R v Dennan

JurisdictionGuyana
CourtCourt of Appeal (Guyana)
JudgeMassiah, J.A.,BOLLERS, C.J.,JHAPPAN, J.A.
Docket NumberCriminal Appeal No. 63 of 1977
Date23 April 1979

Court of Appeal

Bollers, C.J.

Jhappan, J.A.

Massiah, J.A.

Criminal Appeal No. 63 of 1977

R.
and
Dennan
Appearances:

J. Patterson for the appellant.

W. G. Edwards, Assistant Director of Public Prosecutions (ag.), for the State.

Evidence - Conviction — Oral confession was admissible, because being spontaneous, the question of involuntariness did not and considered.

Massiah, J.A.
1

The appellant was tried at the Demerara Assizes in October, 1977, on an indictment charging him with murdering one Patsy Folkard between the 26th and 27th days of July, 1976. The trial took place over a period of four days. The jury convicted the appellant who was duly sentenced to death. He has appealed to this court against his conviction.

2

The appellant, a hire car driver, and Patsy Folkard became acquainted with each other about fourteen months before her death. Their friendship became intimate and they began living together, sharing a room in his mother's home at West Ruimveldt Housing Scheme, Georgetown. Their relationship turned sour when, according to him, he surprised her and her father in the act of sexual intercourse. That allegation, if untrue, would be a shameful one to make; if true, it must have caused the appellant considerable anguish. So scandalized was he that he decided to end the relationship.

3

The appellant claimed that Patsy Folkard would have none of this; she began to molest him whenever they chanced to meet. On 26th July, 1976, sometime about 8 p.m., the appellant was plying his car for hire near the Stabroek Market when Patsy Folkard went there and began abusing him. He became angry and drove away although he did not then have a complement of passengers. Later he returned to the market square, but having seen Patsy once again he drove to another car park where commuters bound for the Campbellville area are wont to wait for transportation. Sometime later Patsy arrived there and began to hit the rear windscreen of the appellant's car with a stick. She then turned her attention to the front portion of the car, hitting it also with the stick.

4

The appellant drove his car away. He collected some passengers for the Roxanne Burnham Housing Scheme. Having discharged them, he stopped for a while. A car then drove up from which Patsy alighted. She entered the appellant's car but he managed to remove her. He then drove to the Strand Cinema where he waited for passengers. Patsy arrived on the scene once again, entered the car and slammed the door. The appellant asked her to leave, but she refused to do so, quarrelling and cursing him instead. The passengers were all taken to their respective destinations, leaving the appellant and Patsy alone in the car. A quarrel ensued and a fight followed. The appellant struck Patsy in her face and she retaliated with a stick. Patsy slept at the appellant's home that night and died early on the morning of 27th July, 1976. So ran the appellant's story as revealed by a written statement he made to the police.

5

Although the appellant asserted that he had hit Patsy Folkard only in her face, Dr. Edward Simon, Senior Government Bacteriologist and Pathologist, who performed the post mortem examination, found multiple abrasions on her neck, nine abrasions in the region of the chest and abdomen, four on the right arm, seventeen on the back, four on the right knee, and two on the left hip. There were also a lacerated wound in the left eye and fourteen abrasions in the face. She had been severely beaten, apparently cuffed and kicked, for the nature of the injuries does not suggest the use of any sharp cutting instrument. The cause of death was internal haemorrhage and shock with rupture of the liver. Doubtless the jury accepted the medical evidence without reservation.

6

The jury appeared to have been in no doubt also that the appellant inflicted all the injuries and was responsible for Patsy Folkard's death. It was a reasonable finding. There was no doubt that Folkard had been killed by someone, and no one else appears to have been in her company at the material time on that fateful night. Further, two witnesses, one of them being the appellant's cousin, testified that the appellant had told them that he had beaten Patsy and that she had died. The jury must have placed great reliance on that evidence, for there were no eyewitnesses of any of the events of which the appellant spoke and which I have attempted to narrate briefly. The appellant's defence at the trial was that he had not killed the deceased, having hit her only in her face. The suggestion seemed to have been that this could not have ruptured her liver and caused internal haemorrhage. The defence reasoned that that must have been caused by the blows the deceased received on other parts of her body, and about this the appellant claimed to know nothing. There was also a tentative suggestion that the deceased suffered from fits and may have sustained the injuries in a fall. But this was not vigorously pursued, and rightly so, for there was not the slightest evidence to sustain this theory. All of this the jury completely rejected.

