The State v Sattaur and Mohamed

• Jurisdiction: Guyana
• Judge: Haynes, C.,Bollers, C.J.,Jhappan, J.A.
• Judgment Date: 31 July 1976
• Neutral Citation: GY 1976 CA 35
• Docket Number: Criminal Appeal Nos. 98 and 99 of 1975
• Court: Court of Appeal (Guyana)
• Date: 31 July 1976

Court of Appeal

Haynes, C.; Bollers, C.J.; Jhappan, J.A.

Criminal Appeal Nos. 98 and 99 of 1975

The State

and

Sattaur and Mohamed

Appearances:

M.L.R. Ganpatsingh, Assistant Director of Public Prosecutions (ag.), for the State.

M. Zephyr for No. 1 appellant.

G. M. Farnum, S.C., for No. 2 appellant.

Criminal Law - Appeal against conviction — Murder

Evidence - Confession statement.

1 CHANCELLOR: The two appellants, Abdool Azim Sattaur anal Rafeek Mohamed, were on 29th July, 1975, convicted for the murder of Pitamber Dookram, called Khedo or Daro Baap, on 5th May, 1974, whereupon the court ordered them to be detained during the pleasure of the President, as each then was under the age of eighteen. Both appealed on a number of grounds. At the hearing on 1st July, 1976, this Court unanimously decided to allow the appeal of the appellant Mohamed. But decision was reserved on the appeal of the appellant Sattaur, and on the question as to whether or not a new trial should be ordered for Mohamed or for Sattaur, if his appeal succeeded also. And so this judgment deals with these matters.

2 The deceased, whom I shall refer to hereafter as Khedo, was a member of the Boerasirie Co-operative Society Project. He had a 22-acre farm on which the appellants used to work with two farm-houses on it; he had a son, Ajit Pitamber; and he owned a 16 — bore single-barrelled shotgun. He was last seen alive with his gun at a meeting on 4th May, 1974. But he was found by his son, shot to death and lying on his farm around 2 p.m. on 6th May, 1974. His gun, which was missing, was never found. Ajit Pitamber reported this to the Parika Police Station. As a result, a party of policemen including Assistant Superintendent (then Detective Inspector) Sharma, Inspector Wilson, Corporal Simon and two constables left for the scene. From there, they went to the home of the appellant Sattaur. He was not in, but his brother, Abdool Shaheed, told them: “Is me buddy and a strange boy shoot the man.” Shaheed was arrested. So the police set out to find Sattaur (the ‘buddy’) and the ‘strange man.’ They then went to the home of the appellant Mohamed, who was suspected to be the ‘strange man’ and he told them: “Is Azim” (the appellant Sattaur) “and his brother” (Abdool Shaheed) “kill the man.” He also was arrested, and the police then moved to find Azin (the appellant Sattaur) with a police dog. They reached his home around 6 a.m. on 7th May, 1974.

3 According to the prosecution, Sattaur was seen running out of the house, escaping; so the police dog chased him, apparently bit him on the heel and held him up; he was arrested and taken to his home; thereafter, being cautioned, he said: “Mr. Simon, nah me. Is Shaheed” (his brother) “lash the man with the spear.” His mother, Zaimool Sattaur, was asked to accompany the policy and Sattaur to the police station, “in case he made a statement;” she refused, it was said, to do so; as a result he was taken there alone. The party arrived at the station around 8.30 a.m. on 7th May, 1974. On to then his wound was untreated, except that, on the way to Parika, a man named Sankar had tied it with a piece of cloth. Within five minutes of his arrival there, Sattaur is said to have told Inspector Simon “Mr. Simon, I want to tell you what happened;” Simon cautioned him and by 9.15 a.m. had completed the taking of a statement — tendered as Exhibit ‘F’ — in these words:

“One Sunday in April, this year me bring home Rafeek at me brother ah road at Greenwich Park, me big buddy Salim direct me and me carry Rafeek in ah me mother at Barnwell, me tell Rafeek that Daro Baap get one gun and me to get am way fuh kill Ramsingh, because he ah make me get catch steady, me buddy Shaheed and Rafeek left foh go thief the man gun, me call Betalall then awe go at the man farm, Betalall called out the man from he farm foh light one cigarette, and the rest ah awe hide, Rafeek had the spear he lash the man with the spear, me buddy and Rafeek tek down the gun from the mango tree, me tek way the gun and fire one load, then Rafeek tek the gun and shoot the man, Rafeek is the last man had the gun, the spear that the police find ah awe home ah that the spear Rafeek had when he shoot the man after the man fall down me no see Betalall again.”

