Outridge v The State
| Jurisdiction | Guyana |
| Judge | Gonsalves-Sabola, J.A.,Massiah, J.A.,Vieira, J.A |
| Judgment Date | 30 November 1982 |
| Neutral Citation | Gy 1982 CA 20 |
| Docket Number | No. 45 of 1981 |
| Court | Court of Appeal (Guyana) |
| Date | 30 November 1982 |
Court of Appeal
Gonsalves-Sabola, J.A.; Massiah, J.A.; Vieira, J.A
No. 45 of 1981
B. C. De Santos for the first-named appellant.
D. Wray for the second-named appellant.
Third-named appellant in person.
J. M. F. Coddett for the State.
Practice and procedure - Trial by jury — Verdict — Whether verdict of jury unlawful as they had deliberated for less than the stipulated time of two hours pursuant to s. 158 of the Criminal Law (Procedure) Act — Jury had retired and after two hours requested further directions from the judge then deliberated for 35 minutes and gave their verdict — R v. Adams [1968] 3 All E.R. 437 considered — Ground of appeal without merit — Appeal dismissed conviction and sentence affirmed.
On 30 th July, 1982, the appeals herein were dismissed. We consider that the points adjudicated on are of sufficient importance to warrant publication of the judgments then pronounced, and accordingly, now put them into writing.
The facts of the case are rather unusual but, as presented by the prosecution and obviously accepted by the jury, are easily told. On 19 th October, 1978, the appellants were included among ten prisoners who were being conveyed from the Georgetown Prison to Vigilance Magistrate's Court on the East Coast, Demerara. The vehicle in which they were being taken was a right-hand drive police jeep. The driver of the jeep was police constable Basil Renville. Renville, as driver, naturally sat behind the wheel. Police constable Wayne sat at the left front door while police constable Azore sat between him and Renville. The prisoners were seated in the vehicle behind tho policemen. The back door was locked from the outside. As the jeep approached Good Hope public road, travelling east on the northern side of the road, Renville felt a hand around his neck and a sharp object at the left side of his neck. In the rear view mirror he identified his assailant as Allan Outridge, the first appellant. Outridge commanded him to drive to a nearby dam. Renville said that he continued driving but the second appellant McPherson jumped from the back of the vehicle where he was and positioned himself in the front seat between himself and Azore. McPherson on to the steering-wheel and said, “I ain't able wait, who dead, dead.” McPherson maintained his hold on the steering-wheel and, as an approaching motor-car owned by the deceased Seon Hardowar travelling on the southern side of the road was about to pass the police jeep, two things happened simultaneously. First, McPherson forcibly pulled the steering-wheel away from Renville. Second, Renville was chopped on his left upper forearm by Outridge. As a result of McPherson's interference with the steering-wheel the course of the jeep was deflected towards the path of Hardowar's oncoming motor-car and a collision occurred. The jeep overturned on to its side. Immediately before the collision, Renville glimpsed a struggle inside the jeep involving police constable Wayne and two prisoners one of whom, the third appellant Adams, was called on by Outridge to throw constable Wayne out of the jeep. Adams responded by opening the left front door of the vehicle and pushing constable Wayne out onto the road. A number of prisoners, including the three appellants, escaped from the police jeep after it had overturned. Renville had to be hospitalised with painful injuries about his body. The driver of Hardowar's motor-car died as a result of injuries sustained in the collision.
P. C. Azore substantially corroborated Renville as to the parts played by Outridge and Adams as just narrated, but he did say that it was another prisoner Seemangal and not McPherson who held on to the steering-wheel of the jeep immediately before the accident. That variance among others as to the details of the uprising in the jeep was left to the jury with adequate directions as to how they should resolve the conflicting versions. The jury were to acquit McPherson if they ore's version to Renville's or were left in doubt about whether McPherson held on to the steering-wheel or in any way acted in concert with the other intending escapees. The jury must have drawn the obvious inference that there had been a concerted plan among at least the three appellants to overcome their unarmed police escorts to whatever extent was necessary and wrest control of the jeep while it was in motion along the East Coast public road before it arrived at Vigilance Magistrate's Court in order to effect escape from lawful custody. The execution of that common design necessarily involved a reckless, unlawful act that was fraught with probabilities of serious injury to the person or loss of life arising from destabilisation of the driver's control of the steering-wheel of the jeep when it was in motion. Grave or even fatal injury to persons inside the jeep or others lawfully using the highway in that general area of the East Coast public road was a clearly foreseeable risk of a violent coup in the moving jeep. The accomplices were, on a reasonable view, desperate men, heedless of any untoward consequences attending the accomplishment of their objective. Escape to freedom was that objective.
