Weekly Law Reports (ICLR)/1958/Volume 2 /MOHAMED FIAZ BAKSH APPELLANT; AND THE QUEEN RESPONDENT. –  2 WLR 536
 2 WLR 536
MOHAMED FIAZ BAKSH APPELLANT; AND THE QUEEN RESPONDENT.
ON APPEAL FROM THE COURT OF CRIMINAL APPEAL OF BRITISH GUIANA.
1958 Feb. 13;Mar. 11.
LORD REID, LORD TUCKER, LORD SOMERVELL OF HARROW, LORD DENNING and the RT. HON. L. M. D. DE SILVA.
Criminal Law — Appeal — Fresh evidence — Statements by prosecution witnesses to police — Not available at trial — Material discrepancies when compared with oral evidence — Whether trial should have been ordered — Murder — British Guiana.
The appellant and his co-accused (who had each relied on an alibi) having been convicted of murder, both appealed to the Court of Criminal Appeal of British Guiana, who permitted to be produced and proved on the hearing of the appeal statements, which had not been available at the trial, made to the police by the three main witnesses for the prosecution. The Court of Criminal Appeal found that a comparison of the statements with the oral evidence given by those witnesses at the trial disclosed material discrepancies. They said in respect of the appellant’s co-accused that in the interests
 2 WLR 536 at 537
of justice the value and weight of the new evidence should be determined by a jury and not by that court, and they quashed his conviction and ordered a new trial. In the case of the appellant, however, they were of opinion that different considerations applied; they considered that nothing favourable to him could have been obtained from the statements which was not obtained at the trial, and held that the jury’s verdict in respect of him could not be disturbed on that ground:–
Held, that if the statements afforded material for serious challenge to the credibility or reliability of the witnesses on matters vital to the case for the prosecution, the defence by cross-examination might have destroyed the whole case against both accused or, at any rate, shown that the evidence of those witnesses could not be relied on as sufficient to displace the evidence in support of the alibis. Their credibility could not be treated as divisible and accepted against one and rejected against the other. A new trial should have been ordered in both cases.
The case would be remitted to the Court of Criminal Appeal with the direction that they should quash the conviction of the appellant and either enter a verdict of acquittal or order a new trial, whichever course they considered proper in the interests of justice in the existing circumstances.
APPEAL (No. 26 of 1957), by special leave, from a judgment of the Court of Criminal Appeal of British Guiana (June 7, 1957), dismissing the appellant’s appeal from a judgment of the Supreme Court of British Guiana (Clare J. and a jury) (December 5, 1956), whereby the appellant was convicted of murder and sentenced to death.
The following facts are taken from the judgment of the Judicial Committee: The appellant had been charged jointly with one Nabi Baksh with the murder of Mohamed Saffie on June 12, 1956. Nabi Baksh was also found guilty.
Both prisoners appealed to the Court of Criminal Appeal of British Guiana (Holder C.J., Stoby and Date JJ.), and on June 7, 1957, that court dismissed the appellant’s appeal but quashed the conviction of Nabi Baksh and ordered a new trial in his case.
The appellant appealed by special leave to Her Majesty in Council and his appeal was heard by the Board on February 13, 1958.
The case for the prosecution was that the deceased man was killed shortly after 3 a.m. on June 12, 1956, by shots from a gun fired by one or other of the two accused men acting together with the common design of killing or doing grievous bodily harm to the deceased. The case rested largely on the identification of the accused by three prosecution witnesses named Mohamed Haniff, the deceased’s brother-in-law, Mohamed Nazir, brother-in-law of Haniff, and Bebe Mariam, who had been living with the deceased. Haniff at the trial swore that on June 12 he was living with the deceased at a house at Clonbrook, East Bank, Demerara. Also living in the house were Nazir and his wife and Bebe Mariam. He woke about 3 a.m. and helped the deceased and Nazir load a boat with vegetable produce, and then returned to the house with the deceased. Nazir and his wife and Bebe Mariam went away
 2 WLR 536 at 538
with the boat. He went to lie on his bed, and before Nazir returned with the boat he heard gun fire from the kitchen direction and went to the window with his torch. He saw two men whom he could identify. He shouted to them: “Alright Fiaz and Jacoob no use run any more I see you already.” Nabi Baksh was known as Jacoob. He saw a gun in the appellant’s right hand. He ran downstairs and saw deceased lying at the top of the step leading from the kitchen. Nazir was there, and they lifted the deceased and placed him on his back.
He said that he had been acquainted with both accused for three or four weeks before June 12.
Nazir swore that after he had taken his wife and Bebe Mariam with the vegetable produce to the bus when he reached the spot where he usually tied his boat he heard a shot. He ran underneath his house and from there saw the appellant and Nabi Baksh crossing a trench near the house. He heard Haniff shout to them “Alright Fiaz and Jacoob, don’t run I see you.” He turned his torch on them and saw the appellant had a gun.
