v R (2000) 56 WIR 444
John v The State (2009) 75 WIR 429
Thurton v R - (2017) 91 WIR 141
Pipersburgh v R (2008) 72 WIR 108
Pop v R 62 WIR 18.
The State v Barrow (1976) 22 WIR 267
Johnson (Mark) and Edwards (Jeffrey) v The State (1999) 60 WIR 278
Tido v R [2009] 3 LRC 423
26
The State v Mohamed Khalil (1975) 23 WIR 50
Slinger v R (1965) 9 WIR 271,
Herrera and Dookeran v R (1967) 11 WIR 1,
R v Horsham Justices ex parte Bukhari (1982) 74 Cr App Rep 291).
B.
CORROBORATION
Learning Objectives
On the completion of the reading and assignments in this area, the student is expected to
understand:
1. What is corroboration and why it is required in some cases and why it might be helpful
in other cases.
2. The kinds of evidence which may amount to corroboration.
(d) From circumstantial evidence
(e) From the defendant (his lies, conduct and even his evidence)
(f) From accomplices
3. That a magistrate may consider that in some cases the reliability of uncorroborated
would have to be carefully assessed.
4. That in some cases, the lack of corroboration will result in a dismissal of the charge.
Reading
R v Baskerville ([1916] 2 KB 658
The State v Mayers (1981) 30 WIR 189
R v Christie [1914] AC 545
R v Chandler [1976] 1 WLR 585
Parkes v R [1976] 1 WLR 1251
David And Watkins v R (1966) 11 WIR 37
Tido v R (2008) 75 WIR 26
Bridgelall v Hariprashad (2017) 90 WIR 300
R v Haye (1972) 18 WIR 360
Duporte v Director of Public Prosecutions (2009) 75 WIR 224
Outar v The State - (1982) 36 WIR 228
R v Lucas [1981] Q.B. 720
Spenser (Ryan) and Fraser (Rodewell) v The State (1996) 54 WIR 278
Pooran v R (1966) 10 WIR 51
C.
CHARACTER EVIDENCE
Learning Objectives
On the completion of the reading and assignments in this area, the student is expected to
understand:
1. What is character evidence.
2. Why character evidence is not generally admissible.
3. When such evidence will be allowed.
27
4.
5.
6.
7.
The shield given to the defendant to be cross examined on his character.
The circumstance when that shield would be lost.
The court’s role in protecting the defendant.
In circumstances when the shield is lost, the relevance and use of bad character
evidence.
Reading
The State v Solomon - (1982) 33 WIR 149
R. v Rowton [1981 – 73] All ER 549
R v Lafayette - [2008] EWCA Crim 3238,
R v Donaldson And Edwards (1980) 31 WIR 317
R v George Thomas Clark [1955] 3 All ER 29
Ken Charles and another v Regina [2004] ECSCJ No. 120
R v Bishop [1975] Q.B. 274
Rouse [1904] 1 KB 184
R v Grout (1909) 3 Cr App Rep 64
R v Jones (1923) 17 Cr App Rep 117
Clark [1955] 1955 2 QB 469).
R v Rimamczy [2005] EWCA Crim 1834
Amoe v Director of Public Prosecutions [1992] LRC (Crim) 132.
R v James Turner - [1944] 1 All ER 599; See also R v HILL [1991] NI 150
R v Jenkins (1945) 31 Cr.App.R. 1.
R v Cook. [1959] 2 WLR 616
R v Campbell (1963) 6 WIR 170
Stirland v DPP
R v Varley [1982] 2 All ER 519 (CA)
R v. Lovett [1973] 1 WLR 241
A. IDENTIFICATION EVIDENCE
What is Identification Evidence
Any kind of evidence which tends to prove the identity of a person, usually the defendant
performing some relevant act, usually the crime.
It may be proved by direct evidence or circumstantial evidence – that is the opinion evidence
of someone who asserts that he saw the defendant or bits and pieces of evidence which IDs the
defendant inferentially. Hall v R (2020) 95 WIR 201
The Turnbull Guidelines
1. Where the case depends wholly or substantially on ID evidence, a court should exercise
caution as a mistaken witness or witnesses can be convincing
28
2. The court must carefully examine the circumstances – lighting, opportunity for
observation and duration. Did the witness know the defendant before? (People may
make mistakes even for people they know). How long for? Was it a fleeting glance?
