Martin v The State

• Jurisdiction: Guyana
• Judge: George, C.
• Judgment Date: 05 December 1988
• Neutral Citation: GY 1988 CA 6
• Docket Number: Criminal Appeal No. 54 of 1987
• Court: Court of Appeal (Guyana)
• Date: 05 December 1988

Court of Appeal

George, C., Kennard, J.A.; Churaman, J.A

Criminal Appeal No. 54 of 1987

Martin

and

The State

Appearances:

Rex H. McKay S.C. associated with S. Moore, and Vidyanand Persuad for the appellant.

D. Christian for the respondent.

Criminal evidence - Admissibility — Accused appealing conviction and sentence on murder charge — Inconsistencies in eyewitness evidence — Guidance to be given to jury regarding inconsistencies — Hearsay and res gestae — Spontaneous statements contemporaneous with event which made them admissible as to truth of reported facts — Admissibility of evidence of witness testifying to what non-testifying witness said — Appeal upheld.

George, C.

1 The uncomplicated nature of the facts in this appeal belies the legal problems that have arisen. The facts as presented by the State at the trial were as follows Oswald Tappin, aged eighteen years, was sitting alongside the deceased Elizabeth Griffith on a plank next to a step in a yard in Barr Street, Albouystown. It was about 7:30 p.m. and there was a blackout. The accused who was playing cards under the stairs of another house in the yard, came up to them. He had a piece of wood in his hand. He expressed his displeasure to the deceased about something that she had done earlier. She replied that the worst that he could do was to lash her. He thereupon struck her on her head in the vicinity of the temple with the piece of wood. All this evidence came from Tappin who was the only eye witness. The medical evidence was that this blow resulted in her death. The appellant was charged with the offence of murder and was convicted of that offence by an assize jury on the 22nd October 1987, and sentenced to death. It is against this conviction and sentence that he now appeals to the court. The other witnesses who gave evidence at the trial were all relatives of the deceased, Viz, her mother, sister and step-father. At the material time they were all in their home which is in the same yard and the deceased had lived with them. The substance of their evidence was that about the time when Tappin said that the accused had struck the deceased they had heard her moaning or shouting “Mummy, Mummy look how Bull come and lash me” or words to that effect.

2 Several grounds of appeal were argued. The first challenges the adequacy of the judge's direction on the issue of the many inconsistencies, most of them unexplained, between the deposits of the fitness Tappin, and the evidence that he gave at the trial. More specifically it is contended that the trial judge failed to give the jury any sufficient guidance as to their approach to a consideration of such inconsistencies and the effect which they should have on his evidence at the trial, especially having regard to his rather insensitive and irresponsible statements that he just says things for the sake of saying them and that he says the first thing that comes to his mind.

3 In Mills v. R (1963) 6 W.I.R. 418, Wooding C.J. endorsed the view that was expressed in R v Harris [1927] 20 Cr. App. R. 144 that if a witness gives evidence which is in conflict with a previous statement that he made on the same issue, then unless a satisfactory explanation is given, the jury should be directed that they ought to disregard the evidence given. And in R v Irving (1975) 23 W.I.R. 434 where the only evidence against the appellant was that of a self-confessed liar, where evidence on several important and critical issues was inconsistent with his deposition, the Jamaican Court of Appeal had no hesitation in reversing his conviction on the ground that the verdict was unreasonable.

4 Among the many inconsistencies in the present case were the following:

• (i) This witness said that he knew the accused for one year before the incident, but told the magistrate that he had known him for only three months before the occurrence. He explained this obvious difference in testimonies by saying that he meant that he had known the accused one year before the date of the trial. But this clearly was a hopeless attempt to explain away the inconsistency as the trial had commenced on the 14th October, 1987 some two and one half years after the incident;

• (ii) He said at the trial that when he arrived at the deceased's home at about 7 p.m. on the 11th May, 1985 he had called out for her, but had to wait for about five minutes before she appeared but an his deposition he said that when he arrived there she was already seated on the plank on the bridge leading to her home;

• (iii) At the trial his evidence was that he told no one of the incident leading to the deceased's death, except his mother, but in his deposition he did not make any such exception;

• (iv) He said in evidence that he had given the police a description of the accused but in his deposition he stated to the contrary;

• (v) His evidence was that the weapon used resembled a baseball bat but in his deposition he said he was unable to describe it.

