Ketwaru v The State

JurisdictionGuyana
JudgeKennard, C.
Judgment Date21 June 1999
Neutral CitationGY 1999 CA 10
Docket NumberCriminal Appeal No. 32 of 1998
CourtCourt of Appeal (Guyana)
Date21 June 1999

Court of Appeal

Kennard, C.; Perry, J.A.; Persaud, J.A.

Criminal Appeal No. 32 of 1998

Ketwaru
and
The State
Appearances

Doodnauth Singh S.C. with V. Puran and Nandlall for the appellant

Y. Cummings - Deputy Director of Public Prosecution for the State

Criminal law - Conviction for manslaughter — Deceased chopped on the head with cutlass — Appeal against conviction — Various grounds of appeal — Whether trial judge misdirected jury on identification evidence — Defence of accident and self defence — Whether adequately put to jury — Finding that trial judge failed to adequately direct jury — Conviction and sentence quashed — Retrial ordered.

Kennard, C.
1

The appellant was convicted at the Demerara Assizes on the 31st July, 1998 for the offence of manslaughter and was sentenced to a term of imprisonment of twelve (12) years for that offence. The allegation of the State is that he had unlawfully killed his brother-in-law Ralph Sahadeo on 5th October, 1996 at Eccles, East Bank Demerara by chopping him on the back of his head by means of a cutlass.

2

He has appealed his conviction on a number of grounds, which I will be dealing with very shortly. However, before dealing with those grounds of appeal I must refer to the evidence led at the trial. The appellant had been married to the sister of the deceased one Mandai for about twelve years but as appears from the evidence the relationship had turned sour and the wife had returned to her parents' home to live whereas the appellant went and lived with his parents, who did not live very far from the parents of the wife - a drain separated the two yards.

3

The deceased carried on a business on the lower flat of his parents' premises where the appellant's wife was living at the time of the incident. There were two children of the union between the appellant and his wife - one being Samantha who was just nine (9) years old at the time of the incident and she had been residing with her father at that time. The other child appears to be of a very young age but her exact age was not given in evidence at the High Court trial. Samantha was one of two witnesses who testified of having seen her father chopping her uncle (the deceased) on his head.

4

The other witness was one Seeram Jagbir, who said that he was standing nearby on the Public Road at Eccles waiting on transportation to take him home when he saw the deceased being chopped on head by the appellant.

5

The evidence of those two witnesses is very conflicting. As a matter of fact, Samantha contradicted herself on several occasions. She started off by saying that she saw the appellant firing one chop at the deceased but under cross-examination she at first stated that she saw two chops but later still under cross-examination she said it was three chops.

6

Further when the version of Samantha is compared with that of Jagbir they varied significantly. Additionally, Dr. Leslie Mootoo, who had performed the Post Mortem examination on the body of the deceased had expressed the opinion that the fatal wound was inflicted on the deceased when it appears that he was being pursued by some one. This is what Dr. Mootoo had in fact stated at the trial:–

“Head Injury is consistent with the victim being in front and being pursued … I saw no injury consistent with persons facing each other. There was no defensive injury in this case. The incised wound was on left and back of head. It extended from middle of head forward and downwards measuring roughly 5 inches. It was just under 4 inches from top of left ear.”

7

Dr. Mootoo's evidence was in stark contrast to that of Samantha Ketwaru and Seeram Jagbir who both testified that the two men were facing each other at the time the deceased was chopped on his head by the appellant.

8

Apart from Samantha Ketwaru and Seeram Jagbir, there was evidence coming from Itwaru Sahadeo (brother-in-law of appellant and brother of the deceased) who testified of seeing the deceased being pursued by the appellant, who had, cutlass in his hand and that shortly thereafter he saw the deceased by the road side bleeding from his head. The appellant was then nearby and was striking his wife (appellants' wife) with his fists.

9

There was also the evidence of Naipaul Sahadeo, father of the deceased and father-in-law of the appellant, who testified of threats having been made by the appellant on the 2nd October, 1996 “to wipe out the Sahadeo family”.