Description given to police.
R v Turnbull[1977] QB 224 per Lord Widgery CJ at 228 and 229
The State v Greene and Alleyne (1979) 26 WIR 395.
Ames (Royston) v The State - (1994) 53 WIR 189
Identification Evidence is only Evidence against Defendant
The prosecutor must be alert to whether the identification evidence is the only evidence against
the defendant and to those areas in which this evidence is weak. Anand Mohan Kissoon and
Rohan Singh v The State - (1994) 50 WIR 266
A weak ID case may lead to a successful no case submission. A magistrate may dismiss a case
where it depends only on the weak identification evidence of a single witness. Evans v R
(1991) 39 WIR 290; Jones v R 47 WIR 1; Daley v R [1994] 1 AC 117
Alibi and Identification Evidence
A prosecutor must disprove the alibi evidence and focus on drawing out all the strengths of the
ID evidence. Note that the fact that a witness may be found to be lying on his alibi does not
automatically mean that he is guilty - A rejection of alibi evidence is not conclusive of guilt
see the case of R v Brown et al (2001) 62 WIR 234 - unless he has fabricated it solely to
deceive. See the case of Coley v R (1995) 46 WIR 313.
Evidence allowed that the witness has identified the person at some other time that during
the commission of the crime
The prosecution is allowed to lead evidence that the eyewitness has subsequent to the
commission of the crime, identified the defendant as the person as the offender. A typical
example is the ID at an identification parade. Kirpaul Sookdeo And Others v The State (1972)
19 WIR 407,
29
Teper v R, [1952] AC 480, PC, Lord Normandsaid: “Identification is an act of the mind and
the primary evidence of what was passing in the mind of a man is his own testimony where it
can be obtained.”
Identification Parades
An Identification Parade is to be held:
Where an eye-witness has identified or purported to have identified a suspect, or there is a
witness who expresses an ability to identify the suspect, or where there is a reasonable chance
of the witness being able to do so; and
The eye-witness has not been given an opportunity to identify the suspect in a video or group
identification or identification parade; and
The suspect disputes being the person the witness claims to have seen committing an offence.
If these conditions are satisfied, an identification procedure must be held unless it is not
practicable or it would serve no useful purpose in proving or disproving whether the suspect
was involved in committing the offence.
R v Popat [1998] 2 Cr App Rep 208; Goldson v R (2000) 56 WIR 444; John v The
State (2009) 75 WIR 429.
Where the witness’s identification of a suspect is going to be critical to the case, it is best that
the police conduct an identification parade rather than have that witness make a dock
identification. See the case of Thurton v R - (2017) 91 WIR 141; Pipersburgh v R (2008)
72 WIR 108; Pop v R 62 WIR 18.
The ID Parade must be fair – The State v Barrow (1976) 22 WIR 267 - the identification parade
with the accused as the only man with a scar on the left side of his face was a farce. It was no
test at all, since Beharry could have picked out no other person than the accused
The State v Mayers - (1981) 30 WIR 189 – whether or not the defendant was the only man with
afro hair and a beard.
30
A court will be concerned about irregularities which occurrs in the conduct of the identification
parade such as where an accused is put on parade with persons of different races, complexions,
height and build so that he stands out. The court must consider whether this affected the
reliability of the ID. - Johnson (Mark) and Edwards (Jeffrey) v The State - (1999) 60 WIR 278
So too where there is conflicting evidence on what took place at the parade, a court may be
concerned about the reliability of the ID. See The State v Hodge (1976) 22 WIR 303
See also Henry v The State - (1986) 40 WIR 312
Note the Parade must be practicable as among other considerations, the consent of the suspect
is always necessary. See Tido v R - [2009] 3 LRC 423
Dock Identification
A ‘dock identification’ is where the identifying witness in court, points out the defendant for
the first time in court as the person who committed the offence.
Where there is no other direct or circumstantial evidence linking the defendant to the crime, a
dock identification of the defendant should be avoided. It is nonetheless admissible evidence.
