Hetsberger v The State

JurisdictionGuyana
JudgeFung-a-Fatt, J.A.,Harper, J.A.,Kennard, J.A.
Judgment Date15 January 1987
Neutral CitationGY 1987 CA 1
Docket NumberCriminal Appeal No. 26 of 1984
CourtCourt of Appeal (Guyana)
Date15 January 1987

Court of Appeal

Fung-a-Fatt, J.A.; Harper, J.A.; Kennard, J.A.

Criminal Appeal No. 26 of 1984

Hetsberger
and
The State
Appearances:

B.C. DeSantos for the appellant

I. Chang, Deputy Director of Public Prosecutions for the State

Criminal procedure - Appellant charged with murder but committed to stand trial for the lesser charge of manslaughter — Directions by judge to jury on manslaughter and self defence — Whether adequate — Magistrate should commit accused for trial for manslaughter where the charge is one of murder only in cases where the facts clearly warrant this being done.

Fung-a-Fatt, J.A.
1

The appellant, a lieutenant in the Guyana Defence Force, was charged with the offence of murdering Deryck Maynard on the 31st day of July, 1983. At the hearing of the preliminary enquiry the magistrate agreed with defence counsel's submission that there was evidence of murder and committed the appellant to stand trial for the lesser charge of manslaughter. How and why the learned magistrate did so I do not know and do not wish to speculate. The Director of Public Prosecutions, it would seem, agreed with the ruling of the magistrate and indicted the appellant for the offence of manslaughter.

2

On the 19th day of October, 1984 the appellant was found guilty and on the 26th of October, 1984 he was sentenced to eight years' imprisonment. It is against that conviction that he has appealed to this court.

3

The evidence in a nut shell reveals that one Corporal Moore was the officer responsible for paying salaries to the members of the army in the interior and for this purpose he traveled by plane. It would appear that Corporal Moore had for some unknown reason failed to travel on two previous flights with salaries for July and because of this the appellant had gone to his home on three occasions on the 31st day of July, 1984.

4

On the fourth visit which took place around 4 o'clock in the morning, Deryck Maynard lost his life. The appellant was accompanied by Paula Forrester whom he had met at a party at Queens College. She also worked at the Finance Department with Corporal Moore and the appellant.

5

At this stage with the appellant and Miss Forrester on the steps of the house occupied by the deceased there are two versions of what next took place that led up to the death of Maynard.

6

The prosecution's story is that the appellant called for Moore but was told he was not there. The appellant left and returned shortly afterwards and again kept calling for Corporal Moore. He was again told that Moore was not at home whereupon the appellant kicked upon the door and went into the house. In the house he was struck a blow on the head just above the right eye with a mortar stick. He then shot the deceased.

7

In a statement to the police the appellant's version is that on calling for Corporal Moore he was invited into the house and as soon as he entered he was struck on the right temple with something. He drew his pistol and cocked it. The person who struck him ran towards the verandah. He shouted “stop”, but the person tried to pull the verandah door open. He then fired on round towards him.

8

At the trial in his unsworn statement from the dock the appellant's story was significantly different. This is what he told the jury:–

“I heard the latch of the door turning. Then someone said ‘if you want to speak to Corporal Moore come in’. I pushed the door and as I leaned forward I was struck in the head in the region of the right temple. Blood started to pour in my right eye. As I saw the deceased advancing towards me for the second time I drew my pistol and cocked it. I shouted stop stop. He continued advancing towards me. I fired one round to protect myself.”

9

Lennox Blake, the third occupant of the house, Claudette David, a neighbour and Paula Forrester, a friend of the appellant were the main witnesses for the prosecution. The jury after listening to the evidence returned a unanimous verdict of guilty.

10

On behalf of the appellant a number of grounds were argued, but it is my view that only one qualified for and merited consideration and that is ground 2(b) of his amended grounds of appeal in which he complained that the learned trial judge misdirected the jury in that on the question of the amount of force used by a person raising self defence, he gave the jury a direction which was so limited as to mislead them into thinking that they had to decide objectively on whether the force used was in fact more than necessary, rather than the proper subjective test as to whether the appellant honestly and reasonably believed that the discharge of his gun was necessary to protect himself from imminent danger of death or serious bodily harm, bearing in mind that he could not be expected to weigh to a nicety the exact amount of force used.