7

Several grounds of appeal were argued. I intend no disrespect to counsel whose arguments were lucid and forceful when I say that only three of them merited thoughtful consideration.

8

The first of the appellant's complaints that I propose to deal with relates to two oral confessions allegedly made by the appellant to Corporal 6274 Harry Narine in the early hours of the morning of 27th July, 1976. Narine was one of the policemen investigating the matter. He saw the appellant at his home about 2.45 a.m., and told him that he had received information that he had murdered Patsy Folkard. Narine cautioned the appellant who then declared: “Officer, me and she had a story on Sunday night and I beat she up and she dead.”

9

It was contended that the trial judge erred in admitting that statement without first satisfying himself that it was voluntarily made. I have no hesitation in rejecting that contention. Before the statement was admitted, Narine testified as follows:

“I did not threaten him or offer any inducements or make any promise, nor assault or use any violence on him. It was free and voluntary.”

10

The defence offered no objection and the evidence, the admissibility of which is now challenged, was then given. In my opinion, there was sufficient prima facie evidence on which the trial judge could have founded the conclusion that the oral statement was made freely and voluntarily, and could properly have exercised his discretion to admit it.

11

Having made that statement the appellant was taken to Brickdam Police Station, but sometime about 4 a.m., he and Corporal Narine returned to the appellant's home, accompanied by a party of policemen. There the appellant showed Narine two jute bags which contained the dead body of Patsy Folkard. The bags were tied and under a bed, and as Narine opened them the appellant was alleged to have said:

“Officer, this is my girl friend Patsy Folkard. I beat up and she dead.”

12

In relation to this statement, which was admitted in evidence, a submission was also made that it was wrongly admitted for the reasons advanced in respect of the first oral confession. Here the appellant was on surer ground. It is clear law that if the admissibility of a statement is unchallenged and the necessity for a voir dire does not arise, the statement may be admitted in evidence once the trial judge is satisfied on the basis of evidence adduced by the prosecution that the statement was free and voluntary in the sense articulated by Lord Sumner in Ibrahim v. The King [1914] A.C. 599. (See The State v. Philip Plowell [Criminal Appeal No. 104 of 1975]; the Chancellor's judgment, p. 30). The prosecution must always satisfy the judge about voluntariness, beyond reasonable doubt, if the statement is to be admitted (see Director of Public Prosecutions v. Ping Lin [1975] 3 W.L.R. 419), but as a rule the prima facie proof of voluntariness is brief, and invariably consists of a certain well-known verbal formula, almost incantational. But unless such evidence of voluntariness is adduced to the satisfaction of the trial judge the statement, whether oral or written, cannot be admitted.

13

What is more, even if there is no objection to the admissibility of the statement, as in this case, the trial judge cannot for that reason relieve himself of the obligation to be sure that the statement was free and voluntary before admitting it. This was made clear in The State against Oswald Gobin (Criminal Appeal No. 62 of 1975) where the learned Chancellor observed at p. 51 of his judgment:

“To my mind, the cases from the middle of the eighteenth century must be read to require a trial judge in every case where the prosecution seeks to put in a confession, to exclude it, whether objected to or not, and whatever be the nature of the objection (if any) unless the prosecution has led evidence to convince him beyond reasonable doubt of its voluntariness.”

(Emphasis mine.)

14

So that there cannot be any implication of voluntariness deducible from the fact that there has been no objection to the admissibility of the statement. Since a confession is only admissible if voluntary, there must be credible evidence of voluntariness before it is admitted.

15

When the position in relation to the second oral confession is examined, however, we find that the prima facie evidence required to establish the foundation for its reception in evidence as a voluntary statement is lacking. At first blush, therefore, I would have been inclined to hold that the confession was wrongly admitted, but I am restrained from reaching that conclusion by the circumstance that the confession appeared to have been uttered spontaneously when Corporal Narine opened the bags thereby disclosing Folkard's dead body.

16

It would be plainly wrong in...

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