5 The learned trial judge did catalogue these several and other inconsistencies between this witness evidence and his previous, statements, but failed to give appropriate guidance to the jury as to the approach that they should adopt when considering his evidence. As regard the first of those listed above she merely said that “from the sum total of that it seems that he only knew the accused three months before the incident”. This was clearly the wrong approach and must have conveyed to the jury the impression that they could act on the deposition evidence of the witness in preference to his evidence at the trial, even if he did not accept the former as true. And as regards the inconsistencies in general the trial judge said:

“First of all you have to ask yourself whether the contradictions are important or trivial. You should ask yourself whether if she was sitting at the bottom of the step or the bridge, whether this contradiction affects the main issue as to the identity of the accused appeal remarked at p. 64:

“Quite obviously it is one thing to say that in view of an earlier statement the witness is not to be trusted it is another thing to say that his present testimony is to be disbelieved and his earlier statement, which he now repudiates is to be substituted for it”.

6 The need for such a direction was highlighted by this court in the case of State v. Mootoosamrgy and Budhoo (1974) 22 W.I.R. 83 at p. 89, Persaud J.A. said:

“It is not the law, as I apprehend it, for a judge to tell the jury that a witness' previous inconsistent statement cancels out his sworn testimony. The jury are required to consider the testimony in court, but they should be told of the previous inconsistent statement that as a result of the previous inconsistent statement they may well regard the testimony as being unreliable; but that they must not treat the previous statement as substantive evidence”.

7 He then went on to explain his understanding of the earlier case of Mustaphri Ali v The State Cr. App. No. 45 of 1972. Haynes J.A., as he then was, also referred to that case and in particular to a passage in the Chancellor's judgment which reads as follows:

“The jury should have bean directed to pay no attention to that portion of Joseph's evidence if in the circumstances of the case the collision between her sworn testimony and her unsworn assertion to Ramjiwan actually existed for the nature of the conflict was so material and irreconcilable that the effect would be in the absence of explanation or excuse — — — - to make her a witness whose evidence should be rejected on this vital issue and tend to be conclusive against her credibility”.

8 And later in dealing with a submission that the other evidence was sufficient to justify a conviction the learned Chancellor had, had this to say;

“But how could it be said from the foregoing that (a) Mary Joseph's evidence did not play a vital part in bringing about a conviction, when the jury were not warned to discount her evidence if she had in fact told P.C. Ramjiwan that the child ran across the road?”

9 Concerning the above excerpts Persaud, J.A. said at p.98:

“The use of the word ‘should’ (not must) and ‘tend’ (‘had a tendency’) and of the word (‘warn’) (not ‘directed’) does cause me to conclude that the learned Chancellor was not laying down that the jury should have been directed as a matter of law to ignore the evidence. He was pronouncing that they should have been advised strongly that having regard to the onus and the standard or proof required, the evidence involved was so unreliable that they ought to discount it. As I said before the jury axe the judges of all the facts and not some of the facts. And while in certain circumstances it may be said to be right and proper that a jury might be advised that their duty to avoid the risk of convicting an innocent man requires them to disregard evidence (see Mills & Gomes v. R (1963) 6 W.I.R. 418) ultimately it must be left to them to say whether they would reject or accept it”.

10 As I have said, in the present case the learned judge never gave any such caution directions to the jury, and had the evidence of Tappin stood alone, I would have had grave misgiving concerning the fairness and justness of the conviction notwithstanding the fact that except in one regard the counsel does not challenge the amplitudes of her directions in relation to the main, indeed the only live issue at the trial, viz the identity of the assailant.

11 In this latter regard I agree with counsel for the appellant that in her summing up on the question of identity the trial judge paid due regard to the rationes decidendi in such cases as the State v Green & Alleyne 26 W.I.R. 395 and The State v. Robinson 26 W.I.R, 411, and the cases that are referred to in those decisions.

12 But counsel complains that the present cars was one in which an identification parade should have been held and...