The State v Lewis
| Jurisdiction | Guyana |
| Judge | Haynes, C.,Persaud, J.A.,Crane, J.A. |
| Judgment Date | 30 January 1976 |
| Neutral Citation | GY 1976 CA 10 |
| Docket Number | Criminal Appeal No. 80 of 1975 |
| Court | Court of Appeal (Guyana) |
| Date | 30 January 1976 |
Court of Appeal
Haynes, C.; Persaud, J.A.; and Crane, J.A.
Criminal Appeal No. 80 of 1975
Jai Kissoon for the appellant.
G.A.G. Pompey, Deputy Director of Public Prosecutions, for the State.
Practice and procedure - Appeal against conviction for murder — Grave misdirections on manslaughter — Conviction for manslaughter substituted.
CHANCELLOR: Between 5.30 p.m. and 6 p.m. on Sunday, 27th October, 1974, a game of skittles was in progress in the Blue Velvet Restaurant off Victoria Road in the village of Plaisance on the East Coast of Demerara. Randolph Camacho, a government technical surveyor, was one of the players. Inspector of Police (then Sergeant) Joseph, Arnold Scott, an executive officer of the Hogstye-Lancaster Local Authority and Roy Henry, the deceased, were looking on. Camacho saw the appellant enter the restaurant. The appellant was shirtless. He approached the deceased, held on to the latter's left hand and said, “Man Roy come. I want to talk to you, come here.” The deceased did not comply. Camacho remonstrated with the appellant for discourtesy and asked him to leave. The appellant replied, “Don't worry with that,” or other words to that effect. However, the deceased left the company and had a conversation with the appellant some distance off. No witness heard what was said. Sgt. Joseph also spoke of this incident. He did not see the appellant enter the building, but he said that the appellant “grabbed” the deceased and “pulled him away” from the company.
Not long after, following the close of the game, Camacho, Joseph, Scott and the deceased left the restaurant. This must have been between 6 and 6.30 p.m. They proceeded south along Victoria Road on its eastern side. At some point, the deceased lagged behind and, somehow, an argument ensued between hin and the appellant. What happened afterwards was narrated by Scott, Camacho and Joseph with some difference in detail. Arnold Scott said:
“… I then saw the accused and Henry hold on to each other. Henry held the accused around his neck in a half-nelson. The accused was punching Henry with his fists on his abdomen. The accused then pushed Henry a punch and Henry fell in the western drain. The accused then walked awav going north.”
And in cross-examination:
“… Whilst Henry held the accused with his left hand he was punching the accused with his right hand. The accused pushed Henry into the western drain and then rolled away. Henry fell on his feet in the drain and then went backwards and fell on his back. The drain had water. The drain was about 4 feet wide and about 1–1 1/2 feet deep.”
Also in cross-examination, he said:
“… They were facing each other. Henry to the west and the accused to the east. They were both exchanging blows with each other. Henry held the accused's neck in a half-nelson. He held him around his neck with his left hand. At that stage the accused was in a bending position.”
Randolph Camacho gave this version:
“… I heard the accused said, ‘Man Roy because the man drunk you rob he.’ Henry then said, ‘Man Robert we and you is friends. We go to school together, what wrong with you.’ The accused repeated what he had said previously and Henry again asked him what wrong with him and what you granning me for. By ‘granning’ I understand it to mean to provoke. The accused then dealt Henry a cuff on his face and Henry fell on a heap of stone, which was on the eastern side of the rood. Henry got up and they held on to each other. They exchanged blows with each other. I then saw Henry became still and the accused dealt him another cuff on his face and Henry fell in the western trench in an almost standing position and almost suddenly fell backwards. The accused stood on the western parapet watching on. I then started to approach the accused when I saw a blood-stained knife in his hand with a blade about 8 inches long and the handle about 3–4 inches long. The accused had the knife in his right hand and he transferred it to his left palm.”
And in cross-examination he said:
“… Henry had his hand around the accused's neck in a half-nelson. Henry was lifted off the ground with a cuff and he fell almost in a standing position and he then fell on his back.”
