Chan v The State
| Jurisdiction | Guyana |
| Judge | Perry, J.A.,Persaud, J.A. |
| Judgment Date | 13 June 1997 |
| Neutral Citation | GY 1997 CA 4 |
| Docket Number | Criminal Appeal No. 2 of 1996 |
| Court | Court of Appeal (Guyana) |
| Date | 13 June 1997 |
Court of Appeal
Churaman, J.A.; Perry, J.A.; Persaud, J.A.
Criminal Appeal No. 2 of 1996
K. Ramjattan for the appellant.
I. Chang D.P.P. (ag) for the State.
Evidence - Additional evidence — Appeal against conviction and sentence for murder — The trial judge allowed additional evidence to be admitted which had not been led at the preliminary inquiry — Whether there was good reason to admit the evidence — Counsel for the appellant was offered adjournment on each occasion that evidence was admitted but he declined — The evidence led was of significant nature and was foreshadowed by previous witnesses — Reasons for admittance were fair, good and balanced — The appellant was not prejudiced — Appeal dismissed.
Port Kaituma hunter Lawrence Chan was sentenced to death for shooting and killing two men in a robbery bid at a camp on the night of January 11, 1993.
The victims, Raphael Seecharran a businessman and his assistant Ramong, were what to death, while relaxing in their camp.
Following their execution the accused Lawrence Chan, ordered his brother Johnny Chan and his companion Rodrigues to help him place the two bodies in a corrial.
He then took the corrial ‘up river’ to a creek named ‘Parana’ where, the corrial with the bodies was anchored in the deep creek.
The bones of the deceased were recovered ten months later, when police in the course of investigation, came across a polythene rope tied to a small tree at the creek bank.
Feeling something heavy at the end of the rope, they lulled it to the surface and discovered that it was a corrial which contained a 48-gallon drum of water and human bones including two skulls.
The wristwatch Seecharran was wearing at the time of his death was also found in the boat together with the clothing that the deceased were wearing at the time of their execution.
The police collected the bones, placed them into two small boxes and shipped them by plane to Georgetown where the remains were examined by Forensic Pathologist Dr. Leslie Mootoo who found pellet holes in the skull and bones, sufficient to confirm that death was due to gun shot wounds.
Seecharran was said to have had $25,000.00 in his possession when he set out on the trip that day.
At the hearing of the appeal, the judge's summing-up was not criticised by defence counsel Mr. Khemraj Ramjattan.
But Mr. Ramjattan sought to submit that the trial judge had erred in allowing additional evidence from Joel Clementson and Johnny Chan (an accomplice) and Oral Stoby and Lennox Thornhill to be admitted in evidence at the trial when there was no good reason why such evidence was not let at the preliminary inquiry.
Mr. Ramjattan who was opposed to the testimony of Johnny Chan, had further contended that the trial of the appellant was most unfair, in that:- (a) there was every indication from the trial judge's conduct that he assumed the role of an advocate, rather than a referee, when he constantly filled gaps for the prosecution's case with his constant and regular questioning of witnesses.
On the other hand, the Director of Public Prosecutions, Mr. Ian Chang pointed out that the State could not properly have called Johnny Chan as a witness at the preliminary inquiry for the obvious reason that he was a co-accused then.
This court was also told by the D.P.P. that the trial judge, in exercising his discretion, had taken into account all the factors, including those that affected the public.
The trial judge in defence of his ruling had said, “It is in the interest of the public that criminals should be brought to justice and the more serious the crime the greater is the need for justice to be done.”
Mr. Ian Chang further submitted that the additional evidence was relevant and admissible and that the trial judge had quite correctly exercised his discretion to admit the evidence.
The facts of the case disclosed that Seecharran, a farmer and businessman (a trader) accompanied by Ramong and John Knights, had left Port Kaituma for down river on January 11, 1993.
Knights testified that when they were about a mile from Port Kaituma Landing, he observed a boat following behind.
He said that they paddled faster and observed that the boat behind them had increased its speed also.
Seecharran brought his boat to a standstill on the riverbank, with the result that the corrial which was traveling behind drove past them with three shirtless passengers, including the accused.
According to Knights after it began to get dark, Seecharran and his party decided to stop at an unused camp, for the night.
