Singh et Al v The State
| Jurisdiction | Guyana |
| Judge | Kennard, C. |
| Judgment Date | 03 March 1999 |
| Neutral Citation | GY 1999 CA 5 |
| Docket Number | Criminal Appeal Nos. 12,13,18 & 23 of 1996 |
| Court | Court of Appeal (Guyana) |
| Date | 03 March 1999 |
Court of Appeal
Kennard, C.; Perry, J.A.; Persaud, J.A.
Criminal Appeal Nos. 12,13,18 & 23 of 1996
M. Bacchus for the appellants
R. George and Y. Cummings for the State.
Criminal law - Joint enterprise to commit robbery — Deceased shot and killed during perpetration of robbery — Two appellants convicted of murder and sentenced to death — Other two appellants convicted of manslaughter and sentenced to two and three years imprisonment respectively — Appeals against convictions and sentences — Various grounds of appeal — Whether trial judge misdirected jury — Appeal dismissed — Sentence of one appellant increased from three to ten years to express denunciation of crime.
The calm and peaceful agricultural community of Mibicuri South, in the Black Bush Polder area on the Corentyne was disturbed on the night of 31 August 1993 when armed bandits entered the home of Aubrey Ramsammy (also known as Arnold) and shot him to death in the course of a robbery. Aubrey Ramsammy, who had lived in the USA for a number of years, had returned to Guyana in July 1993 in order to take his children, including Indira and Maureen, to that country. They had gone to the US embassy in Georgetown where the visas required for their entry into the USA were obtained. Whilst preparations were being made for them to leave Guyana, the first appellant entered Ramsammy's home and shot him, after which he and his two daughters Indira and Maureen were assaulted by the third appellant and another person, who demanded of the Ramsammys money and jewellery.
There was evidence to the effect that, whilst the incident in the house was taking place, the second appellant, as well as the fourth appellant, was seen in the yard of the deceased by the son of the deceased, Sherlock Ramsammy, who ran to the nearby police station and made a report. In company with the police, Sherlock returned to the father's home but, before they could have entered it, the persons who were in the house and near to it ran away and escaped.
Arnold Ramsammy was later taken, firstly to the Mibicuri Hospital, and later to the New Amsterdam Hospital where he remained until he died on 2 September 1993. Indira was also taken to the New Amsterdam Hospital because of injuries she had received as a result of being beaten by the bandits.
To link the first appellant with the commission of the offence the prosecution relied on the evidence of Maureen, who testified that she had seen the first appellant, whom she had known for some time before the incident, shooting her father. In addition, there was evidence given by both Maureen and Indira that, after the bandits had left the house, the deceased had told them that it was the first appellant who had shot him. This evidence was admitted at the trial after the trial judge had conducted a voir dire to decide whether that statement of the deceased should have been admitted as part of the ‘res gestae’.
To connect the second appellant with the commission of the offence the prosecution relied on the evidence of Sherlock Ramsammy, who testified that he had seen the second appellant standing in the yard of the deceased near to the kitchen at the time of the incident in the house.
So far as the third appellant is concerned, there is the evidence of both Indira and Maureen who stated that they had seen him in the house and that he was one of the intruders who had beaten them whilst demanding jewellery and money from them. As regards the fourth appellant, there is the evidence of Sherlock Ramsammy whose evidence was to the effect that he had seen him standing in the yard of the deceased and the fourth appellant had told the second appellant to shoot him (Sherlock), but the second appellant did not comply with the request.
The case for the prosecution was based on the theory that the four appellants were acting together in a joint enterprise to commit robbery, during the course of which the deceased was shot and killed. In other words, the prosecution's case was based on the felony/murder rule, that is to say that the death of the deceased occurred as a result of violence used on the deceased in the perpetration of the offence of robbery involving the use of violence. The evidence of Dr. Bridgemohan, who performed the post-mortem examination, disclosed that the deceased had died from a gunshot wound which he had received on his left arm.
The defence of the appellants at the trial was alibi, and they called witnesses to support their defence, which the jury by their verdicts rejected.
All four appellants were convicted by the jury. The first and third appellants were convicted of the capital offence, and sentence of death was duly pronounced on them by the trial judge. The second and fourth appellants were convicted of the lesser offence of manslaughter, and were sentenced to terms of imprisonment of two and three years, respectively.
At the commencement of the hearing of the appeals Mr. Mursalence Bacchus, who appears for all the appellants, indicated to the court that the appeal of the second appellant Hazrath Hussain (also known as Brother Joe), would not be pursued as he had already served his sentence. Accordingly, his appeal was dismissed and his conviction and sentence were affirmed.
We are, therefore, only concerned with the appeals of the other three appellants. Several grounds of appeals were argued on their behalf, but I shall deal only with those grounds of appeal which I feel merit consideration.
The crucial issue at the trial was one of the identity of the miscreants, as it is clear from the evidence led at the trial that the deceased was shot in the course of a robbery committed on him in his home. The appellants disputed that they were at the scene of the crime and led witnesses to show that they were elsewhere at the time of the commission of this offence. It is clear from the evidence led at the trial, if the case for the State is accepted, that the appellants were well known to the Ramsammy family as they all lived in the same area. At the end of the day, it was solely for the jury to decide whether the appellants were indeed the persons who had committed the offence.
It was submitted before us that the trial judge had erred in admitting in evidence words uttered by the deceased to his daughters Indira and Maureen after the bandits had left the house, namely ‘John Pankus son Vako shot me’. It was the contention of Mr. Bacchus that the words were not uttered spontaneously and contemporaneously with the act of shooting for, even though the police had spoken to the deceased shortly after the bandits had left, he did not tell them that it was the first appellant who had shot him, but had only told his daughters shortly after this.
Maureen Ramsammy who had seen the first appellant shooting her father had stated in evidence that about nine or ten minutes had elapsed between the time her father had been shot and the time he had told her and Indira that it was the first appellant who had shot him.
The issue of the res gestae was exhaustively dealt with by this court in Martin v. The State (1988) 43 W.I.R. 201 at 215 where George, C. said:
“In my opinion the views expressed in the cases of Ramotar, Nye, Turnbull and Andrews have removed much of the artificiality which has surrounded the law relating to hearsay and the res gestae rule and have placed it on a more rational footing. Henceforth if a statement is made in circumstances of spontaneity and is contemporaneous, or substantially so, with the event which excited it, so that the possibility of concoction, distortion or adaptation (see R v. Turnbull) or error (see R v. Nye) can be ruled out, then it would be admissible as to the truth of the facts narrated.” [emphasis supplied]
In Ratten v. R [1972] A.C. 378 at 389, Lord Wilberforce said:
“As regards statements made after the event it must be for the judge by preliminary ruling to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction or adaptation can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same is true of statements made before the event or transaction.”
See also Beegan v. R (1955) L.R.B.G. 160.
In Teper v. R [1952] 2 All E.R. 447 at 449, Lord Normand said:
“This, at least, may be said, that it is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least be so clearly associated with it, in time place and circumstances that they are part of the thing being done and so an item or part of real evidence and not merely a reported statement.”
In R v. Andrews [1987] 1 All E.R. 513 at 520, 521, Lord Ackner said:
“My lords, may I therefore summarise the position which confronts the trial judge when faced in a criminal case with an application under the res gestae doctrine to admit evidence of statements, with a view to establishing the truth of some fact thus narrated, such evidence being truly categorised as “hearsay”. (1) The primary question which the judge must ask himself is: can the possibly of concoction or distortion be disregarded? (2) To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In...
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