Morrison s/o Shem v. R., Crim. App. 436-D-68, 27/9/68, Biron J.

Morrison s/o Shem v. R., Crim. App. 436-D-68, 27/9/68, Biron J.

Accused was convicted of stealing for which he was sentenced to imprisonment and 24 strokes. The magistrate directed himself that accused had not succeeded in establishing his alibi, and accepted the evidence of two witnesses which contradicted the proffered alibi. On the same day, in a different case, accused was convicted  of another offence for which he also was sentenced to imprisonment and 24 strokes, making a total of 48 strokes between the two convictions.

            Held: (1) The magistrate’s direction in respect of the alibi was wrong in law. “(W)here an accused sets up an alibi in defence, it is not on him to establish it, but it is sufficient if it succeeds in raising a reasonable doubt as to whether it was the accused who committed the offence with which he is charged.” Because the misdirection by the magistrate in no way prejudiced the accused, and the conviction was fully supported by the evidence, the appeal on the merits was dismissed. (2) “However, an award of 48 strokes corporal punishment on the same day cannot but be regarded as excessive, part curly as both offences could have been tried together, in which case the court would not have awarded more than the statutory 24 strokes….” (3)”It is by no means irrelevant to not that there is a Bill before Parliament entitled the Written Laws (Miscellaneous Amendments) Act, 1968, amending the Minimum Sentences Act, 1963 (to preclude double impositions of strokes in situations such as the present one) …. Although I may be accused of anticipating legislation, at least applying the spirit, if not he letter, of the law as it now stands, and, as remarked, as the two cases could have been taken together, when only one award  of corporal punishment could have been made, I consider that the award of corporal punishment in the instant case should be set aside.” It was so ordered.