11

Although I have my own opinion on this issue I am not prepared to express it as I am of the view that this concept of law as regards the use of excessive force being a subjective or objective test was not fully argued as to demand a firm ruling. In any event the facts and circumstances of this case do not warrant a consideration of this legal point. I shall therefore allow it to rest until such time as it becomes relevant and demanding.

12

The further contention of counsel for the appellant was that the learned trial judge failed to direct the jury that if they were in doubt as to whether the appellant had the honest and reasonable belief, that his life was in danger they should have acquitted him.

13

Dealing with the defence of self defence the learned trial judge had this to say to the jury:–

“If you believe, members of the jury, that the accused was acting in necessary self defence, that is, he was lured into the house, he was invited into this house, and he was be laboured with this mortar stick and his life was in imminent danger, having regard to the mortar stick, having regard to the nature of the weapon with which he was attacked by the deceased shouting at him, members of the jury, he can be guilty of no offence whatsoever.”

14

The learned trial judge, in my view, mercifully gave to the jury a direction which was most favourable to the appellant. There can be no doubt whatsoever that the jury rejected the appellant's version of the incident as given by him in his unsworn statement from the dock.

15

I am convinced of this view since the learned trial judge dealing with the defence told the jury:

“According to him, members of the jury, he told the deceased to stop but the deceased was advancing towards him and struck our with the mortar stick, inflicting the injury on the deceased which eventually caused his death. If you believe these are the circumstances you may feel that the accused was acting in necessary self defence he can be ‘guilty of no offence’.”

16

In concluding his summation the trial judge further told the jury:

“If you find that what the accused is telling you is the truth or you are left in doubt about it you must also acquit him. You see it is the prosecution to rebut this defence and satisfy you so that you can feel sure that the deceased was injured as led by the evidence of the prosecution without any self defence.”

17

So from the direction given by the trial judge to the jury it was a simple straight forward issue of fact which had to be determined by the jury. Did the incident take place as described by the witnesses for the prosecution or did it happen in the manner as explained by the appellant in his unsworn statement from the dock. The one and only defence was self defence.

18

The question of provocation was to my mind already resolved by the learned magistrate who must have found at the end of the preliminary enquiry that the appellant was so provoked that he was not the master of his mind when he shot the deceased. Magistrates must be reminded that the object of the inquiry is not to determine the guilt of innocence of the accused but to inquire whether the accused ought or ought not to be committed for trial. In Joseph v. R. 1 W.I.R. p. 367 it is stated that “the function of justices therefore is not to balance the evidence and decide accordingly as it predominates, for this would be, in fact, the taking upon themselves the function of a jury and be trying the case.”

19

As I have said earlier the jury must have found the appellant had forced himself into the house by kicking down the door and when struck a blow over his eye, shot and killed Maynard who was not advancing towards him but in fact going towards the verandah of the house away from where the appellant was standing.

20

The appeal must therefore be dismissed and the conviction and sentence of the court below affirmed.

Harper, J.A.
21

In the early hours of the morning of 31st July, 1983 the deceased, Deryck Maynard, was shot and killed in his own house, at 39 Hadfield Street, Lodge. His companion, Lennox Blake, although armed with a cutlass dropped it, when a shot rang through the air. He made good his escape by scaling a fence. The deceased was shot by the appellant who was in close proximity. The substance of the case for the prosecution was that the appellant went in search of one Corporal Moore, who was working in the finance office of the Guyana Defence Force where the appellant and the witness, Paula Forrester, also worked. Corporal Moore was the pay clerk for certain interior locations of the Guyana Defence Force. The appellant was the second-in-charge of the Finance Office. Corporal Moore was required to depart from Timehri airport at 9.00 a.m. on the very 31st July, 1983 to pay soldiers in the interior. Because of the urgency for Corporal Moore to travel, coupled with the fact that Corporal Moore had missed two previous flights which went to those locations where he had to perform his duties, the appellant was instructed to inform Corporal Moore of the flight arrangements. So he...

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