Note Tido v R [2009] 3 LRC 423 - where E had seen T in good lighting and at a short distance
and where there was circumstantial evidence to support the identification, the trial judge had
correctly exercised her discretion to permit E to identify T in the dock.
See also The State v Mohamed Khalil (1975) 23 WIR 50; Slinger v R (1965) 9 WIR 271;
Herrera and Dookeran v R (1967) 11 WIR 1; R v Horsham Justices ex parte Bukhari (1982) 74
Cr App Rep 291).
Identification from Social media, photo lineup, location visit.
Just as evidence of the witness pointing out the defendant at an ID parade is admissible, so too
is evidence that the witness picked out the photo of the defendant on social media, in a photo
line-up or at a location visit or some other place subsequent to the commission of the offence.
31
Where it is photo line-up, again the police must conduct this fairly, so that the photograph of
the suspect is among others of similar characteristics.
Where it is a different kind of ID entirely such as where the witness claims that he saw the
defendant on social media, it is important that the witness gave as much details as possible so
that the court can assess the reliability of the ID.
A location visit is where the witness goes back to the general area of the crime (such as the
marketplace) and through general observation over a period of time, points out the defendant
as the offender.
B. CORROBORATION
Corroboration
As a general rule, the evidence from a single witness is sufficient to ground a conviction. There
are some offences, however, which require independent confirmation, corroboration as a matter
of law. There are also some offences where a judge must caution a jury and a magistrate must
caution herself before acting on the uncorroborated evidence of a single witness.
Corroboration Defined
Corroboration must be independent testimony which affects the accused by connecting or
tending to connect him with the crime. In other words, it must be evidence which implicates
him, that is, which confirms in some material particular not only the evidence that the crime
has been committed, but also that the prisoner committed it. R v Baskerville ([1916] 2 KB 658;
The State v Mayers - (1981) 30 WIR 189
At a high court trial, the trial judge should point out to the jury everything which may amount
to corroboration. The prosecution would do well to assist the magistrate in identifying all that
amounts to corroboration.
32
Corroboration may only be necessary for that single element which is disputed. It may be the
only thing which is uncertain in a case is the identity of the defendant.
Evidence which may amount to Corroboration
a. Circumstantial Evidence
Note lecture on circumstantial evidence. Several pieces of evidence coming together and
leading to certain inference.
b. Evidence from the Accused
Silence/Conduct of the Defendant
Where the defendant’s silence or conduct in response to an allegation amounts to an admission,
this would amount to corroboration to the extent of his admission.
R v Christie [1914] AC 545
R v Chandler [1976] 1 WLR 585
Parkes v R [1976] 1 WLR 1251
Note that if the defendant remains silent on a caution, or upon being question by a person in
authority, generally his silence cannot amount to any adverse inference against him. So too a
non-denial of an accusation made by the police cannot amount to any adverse inference
David And Watkins v R - (1966) 11 WIR 37
But note:
Tido v R - (2008) 75 WIR 26 - at common law adverse inferences could be drawn from
unhelpful conduct other than silence. Where the defendant fails to provide an intimate sample.
See also Bridgelall v Hariprashad - (2017) 90 WIR 300 making reference to R v Haye (1972)
18 WIR 360. Silence/Evidence in Court
33
The defendant silence at his trial cannot lead to any adverse inference - Duporte v Director of
Public Prosecutions - (2009) 75 WIR 224
So too his unsworn cannot be taken as leading to any adverse inference against him - Outar v
The State - (1982) 36 WIR 228
Evidence from the defendant may corroborate the prosecution’s case.
Lies
Demonstrable lies out of court by an accused may amount to corroboration against him. There
may be occasions when the only inference to be drawn from certain falsehoods is that they
were contrived to conceal guilt in which case they may afford evidence of corroboration against
the maker.
The test in R v Lucas [1981] Q.B. 720
‘For a lying statement made out of court to be capable of amounting to corroboration it had to
be deliberate and relate to a material issue, the motive for lying had to be a realisation of guilt
and a fear of the truth, and the statement had to be shown to be a lie by admission or evidence
from a witness who was independent and other than the accomplice to be corroborated;
Note - Pooran v R - (1966) 10 WIR 51
Corroboration Required as a Matter of Statute
There are some offences which require corroboration as a matter of law. In the absence of such
corroboration, the defendant may not be convicted on the sole evidence which is required to be
corroborated.
