Dick et Al v R
| Jurisdiction | Guyana |
| Judge | Bishop, J.,Massiah, C. |
| Judgment Date | 08 May 1985 |
| Neutral Citation | GY 1985 CA 2 |
| Docket Number | Nos. 42 and 43 of 1985 |
| Court | Court of Appeal (Guyana) |
| Date | 08 May 1985 |
Court of Appeal
Massiah, C., Fung-a-Fatt, J.A.; Bishop, J.A.
Nos. 42 and 43 of 1985
B.C. DeSantos for the first appellant
E.L. Cumbermack for the second appellant
Ian Chang, acting Deputy Director of Public Prosecutions for the State.
Criminal practice and procedure - Directions to jury — Common design — Reception of testimony under oath — Warning in relation to witness with interest to serve — Use of photographs in Courts — Issue as to voluntariness of confessions — Putting favourable but not fanciful aspects of case to jury — Issue of probative value of similar fact evidence.
Criminal law - Appeal against conviction — Murder — Mens rea — Whether criminal liability of accessory before the fact greater than that of principal in first degree.
Criminal law - Defenses — Self-defense — Provocation — Excessive force — Proportionality rule — Rule of reasonable relationship.
Dick & Evelyn v. The State (Murder)
- Acting in concert: common design; participation purposive or not. 2. Advisability as to joint or separate trials. 3. Testimony under oath or by affirmation- its reception. 4. Testimony under oath: when are tests, as to its reception, to be administered. 6. Testimony under oath: child witness and corroboration. 7. Testimony under oath: Trial Judge's discretion. 8. Witness with interest to serve - warning to Jury. 9. Summing up - complaint as to its speed and lack of balance - miscarriage of justice. 10. Locus in quo: plain view; demonstration. Function of Trial Judge upon return of accused and Jury to Court. 11. Photographs: their use in Court; probative value. 12. Handwriting: expert evidence; Jury's function in relation to such evidence. 13. Alleged confessions - issue as to voluntariness – voir dire; Trial Judge's discretion; recalling of earlier ruling. 14. Homicide - excessive force - self defence; provocation – manslaughter – the English, Australian and Guyanese positions. 15. Excessive Force in homicide - proportionality rule: the rule of reasonable relationship. 16. Summing Up: putting favourable but not fanciful aspects to Jury - consequences of omission by Trial Judge - miscarriage of justice – misdirection amounting to non - direction. 17. Murder: intention to kill or not - alternative verdict - criminal liability of accessory before the fact greater than that of principal in the first degree: 12- year old English decision not followed by Guyana Court of Appeal. English Court of Appeal (Criminal Division) and House of Lords later rule in manner similar to the Guyana Court of Appeal. 18. Homicide: Seven (7) different types or grades - criminal liability within framework of common design - different levels of accountability; intent. 19. Corroboration: Out-of-Court lies of the accused - use to which those lies may be put. 20. Murder: similar fact evidence – probative value. 21. Witness evidence available but witness not called at the preliminary inquiry: new or additional evidence at the trial.
at the request of His Honour, The Chancellor, delivered the leading judgment:
On July 5th, 1983, Evelyn Taylor called Evelyn Dick, and Alwyn Dodson Evelyn were convicted, at the Demerara Assizes, of the murder of James Williams Dick Giddings. The allegation was that the appellants, acting in concert, murdered Giddings between the 23rd and 24th days of January, 1981, at the home of the female appellant where, at her invitation, he had gone to pay a visit.
The State presented one eye-witness, Elroy McWilliams, a 15 year old girl and sister of the female appellant. McWilliams testified that she viewed the events immediately before, during, and immediately after the firing of the lethal pistol shot, from a room, which was above the one in which Giddings was, when he was wounded, and which overlooked the yard where the body was buried, by the appellants, in a shallow grave, during the night. As the days passed and Giddings was not seen, inquiries were made of the female appellant for him, whereupon she replied that he was out of the country. She said so on five different occasions, to five different persons.
McWilliams' claim was that, through a hole or holes in the wooden floor, she saw when her sister handed Giddings a document, required him to sign it and that when he refused to do so, the male appellant held him by the collar and said that it was “stick up time”; that the two men started to fight and, as Giddings tried to escape through a window, the female appellant shouted “shoot, shoot,” and that the male appellant responded by shooting the fleeing man “at the back of his head”. According to McWilliams, the shooting occurred around 10.00 a.m. on January 23rd, 1981.
