Omar v The State
| Jurisdiction | Guyana |
| Judge | Bishop, J.A.,Massiah, C.,Massiah C.,Fung-a-Fatt, J.A. |
| Judgment Date | 15 April 1987 |
| Neutral Citation | GY 1987 CA 3 |
| Docket Number | Criminal Appeal No. 20 of 1985 |
| Court | Court of Appeal (Guyana) |
| Date | 15 April 1987 |
Court of Appeal
Massiah, C.; Bishop, J.A.; Fung-a-Fatt, J.A.
Criminal Appeal No. 20 of 1985
Bernard C. DeSantos for the appellant.
W. Henry, senior State counsel for the state.
Practice and procedure - Summing up — Whether trial judge misdirected jury on defences of self—defence, provocation and accident — Defects in summing up — Appeal allowed.
The appellant was arraigned with Deodat Khargoo on the capital offence of murder, allegedly committed on the 28th day of September, 1983 at Non Pariel Street, Albouystown, Georgetown. The deceased was one Anthony Comacho, a young man of only 20 years. The trail was spread over three weeks and ended with the conviction of the appellant and the pronouncement of the sentence of death on him.
At the trail, the case presented, on behalf of the State, was that some 6.5 hours, prior to the fatal happening, there had been an animated exchange of words, between the appellant and the deceased, so much so that the latter, called “German”, had to be prevailed upon by his sister, Carol Comacho, to return to his apartment. Nothing of significance occurred thereafter, until about 6:45 a.m. when, following an altercation between the wife of Deodat Khargoo and the deceased, the appellant and Khargoo were seen together, on the stairway of their apartment building, each holding a weapon; that 5 minutes or so later, but before the deceased re-entered the yard, the appellant was heard, by the witness, Joan Alleyne, to say that he was going to kill the deceased.
The record does not disclose the form or content of the prosecutor's address to the jury, but it should be clear that he was depicting that the appellant and Khargoo, because of the separate, earlier incidents, to which reference has been made, had reason to resent the conduct of the deceased, and were therefore together on the stairway, awaiting his return.
And so the prosecutor must have asked the jury to appreciate, and ultimately find:
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(1) that the appellant's dramatic announcement of his intention to kill the deceased, had also secured the concurrence of Khargoo, whose wife the very morning had had a dispute with the deceased;
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(2) that the togetherness of the two was an expression of their indignation of the deceased's conduct, of their complicity in the ‘foul deed’ they had planned, and therefore their looking-out for his return, when they would translate their intention into their predetermined mischief;
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(3) that, by common design, the two men executed their plan, when the appellant, with a shortened cutlass-like instrument, and Khargoo, with a paling stave, attacked the deceased and caused his death.
For reasons which are puzzling, the learned trail judge accepted a submission, made on behalf of Khargoo, in respect of the medical evidence which disclosed no visible effect of a blow, said to have been delivered to the head of the deceased by Khargoo. Unfortunately, the legal implication and consequences of acting-in-concert seemed momentarily to have been missed by the judge, who preferred to have the appellant alone answer for the death of Anthony Comacho. It was an extremely benevolent ruling in favour of Khargoo.
With respect to the appellant, there was his explanation, set out in his unsworn statement from the dock. It raised live issues involving accident, and self-defence. Therefore it was not surprising in terms of certain aspects of the testimony, given by at least two prosecution witnesses, Joan Alleyne and Jewan Narine, as well as certain injuries on the body of the deceased, that Ground 1 was formulated, by counsel for the appellant: That the learned trail judge misdirected the jury on the legal issues of the case, thereby causing a miscarriage of justice.
Particulars
(a) The defence of accident was not clearly explained to the jury who must have been confused thereby.
(b) The jury were directed as regards the defence of accident in such a way as to shift the burden of proof to the appellant.
(c) The defences of self-defence and provocation were not properly explained to the jury, in that the learned trial judge failed to relate the facts bearing thereon to his direction on the law.
In his unsworn statement, the appellant said:
“I am innocent of this charge. I did not have any reason to say that I would kill German, as I had no story with him. Then Allen said I said so, she was lying. Everybody know that Allen was German girl friend.
