The State v Roberts and Roberts

CourtHigh Court (Guyana)
JudgePersaud, J.A.,Haynes, J.A
Judgment Date08 September 1975
Neutral CitationGY 1975 HC 43
Date08 September 1975
Docket NumberCriminal Appeal Nos. 43 and 44 of 1975

High Court

Bollers, C. (Ag.).; Persaud, J.A.; Haynes, J.A.

Criminal Appeal Nos. 43 and 44 of 1975

The State
Roberts and Roberts

C. Massiah for the appellants.

G.A.G. Pompey, Deputy Director of Public Prosecutions, for the State.

Practice and procedure - Directions to jury — How judge should deal with evidence.

Persaud, J.A.

I agree that these appeals should be allowed and the convictions and sentences quashed. But there are one or two observations that I would wish to make.


The first concerns the manner in which a judge should deal with the evidence and the law relevant to the matter then in hand. It serves no useful purpose, and certainly does not assist a jury, for a judge to compartmentalise the facts separately from the law so that the jury are told what the law is in one distinct compartment, and what the evidence is in another, and no attempt made to relate one to the other. Relating the law to the evidence is not to be confined to the prosecution's case only: the summing-up must at the same time take the defence into account, and the judge must discuss the defence with the jury explaining to them what possible verdicts are available depending on what facts they find. In dealing with the defence of self-defence in Baldeo Dihal v. R. Rennie, J., speaking for the Federal Supreme Court, said (1960) 2 W.I.R., at p. 282):

“The law of self-defence was meticulously explained as a lecturer might well explain it to a class of students, but nowhere in the directions are the jury told what facts they should take into account when considering this aspect of the case.

Nowhere in the directions were they told what facts they should take into account in determining whether or not to retreat was reasonable.

…no assistance was given to the jury by relating the evidence to the law.”


In the course of his directions, there is nothing wrong — indeed, there is every advantage in so doing-in the judge attracting the jury's attention to the evidence both for the prosecution and the defence as he discusses the law, and there and then directing them as succinctly as is possible in the circumstances, as to the verdicts at which they can properly arrive in accordance with the directions in law.


The other matter is this: While I accept that there may be circumstances, where a jury can reject medical evidence in a case, and form their own opinion, in my view, they can only only properly do so if there is other credible evidence, even though non-expert evidence, upon which they can properly act; and there is good reason for preferring that evidence in place of the medical evidence. Where there is no such evidence pointing away from the medical evidence, for a jury to reject the medical evidence and to come to another conclusion is to conjecture. I refer to the dictum of Denning, L.J. in Shoukatallie v. R., [1961] 3 All E.R., at p. 993, to the effect that the jury might conceivably have taken the view, despite the medical evidence, that Peeka (the deceased) was actually shot dead, so that then the second accused (Mahomed Ali) assisted in disposing of the body, Peeka was already dead, in which event the second accused would have been guilty only of being an accessory after the fact. If those were the facts, then of course that would have been the true legal position. But with the greatest of respect to the learned Lord Justice, those were not the facts; rather, there was no evidence other than the medical evidence as to the cause of death, and this showed that the deceased had died from drowning. The case for the prosecution was that the deceased had been shot by the appellant while the latter was in a boat being steered by Mahomed Ali, and that both the appellant and Mahomed Ali had been acting in concert. The post-mortem examination disclosed that the deceased had been immersed in the Mahaica Creek while still alive, and that the cause of death was drowning, facilitated by the act of the first accused, to wit, shooting and wounding the deceased. But I agree, if I may say so, with the following dictum of Lord Denning ( ibid, at p. 998):

“…. up to the moment that Poeka fell shot, Mahomed Ali may have been merely a spectator. Then Peeka fell so badly wounded, that he was to all appearances dead so that Mahomed Ali thought he was dead. Then Mahomed Ali, in order to save his brother, the appellant, from conviction, helped him to dispose of the body by throwing it into the water. In that event, Mahomed Ali would not have been guilty of murder for he had no intent to kill. He could only have been guilty of manslaughter.”


In any event, Mahomed Ali had been discharged by the Federal Supreme Court and his case was not engaging the attention of the Privy Council to necessitate the observations by Denning, L.J.


I agree with the order proposed by my learned brother Haynes.


Dated the 8th day of September, 1975.

