R v Singh et Al

• Jurisdiction: Guyana
• Judge: Vieira, J.A.
• Judgment Date: 28 September 1983
• Neutral Citation: GY 1983 CA 13
• 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:

D. 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with stolen goods — No evidence which called for a specific direction on whether any of the appellants may have withdrawn from the common design resulting in the murder of the deceased — Appeal dismissed and conviction and sentence affirmed.

Vieira, J.A.

1 The four accused/appellants were convicted of the murder of wealthy rice and cattle farmer Beni Persaud, aged 59 years, and sentenced to death on 14th April, 1981, at the Demerara Criminal Assizes. In order to found a conviction of murder against the four appellants. Balkarran Singh, James Lawrence, Horton Blackman and Victor Bishop, the State relied upon the “doctrine of constructive malice” or the ‘felony-murder rule’, a doctrine abolished in England by the Homicide Act, 1957, but still part and parcel of the criminal jurisprudence of Guyana. In relation to the No. 2 appellant, James Lawrence, the State relied, additionally, upon the ‘doctrine of recent possession’.

2 No one saw who killed Beni Persaud (hereinafter called ‘the deceased’). No one saw where he was killed and it is not known what time he was killed.

3 What is clear, however, are the following undisputed facts:

1

) On Friday, 13th January, 1978, the deceased ate his dinner and was seen to leave his house alone between 7:30 – 8:00 p.m. in sound mind and body. 2) Some 6-7 hours later, about 1.45 a.m. on Saturday, 14th January, 1978, his dead body was found by the witness Chandradat Persaud lying face upwards in a dry creek-horn about 30 – 40 rods south of his home at Essau & Jacob, mahaicony Creek, East Coast, Demerara, which is situate about 20 rods east of the mahaicony Branch Road, which runs north to south and which is about six miles south of the Mahaicony public road which runs east to west. 3) About 4.30 a.m. the said Saturday morning Sgt Smith saw that the body was bare-headed and bare-footed and his white shirt was partly off has body whilst his black trousers was below his knee. There was an odd-side black sock stuffed into his mouth bleeding from a wound at the back of his head. According to the sergeant, this spot was about 5-6 rods south of the deceased's home. 4) At some time between 11 p.m.- 1 a.m. that very night a barefaced burglary and robbery involving violence had be on the deceased's home and on the inmates therein respectively. During that time five masked men, at least two of whom were armed, one with a revolver and one with a knife, broke and entered the premises. The occupants were awakened and the bandits then proceeded to terrorise them binding and gagging them and robbing them. The victims were two if the deceased's sons, viz., Dhansarran Persaud and Cecil Persaud and Cecil's wife Parbattie Persaud and her brother Chandradat Persaud. 5) The eastern bedroom which was occupied by the deceased and his wife Sookrajie called ‘Fat lady’ (who was away in Georgetown at the time) and which it was the usual Practice of the deceased to lock whenever he went out, was forced open and an iron safe belonging to the deceased which he kept near the wardrobe on the north-eastern side of the bedroom was removed as were other items including jewellery belonging to the other inmates of the house. 6) About 11.00 a. m. n the said Saturday, 14th January, 1978, P.C. Deodat Persaud and a party of policemen went to Bath public road which is about three miles east of Mahaicony police station and there No. 2 appellant, James Lawrence, was seen walking west along the northern side of the public road with a jute bag slung over his shoulder. Just about three rods east of him were the Nos 1 and 3 appellants, Balkarran Singh and Horton Blackman, who were about 3 – 5 feet away from each other. 7) The three appellants ware challenged after having been separately cautioned to the effect that it was suspected that they had been involved in the murder and robbery of Beni Persaud at Esau & Jacob, Mahaicony Creek, during the previous night. 8) The three appellants said nothing in answer to the caution and they were then arrested and searched and on their persons were found several articles of jewellery; cash and other items. In the jute bag in the possession of the No. 2 appellant was found among other things a ‘solid state’ transistor radio with the initials ‘C.P.’ at the bottom and a large quantity of gold, jewellery under some clothing. The three appellants along with the articles were then taken under escort to Mahaicony police station where the articles were lodged and the three appellants detained pending further enquiries. 