Lawrence v The State

• Jurisdiction: Guyana
• Judge: Kennard, C.
• Judgment Date: 01 January 1999
• Neutral Citation: GY 1999 CA 1
• Docket Number: Criminal Appeal No. 11 of 1997
• Court: Court of Appeal (Guyana)
• Date: 01 January 1999

Court of Appeal

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

Criminal Appeal No. 11 of 1997

Lawrence

and

The State

Appearances

C. Richardson for the appellant

Y. Cummings for the State

Criminal law - Conviction for manslaughter — Appellant charged with murder of deceased who died as a result of being forcibly sexually assaulted — Appellant found not guilty of murder but guilty of manslaughter — Verdict of manslaughter not properly received by trial judge and announced to nullity — Whether appellant could be retried for murder — Finding that appellant could be retried for manslaughter only.

Kennard, C.

1 The appellant was indicted for the offence of murder allegedly committed between the 25th and 26th days of August, 1995. The allegation of the State was that he had murdered one TONESHA HENRY, who was then ten (10) years old, at Vergenoegen, East Bank Essequibo. The State's contention was that the deceased had died as a result of being forcibly sexually assaulted by the appellant.

2 There was no direct evidence linking the appellant with the death of the deceased but the prosecution had tendered at the trial a statement allegedly made by the appellant to the police which had been admitted into evidence by the trial judge after he had conducted a voir dire and ruled that the it was freely and voluntarily made by the appellant.

3 That statement read inter alia:

“… Me run up to she and me scramble she around the neck and all two ah we fall dawn on the ground but me still hold she neck. The next thing me know like she na get no power to fight then me loose she neck and she foot still kicking up. Me then feel up she patacake but when she foot na kick up more me left and say boy me ah go home.”

4 Among the injuries found on the deceased by Dr. Leslie Mootoo, who had performed the Post Mortem examination on the body was a fracture of the left hyoid bone. There were also:–

• (1) Rupture of the hymen

• (2) Rupture of tissues between anus and vagina

• (3) Contusion of anus and rectum

• (4) Rupture of pouch of Douglas (separation from abdomen)

• Cause of death, according to Dr. Motoo was:–

• (1) Asphyxiation due to fracture of hyoid bone

• (2) Shock following - Rupture of Hymen, rupture of pouch of Douglas and rupture of tissues between the anus and vagina.

5 The jury had returned a unanimous verdict of not guilty of murder but by a majority of 10-2 had found the appellant guilty of the lesser offence of manslaughter which they were quite entitled to do as the proviso to section 102 of the Criminal Law (Procedure) Act Cap 10:01 provides:–

“Provided that on a count charging murder, if the evidence proves manslaughter, but does not prove murder the jury may find the accused not guilty of murder but guilty of manslaughter'

6 However, the question arises whether the verdict of guilty of manslaughter was properly received by the trial judge. If not, what consequences will flow from this.

7 During the course of Mr. Richardson's presentation, I observed that the record revealed that the jury had retired to consider their verdict at 1:45 p.m. and had returned to court at 3:10 p.m. when they delivered their verdict which meant that they had deliberated for a period of one (1) one hour and twenty five (25) minutes. I called for the judge's minute book in order to determine whether the record was accurate. A reading of the minute book revealed that the record was indeed accurate.

8 The jury not having deliberated for a period of two (2) hours, we have to decide whether or not there was a proper verdict in respect of the offence of manslaughter. To determine this issue I looked at section 158 of the Criminal Law (Procedure) Act Cap 10:01 which provides:

“With respect to the deliberation and verdict of the jury the following provisions shall have effect –

• a) on the trial of a capital offence the verdict for that offence shall be unanimous. Provided that where a person is arraigned for any offence punishable with death and the jury, by a majority of not less than ten (10), find such person guilty of a lesser crime, then the finding of the majority shall, subject to the provisions of paragraphs (b) and (c) of this section, be taken as the verdict and sentence shall follow accordingly;

• (b) on the trial of any offence, other than the capital offence, during the first and second hours after the jury begin to consider their verdict, the verdict shall be unanimous, and;

• (c) on the trial of any offence, other than a capital offence, if on the expiration of two hours from the time when the jury begin to consider, their verdict, they are agreed in the proportion of eleven (11) to one (1) or ten (10) to two (2), or, where the jury consist of eleven (11) jurors in the proportion of ten (10) to one (1), the verdict of that majority shall be taken and have effect as the verdict of the jury.

9 In the State v. Allan Outridge et al Criminal Appeals Nos. 45, 47 and 48 of 1981 decided by this court on the 30th July, 1982 this court had to decide on the effect of the failure of the trial judge to comply with the provisions of paragraphs (b) of section 158 of the Criminal Law (Procedure) Act Cap 10:01 (supra).

10 In that case Sabola, J.A. said at page 12 of the cyclo-style decision:

“No difficulty arises where the aggregate time spent is less than the minimum statutory period. A majority verdict thus arrived at cannot stand as the Jamaican case of R v. Shaw shows.”

11 The other two judges namely, Messiah, J.A. as he then was, and...