Evidence Act, Cap 5.03
Breach of Promise of marriage – Section 61(1)
Paternity cases – Section 61(2)
Unsworn evidence of a child – Section 71(3) except for sexual offences see Sexual Offences
Act No. 7 of 2010.
34
Perjury – Section 62
Treason – Section 63
Motor Vehicle and Road Traffic Act – Speeding offences
Criminal Law Offences Act Cap 8.01
Section 72 and 73
The Evidence of an Unsworn Child
A child may be permitted to give unsworn evidence in any criminal trial where the court
considers that he is of competent understanding. As a general rule, the defendant is not liable
to a conviction on the unsworn evidence of that child unless the evidence is corroborated by
some material evidence support implicating the defendant. See section 71(3) of the Evidence
Act.
Section 71(3) does not apply to sexual offences. The Sexual Offences Act No. 7 of 2010 has
abolished the common law rule and excluded the operation of section 71(3) which would have
ordinarily required corroboration for any unsworn child.
Corroboration for Sexual Offences Abolished
The common law requirement that a judge must caution a jury and a magistrate must caution
himself that it is dangerous to convict on the uncorroborated for the evidence of a virtual
complainant in a sexual offence case has been abolished.
This is by virtue of section 69 of the Sexual Offences Act No. 7 of 2010.
69. (1) No corroboration of the evidence of the complainant or the sworn or unsworn evidence
of a child shall be required for a conviction of an offence under this Act, and the judge shall
not direct the jury that it is unsafe to find the accused guilty in the absence of corroboration.
Corroboration and Accomplices
35
A magistrate may consider whether the evidence of an accomplice is corroborated as it is
dangerous to convict where that is the only evidence against the Defendant. See generally
Johnson (Mark) and Edwards (Jeffrey) v The State - (1999) 60 WIR 278
As a matter of law, a magistrate must consider the reliability of uncorroborated evidence and
that it is dangerous to convict on such uncorroborated evidence but may nonetheless convict.
See generally - Spenser (Ryan) and Fraser (Rodewell) v The State (1996) 54 WIR 278
In the reasons for judgment, the magistrate is expected to state clearly that he considered the
uncorroborated evidence and warned himself on the danger on acting on this evidence alone.
C. CHARACTER EVIDENCE
Character as a Fact in Issue
Where the fact of the defendant’s character is a fact in issue, then evidence may be led on this
issue in the normal way.
It may be relevant in cases of autrefois acquit.
Evidence of Character may also be relevant after conviction – when a defendant is about to be
sentenced. At this stage his record of convictions is relevant. This may be proved by the mere
provision of the ‘record of conviction’ unless the defendant challenges the reliability of the
record.
Where Character is not ordinarily in Issue
Statutory recognition of the Defendant’s shield is found in sections 21 and 22 of the Evidence
Act, Cap 5.03
See generally, The State v Solomon - (1982) 33 WIR 149
NOTES:
36
The Guyana section 22 codifies the common law position. See the case of R. v Rowton [1981
73] All ER 549
1. The defendant in a criminal trial is entitled to give evidence of his good character, and
when such evidence has been given the prosecution is entitled to call rebutting evidence
of bad character. In both cases the evidence must be confined to evidence of the general
reputation of the defendant, and evidence of particular facts to establish his disposition
or the tendency of his mind, to show his capability or incapability to commit the offence
charged, is inadmissible.
2. The negative experience of a witness to character is not to be excluded. When a witness
says: "I have known the prisoner for a number of years and never heard anything against
him," that is cogent evidence of a man's character.
3. A witness to character is entitled to give evidence founded on his personal experience
of the prisoner's character.
Note the Defendant may lead evidence of his good character by giving that evidence himself
or through his own witnesses. Or he may seek to extract that evidence in cross-examination of
the prosecution witnesses.
