A trial by Judge Alone was brought before Justice Charles Quin on 20/21 November, 2012 concerning the robbery of a man on 14^th September of CI$400 and a few US dollars by two men who grabbed him from behind at gunpoint. The robbery took place at the back yard of a building in a lane off Eastern Avenue, George Town and it was dark.

At the close of the Crown’s case, Ms. Fiona Robertson Counsel for the Defence made a no case submission based on the test case of R v. Gaibraith which states:

 “The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence.”

The victim, Gregory Johnson, identified one of the robbers as Johan Josephs and Josephs was charged with possession of an imitation firearm with intent to commit a robbery and also of robbery.

There were no other witnesses to the robbery, no circumstantial evidence and no CCTV footage. Mr. Johnson did not report he was robbed until two days after it happened. At that time he could not name the any of the men who had robbed him.

Defence counsel submitted that Johnson’s alleged identification of the Defendant was made in extremely difficult conditions as it was after dark and the area in question was extremely dark. The nearest street light – the street being at the front of the building whilst Johnson was at the back of – was on the opposite side of the road and well away from where Johnson claimed the robbery took place. There was also no lighting in the narrow lane leading from the street to the back of the premises. Other circumstances pointed to possible poor identification of the robbers.

There were also multiple versions given by Johnson in his evidence as to what happened and the appearance of the robber he had identified. The Defence submitted Johnson did not know Joseph’s name and had not seen him for two years. His only knowledge of the Defendant was when he had been working in the canteen of George Hicks School and had seen Joseph there as a student, therefore his personal contact was “limited”.

Johnson had said there were other people “around” when the robbery took place but he did not call for help even to someone he knew at the end of the lane.

The judge visited the scene of the alleged crime after dark in similar conditions as on 14^th September 2010, with Johnson, Josephs, police officers and Court staff. The judge said t was evident that the identification was made in difficult circumstances, especially when the victim was in fear and when the incident happened in a matter of minutes. He said the area where the robbery allegedly took place was “particularly dark”.

The judge was also troubled by the differences in the descriptions of the robber contained in the Complainant’s statement to the police two days after the event, and his evidence before this Court some two years and two month later.

“For example,” Judge Quin said,  “in his evidence to the police the Complainant stated that the robber was of a thin built, with low hair, and he was around 5’ 8″ to 5 ‘ 9″ tall.  Whilst, in his evidence to this Court, the Complainant stated that the robber was tall, of a thick set built and was wearing a cap.”

Ruling in favour of the Defence, the judge said, “The complainant’s evidence relating to the robbery and to his claimed recognition of the robber himself is vague and inconsistent. I can find no other evidence to support the complainant’s identification. There is no CCTV evidence or evidence from other witnesses. There is also no forensic evidence and there is a complete absence of evidence to support what in my view is poor identification evidence in difficult conditions.”

“I find,” he added, “that in no circumstances could I entertain the possibility of my being convinced beyond reasonable doubt by the evidence given by the Prosecution, and therefore there is no justification in allowing the trial to continue.”