Haynes, J.A

Prior to the 11th day of October, 1973 the appellant Henry Roberts and Rupert Angel disputed over title to and possession of 4 1/2 acres of ricelands in the second depth at No. 51 Village, Corentyne, Berbice. Each claimed to have been in exclusive possession of this land at all material times, and on 11th October, 1973, each was claiming the right to cut the rice growing on it then. On that day, there was a clash on the land between the appellants Henry and Michael Roberts (father and son), on one side, and Rupert and Doreen Angel (husband and wife) on the other, in the course of which all four received injuries of varying degrees of severity.


Dr. Patrick Chetram, Government Medical Officer, examined them all at the Skeldon Hospital. He found Rupert Angel to be suffering from four injuries, namely, (i) a stab wound on the lower left back, 1 1/2 inches long by 3/4 inch deep; (ii) an oblique incised wound from the middle of the nose about 1 1/2 inches downwards to the right angle of the mouth severing the skin and underlying muscles; (iii) an incised wound at the back of the neck about 5 inches long by 1/8 inch deep; and (iv) his left thumb was practically severed. All those injuries were stitched, and although the doctor did not consider them dangerous to life he admitted Angel as a patient. In his opinion, the stab wound could have been caused by a sharp-cutting instrument, such as a knife, and the other injuries by a sharp-cutting Instrument, such as a cutlass, in both cases used with a moderate degree of force. Doreen Angel was suffering from: (i) an oblique incised wound about 4 inches by 1/2 inch at the back of the left elbow; (ii) a small incised wound at lower end of right forearm; and (iii) suspected fracture of the left forearm. In the doctor's opinion injuries (i) and (ii) could have been caused by a sharp instrument such as a cutlass, and injury number (iii) by a blunt instrument, such as a stick, or a hard fall on a hard object. Dr. Chetram considered Rupert Angel would have had a permanent sear on his face which would amount to a disfigurement. Doreen Angel, however, in his opinion, had relatively minor injuries and he did not consider any of them could in any way cause a disfigurement.


He next saw the appellant Henry Roberts and observed that Roberts was suffering from: (i) an incised wound on the left left side of the head about 1 1/4 inches long; and (ii) a fracture of the right arm. In the doctor's opinion, the first injury to the head could have been caused by a sharp-cutting instrument such as a cutlass used with some degree of force. I did not think that such a wound could have been caused by a blunt instrument such as a stick. Injury number (ii) could have been caused by a blunt instrument such as a stick. It was possible that the second injury could have been caused by falling on the ground but that would depend upon the force of the fall and the type of object fallen upon. Lastly, he examined Michael Roberts and observed that the latter was suffering from two injuries, namely, an incised wound at the back of the head 3 inches long, skin deep, and a small lacerated wound on the left cheek. The injury to the head of Michael Roberts could have been caused by a sharp-cutting instrument such as a cutlass, and was not caused by a blunt instrument such as a stick. The second injury, the small cut to the cheek, could have been caused by a blunt instrument such as a stick or by falling to the ground. None of these injuries were considered dangerous to life, but the doctor referred both Doreen Angel and Henry Roberts to the New Amsterdam Hospital for x-rays.


Police investigations followed as a result, eventually, the appellants were indicted jointly at the Berbice Assizes for wounding Rupert Angel and Doreen Angel with felonious intent. Both ware found ‘not guilty’ of the offence charged but ‘guilty of the lesser statutory offence of unlawful and malicious wounding. Each was sentenced to be imprisoned for three years for wounding Rupert Angel and for one year for wounding Doreen Angel, concurrently. They appealed to this court.


At the trial, as was to be expected, the appellants and the Angels took up diametrically opposite positions. For the prosecution, Doreen Angel supported by her children — Cecelia (16), Evadney (13) and Rupert (11) — told a stony of a joint unprovoked felonious attack by the appellants on Rupert and Doreen Angel, on the land itself, while the Angels were lawfully there to cut rice in the course of which Henry Roberts wounded Rupert Angel with a cutlass on the face and chest and Michael Roberts stabbed him with a knife on the left side of his back; Doreen Angel struck Henry Roberts twice on his head with a piece of black sage stick about 3 feet long and 3 inches in circumference, to save her husband from further injuries from him; Michael Roberts “chopped” Doreen Angel on the left elbow and right forearm with a cutlass, hit her with a stick on her left hand, and...

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