The State v Rossum and Halley
| Jurisdiction | Guyana |
| Judge | Persaud, J.A.,Crane, J. |
| Judgment Date | 04 September 1975 |
| Neutral Citation | GY 1975 CA 22 |
| Docket Number | Criminal Appeals Nos. 47 and 48 of 1975 |
| Court | Court of Appeal (Guyana) |
| Date | 04 September 1975 |
Court of Appeal
Bollers C. (Ag.),; Persaud, J.A.; Crane, J.A.
Criminal Appeals Nos. 47 and 48 of 1975
W.M. Zephyr for the No. 1 appellant.
E.A. Luckhoo for the No. 2 appellant.
G.A.G. Pompey, Deputy Director of Public Prosecutions for the State.
Criminal Law - Appeal against conviction — Murder — Whether judge's directions to jury on identification were adequate
CHANCELLOR (Ag.): About 5 p.m. on the 11th March, 1974, the appellants entered the spirit shop carried on by Mr. & Mrs. Donald Yhap of Affiance, Essequibo, and were served a bottle of rum, a Pepsi-cola and glasses. They sat at a table drinking for about an hour, and were seen by Mrs. Yhap and three other persons who were also in the shop drinking. The shop is in the bottom flat of a two-flat building, whereas the upper flat is the living quarters of Mr. & Mrs. Yhap. There was a safe in one of the bedrooms upstairs where a large quantity of money — about $6,000 — was kept; and there was also another safe in a storeroom downstairs which adjoined the spirit shop in which money was kept. The keys to those safes were kept together on a bunch of keys on the safe in the storeroom. The appellants left the shop about 6 p.m. and about 15 minutes later five other persons who were in the shop left. Two more customers then came into the shop and drank together. While they were there the No. 2 appellant returned to the shop and called for a bottle of rum. Mr. Yhap told the No. 2 appellant that he could get the rum but that he would not be able to drink it on the premises as it was closing time. Meanwhile, the No. 1 appellant was at the back of the eastern main door of the premises peeping into the shop. The No. 2 appellant picked up the money which he had placed on the counter and left the shop. The two appellants then walked out onto the road. The time was about 6:30 p.m.
Subsequently, the other two customers left the shop and Mrs. Yhap commenced to close up the premises. She had closed one-half of the main eastern door, while her husband had gone to the sink near the northern door, when she heard him shout. Immediately on hearing the shout she ran from the eastern main door to the sellers side of the counter and saw the appellants by the sink, holding her husband. The No. 2 appellant was standing behind her husband holding him around the waist with both hands. He pushed Mr. Yhap towards the No. 1 appellants whereupon the No. 1 held his hands and pulled him through the northern door. Mr. Yhap was then seen to be struggling with the appellants. The No. 2 appellant came back into the shop end went to Mrs. Yhap. He took a dagger from his pocket., held it in front of her and threatened her saying, ‘Sh. Sh. not a word, otherwise I will kill you’ The No: 2 appellant said to Mrs. Yhap, “Show me the key, show me the money.” She told him that the key was on a shelf over a drawer. She was ordered to walk in front of him and show him the drawer, which she did, and it was seen to contain money. The No. 2 appellant told her to go back and sit on a bench which was in the shop. She did as she was told and the No. 2 appellant took a dirty piece of cloth from his pocket and stuffed it in her mouth. He tied her mouth with a towel and made her lie flat on the floor with her face downwards. She was then ordered to put her hands behind her back and keep her feet together. She lay on the floor and the No. 2 appellant tied her hands behind her back with a towel and covered her head with a bag. About 15 minutes elapsed during which time all the electric lights in the shop were on and Mrs. Yhap did not see her husband.
While lying an the floor she heard a voice outside and tried to loosen her bands; she succeeded in getting up and threw the bag which had covered her head on the floor. Two minutes later the No. 2 appellant came up to her and again threatened her with the dagger saying., “You want me to kill you tonight?” He then hit her on the left hand with the dagger. She held on to the dagger and fought with the No. 2 appellant and he bit her three times on her left hand and once on her right hand. She was ordered to “stand up there”, and the No. 2 appellant took her to the seller's side of the counter; he told her to open her mouth and he stuffed cloth in it. She did not open her mouth wide enough for the No: 2 appellant, whereupon he took a knife from his pocket pocket and threatened her that if she did not open he, wider, he would widen it for her. He then stuffed a whole towel into her mouth and tied another towel around her nose mouth and ears. She was again ordered to lie face downwards on the floor with her hands behind her and her feet together. When she did so he tied her hands behind her back with a towel. She heard a voice near to her and the No. 2 appellant said, “She is giving me some trouble.” While the No. 2 appellant was tying her hands she felt someone tying her feet. Someone threw a bag over her head.
