Bholanauth v The State

• Jurisdiction: Guyana
• Judge: Massiah, C.,Harper, J.A.,Kennard, J.A.
• Judgment Date: 28 May 1986
• Neutral Citation: GY 1986 CA 6
• Docket Number: Criminal Appeal No. 4 of 1985
• Court: Court of Appeal (Guyana)
• Date: 28 May 1986

Court of Appeal

Massiah, C.; Harper, J.A.; Kennard, J.A.;

Criminal Appeal No. 4 of 1985

Bholanauth

and

The State

Appearances:

P.S. Britton for the appellants

D. Haynes, senior State council (Ag) for the State

Contract

Massiah, C.

1 ‘Chamber's Twentieth Century Dictionary’ defines the word “pool” in relation to a game as “a game played on a billiard-table, each player trying to pocket the others’ balls in relation.” In recent times the game has grown in popularity in Guyana and the provision of a table has become almost a sine qua non in beer halls and liquor restaurants where youthful devotees of the game are disposed to gather for refreshment and recreation, apparently not without hear and rising tempers. The imbibitation of alcohol does little to quell their passions or improve their game.

2 On the evening of 30th September, 1983, at Ramnarine's Liquor Restaurant in the quiet village of Uitvlugt on the West Coast of Demerara such a game was in progress. One Azad Baksh, the deceased, was pitting his skill against that of his friend Ganesh Sukhoo. As the deceased was getting ready to play, Amar Bholanauth, the appellant, covered one of the balls with his hand whereupon the decease declared, in effect, that it would have been bad for the appellant if he had indeed touched the ball. Bravado appears to have caused the appellant to touch one of the balls, whereupon the deceased grew angry, rushed to the appellant, pushed him and cuffed him. The appellant retaliated, and the two men fought each other. During the fight a knife was seen in the appellant's hand. A witness, Dejoe Ramsamooge, with whom the appellant was drinking, claimed to have seen the appellant stab the deceased several times with the knife. The deceased walked a short distance and collapsed. He died the same night. At his trial at Demerara Assizes in January, 1985, the appellant was convicted of murder, but his age at the date of the commission of the offence caused the trial judge to order him to be detained at the President's pleasure rather than sentence him to death.

3 Dr. Guadolupe Alfonso who performed the post mortem examination saw four incised wounds on the body. There were also a number of abrasions. She attributed Azad Baksh's death to “shock and cardiac tamponade perforation with atelectasis of left lung due to stab wound.” This is completely incomprehensible to me, as it must have been, I presume, to the members of the lay jury. The pathologist did say, however, that one of the incised wounds communicated with the thoracic cavity, and that this wound was the direct cause of death. On the state of evidence there could be little doubt that the jury understood what led to the deceased's death. Their crucial problem was to determine who caused the wounds and in what circumstances they came to have been caused.

4 The jury's verdict shows that they had no doubt that it was the appellant who mortally wounded the deceased. It is a conclusion about which no one could cavil. The question of the witnesses' creditability was a matter essentially for the jury. The evidence was straightforward and clear, the usual expected evidential inconsistencies notwithstanding. And there appears to have been sufficient illumination for the witnesses to have seen what they professed to have witnessed, even by gaslight.

5 There can be no doubt that the jury rejected the proposition that death resulted either by an accident or in self-defence, although I should say that the directions thereon appear to have been somewhat jejune – they ought to have been fuller. But for reasons which I need not discuss at length I do not believe, having regard tot eh circumstances on the whole, that any harm eventuated therefrom sufficient to conclude that justice may have miscarried. I would refer only to Chan Kau v. The Queen [1955] 1 All E.R. 266 where the trial judge, in relation to the issue of self-defence, case the onus of proof on the accused, thus in effect “overruling” Woolmington v. Director of Public Prosecutions [1935] A.C. 462 and rending Lord Sankey's “golden thread.” Despite this serious flaw, Lord Tucker observed, at p. 269, when delivering the judgment of the Privy Council rejecting the appellant's arguments on the question of self-defence:

“Viewing the case as a whole, their Lordships do not consider that the jury's rejection of the defence of self-defence amounted to a miscarriage of justice. It is difficult, if not impossible, to infer from the evidence, taking the most favourable view for the defence, that the appellant's life was ever seriously endangered so as to justify-as distinct from excuse – the use of such a weapon. (a knife).”

