REPUBLIC
OF TRINIDAD AND TOBAGO
IN
THE COURT OF APPEAL
Cr.
App. No. 127 of 1998
BETWEEN
MARLON MALCOLM
APPELLANT
AND
THE STATE
RESPONDENT
The
applicant was convicted on four counts in an indictment.
One was of rape; two were of indecent assault and one was of robbery with
aggravation.
The
Prosecution’s case was that he terrorized two women who were walking through
Paradise Cemetery in San Fernando, sometime between 5 and 6 o’clock on an
evening in November 1994. He was
armed with a cutlass with which he threatened to chop them and kill them, and
proceeded to rob one woman of a pair of earrings and two gold rings and then
proceeded to rape her on the ground in the cemetery. The other woman, he raised her blouse and felt up her breast
and put his hand in her panties. Both
women identified him at an identification parade which was held within two days
of the offence.
There
was also evidence by two police officers of an admission made by the appellant
when he was arrested that he had robbed four people that day in the cemetery,
including these two women, and had raped one of the women.
The
Judge’s summing-up has not been the subject of any challenge by Counsel for
the applicant. He has not been able
to find any sustainable ground of appeal on the basis of any error or
misdirection in summing-up. We have
read the summing-up and have not been able to find any flaw in it ourselves.
The
application this morning has been for an adjournment of the case.
The case was tried in October 1998 and the offence, as I have said, was
in November 1994. We are now told
today by Counsel that he has instructions that there are records in the prison
which will support the applicant’s contention that he had injuries to his face
which resulted in both his face and his jersey being blood-stained at the time
when he was put on the identification parades and identified separately by the
two women who were the victims.
This
matter was one which was raised at the trial.
When he gave evidence at the trial he did testify that his face, at any
rate, was bloody at the time when he was put on the parade.
He also alleged that he was directed by the police officer who was
conducting the parade to stand in a certain position.
This evidence, certainly the evidence of the bloody face, was never put
to either Inspector Bastien who conducted the parades or to the two women who
identified him.
At
any rate the Judge put the issue to the jury and also gave the jury a very
careful direction on the dangers of identification evidence.
The jury returned a verdict of guilty on all four counts.
So they had no doubt about the identification evidence which I might say
was very strong in that the incident occurred in broad daylight, both ladies had
an opportunity of looking at the applicant’s face which was uncovered over a
period of about thirty or forty minutes in what was daylight, although towards
the end of the incident dusk must have been falling.
As has been pointed out to Counsel, even if there was evidence of
injuries to the applicant at the time when the Prisons received him, this would
not be conclusive that he had those injuries at the time when he was first
arrested and put on the parade. He
explained his injuries by giving a rather implausible account of having been
struck on the face for no apparent reason by a police officer with a stone.
In
all the circumstances and given the opportunities which the applicant has had at
the trial, and indeed since the trial, of obtaining from the Prisons the
evidence which we are told may be available from them, and given also the
strength of the case against him and the inconclusiveness of the evidence which
is being pursued at this point in time, we do not consider that the interests of
justice require that the matter be adjourned. The applicant had a full and fair trial and the advantage of
a perfectly fair, thorough, careful and accurate summing-up.
For
these reasons, the application for an adjournment is refused and there being no
ground of appeal which has been advanced by Counsel and none which we can find
any support for ourselves, the application is dismissed.
The applicant was sentenced to 16 years hard labour on the rape charge
and twelve strokes with the birch. He
was also sentenced to twelve years on the count of robbery with aggravation and
five years each on the two charges of indecent assault.
There
has been no appeal against sentence. Certainly
if there were any criticism of the sentence it would not be on the ground that
it was too severe. The application
is dismissed.
(PROCEEDINGS
CONCLUDED AT 9: 30 a.m.)
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