9) About 4 p.m. the said Saturday afternoon P.C. Richmond observed the No. 4 appellant Victor Bishop standing on the eastern side of the Mahaica market. He was shirtless and there were two bulky rice bags across his shoulders. The butt of a revolver was stuck at he back of his pants waist. On being challenged, the No. 4 appellant dropped the two rice bags and began to run going south. He was chased and caught in a yard by a party of policemen and some civilians. He was then cautioned by P.C. Richmond but said nothing. He was taken to Mahaica police station (which is about 10 miles west of Mahaicony police station) where he was searched and on his person was found a quantity of cash, a Seiko wristwatch marked ‘C.P.’ and a quantity of jewellery song which was a gold brooch marked ‘Parbattie’. The No. 4 appellant was later taken to Mahaicony police station where he was detained pending further enquiries. 10) Between 1:46pm – 2:45pm, 3:45pm – 4:10pm, 5:50pm – 6:35pm and 9:30 – 9:50pm on the said Saturday, 14th January, 1978, caution statements were taken from Nos 1,3,2, and 4 appellants (Exhibits ‘J’, ‘G’, ‘F’ and ‘A’ respectively). The statements of the Nos 1, 3, and 4 appellants were admitted by the learned trial judge as having been made freely and voluntarily and not in breach of the Judge's Rules after very lengthy voir dires. 11) Either around 6.40 p.m. the said Saturday, 14 1978, or 4.15 p.m. on Sunday, 15th January, 7978, Assistant, Superintendent (then Inspector) London and a police party accompanied No. 1 appellant Balkarran Singh to a dam at Esau & Jacob where the No. 1 appellant pointed out a spot in a trench on the western side of the said dam which was about three-quarters of a mile north of the deceased's home. A search was made in the trench and the iron safe that had been removed from the bedroom of the deceased the night before was found under a bridge across the said trench. The safe was taken out of the trench and escorted to Mahaicony police station. where it s later opened in the presence of relatives of the deceased and inside was found the very large sum of either G$105,524 or G$106,498 cash, two passports in the name of the deceased, one Browning semi-automatic revolver, some documents and a quantity of gold and silver jewellery, which contents were very fortunately as it turned out subsequently, lodged at the Main Street Branch of the Royal Bank of Canada on 26th January, 1978, and the safe taken to Criminal Investigation Department, Eve Leary, where it was lodged. 12) On Monday, 16th January, 1978, Dr Leslie Mootoo, Forensic Pathologist, performed a post-mortem with dissection an the dead body of the deceased at the mortuary of the Georgetown Hospital. Several external marks of violence were seen. Dissection revealed fractures on the fourth to eighth ribs on the right side interiorly. The brain, lungs and kidneys were congested and there were several internal haemorrhages. The stomach had a moderate amount of undigested food. The cause of death in the doctor's opinion was asphyxiation due to manual strangulation. 13) The articles were subsequently identified and, in particular, the ‘solid state’ radio, the Seiko watch (both with the initials ‘C.P.’) and the gold brooch initialled ‘Parbattie’ as being the property of Cecil Persaud, Chandradat Persaud and Parbattie Persaud, respectively. Parbattie Persaud also identified many other articles of jewellery as being her property by their general appearance. 14) All the articles recovered were tendered at the preliminary enquiry including the iron safe but many of them were discovered missing before the trial in the High Court and so were not tendered at the trial, a shocking state of affairs to say the least. 15) Cecil Persaud died before the hearing and Parbattie Persaud had left the country by that time. Her depositions at the preliminary inquiry were tendered in evidence as were also those of P.C. Richmond who had left the force to seek his fortune as a pork-knocker in the interior. 16)The trial lasted about 50 hearing days and trial judge's summing-up took approximately nine hours spilling over a week-end.

COMMENTS ON SUMMING UP IN GENERAL

4 The summing-up of the learned trial judge, to my mind, was a very careful, andytical and fair one, admirable in all circumstances especially when regard is paid to the length of trial including four voir dires (the fourth was in relation to one Roopchand who was No. 6 accused who. it was alleged was outside the deceased's home acting as a lookout or watchman and who was acquitted) and the number and complexity of the legal issues involved. There was another accused, one Robert Sutherland, the alleged driver of the car, who was No. 5 accused at the preliminary inquiry...