The State v Mootoosammy & Budhoo
| Jurisdiction | Guyana |
| Judge | Persaud, J.A.,Crane, J.A.,Haynes, J.A. |
| Judgment Date | 30 December 1974 |
| Neutral Citation | GY 1974 CA 27 |
| Docket Number | Criminal Appeals Nos. 32 & 33 of 1974 |
| Court | Court of Appeal (Guyana) |
| Date | 30 December 1974 |
Court of Appeal
Persaud, J.A.; Crane, J.A.; Haynes, J.A.
Criminal Appeals Nos. 32 & 33 of 1974
Sir Lionel Luckhoo, S.C., Edward Luckhoo with him, for the appellant
Godfrey Persaud, Senior State Counsel, for the state
Criminal Law - Wounding with intent — Defence — Self defence
Criminal Law - Appeal against conviction — Wounding with intent
Criminal Law — Defence — Self Defence
The appellants were convicted of wounding with intent one Persaud Singh, also called Golo (and referred to in this judgment as Golo). Six persons in all had been indicted, including the father of George Mootoosammy, one Sagadeo, but four of them were acquitted by the jury. The appellants were the first and third accused on the indictment.
The case for the prosecution as to the actual wounding was given through the injured man and two other witnesses. Golo's evidence was that the six accused armed themselves, some with sticks, and one with a cutlass, attacked him first on a dam where he was beaten with sticks, then on the public road where he was again beaten with sticks; that at the suggestion of Sagadeo he was lifted bodily and taken to the steps of the village office nearby where Sagadeo said to the others, “Chop this man hand out,” whereupon the appellant Mootoosammy told the accused who had been carrying the cutlass (No. 5 on the indictment) to bring it; that that accused gave the cutlass to Mootoosammy, and while still another accused (No. 4 on the indictment) held his left hand against the steps, Mootoosammy cut it off with five or six chops; that Henry Budhoo then took the cutlass, and while Mootoosammy held his right hand against the steps cut that hand off too with about four chops, despite the supplications of Golo to spare that limb. Sagadeo then said, “Police,” and they all ran away, leaving Golo without his hands and bleeding from his wounds lying on the ground where the police found him, and took him for medical attention to the New Amsterdam Hospital. In his cross-examination Golo said that if it was recorded that he had told the magistrate that it was No. 4 accused who had held his left hand who also had held his right hand, that was the truth, but that he really could not remember who had held his right hand while it was being chopped off. He finally said that if he had said it was the same person who had held both hands, then that would be the truth. He denied telling the doctor that he did not know who had, cut off his hands, and asserted that if the magistrate had recorded ham as saying so, the magistrate had made a mistake. That part of the witness's depositions was not put in evidence and so does not form part of the appeal record so that we are not in a position to say what answers he gave, before the magistrate; but at the trial the doctor who admitted him into hospital and treated him testified that he was inquisitive to know if Golo knew who had inflicted the wounds on him and asked him this, whereupon Golo told him that he did not know. The doctor also expressed the view that each hand was severed by one sharp blow.
