R v Arjune

• Jurisdiction: Guyana
• Judge: Luckhoo, C.
• Judgment Date: 09 August 1968
• Neutral Citation: GY 1968 CA 4
• Docket Number: Criminal Appeal No. 21 of 1968
• Court: Court of Appeal (Guyana)
• Date: 09 August 1968

Court of Appeal

Luckhoo, C. (Ag.), Persaud J.A. and Crane J.A. (Ag.)

Criminal Appeal No. 21 of 1968

R

and

Arjune

Appearances:

D.O. Boston for the appellant.

Gonsalves-Sabola, Assistant Director of Public Prosecutions, for the Crown.

Criminal Law - Appeal against conviction (Manslaughter)

Luckhoo, C.

1 At the conclusion of the day's hearing on the 30th July, last, appeal was dismissed. We then intimated to learned Counsel our intention of recording our judgment in writing at an early date, having considered that the importance of the legal points involved merited such a course.

2 The accused, Edwin Arjune, aged 15 years, was indicted at the Demerara Assizes for the murder of Doodpersaud, called Reuben Ramanand, aged 7 ¹/₂ years. By a majority of 10:2 the Jury returned their verdict for the lesser offence of manslaughter and he was ordered to be detained at the Essequibo Boys' School for a period of two years.

3 The facts, which led up to and culminated in the tragic event may be stated in short compass: On the morning of August 17, 1967, accused, the deceased and about five other boys — all cow-minders – who's ages ranged from 17 to 7 ¹/₂ years, went to a place called White Koker Newlands on the East Coast of Demerara, three miles west of the Cane Grove public road, for the purpose of de-pasturing their cattle.

4 As the morning wore on, some of these animals trespassed on neighbouring rice-fields. The accused invited the deceased and another boy called Naro to help him round up the strays, and with this expressed intention these three boys left the others on White Koker dam. They walked for some distance until they arrived at a bridge near to the rice-fields. The accused and the deceased proceeded alone in a northerly direction towards the rice-fields leaving Naro on the bridge to await their return. Naro, however, did not see them return and he went back to a to White Koker dam to join the other boys. The accused was thus the last person in whose company the deceased was proved to be before his death.

5 Some time later that day Naro turned up alone at White Koker followed later by the accused. The accused was asked by the others for the deceased, but he replied that he did not know where he was. An extensive search for the deceased by his companions, including the accused, the parents of the deceased and others on the day of his disappearance proved futile, and it was not until the following day that his corpse was discovered floating face downwards in White Koker trench.

6 The post-mortem examination, which was carried out by Dr. Balwant Singh on August 21, 1967, fixed the cause of death as asphyxia by strangulation. Internal examination revealed that the trachea and lungs were congested and showed no signs of muddy particles; there was hemorrhage in the muscles of the neck around the trachea, and that the liver, kidneys and spleen were normal. Without doubt, evidence as to the cause of death must have helped the Jury considerably in arriving at their verdict, in view of the circumstantial nature of the case, by eliminating the possibility of one cause of death, that is, that death by drowning must have occurred in the circumstances.

7 The external examination revealed superficial abrasions on the front of the lower part of the chest; on the front of the right knee and back of the right elbow; there was a contusion on the front the upper part of the right thigh; also three superficial linear lacerations on the right and left side of the neck in line with the ear. So that while the effect of the internal examination eliminated drowning as the cause of death, the external examination positively established it as asphyxia by manual strangulation.

8 As may be expected, the accused being shown to be the last person in the company of the deceased, he was questioned by the police with a view to determining whether he knew anything of the death of the deceased. The interrogation was conducted by Sgt. Moses at the Mahaica Police Station on August 19, in the presence of Ramanooj, the stepfather of the accused, and police constable London, in the course of which two statements were made. The first was signed and acknowledged by the accused in the presence of Ramanooj and London after it was written by Sgt. Moses at his request. It was not taken under caution because, as Moses explained, there was no reason to suspect the accused's involvement in the deceased's death at that time, and understandably so, since there was no autopsy revealing the cause of death until August 21.

9 It was the objections taken by the defence to this and a subsequent caution statement taken from the accused some twenty minutes after the first, and to alleged misdirections and non-directions of the trial judge that constituted the main grounds of this appeal.

10 Originally on record were four grounds of appeal, while a fifth was added on request and with leave of the court at the hearing. Grounds 2–4, however, having been abandoned, it will be sufficient if we relate only the substance of those on which the arguments addressed to us were directed.

11 In the first ground there was complaint that the trial judge misdirected himself when he ruled that both first and second statements were admissible in evidence. Both were ruled admissible after trial, in the absence of the jury, of issues raised on the voir dire.

12 The fifth ground alleged error of law in that (i) the learned judge failed to direct the jury on the legal basis on which he did find first and second statements were voluntarily made or whether they were the statements of the accused at all; (ii) the learned judge wrongly withdrew the defences of self-defence, accident or misadventure from the Jury. It will be readily seen that grounds 1 and 5 (i) are inextricably linked, for whereas the former alleges misdirection in law resulting in the wrongful reception of documentary evidence, the latter alleges a non-direction on the basis on which the judge found such documentary evidence to have been voluntarily made.

13 On the trial of the issue of the admissibility of the first statement, Sgt. Moses related how he interviewed the accused at the Mahaica station, explaining that his arrest was not contemplated at the time and that his reason for not administering a caution was due to the lack of any evidence which afforded reasonable grounds for suspecting the accused's complicity in an offence. He insisted that the first statement was a voluntary one in the sense that it was not induced by promises or by the use of threats, or the doing of violence to the accused. Cross-examination, however, disclosed that it was in effect literally a paraphrase of what the accused told him, for Moses admitted that whatever the accused related to him in broken English was transformed into proper English by the use of alternative words though the same sense was preserved. But when the language and expressions used in the first are compared with those in the second statement under caution, which had, in accordance with rule 4 (d) of the judge's rules, to be taken down in the exact words spoken by the accused, and also with the unsworn statement he subsequently gave from the dock in his defence, no one can have the slightest doubt that the accused is a youth of somewhat poor education.

14 One of the questions for us to answer is whether the judge was right in admitting the first statement as a paraphrase of what the accused said to the police officer, Sgt. Moses. It is in this regard that one of the objections raised to its admissibility before the trial judge was stated to be that the statement was elicited in a manner so manifestly unfair to the accused that the judge ought not to have received it in evidence. Here, we should point out that in respect of statements taken from one other than an accused person who is in custody, there is no contravention of the judge's rules if an investigating officer sees fit to paraphrase what someone from whom he is seeking information is conveying to him, particularly if he is not a suspect, but merely someone from whom he is seeking information which he hopes will assist in his investigations. At that point of time he has no intention of proceeding against the person being interrogated and the paraphrase cannot be employed to his prejudice; at that time he has no intention of giving it in evidence. Any difficulty there can be, must always arise subsequently, e.g. when it is considered necessary to arrest and charge the person and it is sought to use the paraphrase in evidence against him. There can be no hard and fast rule laid down regarding the admissibility of paraphrases; their admission must necessarily be left to the good sense and discretion of the trial judge who must exercise it in a judicial manner when he has considered all the relevant circumstances. Some very relevant matters which it is incumbent on a judge to take into account when deciding the discretionary principle of unfairness to the accused which is not susceptible of precise definition, are to be found in the observations of Lord Mc Dermott C.J. in the Irish case of R. v. Murphy (1965) N.I. 138, at p. 149.

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