Sattaur v The State
| Jurisdiction | Guyana |
| Judge | Bishop, C.,Perry, J.A. |
| Judgment Date | 20 March 1995 |
| Neutral Citation | GY 1995 CA 1 |
| Docket Number | Criminal Appeal No. 10 of 1993 |
| Court | Court of Appeal (Guyana) |
| Date | 20 March 1995 |
Court of Appeal
Bishop, C.; Perry, J.A.; Ganpatsingh, J.A.
Criminal Appeal No. 10 of 1993
Doodnaugh Singh, S.C. with Arthur Alexander for the appellant.
Ian Chang, Director of Public Prosecutions (Ag), for the State.
Constitutional law - Fundamental rights and freedoms — Denial of right to consult a lawyer of one's choice and right to be given reasons for arrest or detention — Appeal allowed and conviction and sentence of death for administering a poisonous substance to two children set aside.
On February 10, 1995, we allowed this appeal, set aside the conviction and permitted the appellant to go free, but we promised to state our reasons, in writing, for so doing. This we do today.
Basically, my learned brother, Ganpatsingh, J., in his draft, has alluded to the law governing the admissibility of inculpatory statements of accused persons: that in a criminal trial, it is the duty of the State to prove that the statement it proposes to tender in evidence and purportedly that of the accused, was made freely and voluntarily by him. That being the basic principle, it follows that voluntariness of a confession will therefore be an issue in law to determine whether the confession should or should not be admitted in evidence. This requires a ruling by the trial judge: The State v. Gobin and Griffith (1976) 26 W.I.R. 256.
Or, there may be evidence of such a nature as to trouble the judicial conscience to warrant a ruling against the admission in evidence of the alleged confession: R v. Ramsook Rapersaud [1945] L.R.B.G. 67; Thomas, Seales and Meerabux v. R [1961] L.R.B.G. 312. Yet it is not to be supposed that regardless of the circumstances, voir dire must every time be held to enable a ruling one way or the other on the issue of voluntariness: The State v. Denman (1979) 26 W.I.R. 384; Mohamad Omar v. The State (1987) 40 W.I.R. 207; Director of Public Prosecutions v. Pin Ling [1975] 3 All E.R. 175 at pages 184, 185 per Lord Hailsham.
Apart from the principles aforesaid that arise at common law, there will be times when the admission of an alleged confession is made the object of a challenge, by virtue of the Fundamental Rights and Freedoms provisions of our Constitution aimed at protecting the individual. After all is said and done, the Constitution of Guyana, a written one, is our supreme law.
The judgment of Ganpatsingh, J. is expository in its objective and treats two earlier judgments of this court: Mark Roach v. The State (George, C., Bernard and Perry, JJ.A.), No. 33/90, unreported, and Yassin and Thomas (No.2) v. The State (Kennard, Bernard and Perry, JJ.A.) Nos.16 & 17/92, unreported. Kennard, J.A, who apparently gave the judgment of the court in the latter, was prepared to distinguish it from the former “on the basis of the evidence before the court.” And because of the dissonant views expressed by Ganpatsingh, J. on the later judgment, namely Yassin & Thomas (No.2), his describing it as having been rendered per incuriam and, added to those, comments of the same genre by Senior Counsel, Mr. Doodnauth Singh for the appellant, I feel constrained to assemble, hopefully in the near future, an extraordinary panel of five Justices of Appeal to hear, in extenso, the arguments, pro and con, on the intendment and scope of Article 139(3), as protection of a right identified in the broad terms of Article 40 of the Constitution of Guyana (1980).
For my part, I am prepared to say, and do say, that the appellant was not the recipient of a fair trial, and it is extremely doubtful that evidence of the circumstances surrounding her detention, the duration of it and certain oppressive features about it, can be transfigured upon a retrial: Mohamed Omar v. The State ( ut supra). We are reminded of the wise words of Chancellor Haynes in Gajraj v. The State (1978) 27 W.I.R. 119 at p. 138, letter f:
“This court does not sit to determine whether a convicted man is ‘guilty’ or ‘not guilty’ of the crime for which he was convicted. That was the jury's function. What we usually sit here to do, in our criminal jurisdiction, is to view what happened at the trial and determine whether it was a fair one. If it was, we must dismiss the appeal. If it was not, we may quash the conviction. A trial, in law, may be unfair if it is not conducted in accordance with cardinal rules of law and procedure laid down for centuries to ensure that no one shall be found guilty of a crime he did not commit, or to reduce as much as practicable the risk of this happening. Because these rules are made to protect the innocent, they place a fundamental and inescapable duty on this court, a duty we will never hesitate to perform. In this sensitive area, the appearance of justice is part of the substance of it. And if, because we have to insist that trials be conducted according to law, guilty men may go free, this is an adversity [which] society must bear, if the innocent are to be protected.”
