R v Singh et Al

• Jurisdiction: Guyana
• Judge: Consalves-Sabola, J.A.,Massiah, J.A.
• Judgment Date: 28 September 1983
• Neutral Citation: GY 1983 CA 9
• Docket Number: Nos. 3, 4, 5 and 6 of 1981
• Court: Court of Appeal (Guyana)
• Date: 28 September 1983

Court of Appeal

Gonsalves-Sabola, J.A.; Massiah, J.A.; Vieira, J.A.

Nos. 3, 4, 5 and 6 of 1981

R

and

Singh et al

Appearances:

Doodnauth Singh for the first appellant.

B. C. De Santos for the second appellant.

M. H. Hamilton for the third appellant.

R. H. McKay, S.C. for the fourth appellant.

M. Coddette, K. de Freitas, Senior State Counsel (ag), with him for the state.

Criminal law - Appeal against conviction for robbery and murder — No direct evidence of identification — Summing up to jury clear and cannot be erred — Judge was clear on issues of fact and inferences to be drawn therefrom and the circumstantial evidence — Recent possession of appellants with stolen goods — No evidence which called for a specific direction on whether any of the appellants may have withdrawn from the common design resulting in the murder of the deceased — Appeal dismissed and conviction and sentence affirmed.

Consalves-Sabola, J.A.

1 THE FACTS

2 Around 1.45 o' clock on the morning of 14th January, 1978, the dead body of Beni Persaud was found lying on the mudflat in a creek horn on the western side of Mahaicony creek. Beni Persaud did not die of natural causes nor did he commit suicide. His death was caused by asphyxiation due to manual strangulation. He was strangled to death by violent hands. A sock was found stuffed in his mouth. Accident is out of the question. It is incontrovertible that Beni Persaud was murdered. His obvious murder was, equally obviously, related to a raid on his home by a masked gang of men a few short hours before his dead body was found.

3 Beni Persaud's home was sons 30–40 rods north of the creek horn where his dead body was found. In this court, approaching issues of fact as we do, consonantly with the realities of life and reasonable probabilities, not far-fetched or fantastic possibilities, the question must be resolved whether there could be room for reasonable doubt arising from the evidence on the record that Beni Persaud's death and the violent events about to be described, formed part of one criminal transaction in which several participants were acting in conceit.

4 Beni Persaud's home was at Esau and Jacob, Mahaicony, six miles south of the point of intersection between the Mahaicony public road and an access road which branched southwards from it. The home was a two-flat building and it was some two miles up a dam which branched eastwards from the access road. On the night of 13th January, 1978, there was at Beni Persaud's home a number of persons. These were his sons Dhansarran and Cecil Persaud, Cecil's wife Parbattie Persaud, her brother Chandradat Persaud and Beni himself. Beni Persaud's wife was away from home on that evening, fortunately for her. After dinner Beni Persaud left his home at about 7.30 p.m. and that was the last time he was seen alive by any of the occupants of the home. After Beni Persaud left home Chandradat Persaud retired to the upper flat, went to bed, read for some two hours then fell asleep. Similarly, Dhansarran Persaud retired upstairs to bed. He took his radio with him and had it near his bed, where he read until approximately 11.30p.m. before falling asleep. Chandradat had fallen asleep earlier on. Up till the time Dhansarran fell asleep Beni did not return home.

5 The slumber of Chandradat and Dhansarran was interrupted. According to Dhansarran, around 12.15a.m. on 14th January 1978, he was awoken by cramps in his right hand. He was lying face downwards on the bed. As he was about to remove his hands from under his chest he saw a negro man pointing a shiny revolver at him. The negro man commanded him to bend his head down and repeated the command, still menacing him with the revolver. At this stage two other men approached him within the room. They were wearing flop hats and had masks below their noses. When he tried to lift his head Dhansarran was commanded by the man with the revolver to put his head down. The two masked men tore a bedsheet and tied has hands and feet. Chandradat, lying on his bed, was then aroused. He felt someone was pulling at his feet. He opened his eyes and saw a tall man at the foot of his bed with a gun in his hand. He saw one of the two other men in the room holding a knife. The man with the knife indicated by a gesture with the knife to his mouth that Chendradat should be quiet. He told him to be quiet. The man with the knife cut up a towel belonging to Chandradat and with the pieces tied his feet, turned him over and tied his hands behind his back. Thereafter the man with the knife out the sheet on the bed on which Chandradat was lying. The negro man with the gun had a red cloth tied across his nose but nothing on his head. After Chandradat was tied up the two companions of the gunman walked towards the room in which Cecil Persaud and his wife Parbattie were. Dhansarran was gagged with a piece of cloth by one of the men and was then asked where the money was. The man with the revolver held Dhansarran's hair and pulled it upwards. He then removed a watch from Dhansarran's wrist. Sounds of drawers being pulled out emanated from Cecil Persaud's room. The negro man, making a command to the effect that “all you want all for you self”, proceeded in the direction of Cecil Persaud's room. A voice ordered “go back” after which the gunman returned to where Dhansarran was. The gunman asked Chandradat whether the safe had money and ordered that the safe be ordered out.