She then heard a rumbling in the money-drawer in the centre of the shop and also the sound of the door that leads from the seller's side of the counter to the storeroom being opened. She heard a voice in the shop and she lay on the floor for a very long time.
About half an hour later she managed to get up and free her hands she dragged herself to the northern door and when she reached there she saw her husband lying on the seller's side of the shop. He had a black-and-blue mark on his forehead, a wound on his left temple, a wound under his chin on the left side, and he appeared to be dead. At the time when Mr. Yhap went to the sink he had no injuries. Later that night, and the next morning, all the money from the money-drawer and from both safes, as well as Mr. Yhap's 16-bore shotgun which was kept downstairs, were found to be missing.
On 18th March, 1974, Mrs. Yhap attended two separate identification parades. On the first parade she identified the No. 2 appellant as the man who had beaten her and tied her up; and on the second parade she identified the No. 1 appellant as the man who had been in company with the No. 2 appellant The two appellants were also clearly identified by three of the customers who were in the shop as having been seen in the spirit shop earlier that evening.
It was in these circumstances that the appellants were convicted before a judge and jury for the offence of murder of Donald Yhap contrary to section 100 of the Criminal Law (Offences) Act, Cap. 8:01, and sentenced to death. It is from these convictions that they now appeal to this court.
The medical evidence revealed that the deceased, Donald Yhap, had sustained the following external injuries:
-
(1) superficial abrasions around the left eye and on the left forearm;
-
(2) a laceration on the left side of the neck, three-quarters of an inch long. On probing this laceration it was found to be a quarter of an inch deep and no major blood vessels were involved;
-
(3) multiple soft tissue swellings on the face and arms.
It was the opinion of the doctor that the cause of death was cardiogenic shock.
The case for the State was, as the learned judge told the jury, that the accused persons had gone to Donald Yhap's premises to rob him; that they had, indeed, robbed him; that violence had been used against him in furtherance of that robbery; that the State was asking them to find that violence had been used against Donald Yhap to get him out of the way in order that the accused could get at his money in a safe downstairs, and the one upstairs, and it was for them to say whether they accepted this or not. If they could not accept it, or were in doubt about it, then they must acquit the accused persons.
Earlier in his summing-up the learned judge, after giving directions on the offence of murder simpliciter have not been challenged, then directed the jury on what is known as the felony-murder rule on the doctrine of constructive malice, when he said:
“I should perhaps, make it clear at once that although you cannot convict a person of murder unless he had the intention to kill or do grievous bodily harm, yet if he intended merely to commit a crime of violence and by the use of force in furtherance of that crime death results to another, the law says that you may imply he had the intention to kill or do grievous bodily harm and in such a case you may convict him of murder. This is what in law is called constructive malice. But I shall return to this later for it is very important in this case.”
It was clear that the case for the State was that the accused persons had used violence on the person of Donald Yhap, and had killed him in furtherance of the commission of a felony of violence.
The case for the No, 1 appellant which was contained in a statement made from the dock, was that he and another person had gone to Donald Yhap's premises to steal, but they had not gone there to kill anybody. When Donald Yhap saw them by the door, he collapsed before they even touched him; he did not struggle with them; but they were struggling with him to get him outside to get some air. Had he known Mr. Yhap was dying he would have tried to got some help.
The case for the No. 2 appellant was an alibi that he was not on the Essequibo Coast on the day of the alleged incident; that he was never at Donald Yhap's premises; and that he knew nothing of the alleged incident on which he had been charged.
Both counsel for the appellants in the many grounds of appeal raised two main points which must be considered:
Firstly, that the learned judge did not leave the issue of manslaughter with the jury that arose within the felony-murder rule, i.e. that the learned judge ought to have directed the jury that if the death of the deceased, Donald Yhap, was not brought about as a result of violence used upon him by the appellants, but died from cardiogenic...
To continue reading
Request your trial