10

The contention of the State at the trial was that because of differences between the appellant and his wife the appellant had threatened to kill members of the Sahadeo family and that he did in fact kill one of them i.e. the deceased by chopping him on his head with a cutlass three days later.

11

As against the State's case, the contention of the defence was that the deceased had met his death accidentally when he fell and struck his head. Additionally, the evidence led raises a possible defence of self defence.

12

There were several grounds of appeal argued by senior counsel but I mean no disrespect to him when I say that I saw no merit in some of them. Apart from one ground of appeal which we feel will determine this appeal I will deal somewhat briefly with some of the others.

GROUNDS OF APPEAL
13

The learned trial judge failed to direct the jury on the issue of identification as it related to the testimony of Seeram Jagbir.

14

It was the contention of senior counsel that as Seeram Jagbir had not known the appellant before the incident and had not attended an identification parade his identification of the appellant amounted to a Dock identification and that the trial judge had failed to deal with this issue in his summation to the jury.

15

Mr. Doodnauth Singh, S.C. relied on the cases Khalil v. The State (1975) 23 W.I.R 50 and Pelham Grey et al v. State Criminal Appeals No. 1-5/86. [See also Kirpaul Sookdeo et al (1971) 19 W.I.R. 402].

16

However, the short answer to this submission is that the appellant had placed himself at the scene at the time of the incident in his written statement to the police on which he relied at the trial. Additionally two witnesses whom he had called at the trial, namely, Seelall Motilall and Bharat Persaud had also placed him at the scene. When all the evidence is considered, including that of Samantha Ketwaru, it can be reasonably concluded that the incident of which Seeram Jagbir testified is the very incident of which Samantha Etwaru and the others had testified. There is no evidence on record that there were two incidents taking place in that area at that point of time. In the circumstances the failure of the trial judge to deal with the issue of Dock Identification is of no consequence. The learned trial judge failed to apply the proper tests in determining whether Samantha Ketwaru was competent to give sworn evidence.

17

It was the submission of senior counsel that the answers given by Samantha Ketwaru on the voir dire did not entitle the trial judge to conclude that she was competent to give sworn evidence. We have noted the answers given by Samantha Ketwaru on the voir dire and we are satisfied that the trial judge was correct when he found her to be competent to give sworn evidence.

18

In R v. Cyrus (1968) G.L.R. 322 it was held that before swearing a child of tender years, the court must be satisfied that the child feels the binding obligation of the oath, i.e. a belief in a Creator and the power possessed by the Creator to mete out punishment for misdeeds of falsehoods.

19

Let us therefore examine the answers given by Samantha Ketwaru on the voir dire and determine whether or not the trial judge had erred in his ruling. These are some of the answers she gave.

“I am eleven years old - born 24th February, 1987. I attend Eccles Primary School. I wrote the Common Entrance in 1998. I follow the Hindu Religion. My mother teaches me about the Hindu Religion. I believe in God - I know about good things and I know about bad things. To lie on somebody is to do something wrong. To do the right thing is to do good like don't quarrel and don't fight. I know about lies. To tell lie on some one is not a good thing. If I tell a lie on some one and that lie is believed, the person I lied on may be punished. I would feel bad about that. The Gita is the Hindu Religious book. When I speak the truth I speak what happened. If I make it up it would be a lie. If I hold the Gita and do not speak the truth I be punished. I will get sin and God will punish me and I will go to hell which is a bad place. If I tell a lie I could go to jail. I have come to speak the truth. I will would not lie on my father as it is a bad thing to lie”

20

Having regard to what the answers on the voir dire revealed and to the fact that the trial judge had the benefit of observing the demeanor of the child it cannot be said that he had exercised his discretion wrongly when he ruled that Samantha Ketwaru was competent to give sworn evidence.

21

Mr. Doodnauth Singh had referred to the case of R v. Nelson (1962) 5 W.I.R. 48 and had further submitted that the trial judge had to conduct two (2) tests and that it was only when those two tests have been carried out that the trial judge would be justified in permiting a child to give sworn evidence. He had submitted that the trial judge must first decide whether the child is competent to give evidence and if the answer is in the affirmative he must then decide whether the child is competent to...

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