He said that they were at the said camp relaxing when the accused, his brother Johnny Chan and a man named Rodrigues who had earlier passed in their corrial turned up about 6:45p.m. and requested to bunk for the night.
The accused who was armed with a gun explained that he was on a hunting mission for bush hogs, and asked permission to remain in the camp.
They were accepted because it was an unused camp. Knights went on to say that about 10p.m. the accused got up, folded his sheet, placed it in his traveling bag and picked up his gun.
“Accused then said, ‘Boys lets go and listen’. With that accused walked away”.
Witness said that Seecharran was still in him hammock, Ramong was on the floor of the camp when he heard a loud bang as if a gun had gone off. The sound came from the direction of the accused.
Knights said that after hearing the gun shot one of the boys … replied “This thing go off”.
Witness said that he looked in the direction of the deceased and noticed that the sheets that they were covered with had several holes believed to be caused by gun shots. Seecharran was groaning as if in pain.
This witness ran out of the camp. He said that he was running through the bushes when he heard another gun shot.
He remained in the bushes on his belly until daylight before returning to the camp. All he saw there was fresh blood on the floor of the camp.
Later that day, he made a report to the Mabaruma Police Station. Knights said that later that day he accompanied the police to the accused's home at Port Kaituma. On seeing the police approaching, accused jumped through a window and escaped.
They entered the house and found the red jersey that the accused had used to cover his head while in the camp. They also found a sheet that resembled the sheet the accused had used to cover himself while in the camp.
Johnny Chan, the brother of the accused, along with Godfrey Rodrigues had been charged with the murder, but was freed on a nolle prosequi. Rodrigues died in prison.
Johnny Chan was made a witness for the prosecution.
Three amended grounds of appeal were filed by the appellant. He, however, abandoned ground 3 and argued the appeal on the following grounds:–
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(a) That the learned trial judge erred in allowing additional evidence from Joel Clementson, Johnny Chan, Oral Stoby and Lennox Thornhill, to be admitted in evidence at the trial, there being no good reason why such evidence was not led at the preliminary inquiry.
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(b) That the trial of the appellant was most unfair in that there was every indication from the trial judge's conduct that he assumed the role of an advocate rather than a referee when he constantly filled in gaps for the prosecution's case with his constant and regular questioning of the witnesses and this resulted in an unbalanced approach of the case for the defence in his summing-up.
Let me state at the outset that upon a perusal of the record of appeal and the evidence led at the trial and the questions asked by the learned trial judge I am of the view that this ground of appeal has no merit. In my opinion what the learned judge was doing was in fact asking questions for the benefit of the clear understanding by the jury of the evidence and various issues raised from time to time. In the Nigerian Case of Akinfe v. The State (1989) L.R.C. (Criminal), the issue of the judge descending into the arena was raised. This was not a case of trial by jury, nevertheless it was hold that a trial judge was properly entitled to ask questions to clarify answers to questions asked by the parties or to clarify a point which had arisen and this is exactly what the learned trial judge did in the present appeal. To this end I find that there was no unfairness to the appellant.
With respect to the other around dealing with the learned trial judge's allowing additional evidence to be led, I have this to say: The witness Lennox Thornhill, had not given evidence at the preliminary inquiry where it was sought to tender the certificate issued by him as to his ballistic findings. The admission of such a certificate in evidence was not permitted at the preliminary inquiry therefore the appellant would have reasonable expected that at the trial appropriate steps would have been taken to have the witness called. The appellant therefore, could not have been taken by surprise and a ruling to this effect was made by the learned trial judge at page 96 of the record. The learned trial judge concluded in his ruling that Thornhill's evidence would be no surprise to the defence. With this I entirely agree.
With respect to the witness Joel Clementson, he gave evidence at the preliminary inquiry and was called at the jury trial. An application was made by the State to lead additional evidence by this witness relating to the period 21-11-93 to 23-11-93 which was not led at the preliminary inquiry. This evidence related to the search for the bodies of the deceased. It was only on the 17th November 1993 that Clementson gave a statement in relation to this aspect of the case. By that time Cpl. Stoby who was part of the investigating team was no longer a member of the force and...
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