Dorsett and another v The State
| Jurisdiction | Guyana |
| Judge | Kennard, J.A.,Bishop, J.A. |
| Judgment Date | 19 January 1989 |
| Neutral Citation | GY 1989 CA 1 |
| Docket Number | Criminal Appeal Nos. 24 & 25/87 |
| Court | Court of Appeal (Guyana) |
| Date | 19 January 1989 |
Court of Appeal
George, C.; Kennard, J.A.; Bishop, J.A
Criminal Appeal Nos. 24 & 25/87
D. De Santos for appellants.
D. Christian, Assistant Director of Public Prosecutions for the State.
Criminal evidence - Written statement — Appellants convicted on felony murder charge — Adequacy of directions given to jury by trial judge — Credibility of witness — Admissibility of written statement into evidence.
Practice and procedure - Trial by jury — Adequacy of directions given to jury.
James Anderson (age 81 years) and his wife Clara (age 75) lived in a one flat building on the southern side of the Friendship Public Road on the gist Coast of Demerara. In that building part of which was occupied by them as their dwelling quarters, they carried on a haberdashery business. They were last seen by their niece Winifred Sharper who had visited them on the evening of 15th July, 1983 when both the deceased were apparently in good health and were carrying on their business as usual. Winifred Sharper who had gone to the premises of the deceased at about 11:30 that evening remained there until about 12:30 a.m. on the 16th July, 1983.
Before Winifred Sharper left she had assisted the elderly couple to check the takings from the day's sale which together with soma jewellery, belonging to the deceased, were placed in a cannister, which in turn was placed in a chest of drawer in the bedroom, after which it was secured in that drawer by “lock and key” the key than being placed by Winifred Sharper on top of the chest of drawers. When Winifred Sharper left at 12:30 a.m. on the 16th July, 1983 both deceased were “alive and kicking” so to speak.
Later that morning at about 9.a.m. Winifred Sharper received certain information, as a result of which she returned to the premises of the deceased where she observed that both of the deceased appeared to be dead. Both of them ware tied by their feet and around their necks. Winifred Sharper discovered that money and other articles were removed from the promises which were in a state of disorder. The obvious motive of the person or persons who had entered the premises, was to put it at its lowest, to steal therefrom. It was also discovered that a window in the kitchen area was wrenched and was open anal thus it would seem that the person or persons who had entered and removed the articles from the premises had grained entry therein through the window which was wrenched or prised open.
During the course of the morning of the 16th July at about 9.30 a.m. Detective Corporal of Policy Vernon Tappin, the finger print export, visited the premises of the deceased and there he found a finger print on a box which finger print was later compared with finger prints taken from the appellant by Sergeant of Police Ramcharitar on 23rd July, 1983 and this turned out, so Tappin ways to be that of the appellant.
On the 22nd July, 1983 Dr. Mootoo performed post mortem examinations on the bodies of both deceased. In relation to James Anderson Dr. Mootoo found the following inquires (external):-
- Haematoma of testes on the left side. 2. Abrasions on right side of neck - two in number. 3. Abrasion on left side of neck. 4. Contusion of upper part of the face. 5. Two (2) teeth marks on tongue (left aspect).
Concerning the neck, there were the following (internal):–
- Haematoma in the muscles of the neck; on the right and left sides. 2. Haematoma in the fascia between hyoid and thyroid cartilages. Petechial haemorrhages in the larynx and vocal cords. There were fractures of the right corma of the Thyroid cartilages.
Cause of death, according to Dr. Mootoo, was Asphyxiation due to the fracture of the Thyroid bone.
In relation to Clara Anderson the doctor found that there were haemorrhages around the left mastoid process, on the neck, and in the muscles of the neck especially the left aspect. Further there were haemotoma in the larynx vocal cords and between the fascia of the thyroid bones. Cause of death was Asphyxiation due to strangulation.
Before the post mortem examinations, both appellants were arrested by Deputy Superintendent of Police Oswald Braithwaite and a party of policemen in the Laing Avenue area, Georgetown at about 10:30 p.m. on 21st July, 1983. They were later taken to Criminal Investigation Department Police Headquarters, Eve Leary, where on the following day whilst the No. 1 appellant was in police custody he told Police Constable Dale Ramsay, who had seen and spoken to him in the Queenstown area Georgetown on the same day at about 4.30 p. m. that it was not he who had killed the people (the deceased) but that two persons whom he referred to as Nancy and Short Neck had done so. On the arrest of the No. 2 appellant it is alleged by Deputy Superintendent Oswald Braithwaite that the No. 2 appellant said “Is not I kill them old people. I only search up the place.(The No. 2 appellant later gave a written statement to Corporal of Police Rutherford which statement I will deal with at a later stage when I am dealing with his appeal.
