The State v Levine
| Jurisdiction | Guyana |
| Judge | Massiah, C.,Bishop, J.A.,Bishop J.A. |
| Judgment Date | 20 July 1987 |
| Neutral Citation | GY 1987 CA 5 |
| Docket Number | Ref. No. 1 of 1987 |
| Court | Court of Appeal (Guyana) |
| Date | 20 July 1987 |
Court of Appeal
Massiah, C.; Bishop, J.A.; Fung-a-Fatt, J.A.
Ref. No. 1 of 1987
W. Henry, senior State counsel for the State.
M. Bacchus for Cecil Levine.
Practice and procedure - No case submission — R. v. Galbrath [1981] 2 All E.R. 1060 — Evidence that trial judge failed to deal properly with submission — Appeal by State allowed.
I confess to disquietude over the fact that the judicial approach to be taken for the determination of a submission of “no case to answer” appears to be still misunderstood. This question was addressed and definitively settled by this court three years ago in Alvin Mitchell, although the old Court of Crown Cases Reserved had charted the proper juristic course nearly a century ago in The Queen v. Hookoomchand and Sagur [1897] L.R.B.G. 12, on a case stated by Mr. Justice Sheriff. [See also The State v. Gowkarran, Persaud, Jowalla Persuad and Michael Boodram (1976) 24 W.I.R. 97, at pp. 124 - 125, 133 - 134].
In the instant matter the learned trial judge did not give attention to the principles enunciated in those Guyanese cases and others of a kindred nature, nor was regard paid to their English counterparts which culminate with R v. Gabraith [1981] 2 All E.R. 1060. In the result, the trail judge fell into fundamental error, and sought to determine issues of fact which clearly fell within the realm of the jury. What eventuated was a manifest miscarriage of justice in a situation where the evidence for the prosecution was crystalline, comprehensive, and compulsively cogent.
I have had the advantage of reading in advance the opinion prepared by my learned brother Bishop, J.A., and I agree with the conclusions at which he has arrived. In my considered judgment the submission “no case” ought to have been rejected.
Three years ago a question, similar to the one raised now, and also requiring an examination of circumstantial evidence, was considered by this court ( Massiah, C., Fung-a-Fatt, and Vieira, JJA.) in the State v. Alvin Mitchell (Reference No. 1 of 1984), by virtue of section 32A of the Court of Appeal Act, Chapter 3:01. The response given then is appropriate in the instant discussion, and it is to be regretted that the wise words of His Honour, The Chancellor, who gave the leading judgment of the court, were not considered, at the trial of Cecil Levine, to guide the arguments and influence the trial judge's ruling. As in Mitchell's case, so here, the no case submission of defence counsel, should not have been upheld.
At Mitchell's trial, the evidence was that the accused, the driver of a land rover, professed, at 3.00 a.m., to be in a desperate hurry to reach his destination. However, subsequent events established the antithesis of that and demanded, of him, an explanation, to the jury, for the death of 30 year old Nastawantee Persaud, whose semi-nude, dead body was found some five hours later, in a clump of bushes. It suggested that she had been brutally beaten and raped. The accused had been the last person, in whose company the women had been seen alive. He had promised to get her home earlier than her two female companions, with whom she had been walking.
The three women were night club waitresses who, at first, had all rejected the accused's offer of a lift home, but eventually the deceased reluctantly joined the vehicle in the sincere expectation of swift conveyance to her home. Her colleagues, on foot, reached home ahead of her, for the simple reason that the accused drove in a direction away from her residence, as soon as he had surreptitiously sent the other passenger, a male, on a false errand into another night club. Forty five minutes later, the accused returned without the deceased, said nothing about her, but announced to his merry colleagues that they were to drive back forthwith to the village, twelve miles away, from which he had earlier taken them that night. That they did. But in a few hours, the accused left camp for Georgetown some eighty five miles away, where he was arrested. After he had been in custody for the greater part of three days, Mitchell claimed, for the first time, that the deceased had fallen out of his vehicle and met her death. There was no suggestion that police conduct towards him had been improprietous. Significantly he had not given that account to any of his colleagues; not even to DeFlorimonte, the person to whom he had spoken, when he was setting out for Georgetown. What is more, his colleagues denied the accused's further claim that he had shown them the deceased's body on the roadway, during their return journey to the village.
In spite of such an impressive array of facts, the trial judge held that there was no case for the accused to answer. Our Court of Appeal was appalled at the ruling and saw fit to review a wide range of authorities starting with R v. Hookoomchand and Sagur [1897] L.R.B.G. 12 and ending with R v. Galbraith [1981] 2 All E.R. 1060. And at p. 7 of his judgment, on the reference, in Mitchell's case, Massiah, C. synthesized the precepts which a trial judge should observe, when required to rule on a no-case submission:
“A distillation of the principles stated in those authorities, stripped of whatever philosophical or esoteric content some may conceive them to possess, yields the following: a trial judge ought to send the case to the jury where in his opinion there is sufficient evidence upon which a reasonable jury properly directed, might convict. I place emphasis on the word might and on its subjunctive character. The trial judge ought, on the other hand, to withdraw the case, if the evidence is so unsatisfactory or unsound (established through cross-examination or otherwise) that no reasonable jury could convict on it, or if the evidence, even if all is believed, is so weak, tenuous or insufficient, that it cannot yield a lawful conviction.”
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