The State v Gonputh
| Jurisdiction | Guyana |
| Judge | Persaud, J.A. |
| Judgment Date | 24 September 1996 |
| Neutral Citation | GY 1996 CA 7 |
| Docket Number | Criminal Appeal No. 17 of 1991 |
| Court | Court of Appeal (Guyana) |
| Date | 24 September 1996 |
Court of Appeal
Bishop, C., Bernard, J.A. and Persaud, J.A.
Criminal Appeal No. 17 of 1991
Mr. K. Ramjattan for the appellant.
Mr. I. Chang D.P.P. (Ag.) for the state.
Practice and procedure - Summing up — Appellant convicted of murder— Withdrawal of issue of self—defence from jury — Grave misdirection on the question of provocation — Finding that these deprived the appellant of a fair chance of an acquittal — Verdict of murder set aside and manslaughter substituted.
The appellant and the deceased, on the 6th September, 1988 had an altercation in the presence of a number of witnesses. There is dispute as to whether the fatal blow was struck on the road or in a shop, where the deceased was with friends. The prosecution claimed, through its witnesses, that the incident took place in the shop. The appellant claimed that the incident took place on the road.
There is also dispute as to what caused the altercation. The appellant in his statement to the Police claimed that he lost control of his bicycle whilst riding and in so doing almost hit the deceased's wife who was standing outside the shop. He further claimed, she “cussed” him and “chucked” him and, and as he was walking away, he felt a cuff on his left side jaw, then right side jaw. He said he barely had place to escape and he picked up a piece of pipe and lashed the deceased.
The appellant in his unsworn statement from the dock, added to what he initially told the Police. He said that the deceased was a bigger man than he was, weighing about 200Ibs and he was afraid for his life during the attack.
The wife of the deceased deposed she was outside the shop speaking to her cousin, when two (2) boys riding their bicycles almost hit her down. She said shortly after the appellant rode straight towards her and tried to hold her breast. She said she chucked him and told him to “humble himself.” She said the deceased after hearing her voice came out of the shop and while ridiculing the appellant, slapped him twice on his face. About ten minutes later she heard her husband's voice, crying out “Oh God.” When she went into the shop, he was lying on the ground bleeding from a head wound.
The appellant was charged with murder. He raised the defence of self defence at his trial but was found guilty of murder on 28th June, 1991 and sentenced to death; on the 11th July, 1991 a Notice of Appeal dated 5th July, 1991 was filed. It must be noted from the outset that this Appeal was argued on the basis of the Summing-Up alone, both counsel consenting, due to the fact that the Minute Book of the learned trial judge, containing the notes of evidence could not be found.
Counsel for the appellant attacked the Summing-Up of the learned trial judge on the basis of his Amended grounds of Appeal, dated 29th day of September, 1995 which read:–
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(1) That the learned judge erred when he withdrew the issue of self defence from the jury's consideration;
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(2) That the learned judge failed to adequately deal with the defence of self defence in that:–
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(a) He did not direct the jury that if the accused was honestly of the belief that his life was in danger, then that gave rise to self defence.
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(b) His directions thereon were most imbalanced.
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In relation to ground (1) above, counsel argued that on the evidence and more specifically, in the learned trial judge's review, the defence of self defence arose.
In support of that argument he referred to the appellant's statement to the Police and his unsworn statement from the dock, (page 18, lines 30 - 34):- “whilst walking away, ah felt a cuff on me left side jaw and then a neat one pon me right. Then ah barely get a place to escape and me pick up a piece of pipe and me lash he pon he forehead and then I left and I walked away.”
Then with reference to his unsworn statement from the dock (page 31, lines 32 - 33):- “Whilst walking away I felt one cuff on my left side jaw and a next to my right.”
Counsel then referred to the Summing-Up and l quote:- “After she chucked him, he said, he was walking; away and he felt one cuff, Mr. Foreman and members of the jury, one to his left side jaw and one to his right side jaw.”