In allowing this appeal, we applied the foregoing precept.
In this case the appellant Omadai Sattaur was indicted for the murder of her two children Nazeema Sattaur and Nafeeza Sattaur on the 11th day of January, 1992 by administering a poisonous substance to them.
The appellant was convicted and sentenced to death for the said offence on the 7th June, 1993. It is against this conviction and sentence that she has appealed.
The appellant filed several grounds of appeal. Grounds 1-4 and ground 6 related to what is called breaches of the appellants constitutional rights and breaches of the Judges' Rules.
My learned brother Ganpatsingh, J. whose judgment I had the pleasure to read dealt with these issues and came to the conclusion that the appellant's constitutional and other rights were breached for the reasons which he stated there and that as a result the appeal should be allowed on those grounds.
I must say at the outset that I do not agree with him based on the reasoning and conclusions arrived at with respect to those constitutional issues dealt with by him. The learned judge seems to have concluded that once there is a breach of the Constitution where a person in not told of his right to have a lawyer or that he was not told as soon as possible after his detention the reason for his arrest then the trial judge has no discretion but must exclude any statement the accused might have made or in the case of failure to state the reason for detention or arrest then the accused must be set free.
The constitutional provisions respect to the defendant's right to be told that he has a right to counsel or to consult counsel and of his further right to be told the reason(s) for his detention and or arrest are set out in article 139(3) of the 1980 Constitution of Guyana which reads thus:
“Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest or detention and shall be permitted, at his own expense, to retain and instruct without delay a legal adviser of his own choice, being a person entitled to practice in Guyana as an attorney-at-law, and to hold communication with him.”
If however, the reason or reasons for his detention is so clear there seems to be no necessity for him to be told the reason for his arrest.
In the case of Roach & Seecherran v. The State, Criminal Appeal No.33 of 1990, (unreported). It was held that the failure of the police to notify the accused or arrested person of his right to have a lawyer was clearly a breach of his constitutional right. A breach of the Judges' Rules which have the force of law as well as non-compliance with the facilities which must be made available to the defendant by failing to inform him while in custody that he has a right to consult his lawyer still leaves the learned trial judge with a discretion to be exercised, the accused Roach was in police custody. His lawyer has gone there to see and consult with him. The evidence, which was uncontradicted, was that the police told the accused Roach that this lawyer was there to see him and that they had turned him away and further that they would make rings around him as he was always drunk. This was a clear breach of the prisoner's rights under the Constitution. The learned trial judge, it would seem, failed to address her mind to that aspect of the appellant's case. Had she done so she would have considered whether or not she should exercise her ultimate discretionary power to exclude the statement.
In other words that case decided that even where there is a clear breach of the appellants constitutional or fundamental rights, the trial judge was still vested with an ultimate discretion as to whether or not the statement should be excluded having of course addressed his mind to the issue involved. The turning away of the lawyer who had gone to the station for the specific purpose of consulting the appellant was an act that was the very anthithesis of the requirement of that part of article 139(3) of the 1980 Constitution of Guyana which in its terms requires that an arrested person should be told without delay of his entitlement to legal assistance and to consult his legal representative.
In the case of Abdool Salim Yassin & Noel Thomas v. The State Criminal Appeal Nos.16 & 17 of 1992 (unreported), the issues of (a) the right to be told of legal assistance and (b) the right to be told the reason(s) for arrest or detention were clearly dealt with by my brother Kennard, J.A. as he then was. He also came to the conclusion on that the trial judge had an ultimate discretion where there is a breach of any or either of the two provisions the court having addressed its mind to them. This case was well discussed and the relative legal authorities cited and considered by the learned Justice of Appeal and the...
To continue reading
Request your trial