6 Some five minutes later Dhansarran released himself from his bonds and his gag and similarly released Chandradat. Chandradat and Dhansarran then went to Cecil Persaud's bedroom. The bedroom of Cecil Persaud was ransacked. Cecil Persaud's wife Parbattie, in a deposition which was admitted in evidence at the trial, testified to having been awakened by her husband during the course of sleep that night. She saw him open the door of the bedroom and then saw a tall man with a shine gun in front of her husband. She got up and stood behind her husband. The gunman ordered them both back to bed and to resume lying on it the way then had been. The gunman dispossessed Cecil of his watch and his rings and Parbattie of turn bangles from her hand as well as her finger rings. Another man entered the room and told the gunman to carry Parbattie outside into the hall. The gunman said to one of his cohorts, “You know your job,” and Parbattie was taken into the hall by the gunman who told her to take them quickly to where the money and jewels were. That man told her that they were six of them. Parbattie denied that they had any money or jewels. One of them men was incredulous. Parbattie then saw one of them coming out of Beni Persaud's room saying, “Kill she, kill she, how she say they don't have money and jewels.” Parbattie then disclosed that there was a chest in Beni Persaud's room but said that she did not know what it contained. This last man ordered Parbattie back into the bedroom where she was gagged with cloth and her hands and feet tied. She apparently fainted because the next thing she knew was that her husband was reviving her with limacol. The man had gone. The bedroom was ransacked, jewellery, chest, cloth and clothes were all gone. Gone too was Dhansarran's radio.

7 The facts I have recounted, beginning with the appearance of the masked marauders in the home of Beni Persaud and ending with the discovery of his strangled corpse in the creek horn, depict the very portraiture of a gang raid to carry out a preconceived plan to commit robbery with violence on the occupants of a home in order to facilitrate their plunder of whatever health was within.

8 In this case the safe of Beni Persaud was undoubtedly the prime target of the bandits and they showed relentless determination in locating it and effecting its asportation away from the home. That done, the raid was over, mission accomplished. The raiders departed and silence fell upon Beni Persaud's household.

9 I am satisfied that it requires naivety of a moronic nature to entertain doubt of any kind in the times in which we live that prima facie, the raiders of Beni Persaud's home were part of a single gang who descended on that home in its vulnerable rural isolation in the dead of night, with a preconceived plan to commit robbery and employ whatever violent measures were necessary to achieve their criminal purpose. However, it was necessary in a trial by jury to leave this issue to them for their own determination with proper directions concerning the evidence as it affected each of the appellants separately. The jury would have had to pay due regard to the possession by one of the raiders of a knife and a gun by another, to the masks, to the modus operandi, in applying violence to the person, viz., binding and gagging – and Beni Persaud's corpse was found gagged – to the concerted vocal quest and physical search by the raiders in the house for money and jewellery, and the intimidation of Parbattie by threats of death to force her to disclose their location in the house. Then, there was the gunman's taking of Parbattie's two bangles from her hand and her finger-ring and the dispossession of her husband of his watch and ring. These were the facts on which the jury had to make findings and draw inferences as to what was really going on in the house that night in terms of concerted action and common design.

IDENTIFICATION OF THE RAIDERS

10 The prosecution was unable to adduce any direct evidence identify any of the four appellants ass members of the gang. No evidence came from the occupants of the home who came in contact with the men identifying any of them, and understandably so in the circumstances. Failing evidence by the occupants of the home identifying the raiders, the next question is whether there was any circumstantial evidence that placed the appellants or any of them on the scene as members of the gang executing a common plan involving the death...