6 Having regard to the state of the evidence the trial judge's deficiencies in that case cause no real harm to the defence. So it was in the case under instant consideration in reference to the non-directions respecting the defences of accident and self-defence.

7 Although I have reached that conclusion I think I ought to say, however, that a summation is patently defective if it is confined merely to offering definitions and to a recital of the evidence. It is true that the jury must be told what constitutes the crime charged, and a summary of the evidence is, of course, useful, provided it is not prolix, but all of this is unhelpful unless there is a definite attempt at analysis of the evidence in order to focus the jury's attention on the way in which the facts may be related to the law. Failure to do so may result in a miscarriage of justice. [See Dihal v. The Queen (1960) L.R.B.G. 195 at p. 196, R. v. Samad, Salim and Ralph (1970) 15 W.I.R. 35, at p. 37.]

8 I would, however, allow the appeal for entirely different reasons. I would state them shortly. They involve a restatement and consideration of certain well-known principles relating to the question of provocation. As I endeavoured to point out in The State v. Evelyn Dick and Alwyn Dodson Evelyn (Criminal Appeals 42 and 43 of 1983, decided on 8th May, 1985) questions concerning the concept of provocation and its palliative influence on the gravity of unlawful homicide have long been settled. If we go back as far as Hale's Pleas of the Crown, Col. 1, we would find the following statement at p. 460:

“If a man kill another suddenly, without any, or without considerable, provocation, the law implies malice, and the homicide is murder; but if the provocation were great, and such as might greatly have excited him, the killing is manslaughter only.

9 In this area the Guyanese conception of the common law accords with that expounded by English jurists both in the House of Lords and in the Privy Council. We hag time and again in this court approved of Mancini v. Director of Public Prosecutions [1941] 3 All E.R. 272, Holmes v. Director of Public Prosecutions [1946] A.C. 588 (with a question mark over Viscount Simon's pronouncement that the defence of provocation seldom applied where there is an intention to kill), R. v. Duffy [1949]1 All E.R. 932, lee Chun-Chun v. R [1963] 1 All E.R. 73, as well as other authorities.

10 There has also been frequent appellate affirmation of the principle that so long as there is evidential material from which it can properly be said that the issue of provocation may arise, the trial judge is under the duty to deal with the issue in his summation, the question whether or not is was raised by the defence being of no importance whatever. This was made clear in The State v. Robert Lewis (1976) 23 W.I.R. 226, and three years later in The State v. Cyril Dennan (1979) 26 W.I.R. 384 [See also the Trinidadian case of Francis v. The Queen (1967) 12 W.I.R. 375.] Their English counterparts begin, so far as I am able to make out, with Lord Reading's concise and lucid judgment in The King v. Hopper [1915] 2 K.B. 431, with particular reference to p 435. There have, of course, been several other English cases of high authority with exemplify the principle. For obvious reasons no one questions the soundness of these fundamental doctrines. A case can be decided only on the evidence before the court, and, if there is some evidence before it tending to the benefit of the accused, ordinary fairness dictates that it be brought to the attention of the jury with full and appropriate directions, particularly emphasising in this context that the onus in on the State to prove to their satisfaction beyond a reasonable doubt that the provocation relied on was not sufficient, and that if they are left in reasonable doubt as to whether the evidence shows sufficient provocation, the issue must be resolved in favour of the accused.

11 It is, of course, trite law that if there is no evidence of provocation the trial judge cannot raise the issue, for so to do would be to invite the jury to speculate on non-existent testimony. This is highly reprehensible and would tend to bring the law into discredit and prejudice the interests of justice, for a case must always be determined within the parameters of the evidence itself. This is how Viscount Simon, L.C., treated the question in Mancini v. Director of Public Prosecutions, at p. 279:

“The language employed by Lord Sankey does not assert and does not imply that in every charge of murder, whatever the circumstances, the judge ought to devote part of his summing up to directing the jury on the question of manslaughter or the jury ought to consider it. If the evidence before the jury at the end of the case does not contain material upon which a reasonable man could find a verdict of manslaughter instead of murder, it is no defect in the summing up that manslaughter is not dealt with. Taking, for example, a case in which no evidence which would raise the issue of provocation has been given, it is not the duty of the judge to invite the jury to speculate as to provocative incidents of which there is no evidence and which cannot be reasonably inferred from...