Section 22 is complemented by section 52(f) of the Evidence Act which gives the defendant a
shield against questions pointing to his bad character. This subsection states –
The shield may be lost, and section 52(f) therefore allows cross examination to show that the
defendant has committed, has been convicted or been charged –
Section 52(f)(i)
In similar Fact situations – Section 52(f)(i)
Section 52(f)(ii)
(a) Asked questions of prosecution’s witnesses to establish the defendant’s good
character;
(b) he nature or conduct of the defence is such as to involve imputations on the
character of the prosecutor or the witnesses for the prosecutions
(c) Has given against any other person charged with the same offence;
37
Note rebuttal can be given by the prosecution where the Defendant has given evidence himself
of his own good character – section 22.
In R v Lafayette - [2008] EWCA Crim 3238,
What amounts to an ‘imputation’
Usually, allegations that a prosecution witness has committed some act of misconduct will
amount to an imputation and will cause the defendant to lose his shield.
Where defence counsel cross examines and attacks the police officers as to the voluntariness
and genuine nature of the confession statement - R v Donaldson And Edwards (1980) 31
WIR 317
Eliciting evidence that a high ranking officer dictated to a constable what to write in the
statement and that the defendant signed it as he was frightened was considered a serious
imputation even in the absence of any other evidence that there had been any any threat or
inducement was made or held out to the defendant. – R v George Thomas Clark [1955] 3
All ER 29. See also Ken Charles and another v Regina [2004] ECSCJ No. 120
Allegations of homosexuality against prosecution witness - See R v Bishop [1975] Q.B. 274
Suggestions to a prosecution witness that her evidence was a pure invention, fabricated because
she had a grievance against the defendant pierced the shield – R v Dunkley [1926] All ER 187
If what is said amounts in reality to no more than a denial of the charge, expressed, it may be,
in emphatic language, it should not be regarded as coming within the section (Rouse [1904] 1
KB 184; R v Grout (1909) 3 Cr App Rep 64; R v Jones (1923) 17 Cr App Rep
117; Clark [1955] 1955 2 QB 469).
Where it can properly be said that what was asked of the witness, when no more than questions
which amounted a denial, and did not of themselves carry a further implication of impropriety
or other allegation, which goes to the character of the witness, then the shield is not lost.
38
A suggestion that the complainant is lying without more – shield not lost - R v Rimamczy
[2005] EWCA Crim 1834
Where the conduct of the defence involved an allegation that a principal prosecution witness
had invented his evidence, this amounted to an imputation on the witness’s character, so the
prosecution was entitled to put the appellant's character in issue. The trial judge had a discretion
to allow such questions and the test governing the exercise of such discretion was that of
fairness. - Amoe v Director of Public Prosecutions [1992] LRC (Crim) 132.
Exception - Note Sexual offence Cases – Where the evidence is directed to the proof of consent
and, although it made imputations on the character of the prosecutrix, it would not deprive the
accused of the protection given by the section - R v James Turner - [1944] 1 All ER 599; See
also R v HILL [1991] NI 150
Court to Ensure Fairness
Note R v Jenkins (1945) 31 Cr.App.R. 1.
The court is obliged to caution an unrepresented defendant (and in some cases even an attorney)
that a particular question or line of questioning has put the shield at risk of being broken. R v
Cook. [1959] 2 WLR 616
“…it has always been the practice for prosecuting counsel to indicate in advance that he is
going to claim his rights under the subsection, or for the judge to give the defence a caution.
This is especially needful when the prisoner, as here, was not represented, though it is fair to
say that he professed familiarity with the law and rejected the legal aid that had been assigned
to him. We have come to the conclusion that the questions ought not to have been put.
The Prosecutor must seek the court’s permission to cross examine the defendant on his
character and the court must be made aware of the type of evidence which the prosecutor seeks
to introduce. R v Campbell - (1963) 6 WIR 170
Note in R v Campbell (1963) 6 WIR 170
39
The Evidence which may Led when the Shield is Lost & the Use of Such Evidence
Once the shield is lost, the Subsection gives the court a discretion to allow questions tending
to show that he has committed, or been convicted of, or been charged with, any offence other
than the one that wherewith he is then charged, or is of bad character.
Note An accused who puts his character in issue puts his whole past record in issue. – Stirland
v DPP
BUT not all questions will be allowed. Generally, he may be cross examined only on past
convictions.