Felony Murder Rule - basis of the State ‘s case:–
The state relied on the doctrine known as the “Felony Murder”, which simple language means: death resulting from an act of violence done in the course or in the furtherance, of a crime of violence (a felony involving the use of violence) is murder although there is no intention to kill or to cause grevious bodily harm [see D.P.P. v. Board (1920) 14 CAR at p. 115, R v. Jarmain [1945] 2 All E.R. at p. 613 and the local cases of R v. Samad et al (1969) 15 W.I.R p.35, Dhannie Ramsingh v. The State (1973) 20 W.I.R p. 238, The State v. Van Rossum and Halley (1975) 22 W.I.R p.138 and Balkarran Singh of et al v. The State (infra)].
The judge on repeated occasions told the jury that before they could convict either of the appellants they had to be satisfied to the extent of feeling, sure that he was a party to the use of violence which resulted in or caused the death of the two deceased persons. At pp.104, 105 of the record the trial judge is recorded as having told the jury this:–
“… Now the State has to satisfy you of this beyond reasonable doubt, If you are not so satisfied, if you can't stay with certainty that the number one accused was there participating in the use of violence which resulted in the death of the Anderson's then he can't be found guilty of murder. The same applies to the number two accused. You have to find beyond a reasonable doubt that they were both there either themselves using violence or agreeing to the use of violence against the Anderson's witnessing it, and not dissociating themselves from it.
If that is what occurred then you may properly bring in a verdict of guilty of murder. And that is what the State has got to satisfy you of beyond a reasonable doubt. It is not sufficient that you find that they had broken and entered the premises and they stole therefrom, that is not sufficient. You have to go on to find that they either used violence, each of them, or that they were parties to the use of violence against the Anderson's which resulted in the death of the Anderson's.”
At several other passages of the summation the trial judge emphasised to the jury the need for the State to prove violence on the part of each of the appellant before there could be conviction for the offence charged i.e. murder.
The Appeal of the No.1 Appellant Albert Dorsett:–
The case against this appellant rested mainly on the oral statement made by him to police Constable Dale Ramsay, to which I referred earlier and which lacks details to justify a conviction used thereon and the fact that his finger print was found on a box in the bedroom of the deceased person's home, if the evidence of Winifred Sharper is believed, together with that of Detective Corporal of Police Vernon Tappin, who was of the view, as I said earlier, that the finger print fund on the box was that of this appellant.
Mr. De Santos submitted, among other things, that the learned trial judge ought to have withdrawn the case from the jury at the close of the State's case as there was not a prima facie case of murder established against this appellant.
Without deciding this point, it would seem to me that the finding of the finger print on the box in the bedroom, if this evidence is accepted, would establish that this appellant had entered the bedroom where the dead bodies of the Anderson's were found and if this is so, this would call for an explanation by the appellant for his presence in that bedroom as this is very incriminating evidence. In this cause as the appellant had given no explanation for his presence in the bedroom, the jury would have been entitled to draw an inference adverse to him. [See The State v Sookraj Evans (1975) 23 W.I.R. p.189 and The State v The State v Balkarram Singh et al - Criminal Appeals Nos.3-6 of 1981].
In the State v. Sookraj Evans Haynes J.A. (as he then was) said at p. 208:–
“… In the case of circumstantial evidence no explanation of proved incriminating facts or a false one can be a very powerful consideration to strengthen an inference of guilt which a credible explanation might have weakened or destroyed”.
In R v. Mary Ann Nash (1911) 6 CAR at p. 225 the Lord Justice said:–
“But the facts which were proved called for an explanation and beyond the admittedly untrue statement nothing was forthcoming”.
In that case the appellant was the last person seen with the deceased child. She made untrue statements about the child. The Court of Criminal Appeal in England held that it was not a case which could have been withdrawn from the jury.
In Latchman Outar v. The State - Criminal Appeal No. 52/80 a case based entirely on circumstantial evidence and where the appellant was the last person seen in the company...
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