Inspector Joseph told the jury:
“…. I saw the accused and the deceased exchanging blows with their fists. The deceased fell down on the roadways but got up slowly afterwards. At this stage he pushed the accused by the neck in a half-nelson and I saw the accused cuffing away in the region of the deceased's abdomen after giving the deceased several cuffs I saw the deceased stood up erect facing north. The accused then spun the deceased around and pushed him west by his back and as the deceased reached a shallow trench he pushed the deceased into the trench. The deceased fell on his feet in the trench and gradually fell backwards. “I called the accused and he run away.”
Under cross-examination, he gave a demonstration of the way the deceased held the appellant. The trial judge made this note: “I saw the deceased holding the accused with both arms (witness demonstrates full-nelson). The accused was pushing at the deceased's stomach.”
The deceased was taken out of the trench. He had a stab wound on the left side of the chest. According to the medical expert evidence, this wound could have been caused by a sharp-pointed knife or a sharp piece of tin or a broken bottle or glass, which must have contacted the body of the deceased with a great degree of force. The instrument passed through the sixth inter-costal space, travelling inwards and upwards, and penetrated the left ventricle of the heart. This injury caused massive visceral hemorrhage and this hemorrhage caused the death of the deceased when he reached the Georgetown Hospital at 7.45 p.m. the said night.
The appellant was subsequently detained at the Sparendaam Police Station and charged with murder. At his trial he did not testify, and he called no witnesses. In his defence, he made this unsworn statement from the dock:
“On the 27th October, 1974, I went to the Blue Velvet Restaurant, Victoria Road, Plaisance. I went to see a friend of many years, Roy Henry, the deceased. I went to him and we had a little argument — one of his friends the witness Camacho called him away. I then had two beers and left the restaurant. Whilst proceeding south on Victoria Road I was walking with my head down. Henry walked up to me and asked me why I was following him. I told him I was not following him but that I was going home. He then said if I though he was stupid and I turned to him and we had another argument. I told him if he think he has sense that he and his friends buy a watch from my friend and that we were no more friends after tonight. Whilst speaking to him we began to fight. I hit him and he fell to the ground. When he got up he then resisted at me and he held me around my neck in a half-nelson. I then started to cuff him in his belly and he suddenly loosed me and with my head down I pushed him off. When I raised up he was in a trench. I then walked away. That is all.”
He thus denied inflicting the fatal stab wound. And his counsel, after eliciting in cross-examination from the witnesses Scott and P.C. Eastman evidence that one would find broken bottles in our trenches, put forward to the jury the theory that the deceased received the fatal injury when he fell into the trench on a piece of broken bottle. Dr. John Yoo testified that theoretically it was “possible but not very probable” that the wound could have been received in this way. The jury, after summing-up on the actual defence raised, on self-defence and provocation, rejected this theory, and found the appellant guilty as charged.
At the hearing of this appeal from this conviction, several grounds of complaint against the summing up were raised. Two of these can be disposed of with comparative brevity. The first related, to the defence of “accident”. If the appellant's account of the incident is assumed to be true, then the wound would have been received either when the deceased fell on the heap of stones on the ground, admittedly as a result of a blow from the appellant in the course of the fight or from his fall in the trench, from some undiscovered broken bottle or piece of glass among the stones or under water. If it was received from the fall on the ground, then this would not in law support a defence of “accident”, since that fall was from an unlawful act in fighting on the part of the appellant; likewise, if it was received in the trench as a result of the fall into it, if that fall also was caused by any unlawful act of the appellant, But on the evidence led at the trial any reasonable jury acting sensibly and dutifully would be satisfied beyond reasonable doubt that the deceased must have been wounded during the course of his struggle with the appellant, and that, in the particular circumstances, no serious question of “accident” arose. Accordingly, in this state of the evidence, assuming (without ruling to that effect) that the appellant's defence raised a sufficient issue of “accident” to be put to the jury and that a failure to direct them on this, in terms and with adequacy, was actually a defect in the summing-up, such could not be fatal. There was no miscarriage of justice on this account.
The second easily disposed of complaint related to alleged discrepancies and contradictions in the evidence of certain witnesses for the prosecution. It was submitted that those were not pointed out to the jury as such, and that there were no or inadequate directions about their possible effect on the credibility of those witnesses. This contention was meritless. Such inconsistencies or contradictions as were relied on were not vital; and the inadequacy (if any) of the direction given (at p. 41 of the record) that — “If however, you...
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