The fact that he is charged or has been previously acquitted would hardly be relevant to show
anything, unless he has given affirmative evidence or has sought to show through cross
examination that he was never charged with an offence. Stirland.
Evidence of the Defendant’s bad character goes only to his credibility and cannot be used to
show that he has any particular disposition.
Where the Defendant has Given Evidence Against a Co-Defendant
The following principles are identified in R v Varley [1982] 2 All ER 519 (CA)
1. 'evidence against' a co-defendant in the subsection meant evidence which supported the
prosecution case in a material respect or which undermined the defence of the coaccused.
2. Where it was established that a person jointly charged had given evidence against a codefendant, that defendant had the right to cross-examine the other as to previous
convictions, and the trial judge had no discretion to refuse an application to do so.
3. Evidence against a co-accused might be given either in chief or during crossexamination, (d) that it was to be objectively decided whether the evidence supported
the prosecution case in a material respect or undermined the defence of the codefendant, hostile intent being irrelevant.
40
4. Where consideration had to be given to the question whether the co-accused's defence
was undermined, care had be taken to see that the evidence was clearly to that effect;
inconvenience to or inconsistency with the co-accused's defence was not of itself
sufficient, (f) that a mere denial of participation in a joint venture was not of itself
enough to rank as evidence against a co-defendant; for the subsection to apply the denial
had to lead to the conclusion that if the witness did not participate then it must have
been the other defendant who did.
5. Where one defendant asserted a view of the joint venture which was directly
contradicted by the other, that contradition might be evidence against the co-defendant
The prosecution may be allowed by the court to cross examine under this exception - R v.
Lovett [1973] 1 WLR 241. Again, the question is one of fairness.
TUTORIAL QUESTIONS
Identification
Tutorial Question No. 1
The Defendant and another man had robbed their victim in his store and, as they were making
good their escape, a woman DD who was about twenty yards from the store claimed to have
seen the appellant. She did not know his name but gave a description of him to the police. Four
days later the appellant was arrested. He was shown to DD at the police station and she
identified him as one of the men she had seen running from the premises. No identification
parade was held. The defence has objected to the DD’s evidence. Prepare a response to this
objection.
Tutorial Question No. 2
AB and his girlfriend CD were asleep in their bed at home, when she was awakened by a gun
shot in the room. She looked up and saw five men, three of whom were standing at the foot of
the bed, and the two others were behind them against the door of the room. The men in the
41
middle of the three held a gun in his hand and had a handkerchief around his face. AB was
unable to remember anything. The girlfriend was the main witness for the prosecution and the
only witness to identify the Defendant. In her police statement, she stated that she recognized
only one of the intruders, a man standing at the door wearing red. She identified this person as
‘Ugly Man’. But she only looked at the group of men for a matter of seconds and then turned
round and saw the deceased bleeding from his side. She then ducked her head and heard two
more shots, followed by some clicks from the gun. Discuss the evidential concerns on
admissibility.
Corroboration
Tutorial Question No. 3
AB is charged with robbery. The victim has given evidence that he was robbed at stabroek
market by a man who he did not know before. In his statement the victim stated that when the
man was running away another person called out to him, ‘Jumpa’ you is a robber boy.” When
he was arrested, AB denied that he was called or ever referred to as ‘Jumpa’ and that he was
nowhere near Stabroek market on the day on question. Two other witnesses have given
statements that they know AB as ‘Jumpa’ and they know he frequents the stabroek market area.
Discuss how the prosecution should make use of AB’s lies.
Tutorial Question No. 4
If alibi evidence is led in any case where ID is also in issue, the prosecution is not only entitled
to use the falsity of such evidence as proof of guilt but must go further to prove identification.
Discuss
Character Evidence
Tutorial Question No. 5
AB, a teacher, was charged with indecent assault. He gave evidence of his good character. The
prosecution has a witness who has given a statement to the effect that he did not know how the
community felt about AB, but that in his own opinion and others who were AB’s students was
42
that his character was that of a man capable of the grossest indecency. Can the prosecution lead
this evidence in rebuttal.
Tutorial Question No. 6
Under section 52(f)(iv), the prosecution is entitled to cross examine the defendant on his bad
character. With reference to case law, discuss the accuracy of this statement.
43