Lack of sufficient evidence led Mr. Justice Lloyd Hibbert to agree that there was no case to answer for a man who was accused of causing grievous bodily harm to his ex-wife.
Defence Attorney Nicholas Dixey represented Shane Connor, who had also been charged with aggravated burglary. Connor chose to be tried by judge alone.
When trial began on Monday, Crown Counsel Scott Wilson opened the case. The allegation was that Connor had gone to East End, entered the residence where his ex-wife was staying and assaulted her.
Mr. Wilson said the marriage had been turbulent and the couple went through separation and then divorce.
On 29 April 2004, it seemed that Connor was calling his ex-wife on her cell phone, at least eight times over a period of two hours. The calls culminated with a threat that he would shoot her and her car.
Mr. Wilson said Connor was upset that she had cancelled the insurance on the car that they had purchased together but which was in her name.
That night, she went to bed around 9.30pm. The man with whom she was living came home around 10.30 pm.
At 1am, they were both in bed. The complainant was awakened by blows to her body and head. The blows caused bruises and lacerations, including two head wounds for which she later received four and six stitches respectively.
Connor was arrested in the early hours of 30 April at a night club on West Bay Road. He told officers he had been there since 11.30 pm or midnight.
Mr. Wilson said from the beginning that the case would turn on the issue of identification. The main witnesses were the complainant and the other occupant of the house.
In his ruling, Mr. Justice Hibbert pointed out that the fact someone had entered the house and attacked the complainant had not been challenged. The question was – who was that person?
The complainant said it was Shane Connor. The other witness, who told the court he was awakened by the complainant’s screams, said it was too dark for him to see.
Mr. Dixey said the quality of evidence was such that, as a matter of law, the judge should say there was no sufficient evidence on which a properly directed tribunal of fact could convict Connor.
Both Mr. Dixey and Mr. Wilson referred to guidelines for identification evidence: the circumstances under which the identification was made, the lighting, whether there was any obstruction, how long the complainant had her assailant in view.
Mr. Wilson argued that it was a case of recognition, not first time identification; that there was more than a fleeting glance; and that, even if it was too dark for the other witness to see, that did not mean it was too dark for the complainant to see.
The judge analysed the quality of the evidence of identification. He noted that mistakes can be made, even in recognition cases.
He said he could not agree that the complainant had more than a fleeting glance of her assailant. She said that while she was running away from him, she glanced over her shoulder, saw him coming and so she bolted down the stairs. She agreed it was a very quick glance.
But it did not end there. The circumstances of the fleeting glance included the fact that the complainant had said blood was running into her eyes at the time. Further, the assailant had what appeared to be a T-shirt over most of his face, leaving only eyes and nose exposed.
As to any light in the room, the complainant had given conflicting evidence. She said there was light at the foot of the bed from a fan, but she also said she turned off the light before going to bed. The other witness had said no light was on.
The only other source of light would have been from a window. But according to the evidence given, the window would have been behind the attacker and so could not assist her in seeing that person’s face.
The judge concluded that the evidence was of such poor quality that it ought not be left to a tribunal of fact to be determined. He upheld Mr. Dixey’s submission that the case ought not go further.
In finding Connor not guilty, the judge said he did not know what had transpired that night. But he advised Connor that, if he had a dispute with his ex-wife about the car, he should not be calling her and threatening her. He should take it to a lawyer and let the law take its course.