Even allowing for discrepancies between the versions given by Renville and Azore as to details of the particular parts played by particular appellants, a jury, on proper directions as to acting in concert could reasonably find that the appellants were all acting in concert to execute the unlawful and dangerous plan which led to the death of the driver of Hardowar's car.
Several grounds of appeal were argued before us but, after pondering the arguments of counsel at the hearing, we do not burden our judgment with analysis of those grounds that are manifestly without merit. Two grounds, however, deserve special treatment. Before I embark on this task I should dispose, in short compass, of the question of a nexus between the driver of Hardowar's motor-car involved in the collision and Seon Hardowar on whose dead body an autopsy was performed to establish the cause of death. The circumstantial evidence convincingly leads to the conclusion that Soen Hardowar was the driver of the motor- car. Suffice it to say that on the evidence of the son, Raj Hardowar, the identification by constable Horton of the photograph on Seon Hardowar's driver's licence and all the surrounding circumstances, a reasonable jury could only have found what the driver of Seon Hardowar's car at the time of the collision was Seon Hardowar himself.
The first of the two main grounds of appeal is that the learned trial judge failed to direct the jury that the witness Renville might have had an interest to and his evidence should therefore be looked at with caution. The second is that the majority verdict of the jury was unlawful and void, having been delivered within an hour of the retirement of the jury.
On the question of interest to serve, Renville admitted that he was aware that policemen were liable to surcharge for damage to police vehicles. He also knew that damages would run into a lot of money which he could not afford to pay. He denied that his version of the incident was designed to cover up or to protect his interest in not having to pay for the damage done to the vehicle. Then there was the evidence of Raj Hardowar, the son of the deceased, that a brother of his had filed an action against Renville concerning the death of his father. On these premises it was argued that Renville had had an interest to serve by prevaricating in order to shift liability for the accident from himself to the appellants. It strikes one that if Renville had wanted to give self-serving evidence he could, equally understandably, have sought to shift blame for the collision to the driver of Hardowar's car. Counsel for the appellants sought assistance for their arguments from certain cases. There was R. v. Sam Chin, (1961) 3 W.I.R. 156, where Hallinan, C.J., at page 158, following the case of R. v. Prater, (1960) 44 Cr. App. Rep. 83, spoke of the ‘desirability’ to give to the jury the accomplice direction even if the witness in question is not an accomplice strictly speaking but one who might have some purpose of his own to serve. But the learned Chief Justice felt that it all came down to the question whether or not the omission to give the direction caused a substantial miscarriage of justice. In Prater, the English Court of Criminal Appeal dealt with the question of a co-prisoner who, in giving evidence on his own behalf, testified adversely to the appellant. It was argued that although the witness was not a prosecution witness the jury should have received a warning about the need for corroboration similar to that given in the case of an accomplice. The court pronounced as follows - per Edmund Davies, J. at page 86;
“This court, in the circumstances of the present appeal, is content to found itself on the view which it expresses that it is desirable that, in cases where a person may be regarded as having some purpose of his own to serve, the warning against uncorroborated evidence should be given. But every case must be looked at in the light of its own facts and in GARLAND Humphreys, J., delivering the judgement of this court, used words which this court finds completely apposite to the circumstances of the present case, namely, that if there be clear and convincing evidence to such an extent that this court is satisfied that no miscarriage of justice has arisen by reason of the omission of the direction to the jury, the court will not interfere.”
In The State v. Gowkarran Persaud and Others, (1976) 24 W.I.R. 97, at p. 113 et seq., Haynes, C. made some observations on the witness with some purpose of his own to serve and referred to a number of cases of which I will now myself refer to only two. The first is R. v. Gokool and Gokool, ...
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