Khan and Others v The State
| Jurisdiction | Guyana |
| Judge | George, C.,Bishop J.A. |
| Judgment Date | 12 April 1989 |
| Neutral Citation | GY 1989 CA 5 |
| Docket Number | Criminal Appeal Nos. 10, 11, 12, 13/1987 |
| Court | Court of Appeal (Guyana) |
| Date | 12 April 1989 |
Court of Appeal
George, C.; Kennard, J.A.; Bishop, J.A
Criminal Appeal Nos. 10, 11, 12, 13/1987
And Others
D. Singh, S.C. for the appellants.
I. Chan, Deputy D.P.P. associated with T. Ragnauth for the State.
Criminal evidence - Admissibility — Confession statement — Appellants convicted on four count indictment on murders of four schoolboys — Admissibility of confession statements made to police — Whether statements voluntary — Effect of prolonged incarceration without charge on voluntariness — Challenge to trial judge's direction on issue of acting in concert.
Between 7:30 and 8 a.m. on the morning of the 12th October, 1883 four school boys aged between 12 and 14 years left their respective homes at various locations on the Corentyne Coast, for their school, the Lutheran High School. Their names were Nigel Latchana, Nazim Khan, Kempton Persaud and Ravindranauth Goomanie. They were never seen alive again by their parents. Indeed some two weeks later parts of human bodies were found in the Corentyne river and two of these were identified by the parents of two of the youths to be those of their sons. The conclusion was inescapable that the four were brutally and senselessly hacked to death.
About 8:15 a.m. on the very 12th the boys were seen in a boat the Corentyne River. The boat was being driven by the fourth appellant and was proceeding southwards in the direction of Crabwood Creek, of the three witnesses who testified to seeing them in the boat recognised one of the boys as Nigel Latchana and later identified two others from photographs that their parents had given to the police.
By midday the boys' families had learnt of their absences from the school during the morning session. They began searches that afternoon and these continued for several days thereafter. About 11 a.m. on the 13th October the father of Nigel was with a police search party which went to Long Island, Corentyne River. There they saw the second appellant. The police asked him whether he had seen four school boys and he replied in the negative. In the afternoon he was again seen, this time at Moleson Creek. He was then in company with the fourth appellant at their home. They were both asked whew they had brought four school boys from Crabwood Creek or whether had seen four school boys. They replied in the negative, the four appellant adding that he had not been to Crabwood Creek for the whole of that day. The police then took the fourth appellant in their boat to the Springlands police station.
The following day the father of Kempton Persaud joined Nigel Latchana's father and the police search party. They returns to Long Island where the second appellant was again questioned. He repeated that he had not seen the boys.
In the meanwhile the parents of Ravindranauth Goomanie and Nazim Khan had mounted their own search parties. Goomanie's party went to Orealla on the 12th October and overnighted there. The next day they went in the direction of Moleson Creek, On their way they too met the second appellant and asked him whether he had seen the four school boys. He responded by telling them that they should go in the direction of Moleson Creek where they would find them. The search party did go to Moleson Creek, but their journey proved futile. The following day they broke up into smaller groups and continued their searches. Accompanying one of these groups was the second appellant. Their searches continued until the 19th October.
Nazim Khans father and his party also searched in the Moleson Creek area from the 13th October. He too had seen the second appellant and on enquiring of him, was told that he had seen four school boys going in the direction of Moleson Creek. Searches on that and the following day, however, unearthed no evidence of their presence in the area. In the afternoon of the thirteenth he was present when the police arrested the fourth appellant in the Moleson Creek area.
On the 24th October, Nazim Khan's father was shown a portion of a human man body from waist to knee. On it was a camouflage pants which he identified as the one his son had been wearing on the day that he disappeared.
On the 27th October, Nigel Latchana's father identified part of a human body to be that of his son. It was from the hip downwards, but the left foot was missing. On the body was a pair of pants and the right foot had a web between the second and third toes. These were the means by which he identified the body to be that of his son. Portions of a third body were also found but it was decomposed and so mutilated as to be unidentifiable.