It was then argued, that the learned trial judge's comments (on page 39, lines 5 - 9) of the said summing-up amounted to a withdrawal of self defence from the jury raised in the preceding references. I quote “Mr. Foreman and members of the jury, in my opinion based on the evidence in this case, the facts of which you and you alone have to find, this is a case of either murder or manslaughter, nothing less.” He also told the jury:- “In my view what he said in the statement to the Police and to you in this Court does not support self defence. For the reason that I do not think that you would have much difficulty in finding, that in these circumstances he used more force than was necessary”
The Acting D.P.P. for the State contended that self defence would necessarily fail because of the use of excessive force by the appellant. In leaving the issue to the jury, any non-direction on the question of self defence would have caused no miscarriage of justice and hence would not be fatal.
In support of this argument counsel referred to State v. Lewis (1976) 23 W.I.R. 226 and the judgment of Chancellor Haynes in R v. Moore (1967) 10 W.I.R. 527; and of Chan Kau V Reginam [1995] 1 All E.R. 226. In the State v. Lewis (supra) page 233 Haynes C. said:–
“In weighing the probative value of the evidence to decide if there was at least this reasonable possibility that the prisoner acted or may have acted in self defence, the trial judge must regard the degree of force used. If plainly it exceeded that which might conceivably have been thought reasonably necessary for defensive action in the particular circumstances then he would be justified in withdrawing this issue from the jury.”
And the Chancellor went on:–
“But while a judge will be naturally very reluctant to withdraw from a jury any issue that should properly be left to them and is therefore likely to tilt the balance in favour of the defence, an Appellate Court must apply the test (of reasonable possibility) with as much exactitude as the circumstances permit. In other words, while a judge might on a certain quality of material in evidence, wisely or cautiously leave an issue of self defence (or of provocation) to the jury, an Appellate Court might hold rightly that there was not in law sufficient evidence on the issue to go to the jury and so conclude that any misdirection upon the evidence on the relevant law could have caused no miscarriage of justice.” See also CHAN KAU v. R and R v. Moore above.
The State further argued that the defence of self defence and provocation were left to the jury and what the appellant contended to be a withdrawal was merely the learned trial judge's view. Further in the circumstances of this particular case, the trial judge need not have left the issue of self defence to the jury because of excessive force.
Now the critical question to be determined is the degree of force used by the appellant.
The appellant in his unsworn statement from the Dock stated that the deceased was bigger than him, about 200 pounds. He further, stated that he was afraid for his life, he was afraid that the deceased would kill him.
There was evidence which the learned trial judge should have referred to, and analyzed for the jury's consideration. There was evidence from Leroy Floy that the pipe with which the appellant struck the deceased was “two to two and a half inches long” (page 8) whereas the evidence of Lorraine Hall was that it “was about three feet in length” (page 21). And secondly the evidence of Shane Lyte “He (deceased) gave the accused two slays on his face - I left my cousin and went to part them, that is to say George Hall and the accused” (page 24). And “what I meant by parting them is that I pulled George Hall away after he gave the accused two slaps, so as to prevent him from slapping or hitting the accused again.” These bits of evidence were not addressed to the jury, and their significance not explained.
The learned trial judge ought to have told the jury that it, seemed that Lyte was fearful of the accused being attacked further by the deceased, so he pulled the deceased away. Relate that to the statement of the appellant that he barely had space to escape and he “picked up a piece of pipe and lash he”; and leave same to the jury to see what conclusion they could have arrived at from that: Was the behaviour of the deceased of such a nature to impel the appellant to resort to defending himself with “a piece of pipe on the road” considering he said:” I lashed him with it to defend myself because I was afraid he would kill me”? (page 32). These features should have been highlighted in order to enhance a disciplined evaluation of the facts by the jury. That was not done; and so it cannot be disputed that the appellant was not the recipient of a fair trial. A judge would not have put it adequately if he omits to call the jury's attention to any of the essential features, of the prosecution's case and that of the defence and he would have failed to put it fairly if by word or implication he withdraws or may reasonably have been understood to withdraw any such feature(s) from the consideration of the jury. See David and Watkins v. R (1966) 11 W.I.R. 37.
Is such force in the instant circumstances to be regarded as plainly in excess of that which might be reasonably required for defensive action? A bigger man administering cuffs to your face, you, fearful for your life with barely space to escape, your only salvation appears to be a piece of pipe and you used it. Is this excessive? Prima facie, I think not. Only one blow was administered by the appellant. He was...
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