4 Later this appellant, Sattaur, was charged jointly with Mohamed and Shaheed for the offence, but Shaheed was acquitted by the jury. At the trial, the case against the appellant was put on this basis: that he (and the co-accused) had plotted to steal Khedo's gun and to use whatever force was thought necessary to do this and to prevent discovery, hence the stealing with violence and then the killing. It rested on the statement; if it was not admitted in evidence, the trial judge would have to direct an acquittal; if it was, a conviction was not unlikely. As was to be expected, objection was taken to its admissibility. This was on two grounds: (a) that it resulted from ‘pressure’ and was not free end voluntary; and (b) that, as the appellant (then 15 going on 16) was a young person or a juvenile, the taking of the statement in the absence of his parents was a breach of the letter and spirit of the judges' Rules. It is trite, as Watkins, J. said recently in the judgment of the Divisional Court in Conway v. Hotton, [1976] 2 All E.R. 213, 216, that:

“…… no statement by an accused person is admissible against him in evidence unless it is shown by the prosecution to have boon a voluntary statement. A statement which has been obtained from an accused person by a police officer only as the result of threats, violence or other oppressive conduct, fear or prejudice, or hope of advantage, cannot be found to have been made voluntarily and will not therefore be admitted in evidence. Furthermore such a statement obtained in breach of the judges' Rules may be rejected as evidence by the courts.”

5 ‘Phipson on Evidence,’ 11th Ed. (1970), p. 350, para. 792, had published the grounds of exclusion more fully in this passage:

“Where a confession is held to be voluntary within the principle enunciated by Lord Sumner, and therefore admissible in law, the judge in the exercise of his discretion may still exclude it if it was obtained in circumstances amounting to a breach of the judges' Rules. Moreover, notwithstanding that the statement was both voluntary and obtained in accordance with the judges' Rules, the judge may exclude it in the exercise of his residual discretion to exclude any evidence if the strict rules of admissibility would operate unfairly against an accused person.”

6 And so, it would be right to say that, in the circumstances of this case, it was the duty of the trial judge to hold the customary “trial within a trial” to determine: firstly, whether or not the prosecution had shown the statement to be free and voluntary; and, secondly, if it was, whether or not it should be excluded on some discretionary ground. (See McDermott v. The King, (1948) 76 C.L.R. 501; R. v. Harz, [1966] 3 All E.R. 433; and William Middleton, (1974) 59 Cr. App. R. 18. He held such a trial; he admitted the statement as voluntary thereafter; and the question has been raised in this appeal that he so decided wrongly. If he did, the conviction cannot stand. His task was to weigh and consider the evidence; to assess its implications and to decide the issue in the light of the basic established principles. And as Lord Salmon observed in D.P.P. v. Pin Lin, (1976) 62 Cr. App. R. 14, 26, this Court would disturb his findings “only if it is completely satisfied that the judge made a wrong assessment of the evidence before; him or failed to apply the correct principle.” For instances of this, one can read Smith v. The Queen, (1956) 97 C.L.R. 100; Sparks v. Reginam, [1964] 1 All E.R. 727, P.C.; and R. v. Wilson and Marshall-Graham, [1967] 1 All E.R. 797 (wrong assessment of evidence); and Chapdelaine v. The King (1935) 1 D.L.R. 805, C.A. (failure to apply a correct principle).

7 It was essential then for the trial judge to bear in mind the case law built up around the onus laid on the prosecution in this regard. These authorities determined: (i) that he (the judge) had to be satisfied beyond reasonable doubt, and not on a balance of probability: R. v. Wilson & Marshall-Graham and D.P.P. v. Ping Lin (both supra), per Lord Hailsham (at p. 20); (ii) it was not necessary to find that the police did any of the things (threats, assaults, premises of release) alleged, in order to exclude the statement, as it was sufficient if he found he was not satisfied they did not: Smith v. The Queen (supra), per Williams, J. (at p. 130); (iii) the accused was not bound to give affirmative evidence of the improper means alleged as the prosecution's proof might be destroyed or a reasonable doubt raised by effective cross-examination only: per Luckhoo, C. in Dhannie Ramsingh v. The State, C.A. No. 48 of 1972, dated 22nd March, 1973, at p. 10); (iv) he (the judge) would not be justified in finding the statement voluntary and so admissible just because he doubted the veracity of the accused: R. v. Rampersaud et al, (1945) L.R.B.G., at p. 69 or “could not regard him as a witness of truth;” R. v. William Henry (unreported), dated 21st October, 1960, Indictment 16150; or positively disbelieved him: Chapdelaine v. The King and Smith v. The Queen (both supra); for, if so, it becomes then a question only of the cogency and credibility or otherwise of the evidence for the prosecution, which he would not ex necessitate be bound then to accept; (v) among the matters to be considered in determining; whether the statement was voluntary or not was the age, the rental development and characteristics of the accused: R. v. Godwin, (1924) 2 D.L.R. 362 and Smith v. The Queen (supra); (vi) the authorities insist that there should be full disclosure of all the material circumstances in which the statement was taken,...