The appellants pleaded not guilty to the indictment and, therefore, placed every ingredient, fact, and circumstance of the State's case in issue. The female appellant, who was the No. 1 accused, at the trial, relied on her written statement given to the police five weeks after the murder. In it, she disclosed non-participation in the incident; but described a triad constituted of the male appellant, the deceased, and herself, that was clearly predestined to dissolution by violence.
Relevant particulars of the dramatic personae were that the male appellant was a retired operations engineer of the Guyana Electricity Corporation; his age 68. The deceased was a retired master-mariner; his age 68, and the female appellant, undoubtedly attractive, aged 35. Her account was that she had been friendly with the male appellant since 1976, but that she married Giddings on May 19th, 1980 while maintaining her liaison with the male appellant, who remained her lover for the ensuing five years. That state of affairs had been facilitated, it would seem, by two factors: Giddings being away on sea and his residence elsewhere in Greater Georgetown, when he came home.
It was against that background that the female appellant gave her version of the episode: she had slept during the night with Giddings at his home, and returned to her own on the morning of January 23rd, 1981, when the male appellant, whom she depicted as extremely jealous to the extent that he had once shot at her, accosted her about her absence from home during the night; that she made a frank and prompt disclosure, which made the male appellant annoyed. So that when Giddings arrived at her home, so her story ran, the two competitors for the affection of this femme fatale quarrelled, during which encounter the male appellant exclaimed that the time had come for him to execute his previously conceived intention to kill her husband, and straight away seized her spouse at the back of his shirt, put the pistol close to his head and shot him once.
The female appellant, in her statement, made no reference to the allegation that she had demanded her husband's signature to any document; but the male appellant in his statement, ruled voluntary by the learned trial judge, alluded to a dispute between husband and wife over the signing of some papers. However, he made no mention whatever of questioning the female appellant about her whereabouts during the night. His statement is as follows:
“On the 24th January, 1981 at 09.00 hours James Dick Giddings called at Mrs. Evelyn Dick's house. Mrs. Evelyn Dick arrived shortly after and they both went into the room downstairs. After a while she called me downstairs. I went and found them sitting in chairs talking. Mrs. Dick asked her husband to sign some papers and he refused to do so. She signalled me to grab him at the back of his neck, and I did so for him to sign the paper. He got up and she cuffed him about the face and chest, and she told me to take out the gun and shoot him. I took my pistol and shot him at the back of his head and he fell down. The body was left in the room and later the said day about 11.00 p.m. Mrs. Evelyn Dick and I dug a hole at the back of the yard and buried the body of James Dick Giddings.”
Sgd. Alwyn Dodson
28th February, 1981.
In her written statement, the female appellant admitted that she cleaned up the room in which Giddings was shot, assisted the male appellant to dig the grave and bury the body, but that she did so, because of her fear for her lover. In his statement from the dock, the male appellant explained that when Eve told him to shoot, he complied with her direction, though not intending to kill Giddings; that he loved Eve and had nowhere to go (had he disobeyed). But portrayed, albeit in a different role, from that of the notable female character in the Old Testament Book of Genesis, the Guyanese Eve was presented, by the State, to the jury, as having been actuated by greed, when she commanded or intentionally encouraged her lover to shoot her husband.
In the opinion of the learned trial judge, Perry, J., the question for the jury to decide was so clear-cut that, at the very end of his summing-up, he told them he did not address them on manslaughter because their verdict was restricted to “murder or nothing at all.”
But the apparently simple issue for determination by the members of the jury was beset with complexities that included their approach to:
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(1) several aspects of the evidence of the young witness, Elroy McWilliams;
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(2) certain conflicts, in evidence, between the handwriting experts; one called by the State and the other by the male appellant;
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(3) certain segments of evidence or material put forward by each accused, as integral parts of his or her defence, but containing matter prejudicial to the co-accused.
The foregoing were among the complaints, made by the appellants, as matters which, stated as a ground of appeal, predicated substantial wrong or a miscarriage of justice; that a critical analysis of the summing-up would reveal many non-directions amounting to serious misdirections.
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