Bebe Mariam swore that she and the deceased were awakened about 2.30 a.m. on June 12 by the barking of dogs and that by a torchlight she saw the appellant and Nabi Baksh about 48 yards away from the house. She said that she had known them for about two years.
Neither of the accused gave evidence, but in statements from the dock denied that they were anywhere near the scene of the murder. They gave an account of their movements and said that the statements they had given to the police were true. They both called a number of witnesses in support of their alibis.
Both prisoners appealed, and on May 13, 1957, counsel who had appeared on behalf of Nabi Baksh at the trial swore an affidavit stating that at his request the Solicitor-General had allowed him to inspect the statements made to the police by the witnesses Haniff, Nazir and Bebe Mariam on the morning of June 12, 1956, which had not been available to him at the trial, and that these statements showed serious discrepancies and contradictions in vital matters when compared with the evidence given by them at the trial. The Court of Criminal Appeal accordingly allowed these statements to be produced and proved. They were found to contain the following discrepancies — Haniff in his statement had said that after he heard the gunshot he looked out of the window and shone his torch and saw the appellant and another man whom he did not know by name on the parapet of the trench dividing the yard and the rice field; that he ran on the bridge and was all the time shouting “all right Fiaz, all you run, me see all you two.”
Nazir had said that neither he nor Haniff had shouted at the men who were escaping because they were afraid of being shot.
Bebe Mariam had said that when she was awakened by the barking of dogs she saw the appellant by the light of her husband’s flashlight running away in the rice field south of her home.
 2 WLR 536 at 539
After examining the statements and comparing them with the sworn testimony at the trial the Court of Criminal Appeal in their judgment delivered on June 7, 1957, said:
“From an examination of the additional evidence it will be seen that Bebe Mariam made no mention of seeing Nabi Baksh on the morning of June 12 shortly before the shooting; Mohamed Haniff did not know the name of the man he saw with Fiaz Baksh and therefore could not have called it out. Had the jury known these facts we are unable to say that inevitably they would have arrived at the same conclusion. They may have done so because they may have accepted Mohamed Nazir’s evidence that he saw the two appellants, or the two witnesses already mentioned may have been able to explain or amplify their original statements.”
They went on to say that in their view, in respect of Nabi Baksh, in the interests of justice the value and weight of the evidence should be determined by a jury and not by that court. They accordingly quashed the conviction in his case and ordered a new trial.
With regard, however, to the present appellant, they considered entirely different considerations applied. They could find a good deal unfavourable and nothing favourable to him in the statements and considered that nothing favourable to him could have been obtained therefrom which was not obtained at the trial. They accordingly held that the jury’s verdict in respect of this appellant could not be disturbed on this ground.
1958.Feb. 13. Bernard Gillis Q.C. and J. Lloyd-Eley for the appellant.
J. G. Le Quesne for the Crown.
The following cases were cited in argument: Reg. v. Collister1 and Reg. v. Puddick.2
Feb. 13. LORD REID said:
“The appeal will be allowed and the case remitted to the Court of Criminal Appeal of British Guiana with a direction that they should quash the conviction and either enter a verdict of acquittal or order a new trial, whichever course they may consider proper in the interests of justice in the existing circumstances. Their Lordships will give their reasons for their decision at a later date.”
March 11. Their Lordships’ reasons for allowing the appeal were delivered by LORD TUCKER, who stated the facts set out above and continued: Their Lordships are unable to accept the reasoning of the Court of Criminal Appeal on this matter. If these statements afforded material for serious challenge to the credibility or reliability of these witnesses on matters vital to the case for the prosecution it follows that by cross-examination — or
 2 WLR 536 at 540
by proof of the statements if the witnesses denied making them — the defence might have destroyed the whole case against both the accused or at any rate shown that the evidence of these witnesses could not be relied upon as sufficient to displace the evidence in support of the alibis. Their credibility cannot be treated as divisible and accepted against one and rejected against the other. Their honesty having been shown to be open to question, it cannot be right to accept their verdict against one and re-open it in the case of the other. Their Lordships are accordingly of opinion that a new trial should have been ordered in both cases.
It remains only to say that their Lordships are in complete agreement with the view expressed by the Court of Criminal Appeal with regard to the criticisms which were made, and which have been repeated before the Board, of the trial judge’s summing-up with respect to the onus of proof in connexion with the defence of alibi. Taking the summing-up as a whole, the jury could have been left in no doubt that the onus remained on the prosecution throughout to establish the guilt of the accused.
For the reasons stated above, their Lordships have humbly advised Her Majesty that the appeal should be allowed and the case remitted to the Court of Criminal Appeal of British Guiana with the direction that they should quash the conviction of the appellant and either enter a verdict of acquittal or order a new trial, whichever course they consider proper in the interests of justice in the existing circumstances.
Solicitors: Hy. S. L. Polak & Co.; Charles Russell & Co.
1 (1955) 39 Cr.App.R. 100.
2 (1865) 4 F. & F. 497.