The cases against the appellants consisted primarily, if not entirely, of confession statements that had been made by them, They were all convicted on a four count indictment of the murders of the four school boys and sentenced to death on each count. It is from these convictions and sentences that they now appeal to the court. Except as regards the fourth appellant the main thrust of the submissions made by counsel on behalf of the others was that the trial judge erred in admitting their statements into evidence.
During the course of his arguments counsel for the fourth appellant sought and obtained leave to add a further ground which challenged the trial judge's direction on the issue of acting in cones as it related to the fourth appellant. At the end of the arguments we allowed this appellant's appeal on that ground and reserved our judgment in relation to the others.
The fourth appellant had made three statements to the police. The first on the 25th October, the second on the 26th, and the third the following day. They are all essentially the same in content and none of them was challenged. The trial judge found them all to be free and voluntary and admitted them into evidence. In them he said. that on the morning of the 12th October, his wife was ill and he brought her by a speed boat from their home at Moleson Creek to Crabwood Creek. She had intended to consult a medical practitioner at Skeldon. At Crabwood Creek he met one Wahab whom he took back with him, but before leaving for Moleson Creek he saw four East Indian school boys, one of whom he recognised as the son of Goomanie. They offered to pay him to convey them up the river but he refused. However when he get to Moleson Creek he told one Hafeez about the boys' request and offer. At his suggestion he and Hafeez returned for the boys. They told them that they required five hundred dollars for the journey and the boys agreed to this sum, which one of them paid to Hafeez after they had boarded the boat. Hafeez give him half of it. He parted company with the boys at Hafeez's landing and went to his home, About 4 p.m, ha returned to Hafeez's home where he met the latter's brother, Zabeer, his brother-in-law, Sherah, and two of his cousins. The four boys were with them. He spent score time with them and Hafeez said that the boys would sleep at Sherah's home that night. He left and the next morning about 6.30 he went to Long Island. He had not since seen the boys as the police arrested him later that day. In his final statement of the 27th October he said that he did not tell the police earlier of the whereabouts of the boys because Hafeez had threatened to shoot him if he did.
These statements together with the admitted lie that he told the police and the boys' parents viz that he had neither been to Crabwood Creek on the 12th October nor had he seen four school boys an that day and his explanation in the last of them for that lie were the only pieces of evidence that the prosecution had presented against this appellant. Having regard to the part which he said he had played, the circumstances required a very careful summing up by the trial judge so as to impress upon the jury that they could only convict the appellant of the capital offence if they were satisfied that he had conveyed the bays upriver as of a concerted plan to kill them or to do them serious bodily harm, lend in order to further assist them in their analysis of the evidence the trial judge should have directed their attention to the fact that if his part was merely that of agreeing to convey them for the purpose of committing of some other unlawful act, e.g. that of kidnapping' the boys, then this could not be sufficient evidence from which to convict him of the offence of murder. Included in the directions that the trial judge give to the jury is the following passage:
“Ask yourselves, members of the jury why is he telling the police an untruth? What is he hiding? What is he covering up? Then in the said statement (of the 27th October) he said by way of explanation that he did not tell the police where the boys were because he was afraid that Hafeez would kill him; that Hafeez told him that if he talked about the boys he would shoot him.
So, members of the jury, why would Hafeez want to shoot him if he talked about the boys? Did he know of the plan? This is the question which you must ask yourselves in considering this matter. Did he know of the plan and was lending support to it? Why did he have to consult Hafeez before he came back to carry the boys up the river. Did he know that Hafeez had a plan to do something wrong for which he would shoot him if he spoke? Did he lend support to this plan?
All these are questions which you will have to ask yourselves and consider. I cannot answer them for you. You will have to answer them yourselves. They are all questions of fact for you members of the jury.”
And later the learned trial judge said:
“Well, if you believe this is so, members of the jury, if you believe that he did not know of any plan by Hafeez, he did not know that there was any plan or plot to kill the boys and that all he did was to take the boys up the river for which he was paid then he would not be guilty because he was...
To continue reading
Request your trial