On the night before, I was not in Khargoo's apartment. On the day in question I went to Khargoo's house. As myself and Khargoo was [sic] coming down the stairs, we were confronted by German who rushed into the yard and towards us in a hostile and angry manner, armed with a knife in his waist. As he got close to us, I saw his eyes as red as blood and he pulled the knife out.
I was frightened that he would injure me or kill me. I was forced to defend myself; as he lunged with the knife at me, I catch [sic] hold of his hands, and we had a scuffle. I saw him get some cuts in the scuffle, when he was fighting up with the knife and he ran out of the yard.
I did not stab German. I certainly never intended to kill him.”
There is no doubt that an accident is referable to an event that is brought about by chance, or without known or assignable cause. It may be an occurrence or course of incidents that occasions an unforeseen and undesigned injury to a person. The learned trail judge gave a direction to that effect to the jury; and therefore, before use, counsel for the appellant did not, and could not, seriously address criticism to it. At p. 144 of the record, His Honour instructed the jury:
“Sometimes the word accident is used to describe several different occurrences. Sometimes when the accused alleges that an event was an accident, he simply means he has no causal connection with it. On other occasions, he simply means that the action is one of an involuntary movement. He could also mean that it was an unintended result of his voluntary conduct. No one can be criminally responsible for an accident due to some external agency over which he had no control, or for the unintended consequences of a lawful voluntary act done without accident.”
Mr. Lesantos' argument was that, though as a statement, treating the unrelatedness of cause to occurrence, the judge's direction could not be impugned, the jury did not have any assistance, from him, whereby they were able adequately to analyse the facts, before them, or identify and evaluate passages that were important, in order ultimately to exercise an informed judgment on the appellant's defence, with respect to accident.
The submission is meritorious, since no attempt was made to relate the facts to the phrases “no causal connection” with the death, or with “the action of an involuntary movement,” or the “unintended result of his voluntary conduct,” or to the “external agency over which he had no control,” or to “the unintended consequences of a lawful voluntary act done without accident.” I experience no misgiving that the ordinary man has some notion of what the term “accident” suggests; but I hesitate to propose that, as a juror, he should be left without competent, illustrative guidance on the subject, particularly when, as here, he was required to examine facts which contained certain nuances. He also needed insightful assistance to discern and interpret those matters, if he was to do justice between the State and the prisoner.
In the case, there were:
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(a) the post mortem report which disclosed only injuries to the deceased, and might have caused the untutored mind erroneously to think that such imbalance necessarily weighed heavily against the appellant and his plea of accident;
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(b) the appellant's statement in which he said “we had a scuffle,” which, when placed against the background that he had suffered no injury, might have been erroneously seen, by the jury, as reinforcing rejection of accident, as a defence;
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(c) the possibility, unwittingly erroneous, in the thinking of the jurors that once they had rejected the defence of accident, which contained here, the element of force against force during the struggle, such rejection automatically enabled them to reject the alternative plea of self-defence;
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(d) the special words and phrases, used by the trial judge, in his definition of “accident” but which were never explained to the jury, might have been given the types of meaning which influenced their rejection of accident and self-defence.
Here, the unsworn statement contained material which the trial judge should have identified and dilated on, in order to protect the jury from the possibility of erroneous thoughts and unfounded conclusions. For example, the appellant's allusion to the stage at which he caught hold of the deceased's hands, leading to a struggle and some cuts suffered by the deceased, “when he was fighting-up with the knife,” demanded reference by the trial judges to the post mortem report that disclosed six items which were injuries capable of supporting the plea of accident, but which the appellant was under no obligation whatever to prove were the result of the struggle.
In particular, His Honour should have adverted to the lacerated wound on the right thumb, and the small incised wound on the right index finger of the deceased; to the lacerated circular wound just below the right nipple, and the abrasion just below the breast plate; to the position and nature of each of those injuries. He should then have gone on to explain that separately and conjointly those injuries suggested that possession of a sharp-cutting instrument was being wrestled for, that the combatants seemed to have boon facing each other, and that in any keenly contested struggle of the sort, spoken of by the appellant, there was every probability that the...
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