The other two eyewitnesses were Ramlall and Seepersaud. Ramlall testified that he was with Seepersaud when Golo was being beaten; he saw the beating; he heard Sagadeo telling the others, “What you all got to do all you do quick”; saw (solo being carried and deposited on the steps of the village office; one of the six accused had a cutlass; Mootoosammy took the cutlass from him and aimed a blow at Golo's hand but he did not see the cutlass come into contact with the hand; that, he saw Budhoo take the cutlass from Mootoosammy and he in turn aimed a blow at Golo's other hand, but did not see the actual contact between cutlass and hand; that he could not tell whether anyone held Golo's hands while they were being chopped off. Seepersaud also placed Golo on the village office steps surrounded by all the accused, and pinned the responsibility for the first blow on Mootoosammy and for the second on Budhoo, but he too did not see the cutlass come into contact with Golo's hands. He also did not see Sagadeo armed either with cutlass or stick. Golo did not give the time when his hands' were severed, but it had to be according to his evidence, some time after 6:30 pm, after he had escorted his cousin home, a distance of 75 rods from the public road, had retraced his steps to the public road, had walked for same distance along this road, and had turned on to a middle walk dam for about two to three rods when he received the first attack. According to Ramlall it was about 7 p.m.; according to Seepersaud the time was about 7.30 pm.; and the doctor saw Golo with his injuries at the hospital at about 9.25 p.m. If the evidence of Harrihar, another witness for the State, supported as it was by the evidence of Sergeant 5436 Browne, were to be accepted the incident occurred around 8 pm. There can be no doubt that the incident which Harrihar described was the one during which Golo lost his hands. Harrihar it was who went to the police station and made a report, who took the police to the scene and then conveyed the injured man to hospital in his car. Harrihar did not recognise any of the men he saw lifting the man, but he knew Sagadeo, and he said he did not see Sagadeo at the scene. In answer to the case for the prosecution, all the accused led a defence which amounted to an alibi, the accused Sagadeo having called witnesses in support of his alibi. The appellants themselves spoke of an incident occurring on the steps of the village office much earlier that evening during which they said they were sitting on the steps when they were attacked by Golo and his friends. Mootoosammy said that there was a cutlass which belonged to one of Golo's fiends lying on the steps; that he picked it up and ‘fired a lash’ but it got no one, and he left the scene. He denied omitting off Golo's hands and seeing Golo again for that night. Budhoo said be had a cutlass during the attack; he also ‘fired a lash’ but caught no one, and he also left the scene; he did not see Golo again for the night, and he did not cut off Golo's hands. In a written statement to the police which apparently had been prepared beforehand, Mootoosammy described the incident in more or less similar language, and added ‘I fired a lash to defend myself with a cutlass which one of his friends had,” and Budhoo said also in a prepared statement “I took up a cutlass which was on the ground and fired a lash to save myself or he would have killed me with his cutlass.” Both in their statements to the police and in their defence they fixed the time of that incident in which they admitted some involvement but in which Golo was not injured at about 6 p.m. The learned trial judge also treated both the written statement and the defence led as amounting to an alibi, and so directed the Jury. No complaint is made against those directions, but the submission is that they could also amount to a defence of self-defence, in which case the appropriate directions should have been given. I will now attempt to deal with the various submissions made before us:
Inconsistent verdict.
It has been submitted that the verdict was inconsistent in that having regard to the nature of the evidence with respect to the part played by all those persons who had been indicted, if the others, particularly Nos. 4 and 5 were acquitted, then to be consistent, the Jury ought to have acquitted the two appellants also. It will be recalled that the case against all the accused was that they were all engaged in carrying out a common designs i.e., to cut off Golo's hands or at least to do him some grievous bodily harms and that while the appellants did the actual severing of the hands, the others were present aiding and abetting. I do not doubt that if the evidence of Golo were to be believed and with proper directions, Nos. 4 and 5 ought to have been convicted. The judge told the Jury that, “You can only convict these six accused if you in fact accept and believe the evidence of Golo, Ramodit (meaning Ramlall) and Seepersaud, the three alleged eye-witnesses in this matter.” He repeated this direction later on in his summing-up.
As far as No. 4 was concerned, it was only (Golo who spoke of that accused holding his left hand while he was being cut by Mootoosammy, and as I have already pointed out, eventually he was not sure who held his hands. The other two witnesses did not see who held the hands. The jury may particularly having regard to what the doctor said about his conversation with Golo, have preferred the view that not only did Golo not know who had cut off his hands, but also did not know who had held his hands. In which case, in the absence of any clear evidence as to what exact part No. 4 played in this drama, they gave him the benefit of the doubt. So with No. 5. The failure of the Judge to explain more carefully that No. 5 could have been a principal in the second degree went to the accused's favour. The fact that he benefited from that failure does not, in my opinion, make the conviction of the two appellants bad if the summing-up was proper so far as they were concerned. In my opinion the verdict was not an inconsistent one; it was one which the jury could well have arrived at depending on what view they took of the evidence. This case is not the same, in my view, as Surujpaul v. Reg., (1958) 42 Cr. App. R. 266, where the appellant and four others were charged with the murder of one Claude Allen. There was some uncertainty as to which, if any, of the accused was present and took part in the murder, and which, if any, might have been accessories before the fact. So the jury were asked their verdict on both scores, and they acquitted all the accused, including the appellant, of murder, acquitted all the other accused of being accessories before the fact, but...
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