Price v The State
| Jurisdiction | Guyana |
| Judge | Massiah, J.A. |
| Judgment Date | 21 September 1982 |
| Neutral Citation | GY 1982 CA 17 |
| Docket Number | Criminal Appeal No. 21 of 1990 |
| Court | Court of Appeal (Guyana) |
| Date | 21 September 1982 |
Court of Appeal
Fung-a-Fatt, J.A.; Massiah. J.A.; Vieira, J.A
Criminal Appeal No. 21 of 1990
B.C. De Santos for the appellant
S.S.D. Insanally, Senior State Counsel (ag), for the State.
Criminal practice and procedure - Evidence — Appeal against conviction and sentence for murder — Appellant had cut deceased with a cutlass behind neck — Admissibility of evidence by witness that appellant had uttered the words “Hey, James, me bring me boys to drink your blood” to the deceased — Evidence inadmissible to case and trial judge was correct in negating its effect — Statement of deceased at time of death that deceased had chopped him was not admissible as a dying declaration — Identification — Summing up valid and judge dealt adequately with issue of identification — Appeal dismissed.
At about 9.30 p.m. on 24 th October, 1977, someone was heard to shout: “Hey James, me bring me boys to drink your blood.” This was not part of a sequence in a Hollywood western but a live happening on a lonely dam at Grant Kitty in the Pomeroon River. Those expressive words, to which counsel for the appellant took objection as being inadmissible, were uttered by thirteen-year-old Aubrey Hutson who had earlier been drinking wine purchased from a restaurant that bears the improbable name of Calabash Alley. When he uttered his cry, Hutson was standing on the dam outside the home of the Garraways. In his company were the appellant who was then carrying a cutlass, Ivor Glenn, and twelve-year-old Kempton Garraway. The four of them had earlier attended a party. Hutson and Garraway had left the party to purchase peanuts and on their way back the appellant and Glenn joined them on the dam. It was then that Hutson called out to James Garraway. By then the appellant and Glenn had hidden behind a copra drier a few feet away. Kempton Garraway (no relation of James Garraway) was standing by Hutson's side.
James Garraway emerged from his home a few seconds after Hutson shouted. He reached the dam, looked in the direction of his father's boat, and appears to have turned back towards his home when his sister Yonette shouted to him. He turned around, and as he did so, the prosecution's case ran, the appellant ran from behind the copra drier and chopped James Garraway on his neck with the cutlass. James Garraway then shouted that the appellant had chopped him. The appellant ran away towards his home, while James Garraway ran to his backyard where he collapsed. He died shortly afterwards.
The next day Dr Sultan Kassim performed a post mortem examination of the body at the mortuary of the Suddie Hospital. On the neck he found a laceration eight inches long, four inches wide, and five inches deep, extending to the left jugular vein. In Dr Kassim's opinion the cause of death was massive haemorrhage, the result of the severance of the jugular vein. The wound could have been caused by a sharp instrument such as a cutlass.
On 11 th May, 1980, at the Essequibo Assizes, the appellant was convicted of the murder of James Garraway, and sentenced to death. He has appealed against his conviction on a number of grounds.
One of the matters of which the appellant complained was the admission of the evidence of Kempton Garraway that Hutson had shouted, “Hey James, me bring me boys to drink your blood.” It was contended that that evidence was inadmissible hearsay and had no probative value. It is clear law that the evidence of what another person is alleged to have said is not, for that reason only, rendered inadmissible. Mr. De Santos, who appeared for the appellant, may have considered, although he did not clearly say so, that the inference could arguably have been drawn from the questioned evidence that the appellant, being in the company of Hutson, was one of the men who had gone there “to drink blood”. If the evidence was adduced to prove the truth of what Hutson was alleged to have said, then it was hearsay and inadmissible. On the other hand, such evidence would have been admissible if it were relevant to an issue before the court. I am unable to discern any issue to which the impugned statement can be said to be relevant, and, in my opinion, it was clearly inadmissible.
It seems that on reflection the learned trial judge came to realise that he ought not to have received the evidence, and he warned the jury in clear terms to disregard it. It was the best he could have done in the circumstances. Although the appellant's submission was technically correct, there can be little doubt that no harm eventuated from the admission of the evidence. For all its dramatic and seemingly apocalyptic qualities the statement attributed to Hutson by Kempton Garraway can in no wise be said to have been a major incident in the case. In any event, there was considerable, crystalline evidence aliunde to sustain the conviction, and I see no reason to think that any miscarriage of justice was occasioned by the introduction of the challenged evidence, having regard particularly to its negation, in clear terms, by the learned trial judge. [See Joseph Solomon, (1909) 2 Cr. App. R. 80, R. v. Westacott, (1909) 1 Cr. App. R. 246, Ibrahim v. The King, (1914) 24 Cox 174, Dal Singh v. The King Emperor, (1917) L.R. 44 Ind. App. 137, Renouf v. Attorney-General for Jersey, [1936] A.C. 445, and Stirland v. Director of Public Prosecutions, [1944] A.C. 315.]
Another matter of which the appellant complained was the reception in evidence of a statement allegedly made by the deceased, at the time when he was chopped on his neck. He died soon afterwards. It was said that he then exclaimed, “Oh God, Berlin chop me”, but another witness said he asked, “Berlin you chop me?” It appears that the appellant is known by the soubriquet of Berlin.
It was argued on the appellant's behalf that that statement could not be considered to be a dying declaration and so a as an exception to the hearsay rule, since there was no evidence that the deceased, when he uttered the words, considered his life to have been in imminent mortal danger. The settled expectation of death (proved either expressly or inferentially), is, of course, an indispensable precondition to the admission of evidence as a dying declaration of the cause of death. Such declarations, although strictly hearsay in character, are admissible exceptionally because the awe that impending death inspires is considered to create a situation that may be equated to the sanction that an oath or solemn affirmation imposes. The moral presumption appears to be that no one inaxtieulo mortis would have a motive or an inclination for dishonesty and falsehood.
In the instant matter there was no express statement by the deceased suggesting that he had abandoned all hope of life when he made the statement under consideration, and I do not think that that abandonment of hope can be inferred merely from the grave nature of the wound that was inflicted, although this was done in The King v. William Woodcock, (1789) 1 Leach 500. Courts have often been understandably reluctant to infer knowledge of impending death from surrounding circumstances [See R. v. Morgan, (1875) 14 Cox 337] but this was done in R. v. Bonner, 172 E.R. 1288. The instant matter, in my opinion, is not one in which that inference could properly have been drawn. In my judgment, therefore, the statement was not admissible as a dying declaration.
But the appellant's success on this issue is not as substantial as it seems, because the deceased's statement, in my opinion, was para rei gestae, and therefore admissible as an exception to the fundamental rule against the admission of hearsay evidence. To be so admissible a statement accompanying an act must be contemporaneous or almost contemporaneous with the fact in issue and must not be made at such an interval as to allow of fabrication or to reduce it to a mere narrative of a past event, and it must relate to and explain the act it accompanied. It appears that at the trial counsel based his objection to the admissibility of the evidence on the ground that the deceased's statement was neither a dying declaration nor a part of the res gestae. This is apparent from the judge's minute-book wherein the following note was made: “Authority for my objection R v. Bedingfield - Cross (4th, ed.) p. 507.” It will be remembered that in Regina v. Bedingfield, (1879) 14 Cox 341, the statement in question was held by Cockburn, C.J. to be neither a dying declaration nor a part of the res gestae, and therefore inadmissible. The evidence which it was sought to lead in that case was the statement made by the deceased as she emerged from a room in a state of fear with her throat cut. As she spoke she pointed to the room which she had just left. The appellant was then in the same room which he had entered a minute or two before. The deceased's statement implicated the appellant, and was made, it seems, without any opportunity for concoction. In refusing to admit the evidence the learned Chief Justice said (p. 342):
“Then could it be admissible having been made in the absence of the prisoner, as part of the res gestae, but it is not so admissible, for it was not part of anything done or something said while something was being done, but something said after something done. It was not as if, while being in the room, and while the act was being done, she had said something which was heard.”
It was that statement that counsel for the appellant fastened upon and adopted for the purposes of his argument. I have always considered that Bedingfield was wrongly decided, if the formulation of Cockburn, C.J. is to be understood in a literal sense. Thus regarded it would mean that any statement made after the completion of the accused's act would be inadmissible, no matter it was made immediately after the act was perpetrated, for it...
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